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The Rule of Law: A Definition in Socio-Political Terms

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The Rule of Law: A Definition in Socio-Political Terms

Max Massa

Abstract

The US Army / Marine Corps Counterinsurgency Field Manual previously stated that Rule of Law (ROL) is the end state of counterinsurgency (COIN) operations, in spite of the lack of consensus on what constitutes ROL.  The manual is now being re-written and it is important to define this term if it is to be included or rejected from doctrine.  Previous attempts have focused on the formal nature of the law and institutions of the state: it is shown that this is not the appropriate direction from which to attack the problem – the focus of inquiry should instead be on the social impact of punitive action and not the law itself.  ROL, accordingly, has to do with the threat or application of force within society and is best understood in socio-political terms, not legal ones.  In short, when government has achieved a monopoly on the use of force within an area and the people retain the ability to form associations freely, the ROL exists within that space.  An exposition of the implications of this approach follows.  Given this definition, discussion may proceed regarding the place that ROL is to play within COIN operations, though this issue itself is not discussed.

Thesis

The Counterinsurgency Field Manual (FM 3-24) is being rewritten.[i]  In the original, 2006 version of the document, the Rule of Law (ROL) was given central position as being “the key goal and end state [of counterinsurgency operations]”.[ii]  This was done in spite of the fact that the term has never been well defined, as the DoD Center for Law and Military Operations (CLAMO) openly acknowledged five years later in its 2011 Rule of Law Handbook, which owned that “[t]here is no widespread agreement on exactly what constitutes the ROL”.[iii]  As the rewrite proceeds, it is clear that the status of this concept within the framework of counterinsurgency (COIN) operations must be reevaluated, but this is not possible as long as a meaningful definition is lacking.  This paper seeks to address that issue by stating in concrete, practical terms exactly what ROL is, though it will not take the next step of declaring what role it should play in the field manual’s upcoming second edition.

Discussion surrounding the definition has been hampered by the sense that the concept is of a legal nature and best described in such terms.  This is emphatically not the case.  The view presented in this paper is that ROL is instead a socio-political phenomenon and that its nucleus is found in the interaction between society and the threat or use of force -- not in the structure of a state’s code, courts, or constitution, but achieved and sustained by their action.  In short, the rule of law can be said to exist in any area where government has achieved a monopoly on the use of force and citizen association is uninhibited.  The condition may be conceived of as a sense of mutual trust wherein the people, having either rendered or been stripped of their ability to legitimately commit violence among themselves, are given free rein to self-organize as the regime does not view this behavior as threatening.

This paper will begin by showing that structural definitions of the term are fundamentally flawed and then progress to treat the implications of state monopoly of force and freedom of association separately.

Structural Definitions: Unsatisfactory

The previous attempts at defining ROL have focused on the procedural or structural aspect of law, i. e. they are not interested in the social effects of legal action, only in the mechanics of it (the language of the laws, the composition of courts, etc.).  Definitions that are based on this principle tend to produce what are often described as “laundry lists” where researchers observe societies or states where they feel the phenomenon is present and then attempt to isolate the vital structures.  Two of the better-known illustrations of this school can be found in Harvard law professor Lon Fuller’s 1964 work The Morality of Law[iv] and in Carnegie Endowment for International Peace vice president Thomas Carother’s 1998 essay “Rule of Law Revival”[v] (their respective “laundry lists” are included in the footnotes).  This formalism is, however, the unfortunate root of the behavior Rajiv Chandrasekaran lampooned in his book Imperial Life in the Emerald City, wherein he describes one man’s futile efforts to write a traffic code for Iraq, because “[m]any in the Emerald City assumed that, if you wanted to change something, you changed the law...”[vi]

This approach also runs into problems at a theoretical level: focusing simply on form makes it difficult to determine when ROL in a particular area has collapsed, and it also creates confusion in gauging how wide is the coverage of the rule of law.  These two issues are explored below:

