The international rule of law movement focuses too often on countries that many of its professionals know less well than their own. As a result, rule of law assistance has suffered from lack of legitimacy, shortage of competence, and insufficient attention to its transnational relevance. But in a globalized age, the rule of law enterprise increasingly blurs traditional boundaries – between north and south, national and international, and capacity-building and implementing. Rule of law problems are too vast, complex and inter-related not to draw upon the experience and expertise of actors from all corners of the globe. But for that to happen, we must begin to think about rule of law reform as something that happens, not only ‘there’ but ‘here’ as well.

The private sector has traditionally had a strong concern for monitoring and improving the quality of its goods and services. This tradition became clearly visible in the 1950s when Japanese enterprises were criticized for the poor quality of their products. In response to these critics, measures were taken in the form of ‘total quality control’ (TQC). During the past decades, many other general quality models have been developed. Can the same be said of the judiciary? Does it also use quality principles and quality systems or is the judiciary still at the beginning of its journey towards ‘court excellence’?

Rule of law promotion and security sector reform (SSR) are expected to abide by the same guiding principles. Actors involved in both endeavors are demanded to base their activities on a solid knowledge base. They are urged to take a holistic approach and to ensure that particular components of such an approach are properly coordinated. They are pushed to strive towards local ownership. And, the credibility of external actors is deemed to be of paramount importance. However, there is wide consensus that both rule of law promotion and SSR by and large fail to adhere to these guiding principles. SSR practitioners would thus be ill-advised to rely on applying best practices from rule of law promotion, the older and more established field, to their own endeavor. Rather, both fields ought to step up their efforts to develop practically relevant lessons learned that could then, in turn, be reciprocally useful.

This article examines rule of law (ROL) and security sector reform (SSR) linkages in crisis management. In particular, the article looks into why international assistance providers chose to categorize a situation and ensuing response strategy as rule of law or SSR, how this categorization is motivated and explained to international and national partners and stakeholders, and how this categorization affects national laws, institutions and other arrangements in post-conflict and crisis societies. The article is borne out of an observation, based on events in the Arab Spring, that the character of international community responses to rule of law threats and challenges has as a strong focus on security. Rule of law promotion taking place in UN and EU missions has undergone a ‘securitization’ in how reforms are conceived and put into practice, compared with rule of law in development aid and past experiences of rule of law assistance in post-communist transitions.

In this paper, I argue that there is a significant juridical root to the problem of authoritarian rule in Malaysia. That root is Hobbism, an authoritarian conception of legal authority as a solution to the problem of political instability. I show its influence by focusing on three pivotal events in Malaysia's legal and political history. The analysis aims to provide a more nuanced picture of the factors that contribute to the problem of authoritarianism in Malaysia and to suggest that these factors are not purely political; they also have a basis in how officials conceive of legal authority. My argument shows that the influence of Hobbism has worked in both ways to produce the problem of authoritarianism in Malaysia. It has subverted well-minded officials from affirming the ideals of democracy and the rule of law while allowing authoritarian politicians to exploit Hobbism to serve their authoritarian aims. I argue that Hobbism is so well entrenched in the legal and political culture that Malaysian law and politics will not easily transition to more meaningfully express a commitment to serve the ideals of democracy and the rule of law.

This article investigates the difficulties in transplanting global legal norms into developing countries, specifically the problem of ‘false friends.’ This is a linguistics concept describing the situation where there is a striking resemblance between two words in two different languages, leading speakers of each language to assume, incorrectly, that they understand the word's meaning in the other language. Even more problematically, the misunderstanding is hidden by the assumption of understanding. We argue that similar problems can occur when there is a superficial similarity (but a fundamental mismatch) between particular global and local norms. We illustrate this through the example of global intellectual property regimes and their reception in Vanuatu and Mexico, showing how reforms are sometimes welcomed into developing countries on the basis of false assumptions that their aims are congruent with existing understandings. Finally, the paper develops some policy implications for avoiding the ‘false friends’ problem in a transnational legal context.

