Rebuilding justice: Douglas Rutzen reviews Can Might Make Rights? Building the Rule of Law After Military Interventions.

In Plato's Apology, Chaerephon approached the Oracle at Delphi and asked whether anyone was wiser than Socrates. The Pythian priestess replied that there was no one wiser. Socrates was perplexed. He had faith in the Oracle, yet he knew that he was not the wisest in the land. He approached politicians, poets, and artisans, but he found that they knew less than they professed. In the end, Socrates concluded that he was the most wise--for he recognized the limits of his own knowledge.

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In similar humility, Professors Stromseth, Wippman, and Brooks approach Can Might Make Rights? Building the Rule of Law After Military Interventions. They set out to "examine what we know and what we don't know about rebuilding the rule of law in the wake of military interventions." They eschew simple solutions, seeking instead open dialogue and debate. The result is an impressive contribution to the literature of the rule of law.

The book opens with a discussion of "new imperialism." Despite the chapter's provocative title, the authors seem ambivalent about whether to enter the imperialism debate. The authors provide an abbreviated summary of positions and fail to include even a footnote to other scholarship on this raging debate. Their brief observations are, however, interesting. They note the irony that, after the Cold War, military interventions in Kosovo and elsewhere were based on the same values (e.g., democracy and human rights) that led to the dismantling of imperialism in the 20th century.

After September 11th, one could argue that the justification for military interventions reverted back to more traditional grounds: national security wrapped with a layer of humanitarian concern. Afghanistan and Iraq reflect this approach. Regardless of the intervener's motivation, the authors correctly state that today's "interventionists" are expected to build "just, democratic, peaceful, and prosperous societies in the areas in which they control." This requires a significant commitment of time, effort, and resources, which often proves unpopular with domestic constituencies. Similarly, short-term interests often conflict with long-term priorities. "Know Thyself" was reputedly carved into the Oracle-Shrine in Delphi. If nothing else, this book helps us better understand the constraints and contradictions we face when making rule of law decisions.

In Chapter 2, the authors provide a fascinating, yet concise, summary of the international framework for armed intervention. Quoting Kofi Annan, the authors remind us that there "are times when the use of force may be legitimate in the pursuit of peace." Actions taken without regard to international law, however, are likely to squander international support for both the intervention and subsequent rebuilding efforts. Moreover, the authors remind us of the importance of the interveners' own conduct. The point is well taken: the abuse at Abu Ghraib prison was not only morally unconscionable but also exposed the coalition to charges of hypocrisy on issues of human rights and the rule of law.

In Chapter 3, the authors seek to define the "rule of law." Because of conceptual challenges, the authors argue that policymakers often employ an "I know it when I see it" standard. The problem with this approach is that it has led to an overly simplistic focus on structures, institutions, and laws. Accordingly, the authors propose a "pragmatic" definition. They state that the rule of law is when "the state successfully monopolizes the means of violence, and in which most people, most of the time, choose to resolve disputes in a manner ... that respects fundamental human rights norms." This definition opens up an area for future scholarship, namely the development of indicators. In the text, indicators seem to include everything from life expectancy and "economic hardship" to whether the country has pursued an "ill-starred military campaign." Reference is also made to crime rates, but this is also nettlesome, noting that officials in Afghanistan have argued that the homicide rate in Washington, DC is much higher than that in Kabul. The authors concede that their definition is not intended to stand up to rigorous scrutiny, but, at present, the concept is uncomfortably loose.

The authors then propose a "synergistic approach" to build rule of law. This approach has three key features. First, it is "ends-based and strategic." Institutions can help advance rule of law objectives, but they are not ends in themselves. Accordingly, they wisely counsel us to avoid confusing institutional deliverables (e.g., number of judges trained or courthouses refurbished) for progress on rule of law.

Second, the approach is "adaptive and dynamic." Moving past buzzwords, the authors make an important point. Rule of law cannot be "imported wholesale;" rather it must build on existing cultural, political, human and material resources. All too often, donors and implementing partners shun local participation because of hubris, expediency, or poor project design resulting in laws and institutions that look good on paper but do little to alter on-the-ground realities.

Third, the approach is "systemic," considering the interrelationships among various components. The basic point is unobjectionable, but it sometimes borders on the Butterfly Effect. Chapter 5 argues that interveners and their allies must provide everything from sewage treatment to health care in order to provide a secure environment in which the rule of law can take root. While certainly true, at times it is difficult to determine the difference between rule of law programming and the broader issue of post-conflict reconstruction. Nonetheless, the authors' fundamental conclusion is indisputable: the development of the rule of law is about much more than re-writing laws, reforming institutions, and reinforcing the legal profession.

In Chapter 6, the authors advance to justice system reform, recognizing that justice institutions are vulnerable to "predatory politics." If interveners fail to consider the political context, they may inadvertently provide local factions with institutional strength to advance their own interests. Indeed, rule of law institutions can turn from shield to sword in the hands of individuals intent on repressing adversaries. To address these and other issues, this chapter provides guidance on everything from how to conduct a strategic assessment to specific recommendations on prison reform.

The authors then address accountability for atrocities in Chapter 7, discussing the demonstration effect and capacity building impact of accountability proceedings. Among other issues, bringing known perpetrators to justice can break patterns of impunity and build public confidence in the rule of law. At the same time, as the recent trial and hanging of Saddam Hussein demonstrate, if segments of society view the process or outcome as unjust or a violation of international law, then accountability proceedings can also undermine public confidence in the fairness of the legal system.

Chapter 8 addresses a central issue: how to create "rule of law cultures." The challenges are enormous and are often complicated by intervener's own actions when they assume governance functions. Their newfound position is, in some sense, an abject lesson in the power of brute force. The interveners seek to promote democracy, yet they are not elected by nor generally accountable to the individuals over which they govern. This may be an inherent part of the system, but the stark resistance that officials often manifest toward any form of local engagement is not. Indeed, one could argue that the United Nations Mission in Kosovo failed to adopt a thoughtful approach to public participation, which undermined its credibility and effectiveness in various initiatives. As noted in Chapter 9, local ownership poses its own dilemmas, but the alternative--the imposition of the rule of law from above--is destined to fail.

As one closes the book and looks again at the cover, the brilliance of the exercise becomes clear. The authors have cast the title not as a statement, but rather as a question: can might make rights? With the skill that is befitting seasoned law professors, the authors have employed the Socratic Method in a most gentle and engaging fashion. The titular question is never answered, but key issues are raised, conceptual contours are explored, and the reader is enriched through the journey.

DOUGLAS RUTZEN is President of the International Center for Not-for-Profit Law and Lecturer in Law at the University of Pennsylvania Law School. Can Might Make Rights? Building the Rule of Law After Military Interventions is by Jane Stromseth, David Wippman, and Rosa Brooks (Cambridge University Press, 2006).