Collapse: People are imperfect, justice is miscarried, and procedure is not always properly followed, even in the best-run countries.  But when theorists, like Carothers, insist that “the law must be applied equally to everyone”, it becomes very hard to decide when the system has failed.  Is one man getting away with murder enough to subvert ROL?  Does it matter if there’s media attention?  If he’s rich or poor?  What about the victim?  What if it’s ten men?  And what if it’s not murder, but tax fraud?  In their insistence on mechanical justice, these definitions run up against the old and well-established legal principle known as Blackstone’s Formulation, which states that “...the law holds it better that ten guilty persons escape, than that one innocent party suffer”.[vii]  His Formulation or Ratio (as it is also called) is fundamental to both the British and American schools of thought on the subject of law, and if his views cannot be made to tally with an ROL definition, then the Rule of Law certainly cannot be said to exist in the United States.

If it is permissible for crime to go occasionally unpunished, how can that be written into the form of the State?  How to account for clemency?  How does the rule of law collapse?

Coverage: the question of how far ROL extends is difficult to answer in formal terms.  Most people considering the issue from this perspective of form and enforcement would say that in a place where the law is applied unevenly, it does not reach.  But this mindset fails to take into account the fact that law (and its application) frequently reflects local needs, as in republican systems of government, so a man can living in Kansas City, MO can function under a different code from his neighbor down the street in Kansas City, KS.  It also permits no allowance for concepts such as affirmative action and diplomatic immunity, which cannot permit universal coverage, but are intended to address the needs of the history and political business.  In essence, theorists who insist that even, regular application of the law across all conditions and regions within a state will run hard up against a legal maxim of Cicero’s from more than 2,000 years ago, which ran summum jus, summa injuria,[viii] i. e. law taken to its extreme is the greatest injustice.  But a theory that demands equal application of legal procedure and penalties in all cases, regardless of the local scene, neglects this important maxim.  And what about in those places where the people do not violate the law per se, but simply choose not to take their business to court very often?  This has occurred famously in Shasta County, CA.[ix]  Does the rule of law exist in such places?  The author believes that it very easily could.  California is not an ungoverned wilderness.

The nature of both of the above issues were addressed by one of the Presidents of the United States, John Adams, in his comments in the case Rex v. Wemms where he defended a group of British soldiers following the Boston Massacre:

We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community that innocence should be protected, than it is that guilt should be punished; for guilt and crimes are so frequent in the world that all of them cannot be punished; and many times they happen in such a manner that it is not of much consequence to the public whether they are punished or not. But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me whether I behave well or ill; for virtue itself is no security. And if such a sentiment as this should take place in the mind of the subject, there would be an end to all security whatsoever.[x]

Adams was obviously interested in discussing the nature of justice, not Rule of Law.  Nevertheless, his insistence that not every guilty party should necessarily be convicted and not every infraction of every law be given similar treatment draws our attention away from the form of the law and its enforcement, and more to its impact.  For this reason it is safe to conclude that the “left of launch” or “in flight” side of the legal process is not where one should focus in seeking a definition.  We must look at the social and political impact of punitive justice to determine what the character of ROL might be.

Monopoly on Force: the Suppression of Mechanical Groups

Example regions struggling with this side of ROL: Egypt, Nigeria, Iraq, Sicily, Mexico, Yemen.

Weber's definition that “...a state is a human community that (successfully) claims the monopoly of the legitimate use of force within a certain territory”[xi] is one that appears generally accepted in the community of people who would read this paper.  The author accepts it and believes the existence of a state is central to the establishment of Rule of Law.  By denying legitimacy to spontaneous violence taken on the part of the people, the regime not only declares deviant all forms of citizen aggression, it also frustrates their ability to effect judgment upon each other.  To wit, it establishes its court system as the unique dispenser of justice; in a functional, Weberian state, non-government bodies (e. g. churches, secret societies, kinship groups) can have expansive, byzantine executive and legislative organs, but may possess no independent judicial authority – we see this fact expressed in the American instance in the Due Process clause of the Bill of Rights, where it is written in the Fifth Amendment that no person shall “...be deprived of life, liberty, or property, without due process of law...”[xii].  This has important implications where social structure is concerned: specifically, a functional state will provide little to no space for the emergence of mechanical groups/societies in Durkheim's sense as the methods necessary to maintain such a structure will have been criminalized.  For this reason, where mechanical groups exist, ROL is absent -- recognizing them is a great key to determining one form of Rule of Law failure, and some detail will now be provided below to aid in understanding of the concept.

