‘Guvernance’ and the ‘role’ of law: Getting the vowels right

Following on the release of the World Bank's latest report on governance, Richard Sannerholm takes a closer look at the difference between the 'role' of and 'rule' of law in the latest Justice and Peace blog series entry, defending the importance of the rule of law in today's political climate.

The 2017 World Development Report on Governance and the Law (WDR 2017) has a very important message,[i] with some even hailing it as a game-changing document. It certainly reads differently to what one might expect from a World Bank report. Not only does it assess the economic drivers and consequences of poor governance and shaky rule of law, it also strays into the realm of the political, encouraging practitioners and donors to eschew many traditionally- accepted ‘best practices’, towards approaches that explicitly challenge the power structures that perpetuate poor governance and unresponsive institutions.

The report highlights the need for interventions to be contextually appropriate by focusing clearly on addressing problems specific to each society, and to ensure that institutional functions are prioritised over form. It also stresses the importance of being politically smart, cognisant of local norms and rules, and recommends being more realistic and committed to long-term incremental improvements.

In doing so, the report confirms much of what many have been saying for a while. But the value of this report lies not just in what is said, but that the World Bank is saying it. The fact that the Bank is talking about the role of power and politics at all is an important development, and one that we should welcome. This report calls for the international community, including the Bank itself, to pay greater attention to collaborative action aimed at supporting policies and systems that promote just and inclusive governance. As such, it is closely aligned to Goal 16 within the Agenda 2030 framework.

However, despite this change in thinking, the report seems oddly outdated on the role of law in relation to governance.

Two steps forward, one step back

I’m a rule of law person (not in the same way, but for the same reasons as Martin Krygier[ii]). That is the chief reason I’m taking issue with the WDR 2017. The report consistently emphasises the role of law, not the rule of law – and it is not a typo.

While the WDR ultimately acknowledges that the rule of law is needed for a country to realise its full social and economic potential, it poses some questions about efforts to strengthen the rule of law from a temporal point of view. In a suspiciously terse section on ‘Getting to the Rule of Law’, Gordon Brown, the former British Prime Minister is quoted as saying: “In establishing the rule of law, the first five centuries are always the hardest.” While this is a witty remark, it is not necessarily true (and objectively false with regards to the development of the rule of law in the UK). Presumably, the history of democracy and other highly contested concepts would also be subject to similar 500-year development assessments? As such, it is unclear what this temporal observation means for those involved in supporting the development of the rule of law.

The WDR 2017 does, however, suggest that in order to achieve the rule of law, “countries must first strengthen the different roles of law to enhance contestability, change incentives, and reshape preferences—that is, think not only about the rule of law but also about the role of law.”

This shift of focus can help ‘free’ us from technocratic fixes and the traps of isomorphic mimicry. But this seems to be a strange call for the strange times in which we are living. There is very little evidence to support the idea that you have to do anything ‘first’ in order to achieve rule of law. In fact, I suggest we forget sequencing. Rule of law is not a binary achievement, but a constantly changing process. The ‘level’ of rule of law can, in a single country, differ in relation to a myriad of policy issues and political challenges, external and internal threats and so on.  Furthermore, developing a better understanding of the role of law, as one institution among others, does not in any way exclude rule of law. Debates around the rule of law rest on the fundamental notion that all power must be exercised in accordance with public and transparent rules. In the international context, the most authoritative definition is the so-called ‘UN definition’. This reflects how the concept has evolved in legal and political theory – that is, as a principle of governance for minimising arbitrary power by providing clear rules for how power should be exercised, changed and contested. Thus understood, a rule of law system is desirable in its own right and on its own merits.

Understanding rule and role together

Still, drawing our attention to the role of law is a laudable aim. Development actors have gradually and painstakingly come to learn that there is more to the law than just ‘the law’. That is, the law should be understood as being just one institution among others for affecting change, and that it can be used and abused for different purposes. We should acknowledge that law plays many different functions or roles in society. Mainstream development policy has not always reflected this. Too often, programmes have attempted to use technical legal reforms to address inherently political problems - with little success.

At the same time, there are some good examples where law has been employed as an arena for contestability – for enhancing commitment to new rules, or for coordination and cooperation between different interests, for example – but they are not always found in the mainstream rule of law and development work.

There is much to learn from the accumulated experience and knowledge of those working in the stream of feminist institutionalism,[iii] for example, where confronting political resistance, informal rules dictating power sharing and cultural and social opposition to reform agendas has been the norm. Feminist thinkers and activists have been able to develop politically smart programming, using a variety of strategies to effect transformative change. As Chapelle and Waylan assert, in order to understand “why and how gendered rules, norms and practice change or stay the same…we need to look within political organisations, to the operation of formal and the often invisible informal rules”.[iv]

This shows that there is an intrinsic value in the rule of law, even in the most thin or formal conception. And perhaps now more than ever, that value matters. Getting political leaders and others in power to play by established rules is no small feat, particularly considering recent trends where populism and authoritarian movements have been increasingly pushing into the formal political arena. Cannibalising on Krygier’s poignant remark, ‘repressive law is perhaps less terrible than lawless repression, but it can be terrible all the same’[v].

A step in the right direction?

The role of law that WDR 2017 brings our attention to is highly instrumental. It is law as an instrument for action, for implementing public policy, for securing bargains between elite players, or for breaking political deadlocks. That might be the role of law as an institution among others for affecting change. But it is worthwhile to remember that law, and in particular the rule of law, is not just about change but also about getting change right – ensuring it is inclusive, conflict sensitive, understood and actionable. Here, perhaps, Gordon Brown’s remark on the temporal feature of ‘getting’ the rule of law finds its place.

So I welcome the WDR, but I’m not sure it takes us anywhere we weren’t already going – and perhaps even takes us away from some areas we should be. Indeed the rule of law, through its network of principles and institutions, serves the purpose of checking political action, slowing things down if need be, and of resisting quick fixes. That’s just one of its roles – and now more than ever it’s one that seems to be lacking.

Richard Sannerholm works at the Swedish Expert Group for Aid Studies. He was previously the Head of Rule of Law at the Folke Bernadotte Academy, a Swedish agency for peace, security and development. Richard has extensive experience in public management reform, strategic research develpment, and from different rule of law and security projects and programmes. Richard holds a PhD in law and has published widely on rule of law and public administration reform in peacebuilding and development.

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[i] World Bank, Governance and the Law, World Development Report 2017, 2017.

[ii] Krygier, ’Still a Rule of Law Guy’, Recht der Werkelijkheid 34:1, 2013)

[iii] Sannerholm, Quinn & Rabus, Responsive and Responsible: Politically Smart Rule of Law Reform in Conflict and Fragile States, 2016, p.72

[iv] Chappell & Waylen, ‘Gender and the Hidden Life of Institutions’, Public Administration Vol. 9, No. 1, 599-615, 2013 p. 603.

[v] Krygier, ‘Marxism and the Rule of Law: Reflections After the Collapse of Communism’, Law and Social Inquiry, 1990, p. 641.