This article conceptualises the EU approach to rule of law promotion outside of accession, taking Ukraine as a case study. Empirical evidence, collected through document analysis, expert interviews and participant observation, reveals that the rule of law as a legal and political category in EU external relations has little to do with the essentialist scholarly definitions of the concept. Instead, it constitutes an abstract ideal which frames bilateral cooperation at the political level and a banner under which the parties realise a variety of activities at the practical level. This EU approach is deliberate and meant to allow for defining the rule of law in harmony with the parties' integration ambitions, priorities and domestic institutional contexts. The article concludes with a discussion of the findings' implications for future policy and research.

Despite increasing attention by donors to Security Sector Reform (SSR) and Rule of Law development (ROL), results have been mixed. This article explores conditions within recipient states that shape the outcome of these programs. Drawing from literature on state-building, I argue that the development of security and justice institutions reflects relations among political elites and citizens. Concentration of power by ruling elites as a result of a narrow political base or discretionary control over revenue undermines incentives for leaders to accept constraints on executive power. Regimes rooted in broad or fragmented coalitions without easy access to revenue are more likely to accept legal and institutional constraints. The outcome of rule of law development and security sector reform programs is largely determined by donors' impact on these conditions. I illustrate these dynamics in three post-conflict countries, Bosnia and Herzegovina, Sierra Leone and Timor-Leste, where donor-funded programs have yielded varying results.

According to the famous argument of Max Weber, there is a strong and direct connection between the rule of law and economic success: the establishment of the rule of law facilitates the functioning of an efficient economy. Indeed, as Weber argued, the emergence and establishment of a rational legal order and formation of law-based political authority were important factors which explain rapid economic growth. These theses of Max Weber reflect long lasting and deeply embedded European legal cultures and legal mentalities. Recent developments in Eastern and Central Europe, especially privatization of state-owned property, challenge a simplistic understanding of the Weberian argument. The sheer amount of property to be privatized, and the strong interests involved make the rule of law toothless, especially if the state is weak. Moreover, the very principle of the rule of law becomes questionable if the law represents a product of dominating interests, in the context of political capitalism. Thus, instead of the law-controlled privatization of national property, one observes growing corruption, nepotism and clientelism as important mechanisms of law making. Additionally, the weakness of government, above all the weakness of the law-applying and law enforcing agencies, and the traditional, formalistic understanding of the rule of law principle, additionally contribute to pathologies of economic transformation in Eastern and Central Europe, after the fall of the Berlin Wall.

Lon Fuller offered an analysis of the rule of law in the form of eight ‘canons’ of lawmaking. He argued (1) that these canons constitute a ‘procedural natural law’, as distinct from traditional ‘substantive’ natural law; but also (2) that lawmaking conforming to the canons will enhance human dignity – a ‘substantive’ result. This paper argues the following points: first, that Fuller mischaracterized his eight canons, which are substantive rather than procedural; second, that there is an important sense in which they enhance human dignity; third, that they fail to enhance human dignity to the fullest extent because they understand it in an overly libertarian fashion; and fourth, that Fuller's overall approach to jurisprudence, in which the standpoint of practicing lawyers (not judges, legislators, or citizens) predominates, offers important insights into achieving congruence between the law ‘in books’ and law's enforcement. However, to succeed such an account must emphasize the lawyer's counseling role and access to legal services, which Fuller neglects.

Throughout the 1990s Eastern Europe was arguably the region most intensely studied and discussed by the community of scholars interested in the spread of the Rule of Law around the world. There was little doubt at the time that the political and institutional experiments whose ultimate goal was the establishment of democratic constitutional orders in the former Soviet satellites constitute a distinct object of study. This commonsensical view was supported by two kinds of arguments that accentuated the exceptional character of post-communist transformations.

There was, first, the question whether the attempt to transplant Western models to non-Western socio-cultural milieus is going to work at all. That new constitutions and laws must be adopted no one seriously doubted; but that grand acts of ‘founding’ would be sufficient no one earnestly believed. Second, analysts probing the complexities of East European politics pointed out that fledgling democratic regimes there face a ‘rule-of-law dilemma,’ namely a situation where ‘what is deemed just is contingent and informed by prior injustice’ and ‘the value of legal change is in tension with the value of adherence to the principle of settled legal precedent.’ Since the ‘special conditions’ that societies emerging from the long night of authoritarianism render conventional conception of the Rule of Law ‘inapplicable or only partially applicable,’ ‘an exceptionalist paradigm’ was necessary, one that is more sensitive to contextual peculiarities. Should the agents of the previous regime be punished? And if so, in accordance with what criminal laws and pursuant to what legal procedures? Should property confiscated by previous regimes be returned to former owners and their descendants? Would it be justified to apply new laws retroactively in order to remedy past injustices? It was far from clear whether such intractable questions lend themselves to just and normatively desirable solutions compatible with an overarching commitment to the Rule of Law.