The essence of Durkheim's concept can be reduced to two mutually-informing points: common consciousness and dispersed punishment.  It is fair also to understand this as a situation in which both the concepts of crime and punitive justice are social and work to develop the sense of identity among a group of people.  Durkheim states it thus:

“[t]he totality of beliefs and sentiments common to the average members of a society forms a determinate system with a life of its own.  This can be termed the collective or common consciousness.  Undoubtedly the substratum of this consciousness does not consist of a single organ.  By definition it is diffused over society as a whole, but nonetheless possesses specific characteristics that make it a distinctive reality.  In fact it is independent of the particular conditions in which individuals find themselves.  Individuals pass on, but it abides […] Thus it is something totally different from consciousnesses of individuals, although it is only realized in individuals.  It is the psychological type of society...”[xiii]

Examples of societies that may display this trait can include tribal groups/clan families of certain types, religious communities that self-identify through ritual practice and tradition, and criminal organizations with developed creeds such as the omerta of the Sicilian mafia or the Russian “thieves in law”.  In such social conditions “...an act is criminal when it offends the strong, well-defined states of the collective consciousness”[xiv].  Although a certain fraction of the crime recognized by this social awareness will be designed to maintain personal safety and facilitate the meeting of practical needs, there will also be a remaining part that is unrelated to the causing of harm to another and whose enforcement develops identity (e. g. dietary restrictions, gang colors, bans on certain types of speech, performance of ritual, tattoos, endogamous policies, etc.).  Correction of such transgressions “...does not serve, or serves only very incidentally, to correct the guilty person or scare off any possible imitators […]  Its real function is to maintain inviolate the cohesion of society by sustaining the common consciousness in all its vigour”[xv].

Once such deviance has been identified, enforcement must be correspondingly diffuse and immediate, as the punishment for the crime serves just as much a strengthening function for those who carry out the correction as it does for the perpetrator.  It must also be unavoidable, i. e. the person whose behavior is targeted as illegitimate must have no choice other than accept deprivation “of life, liberty, or property, without due process of law” or go into hiding.  That is to say, it must have the strength of law.  It will be useful to illustrate with an example drawn from the real world, one where the rule of law is, by all sober accounts, nonexistent.  The Pashtuns of Afghanistan maintain an old and well-developed unwritten code of conduct, Pashtunwali, that makes of them an almost textbook example of mechanical solidarity; it also illustrates how their use of force is both vital to their identity and inimical to the development of the state as Weber conceived it.  By looking specifically at the interplay between the key concepts of nang/namus (honor), badal (exchange, and contextually “revenge”), and tureh (fighting spirit, lit. “sword”), we can see how the application of repressive, corrective justice by scattered elements within society forms and is necessary to the Pashtun identity.[xvi]

Nang and namus form the central hub of the Pashtun identity: the former deals in a general way with the sense of individual and tribal honor and the latter with those who are dependent upon a Pashtun man, generally his wife or wives and daughters.  We may understand them as manifestations of the common consciousness of the people in Durkheim’s sense as the violation of either of the two generates a socially compelling call to extract justice from the perpetrator.  This justice does not need to be violent – many issues are resolved through mediation and the exchange of money, goods, or women – but it may be.  Badal here comes into play: the concept is broader than the English word for “revenge” as it can also be used to describe an obligation to good behavior in the future after one is treated well.  But it is important that in the context of crime it demands the extraction of a certain penalty, either by the person wronged or one of his family and not necessarily upon the individual who originally violated the nang or namus of the injured party, since a relative among the aggressor’s kin may be used as a fair substitute.  Given the need of a private person to tend of the satisfaction of badal, the value of tureh becomes obvious, since where violence is needed to mollify obligation, the individual must exert it as there is no court to provide a hangman for him.  And since the one who applies this repressive action need not be the one who was originally wronged, violent corrective behavior becomes the potential responsibility of all members of Pashtun society.  Of course tureh, like badal, has broader applications in terms of the protection of the Pashtun people from external aggression, but it implies that the legitimate use of violence must lie with the people, not an administrative body.  This arrangement creates bloodfeuds that can persist for decades, but without it there would be no Pashtunwali and, through that, no Pashtun identity.  The salient point remains that violence taken in the name of nang or namus will be accepted as just by members of the Pashtun identity, and their common sense of this acceptance is what gives their group-sense its form.

