I would like to thank Geoffrey Swenson for his thorough and constructive review of my book Domination through Law. I am particularly pleased that Swenson appreciates the book as a timely and valuable corrective to international rule of law promotion. Among Swenson’s inquiries is the crucial, but unresolved, question of how we understand and assess the rule of law. Indeed, the literature posits thin and thick definitions of the rule of law, depending on whether one stresses the procedural standards or their normative contents. But as Swenson notes, referring to our mutual appreciation of Stromseth et al.’s work (2006), there is little gain in getting mired in this open-ended conceptual debate when the rule of law in form somehow implies a normative commitment. While I see the analytical utility of making a conceptual distinction between minimalist and maximalist rule of law, I focus on transitional justice, law reform, and justice sector development as what those (re)building the rule of law do (or purport to do) in war-torn countries. These interventions, in my view, constitute both thin and thick aspirations. I understand Swenson’s concern that my formulation seems unclear, but this provides something tangible to focus on amid an ongoing conceptual debate about what to assess.
I understand Swenson’s call that I back my hesitation with adopting a problem-solving perspective with a prescription of alternative approaches and reforms for addressing the challenges facing war-torn countries like Sierra Leone and Liberia. It is undisputable that both countries are grappling with challenges that warrant the kind of remedy rule of law promoters claim they offer. But my postcolonial critique of internationalization of legal norms is not a repudiation of the concept of the rule of law, an idea that is not unique to liberal democracies. I do not disagree with Swenson that the rule of law is a “very worthwhile aspiration.” Thus, rather than prescribing an alternative to the rule of law, what I draw attention to is the urgent need to decolonize the procedural and normative legal standards being internationalized. Decolonizing international rule of law is particularly imperative in the context of legal pluralism, where questions about whose law and standards become the rule are deeply political, a reality that Swenson also grapples with in his instructive work on Afghanistan and Timor-Leste. The rule of law project has remained impervious to this critical scrutiny because it is masked in a veneer of ideological neutrality, universality, separation from politics, and discontinuity from imperialism.
Finally, I recognize the value of works that take these assumptions as given and then focus on explaining why international rule of law has worked in some contexts and not in others. Swenson draws from Timor-Leste to make a compelling argument about how leaders who are committed to embracing the rule of law can partner with international actors to establish thin rule of law. However, the overall empirical record on this project has been disappointing—Swenson even admits that Timor-Leste still falls short of minimum rule of law ideals. Sierra Leone and Liberia are illustrative not only of an environment where the ruling class has been unwilling to subject itself to the rule of law and international assistance insufficient to the task of rebuilding an accountable legal system, issues that can be addressed within the liberal framework of intervention. These cases also represent a fundamental problem with the framework itself—it remains so steeped in coloniality that those already privileged by the dominant system disproportionately benefit from what is promoted at the expense of those reformers promise to help.