This paper reflects on questions as to whether legal empowerment projects have been able to strike a balance between competing aspects of rights and social justice and change prevalent structural inequalities and power relations that essentially perpetuate disempowerment of the poor and disadvantaged groups in the first place. In other words, do the strategies simply provide ‘quick-fix’ solutions and promote a politically disengaged model of empowerment or do they assist beneficiaries in developing an intrinsic understanding of the issues at hand and the capacity to deal with them in effective ways? Additionally, the paper addresses the problem of impact assessment and sustainability of legal empowerment strategies.

New, alternative, forms of cross-border cooperation, in particular processes of informal international lawmaking (‘IN-LAW’), have emerged and gained prominence since the 2000s in response to an increasingly diverse, networked, and knowledge-based society. This transformation impacts on traditional notions of public international law as well as on the conceptualization of an emerging international rule of law. This is all the more the case given the tendency to emphasise the formal characteristics of the latter. The present article, nevertheless, challenges the assumption that informal international law is, because of its informal nature, by definition incompatible with a rule of law approach. The article thereto re-introduces a negative (shielding society from arbitrariness) and a positive (providing requirements for lawmaking) conception of the rule of law. First, it identifies actors and processes of informal international lawmaking and elucidates the extent of their reliance on legal principles as opposed to the wielding of arbitrary power on the international plane. Second, it operationalises a rule of law approach in the three phases of informal lawmaking processes (lawmaking per se, law-application and accountability). As such, it discusses how a number of concrete rule of law requirements related to participation, procedural guarantees, accessibility of norms, and accountability mechanisms are implemented. To conclude, it is submitted that rule of law theories can be reconciled with IN-LAW, without affecting the flexibility that is fundamental to the non-traditional norms produced at the global level.

This paper explores the rationale for development actors to become more engaged in its pursuit of providing support for mass, sustainable mechanisms, which increase access to justice for the majority of people around the globe. It does so by demonstrating the importance of the historical evidence demonstrating finance as the key hindrance to individuals' accessing justice. Finally, it sets out two emerging areas that would be worthy of further investigation and support by the development community but which have at present received scant to no attention by the vast majority of ‘rule of law’ or ‘justice reform’ efforts.

This article is based on the proposition that the International Criminal Court (ICC) will need to become less ‘international’ and more ‘domestic’ if international justice is to stay relevant over the next ten years. The legal basis for this shift is already embodied in the ICC's core principle of complementarity that gives nation states jurisdiction over international crimes when conditions of judicial competency have been met. However, this jurisdictional shift from the ICC to domestic courts will have significant and far-reaching consequences. Building the capacity of national judicial systems will become increasingly important in the years ahead. The challenges will be daunting. The article maintains that it is paramount that the international community provide some discernible assistance to these new domestic courts to ensure that domestic proceedings are consistent with international norms. It sets out an effective mechanism that could be created to assist in this endeavour.

The article also looks at the challenges faced by the ICC and nation states in determining a state's inability to prosecute. Obviously, when there is total or substantial collapse of the judicial system, it is not difficult to determine that a state is incapable of undertaking trials. However, in more nuanced situations, the idea that the ICC will pass judgment on state courts is highly controversial. The inherent ambiguity and subjectivity in defining what constitutes inability to prosecute could easily place the court in a ‘stand-off’ with a nation state. The article sets out an approach for an objective, impartial and non-political evaluation regarding a state's ability to carry out judicial proceedings consistent with international standards. Such an evaluation would not be binding on the ICC, but would offer guidance in rendering a fair decision and impart valuable legitimacy.

The articles in this issue were originally presented at a Workshop held in The Hague on 28-29 April 2011. The Workshop was organised by HiiL, Warwick Law School and the Folke Bernadotte Academy (Sweden). Participants included academics and development practitioners who were invited to reflect upon the similarities and differences between rule of law promotion and security sector reform (SSR).