Speaking to the supremacy of his person and decisions to the law, James I of England said that “kings are properly judges”[xvii] and so we may understand that Pashtun society is, in a way, composed wholly of kings and tiny family kingdoms, all sovereign in their way but united by common values and judgment.  The result is that Durkheim’s below statement applies very cleanly to the Pashto, as among them...

...a social cohesion exists whose cause can be traced to a certain conformity of each individual consciousness to a common type, which is none other than the psychological type of society.  Indeed under these conditions all members of the group are not only individually attracted to one another because they resemble one another, but they are also linked to what is the condition for the existence of this collective type, that is, to the society that they form by coming together.[xviii]

In a state where the monopoly on force is strong, such groupings have no legal space to exist because meting out justice of the sort described above requires a use of punitive action that is, per se, valid only in the hands of official enforcers.[xix]  This means that such social phenomena as tribalism, clan identity/family justice, secret societies of the sort that maintain tribunals, and religious criminal courts are incompatible with the Rule of Law as they dispense independent justice.  I point out to the reader that I have nowhere made the normative declaration that rule of law is positive or desirable.  But we can see traces of this initiative in the US where religious courts are permitted to take on procedural but not criminal duties, thereby offering citizens the opportunity to willingly engage with manifestations of their cultural/religious identity without jeopardizing the monopoly of the state's dominance of force.  The interesting implication is that, if we accept Weber’s other statement that

In so far as there is at all a common object lying behind the obviously ambiguous term ‘nation,’ it is apparently located in the field of politics.  One might well define the concept in the following way: a nation is a community of sentiment which would adequately manifest itself in a state of its own; hence, a nation is a community which normally tends to produce a state of its own.[xx]

and pursue the implication that a developed sense of nation is key to the development of a functional state, it follows that nationalism in its sense of an idea of what signifies or is signified by the state can play a vital role in the development of Rule of Law.  For this reason, acceptance of state philosophies such as the pancasila of Indonesia and the symbols therewith associated should not be dismissed as unimportant in this context.  It is beyond the scope of this paper to consider such implications, but they should be noted as of potentially great importance.  But it should also further be noted that Pasthtunwali as described above does not permit the development of a judicial structure that holds control of violent action, so we cannot understand there to exist a Pashtun nation in the strict sense.

If the administrators of a state are truly interested in encouraging this condition, they will find that their efforts – if successful – will create friction with parties such as those listed above and ultimately erode their mechanical nature.  This does not mean that cultural, religious, or other identities may not persist, but that they made find expression only in free associations.

Free Association

Example regions struggling with this side of ROL: Iran, China (PEC), Russian Federation, DPRK.

When men are not permitted to group themselves into mechanical units, they will still seek to form social organizations for a host of purposes, from political advocacy to recreation.  Such is free association.  But governments will often strive to disrupt this bonding for the purpose of maintaining regime security.  This truth follows de Tocqueville's statement that “[d]espotism, which, by its nature, is fearful, sees in the isolation of men the most certain guarantee of its own duration, and it ordinarily puts all its efforts into dividing them.”[xxi]  When the citizens of a country encounter resistance to their efforts to band into free associations, there can be no Rule of Law as this necessitates the use or threat of force for the purpose of keeping the populace isolated.  The goal of such a regime will be to keep citizen association limited to official channels or accessible only through official sanction / with official oversight in places where the legitimacy of its force prevails.  As they form the second half of this definition of Rule of Law, space will now be devoted to describing their basic characteristics.