In this paper I will defend the view that the conversation about what is sui generis about post-communist polities should continue. But I will also argue that in order to understand the specificity of post-communist constitutional orders, we should shift our attention from the related issues of the fate of constitutional transplants and the dilemmas of exceptionalist jurisprudence towards the more or less permanent institutional characteristics of these orders. The change of focus does not mean that the problematique of ‘the transition’ should be abandoned; but it invites us to take a fresh look at what transpired during the 1990s and recalibrate our understanding of what the truly important, enduring legacies of that decade are. Such an endeavor must begin with a careful account of the actual results of the region-wide attempt to introduce the Rule of Law, and in what follows I will focus on the effort to establish independent Constitutional and regular courts. As I will show, postcommunist experiences should be interpreted through the prism of two broad analytical themes: the balance of power between pro-law and anti-law constituencies in society, and the statist dimension of the Rule of Law, or the manner in which this set of principles and practices is embedded in, and affected by, the organizational infrastructure of governance. Explorations of the specificity of post-transitional Rule of Law will thus yield insights into this key yet understudied issue, the nature of the social and institutional factors that facilitate or obstruct the growth of this form of modern democratic governance.

In this paper we draw on our work at the World Bank to provide practical guidance on how the Bank and other donors might operationalize the WDR 2011 so as to promote the emergence of legitimate and effective institutions to manage justice and security in fragile and conflict affected states (FCS). Our approach reflects three propositions about how justice and security institutions develop and how donors can engage. First, we understand that justice and security are not merely the remit of particular forms of institution, but rather represent core functions of all public authorities. Tis requires a broader view of the arenas and entry points through which development policy and programming may impact on justice and security. Second, engagements to support legitimate and effective justice and security institutions requires looking beyond the laws, procedures, skills and technologies that are the usual focus of development programs, to the processes of elite bargaining, collective struggle and normative change that shape institutions over time. Third, the impacts of development interventions on these processes extend far beyond the typically narrow remit of technical “capacity-building”. Understanding these implications — intended or not — requires a closer review of social and political change in particular contexts.

The breakdown of the Soviet Union, the emergence of new independent States, their constitutional promises and factually rough transition to different economic, social and political relations, to market economies, the rule of law and democracy, provoke important practical questions and theoretical debate. They concern the interrelation between law and social change, the State and the market, private vice and public benefit. Different schools of thought intervene and confront each other: adepts of auto-regulatory mechanisms, trust in market forces and shock therapies versus defenders of institution building, of legal and judicial reforms setting a strong frame and giving shape to the dynamics of market forces; systematic codification and guaranteed independence of the judiciary versus paced evolution of law embedded in specific legal cultures. The paper tries to give answers by advocating formal institutions and codified law. They are borne by the practical experience of legal advice which in turn is exposed to methodological problems: Is law ‘transplantable’? Is it, in other words, unmoveable, solidly entrenched in ethnic and national mentalities and cultures or is it of a universal character; and if of the latter, is universalism defined irrespective of history and social structure or does the force of law – in action and in the books – depend on context? Again answers are proposed in building on controversial theoretical approaches. They plead the possibility of an historical and contextual universalism, without alleging evolutionary supremacy.

Legal problems and justice needs are similar in different jurisdictions and different locations. Processes for resolving them, as well as rules determining outcomes, however, vary widely. Measuring the price (costs) and quality of such ‘paths to justice’ from the perspective of the user is likely to enhance users' choice, enable comparison and learning, to increase transparency, and to create incentives for improving access to justice. This paper discusses the contours of a methodology for this purpose and of some concrete tools for measuring costs, procedural quality, and outcome quality. Conceptualization of a path to justice, criteria and items included in the measurement framework, as well as different data collection methods, are presented. Experiences from two pilot studies give insight into the challenges that lie ahead, and in the potential uses of the (developing) measurement methodology.

Southern Sudan is in the midst of a massive transformation from a society ravaged by fifty years of war to a democracy governed by the rule of law and a modern judiciary. Violence, especially against women, remains rampant and police and the justice system remain largely unable to meet the needs of communities. In this context traditional or customary justice systems composed of chiefs and clan headsmen continue to resolve disputes and apply traditional practices of restorative justice. The South is on a quest for modernity in its institutions but is it at risk of destroying these already functioning traditional systems of dispute resolution in its rush to develop? There is a need for more analysis of the harms and benefits traditional courts provide. And while legal pluralism does not have a perfect track record in Africa there might be important lessons that can be applied to the Southern Sudan context. This article combines reflections on previous African experiences with a recent study of customary courts in Southern Sudan. The research reveals a contrast between structural benefits of customary courts and chronic miscarriages of justice for violence against women. The article builds on this analysis to suggest reforms through a balanced bottom-up and top-down approach, including a potential framework for a pluralist justice system.