Universal provision of legal identity, most commonly birth registration, is viewed as both an intrinsic human right and an instrumental development necessity. Legal identity is commonly associated with citizen access to certain benefits and opportunities, protection of human rights, and generation of vital statistics to inform development planning. Research conducted in Nepal, Cambodia, and Bangladesh demonstrates that significant obstacles to obtaining legal identity include financial and procedural barriers, discriminatory laws and policies, institutional incapacity, and citizens' lack of knowledge and motivation. Robust alternative markets for legal identity reveal the true public demand for identity documents. In the developing country context, the provision of legal identity alone does not necessarily deliver desired development outcomes. Thus, universal civil registration is a necessary and worthy goal, but focus should remain on the ultimate development goals behind universal registration.

The Parliament of Kosovo passed a controversial amnesty law in July 2013 within the context of the Brussels-led negotiations between Serbia and Kosovo. This article evaluates the law using a functional framework, thus exploring possible implications with regard to legality, the rule of law, security, the economy, and reconciliation. We find that the amnesty law entails serious problems or risks in each aspect except legality due to its broad scope which includes common and economic crimes while providing possibilities for abuse. Moreover, internationals actors involved in the negotiation process exerted considerable pressure to adopt the amnesty law which raises questions concerning their motives and strategy. We argue that their uncritical attitude can be explained by a combination of four principal factors, including a strong focus on the realist exigencies of diplomacy, internal interests of the European External Action Service, a neglect of non-legal consequences of the law, and a general practice of exceptional and unaccountable policy-making in Kosovo. A functional assessment as offered in this article would have provided a more comprehensive understanding of the possible implications of the law, including the serious risks it poses to the fragile post-conflict situation in Kosovo.

The ‘liberal peace agenda’ assumes that security sector reform (SSR) and the consolidation of the rule of law are both interdependent and complementary. Evidence from Colombia and Guatemala suggests, however, that in practice conflict resolution and peace-building strategies may prioritize attaining national security over the rule of law (Colombia) or taking measures to strengthen the rule of law only when faced with serious post-conflict insecurity affecting elites and the hollowing out of the state by organized crime and criminalized elite competitors (Guatemala). Peace-builders should therefore pay particular attention to strengthening justice systems and protecting fundamental rights of citizens and victims of state and non-state violence. Strategies to increase the state's security capacity and to reform the security sector should be synchronized with an overarching rule of law agenda. In violent settings where insecurity has many faces and cuts across the blurred lines between legality and illegality security remains elusive without a stronger rule of law.

The rule of law has been studied by political philosophy, law, political science, sociology and economics. The representatives of these social sciences have used various approaches (including various mixtures of conceptual and empirical analyses), for the study of this important problem. This also applies to research on post-socialist transformation which provided a unique and powerful natural experiment for students of institutions. In this paper I attempt to place the rule of law within a broader context, that of institutional change after socialism. This is why I start with a stylized description of this system and of what has happened to it after the collapse of socialism in the former Soviet bloc (second section). Then I try to link institutional change after socialism to the rule of law (third section). This requires a minimal clarification of this concept. In the fourth section, I discuss the rule of law after socialism in the light of empirical studies on this variable, studies which were mostly prepared by economists. The final section sums up the main findings: Changes in the legal framework take less time than those in a country's institutional system, including the transformation of its enforcement apparatus. As a result, widespread implementation gaps emerged even in the most reformed transition countries.

Billions of dollars are spent on legal development every year, but its effectiveness continues to be questioned. Many donors have responded to this internal and external critique by developing monitoring and evaluating systems. This article problematizes the tendency of conventional modes of evaluation to assume a link between the outcomes of individual projects (the ‘truth’ of rule of law) and the fulfillment of overarching program goals (the ‘consequences’). We argue that examining this assumed link is of particular importance as rule of law projects take place within a host of simultaneous political and social changes; are time consuming and unpredictable and have multiple and sometimes conflicting objectives. Our analysis of four recent rule of law projects from Asia, Africa and Latin America exposes the inability of conventional evaluations to accommodate such complexities. We demonstrate how, by contrast, robust empirical research reveals important truths about the disparity between the actual, intended and unintended consequences of legal development projects.