Associations are infinitely varied and it is difficult to study them directly as there is almost no task one cannot imagine them taking on, nor any form they could not take.  Fortunately, “freedom of association” has become a formal term, and we can learn something about the concept by investigating its violations, thereby describing a social phenomenon through its legal manifestation.  The idea is simply enough defined, but rather vague: it is protected in Article 22 of the International Covenant on Civil and Political Rights, and ICCPR materials state “the freedom of association permits persons formally to join together in groups to pursue common interests”[xxii].  Such groupings can obviously be of any sort: NGOs, church congregations, labor unions, political parties, academic journals, etc.  The concept itself arose from a 1958 US Supreme Court case, NAACP v. Alabama ex rel. Patterson, wherein the plaintiff had refused to hand over its membership lists to state representatives when ordered to do so because publicly acknowledging affiliation would put those involved at risk of retribution and thwart the group in the furtherance of its cause.  Justice Harlan in his summation of the trial wrote:

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably advanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly [...]  Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious, or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.[xxiii]

In that writing, the first to this author's knowledge to state explicitly the existence of such a freedom, the essential component of “purpose” is implied, as a group of individuals who come together without an agenda cannot properly be termed an association.  Two conclusions follow: 1) that families and other purely private groupings do not qualify as associations,[xxiv] and 2) that forced inclusion by outside forces of unwilling / unwanted members in an association hampers or negates the ability of an association to communicate its message or act in concert, thereby invalidating the group's nature.[xxv]  A final feature must be appended, which is implied in the earlier discussion of force and deprivation of the sort of social space that could produce a mechanical grouping: that associations are not permitted to wield force or provide their own justice.[xxvi]

Closer investigation shows that this is not itself a single right, but rather a complex of rights (assembly, speech, religion, the press, etc.) that must be simultaneously enjoyed to function, and it is unsurprising that legal experts have described freedom of association as occupying the space where both civil and political rights overlap.[xxvii]  But the key is that, as above stated, associations are of their nature active, communicative, or both, and potentially in the political arena. It follows that when a regime or elements therein view the prospect of agitation against policy to be dangerous to its continued existence, association is vulnerable to suppression.  This condition is obviously more common in autocratic states where party and government are largely identical, meaning that a challenge to the legitimacy of the ruler or his practices is a challenge to the legitimacy of the state, but it is also not unusual in nominally pluralistic countries with politically disenfranchised populations (as illustrated in the original Alabama example).  Such governments, regardless of their structural character, would qualify as “despotisms” in de Tocqueville's sense, as they will “easily pardon the governed for not loving [them], provided that they do not love each other”[xxviii] and pin their continued tenure on keeping the population – in whole or in part – disorganized, fragmented, unassociated.

It is obvious that countries where violent action is used to keep the people out of union with each other lack rule of law: mowing down unarmed civilians and imprisoning the survivors is usually a sign of political problems of some sort.  But it is worth remembering Judge Harlan's point that although the state of Alabama had “taken no direct action... to restrict the right of petitioner's members to associate freely”, its decision to put the NAACP in a position where its members were in a state of fear was sufficient to strip them of their ability to associate.[xxix]  There are yet more pacific means of achieving such an end: this helps explain why most ruling regimes that have a firm grasp on force but weak rule of law tend to have very poor relations with the free media.  There are two reasons for this, the first of which is that an unofficial media organization is itself a free association of a type and a potential hazard.  But the second and more interesting one is that ready access to news gives the citizenry a greater number of causes to organize around as its awareness of the condition of its environs grows.  It is a fair truth that I have found nowhere else written that oppressive information control is designed to prevent the emergence of free associations.  To exemplify abstractly: if all the laborers in factories A, B, C, and D are dissatisfied with working conditions, the situation is ripe for them to form some sort of union.  But if the flow of information is restricted by official interference, it becomes highly unlikely that they will ever do so because their awareness of a shared interest outside their own quarters will be faint.  Furthermore, unaligned individuals from outside the area will be incapable of joining in their efforts if they are completely unaware that they exist.