Most of the research on the rule of law in the European Union focuses on its external dimension. However, to be a credible rule of law promoter abroad, rule of law standards at home need to match what the EU preaches abroad. This article assesses developments regarding the strengthening of the rule of law in the Area of Freedom, Security and Justice heralded in 2009 as one of the objectives of the Stockholm Programme. Two mechanisms had been envisaged. First, a new peer-review mechanism, based on a Dutch initiative, would be introduced. Second, ambitions to improve the monitoring culture of Justice and Home Affairs instruments found some support in the strengthening of the relationship between the Council of Europe and the European Union. Not only the negotiations on the EU's accession to the European Convention on Human Rights should improve the rule of law and mutual trust, but the EU could also better make use of the existing monitoring instruments of the Council of Europe. Inter-institutional tensions over the implementation of JHA policies, as well as turbulences surrounding the EU's accession to the ECHR have nonetheless come to light and are explored in this article.

This paper aims to explore the core characteristics of the so-called black and white tracks of the dual commercial justice system in Ukraine through a five-year ethnographic case study of the court experiences of selected Ukrainian companies. The empirical findings of this study confirm that the majority of litigants in routine cases have rather positive experiences in the courts, while a minority of the cases are diverted to the black track resulting in justice not being delivered. It is argued that the black track within the Ukrainian judiciary is consciously designed and reinforced by the ruling elite as part of the state governance structure and is subjected to more diverse and contradictory pressures than in Russia. At the same time, this study reveals the astonishing efficiency of the commercial courts in terms of time and cost savings. This zebra-like image suggests that the white ‘stripes’ of the Ukrainian courts are brighter, and the black ‘stripes’ are even darker than commonly perceived.

Despite a voluminous ‘lessons learned’ literature, there is much that we do not understand about rule of law assistance. Conceptually it lacks clarity and in practice seems to proceed in the absence of rigorous empirical research and ‘thick’ descriptions of the institutional histories, reform politics and the legal and social cultures of the countries it targets. Many academic colleagues, development practitioners, lawyers and policy-makersand students are troubled by the knowledge vacuum in rule of law assistance. Here I consider some of the genuine and persistent questions about its scope and effect. I suggest that we need to find better answers, for our own intellectual and practical purposes, but also for the citizens of developing and transitional economies, who are the intended ‘beneficiaries’ of much rule of law assistance.

Japan offers its aid recipients an approach to legal reform that in some ways mirrors, and in others diverges, from the Western approaches to rule of law aid. As a consequence, Japan challenges Western legal assistance generally, and rule of law aid in particular. More particularly, after close scrutiny of the history of Japanese ODA and its mode of legal sector support developed over the last twenty years, we argue that Japanese legal assistance exhibits a range of traits including: incrementalism; comparativism; different aid personnel; focus on self-help; budget restraint; and humility. This approach has attracted robust critics. Nevertheless, this paper asks the question whether the East Asian model of rule of law assistance challenges the West's apparent addiction to rule of law aid.

The article poses the question and offers some indications of how best to support the enhancement of women's rights in the context of the plural legal environment in Somaliland today. Following a review of some externally-supported efforts to engage traditional justice concepts and actors and to enhance the ‘modern’ justice sector, the question is posed whether the meager results are the product of embedded ‘development’ assumptions. Where relevant parts of society are not willing to embrace women's rights, neither traditional nor formal justice institutions will deliver. If international development assistance and governments are to take the plunge into the world of the often complex local power structures and political economy they would detect that social norms are only marginally affected by formal legal institutions. Somaliland shows local societies and concepts overriding and conditioning the application of formal laws with no firm evidence that the prevailing state and judicial centric approach to Rule of Law development programming can actually translate, in the short and medium term at least, into more justice for women and positive socio-cultural changes as a whole. Attention is then called to the importance of women's own organizations and agency in charting a more effective way forward and to the need for more encompassing approaches to social change rather than narrow justice sector interventions.