Since Korea's democratization in the late 1980s there has been powerful momentum to reexamine the past authoritarian rule. This article aims to contribute to the growing literature in the rule of law in authoritarian regimes by discussing the judiciary of Korea during the so-called Yusin era (1972-1980). The courts in the 1970s have been placed at the center of controversy in the wake of transitional justice, as a number of judicial decisions were reopened and original verdicts overturned. Most notable were the cases involving the so-called Emergency Decrees which served as a major instrument for the regime to suppress political opposition. In December 2010 and March 2013, the Supreme Court of Korea and the Constitutional Court of Korea each ruled that the Emergency Decrees were unconstitutional and that the courts in the 1970s were wrong in declining to exercise their judicial review power. The evolving jurisprudence through the authoritarian and subsequently democratic periods has significant implications for the rule of law in modern Korea. Constitutional jurisprudence in the post-democratization years in particular brings to the fore the thorny issue of negotiating between mounting democratic aspirations and the exigency of legal stability.

This article presents a bird's-eye view of two decades of UN rule of law assistance in Africa. The article is based on a dataset developed by the Folke Bernadotte Academy which covers a total of 36 UN peace operations (peacekeeping, political missions and offices).

Implementing comprehensive rule of law strategies is challenging for the UN as a whole, not least where peace operations are deployed. Such operations are deployed in situations where the rule of law is severely tested and where in such environments UN staff perform a number of critical functions, ranging from developing national rule of law plans and strategies, coordinating national and international stakeholders, advising on justice matters and providing technical expertise on specific topics. For the two leading UN entities in relation to post-conflict societies, the Department of Peacekeeping Operations and the Department of Political Affairs, the translating of rule of law policy into practical programme activities is a daunting task, specifically in terms of providing assistance that is timely, situational and aligned with the national priorities of the host country.

While there have been many positive developments in the UN's rule of law system over the past decade in terms of policy, practical experience and competencies earned on the ground, observations made on the basis of empirical data raise a number of questions critical to the UN's future commitment to rule of law assistance in peacekeeping and peace-building.

The Commission on Legal Empowerment of the Poor (CLEP) states that workers in the informal economy can be legally empowered by bringing them within the framework of effective legal regulation, in particular, international labour standards. This paper acknowledges the value of extending rights to workers in the informal economy, but argues that CLEP's recommendations are impractical and unrealistic. It shows that neither international standards nor recent national legislation designed to promote the legalization of informal enterprises offers unqualified positive answers to resolve the plight of workers in the informal economy. Given the poverty of prevailing regulatory structures and the pervasive impact of inadequate structures of governance, workers in the informal economy justifiably distrust legal institutions and, as a consequence, do not, in the first instance, resort to legal institutions in their quest for empowerment. This paper offers examples of strategies that have successfully enhanced the social, political and economic power of workers in the informal economy. It concludes, however, that although the legal system has a role to play in consolidating the gains achieved by these strategies, law and legal institutions do not necessarily offer the best point of departure towards effectively empowering workers in the informal economy.

In 1989, starting in Poland and spreading quickly throughout Central and Eastern Europe, European communism imploded. In some places new states were born, in others old ones re-established their independence. In all there was talk of ‘transition’ to something very different, something at the same time very new and very old.

20 years on, a lot has changed. Much that seemed revolutionary then seems old hat now. And the attempt to cut and paste forms, structures, and successes from ‘normal’ societies, as the West was known in the East, has turned out to be a far from conservative enterprise, not simple, and not always popular. Indeed, homegrown conservatives have come to be suspicious of it, often accusing their opponents – those devoted to democracy, capitalism and the rule of law, for example – of untraditional and unforgivable radicalism. The suspicion is general, encompassing many ideals and practices believed to be alien imports. It is most vocally directed against democracy and capitalism. However it has also reached – less perhaps as rejection in principle than disappointment in practice – that animating ideal which has had such a renaissance since the collapse of communism and in connection with it: the rule of law.

For this special issue, six distinguished students of post-communism were asked to reflect on the fate of the rule of law in areas that they knew best; of course they could stray where they felt necessary. Balcerowicz focused primarily on the economy, Hendley on Russian courts, Ganev on east European constitutional and regular courts, Skąpska on privatisation, Czarnota on ‘transitional justice’ or ‘dealing with the past,’ Přibáň on the implications of a ‘return to Europe’ both as ambition and achievement.