All this is best illustrated with an example, one drawn from recent events and involving a state about which only very few potential readers will have strong personal feelings.  Given the general sense of what constitutes “rule of law”, the author posits that most people when confronted with the scenario below, drawn from the high politics of Kazakhstan, will decline to say that it is being expressed, protected, fostered there:

The presidential hand has been heavy of late, leaving a firm mark on Kazakhstan's opposition and its independent media.  The crackdown began a year ago.  On December 16th 2011, the country's independence day, police fired on protesters in the western oil town of Zhanaozen, killing at least 15.  In the year since then, secret police have rounded up activists, including some with only tenuous links to the strike protests.  Courts have ignored claims of torture in custody.  More than a dozen have been jailed, including Vladimir Kozlov, an opposition figure sentenced in October to seven-and-a-half years in prison for allegedly attempting to overthrow the government by encouraging the strikers.  Freedom House, a watchdog, said prosecutors presented no evidence to justify this conviction…

 

Mr. Nazabayev's sights have since been shifted to independent media.  In December courts ordered two television stations to close and began proceedings against two newspapers for “inciting social discord”.  All four had reported critically on the violence.  Human Rights Watch, an American NGO, has called the campaign “a blatant attempt by the government to muzzle critical voices”.  Five police officers were imprisoned for their role in the Zhanaozen shootings.  The regional governor was also fired, but later made Mr Nazarbayev's adviser.[xxx]

Every action here taken that strikes the reader in an immediate sense as being “against the rule of law” will also be designed to reduce free association.  Police firing on protesters (themselves free associators, and here being punished for it) would potentially spurn further free association as citizens bind into groups to express their grievances and take action against what they view as a miscarriage of justice.  Placing activists in jail penalizes people for associating and sends a message that this behavior is intolerable.  Imprisoning the opposition leader and muzzling the media also have the further effect of blocking the channels whereby further potentially galvanizing information could be distributed.  The acceptance of the provincial governor after his firing is a particularly shrewd maneuver if one's goal is to keep the locals as loosely bound as possible: letting him go first helps soothe scorched nerves and dissuades people from gravitating to his continued stay in office as a contentious issue, but then taking the man on as an advisor plugs his mouth with satisfaction and eliminates him as a possible organizer.

A final observation: the Internet and social media, are tools that increase contact between citizens and make finding like-minded individuals (the seed of association) significantly easier.  As such, observing a Weberian state's emergence into the Information Age is illuminating as to the condition of the its pre-IT nature.  This is the reason why countries/regions where the rule of law was already firmly established have limited reaction to the introduction of service like Facebook and Twitter, but those societies where there is a rooted interest in keeping the people “like a sheet of loose sand” as Sun Yat-sen would have it, respond with monitoring, oppression, and violence.  General wisdom is that the Green Movement of Iran would not have occurred without social networking, and there is consensus that the Arab Spring would not have developed in the manner it did without the additional associational boost provided by the Web.  On the spectrum's opposite end, China's election to erect its famous “Great Firewall” is specifically stifling to PRC natives' ability to access information that might spur them into organization, while the much touted “real name” registration system that would eradicate online anonymity would have the exact same effect on association that Alabama wanted to have on the NAACP.

Conclusion

The entire spirit of this definition is summed up in Book 8 of Aristotle’s Nicomachean Ethics, where he (rightly) points out “...it seems that it is amity that holds the polis together, and that lawmakers show more concern for it than for justice”.[xxxi]  But this important idea has been seemingly lost.  Instead, discourse surrounding ROL from the second half of the twentieth century to the current day has oddly mirrored that surrounding the different, earlier concept of “fundamental law” in Britain in the 1600s:

When we examine [fundamental law] more closely, we shall see that is it is impossible to pin seventeenth century writers down to any one meaning, and that the phrase was very vague and ill-defined.  There were in fact a few who were sceptical about the existence of fundamental laws at all, and when, as happened occasionally, fundamental laws formed a focal point of dispute, we sometimes find pamphleteers and other attempting a reasoned defence of them; but the majority of writers and speakers seem to have taken their existence for granted, and to have treated their meaning as so obvious and familiar as to present no problems.[xxxii]

Given this state of affairs, it is not surprising that while at the same time the Counterinsurgency Field Manual as the final stage of its operations, there is another school of thought famously described by the late Harvard political theorist Judith Shklar that holds “...no intellectual effort need be wasted on this bit of ruling-class chatter.”[xxxiii]

Then how to determine if the above definition is correct, given the profusion of views and haziness of its object?  We must fall back on another Justice of the United States Supreme Court, Potter Stewart, who is known for nothing if not his views on hard-core pornography: “I know it when I see it” he said.[xxxiv]  And so it often is with the Rule of Law: presented with it or its absence, most people can recognize the thing for itself, even if the have trouble describing or defining it.  And when it is seen and noted, it is to be held for comparison against this effort to give it simple description.  If this is established as the standard for what constitutes ROL, then discussion surrounding the status of the concept within the greater framework of COIN may proceed.  Until then, the issue will remain difficult to debate.