This article reviews the utility of global indices and indicators of judicial performance and quality from the standpoint of those designing and implementing country reforms. It argues that despite the recurrent interest of donors in sponsoring these global systems, they are of limited use for reformers because 1) they operate at too high a level; 2) they consequently fail to capture the types of changes promoted by reform; and 3) they are too easily ‘gamed.’ A more significant drawback however is their likely discouragement of efforts to develop in-country management information systems, or databases on key events in case processing that could be used to generate more reform-specific measures. Donors must bear part of the responsibility here as their financing of court and sector-wide automation has overlooked this need as well.

Empirical indicators are widely used in both developing and developed countries to assess the performance of justice systems. Most existing indicator initiatives base their findings on expert surveys, document reviews, administrative data, or public surveys. While each of these data sources is suited to the measurement of particular facets of justice system performance, reliance on just one or two sources of information can introduce systematic bias, distorting the results of assessments. This paper discusses the strengths and weaknesses of each of the commonly used types of indicator data and describes an approach that uses clusters of indicators drawn from multiple sources. This method can reflect the complex and multi-faceted nature of justice systems while including checks on the biases inherent in individual data sources. The paper concludes with a discussion of the strengths and drawbacks of this method compared to approaches more commonly adopted by existing indicator initiatives.

In recent years, The Asia Foundation (The Foundation) has conducted a series of Economic Governance Indexes (EGIs) in countries throughout South and Southeast Asia including Bangladesh, Sri Lanka, Vietnam, Cambodia, and Indonesia. EGIs are country-specific diagnostic tools used to assess and rank sub-national units (provinces, states, districts, etc.) on various aspects of their regulatory environments.

This article reviews the basic theoretical and programmatic rationale for the EGI. The overall rationale for this tool stems from the idea that economic governance impacts private sector development – independent of structural endowments such as location, infrastructure, and human capital. Therefore, good economic governance practices explain why some sub-national units out-perform others in spite of having similar initial endowments. EGIs have become an important tool to provide relevant economic governance information to policy makers, business leaders and citizens. Examining the methodological principles underlying the index approach, this article also describes how the three primary EGI methodological elements anticipate potential pitfalls and how they have been addressed within the methodology.

This article demonstrates that in many peace-building environments, public administration reform and justice sector reform are promoted as separate projects and underpinned by different paradigms, namely making the administration more effective and efficient while introducing and strengthening rule of law and human rights principles in the justice sector. The reasons for this division include lack of knowledge among international and national policy-makers concerning the relevance of the rule of law for public administration reform, vague and conflicting peace-building mandates and objectives, and differences in topical orientation and ‘culture’ among the international actors concerned. The resulting rule of law deficit in public administration reform has adverse effects on both states and individuals, not least for the protection of fundamental human rights. This deficit is also symptomatic of an even deeper dilemma: the distinction between ends and means in post-conflict efforts.

In order to more closely integrate rule of law dimensions in public administration reform, the article suggests an inventory of possible approaches, and relates these to current and future challenges and needs. The inventory comprises developing concepts of rule of law in public administration, promoting transformation of international rule of law principles to national law, facilitating institutional reforms to ensure the presence of institutions willing and able to adhere to the rule of law; the development of manuals, handbooks and other ‘aids’ for law-makers and administrators; developing tools for monitoring the ‘qualitative’ dimensions of public administration; transparency enhancement to enable individuals to enforce their rights; and improving inter-agency/sector co-operation in order to promote coordination and integrated approaches.

Over the last four decades, donor-driven justice reform efforts have largely followed two parallel paradigms: one primarily concerned with promoting development and economic growth, the other centered on state-building and the consolidation of peace in countries emerging from violent conflict. Operationally, however, these models face the same conundrum: they draw on a broad consensus that justice institutions are intrinsically and instrumentally important for development, and yet have a track record demonstrating that much remains to be learned. These paradigms have increasingly converged in recent years, as exemplified in the World Development Report 2011 (on conflict and security), providing a basis for rethinking approaches to justice reform in fragile and conflict-affected states. These approaches are based on an alternative theory of change, a long-term commitment to investing in research to understand the idiosyncrasies of local contexts, and a more nuanced approach to building locally legitimate justice institutions capable of mitigating the societal stresses that feed cycles of conflict.

Since the 1990s the promotion of rule of law has been one of the main drivers in international legal development. Multilateral and bilateral donors have adopted it as a stand-alone objective and/or included it as a feature of their good governance, economic development, human rights or democracy agendas. While the definitional debates about rule of law abound, to some scholars the ‘degree of apparent international consensus on the value and importance of the rule of law is striking’. Indeed, the rule of law concept has been described as ‘analogous to the notion of the Good in the sense that everyone is for it, but have contrasting convictions about what it is'. Its perceived importance is certainly reflected in the millions of aid dollars spent every year on development activities aimed at establishing the rule of law in developing countries.