The views expressed in this paper are the personal ones of the author and do not reflect the official policy or position of the U. S. Government, the Department of Defense, or any of its components.

End Notes

[i] Robson, Seth, “Military to Unveil New Counterinsurgency Field Manual”, Stars and Stripes, accessible at: http://www.stripes.com/news/military-to-unveil-new-counterinsurgency-field-manual-1.205579

[ii] COIN Field Manual, p. 360 (sec. D-38)

[iii] Rule of Law Handbook: a practitioner’s guide for judge advocates, 2011, p. 2 (accessible at: http://www.loc.gov/rr/frd/Military_Law/pdf/rule-of-law_2011.pdf)

[iv] Fuller, Lon The Morality of Law, Revised Edition, Yale University Press, 1969.  His list states that laws must: 1. Be general; 2. Be promulgated or widely accessible; 3. Be prospective (i. e. not apply retroactively); 4. Be clear; 5. Not contradict each other; 6. Not ask the impossible; 7. Remain relatively constant; 8. Be enforced as they are written.

[v] Carothers, Thomas, “Rule of Law Revival”, Foreign Affairs, Council on Foreign Relations, March/April 1998.  In his view, laws must: 1. Be public knowledge; 2. Be clear in meaning; 3. Apply equally to everyone.

[vi] Chandrawekaran, Rajiv, Imperial Life in the Emerald City, Vintage Books, 2007, p. 240.

[vii] Blackstone, William, Commentaries on the Laws of England, Volume 4: Of Public Wrongs, University of Chicago Press, 1979 Chap. 27, p. 713

[viii] Cicero, De Officiis, I.33.  For detail, see http://definitions.uslegal.com/s/summum-jus-summa-injuria/

[ix] See Ellickson, Robert, Order without Law: how neighbors settle disputes, Harvard University Press, 1994, for an interesting discussion on how people tend to resolve legal issues without bothering to take them to a judge.  pp. 4 - 6 contain a brief summary of the issue.

[x] Adams, John, Rex v. Wemms: Suffolk Superior Court, Boston, 3-4 December, 1770.  I have modified the punctuation slightly.

[xi]   Weber, Max, “Politics as a Vocation”, From Max Weber: Essays in Sociology, Oxford University Press, 1956, p. 78

[xii]  We should couple our understanding of this passage with a principle articulated by Edward Coke in Dr. Bonham's Case, wherein he held that “...censors cannot be judges, ministers, and parties; judges to give sentence; ministers to make summons; and parties to have the moiety of the forfeiture, quia aliquis non debet esse Judex in propria causa, imo iniquum est aliquem suae rei esse judicem; and one cannot be judge and attorney for any of the parties” (8 co. Rep. 107A, 114a C. P. 1610).  This is intended to prevent private persons from dispensing justice against each other through the channel of the state, while allowing it to retain its appearance as final executor.

[xiii]  Durkheim, Emile, tr. W. D. Halls, The Division of Labor in Society, The Free Press, 1984, pp. 38-9

[xiv]  ibid, p. 39

[xv]  ibid, pp. 62-3

[xvi]  My understanding of the code of the Pashtuns is drawn from the articles “The Pasthun Code of Honor” by Raj Wali Shah Khattak, Fida Mohammad, and Richard Lee and “Doing Pashto: Pashtunwali as the ideal of honorable behavior and tribal life among the Pashtuns” by Lut Rzehak (a product of the Afghan Analysts Network) and from numerous conversations with AFPAK analysts from the Department of Defense who have spent time working in the country.  I have no personal experience in this area and am very grateful for their assistance.

[xvii] James VI and I, “A Speach in the Starre-Chamber, the XX of June, Anno 1660”, Political Writings, Cambridge University Press, 1994, p. 205

[xviii] Durkheim, p. 60

[xix]  An interesting example of this fact surfaced in the US recently in eastern Ohio, where a band of Amish now face jail time for committing hate crimes against other members of their group.  In response to perceived transgressions, men were assaulted with scissors and had their beards forcibly cut.  This is a use of force that would be acceptable in a place where there was no effective state, but must be criminal where the government commands force.  See December 29, 2012 NYTimes article “Braced for Hardship, an Amish Clan Awaits Sentences in Shearing Attacks”.

[xx]  Weber, Max, “Structures of Power”, From Max Weber: Essays in Sociology, Oxford University Press, 1956, p. 159

[xxi]  de Tocqueville, Alexis, Democracy in America: English Edition, vol. 2, Liberty Fund, 2012, p. 887

[xxii] Joseph, Schultz, Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, Oxford University Press, 2004, p. 575.

[xxiii] 357 U. S. 356-357.  Emphasis mine.

[xxiv] Legal proof of this can be found in the HRC case P. S. v Denmark (397/90) para. 5.3 wherein a father's complaints regarding his inability to “associate” with his child were dismissed.

[xxv] This principle is found in the Commentary to the Declaration on Human Rights Defenders, p. 37 (accessible at http://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly2011.pdf) where it runs “...the formation, as well as the membership of an association must be voluntary.  Compulsory membership in an association, the so-called closed-shop agreements, contravene the notion of freedom of association.  This also implies the freedom to choose the organizations to which one wishes to belong.”

[xxvi] cf. 357 U. S. 463 where it is written “It is important to bear in mind that petitioner asserts no right to absolute immunity from state investigation, and no right to disregard Alabama's laws”.  This should be considered alongside Justice Harlan's finding in a later case against the Communist Party of the United States where he held that active membership in an organization advocating the violent overthrow of the US government was not protected under the concept of freedom of association (367 U. S. 228-230).

[xxvii]       Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, N P Engel Pub, 1993, p. 496

[xxviii]       de Tocqueville, p. 887

[xxix] 357 U. S. 461.

[xxx] “Kazakhstan's Press: A Heavy Hand”, The Economist, December 22, 2012, p. 57

[xxxi]        Aristotle, Ethica Nicomachea, 1155a22.  Translation mine.

[xxxii]       Gough, T. W. Fundamental Law in English Constitutional History, Oxford University Press, 1955, p. 2

[xxxiii]       Shklar, Judith Political Thought and Political Thinkers, University of Chicago Press, 1998 p. 21

[xxxiv]       378 U. S. 184

 

About the Author(s)

Max Massa is a civilian employee with the Department of Defense School for Language, Regional Expertise, and Culture (LREC) located on Joint Base Anacostia-Bolling.  He has an undergraduate degree in Chinese from Carleton College in Northfield, Minnesota and a master’s degree from the Johns Hopkins School of Advanced International Studies (SAIS) program at Nanjing University.  He has five years experience living and working in the PRC, and currently resides in Washington, DC.

Comments

The rule of law, much like COIN, must be discussed, I suggest, within the framework of the political objective of the United States.

This political objective being: The transformation of outlier states and societies along modern western political, economic and social lines; this, so as to provide that these states and societies might better benefit from and better provide for the global economy. Via this effort, international peace and prosperity to be achieved.

Consider the following from Paragraph D-38 of FM 3-24 and see if my suggestion above makes sense:

"Some key aspects of the rule of law include: A government that derives its powers from the governed and competently manages, coordinates, and sustains collective security, as well as political, social, and economic development."

Note the emphasis here on political, economic and social development (i.e., state and societal modernization/transformation), with such modernization/transformation to be accomplished along modern western political, economic and social lines (ex: "a government that derives its powers from the governed").

So what the rule of law, COIN, and American foreign policy generally seek to "fix" are states and societies that are presently organized, oriented, ordered and configured along lines other than that of modern western states and societies.

Thus, the ROL, COIN, and American foreign policy generally, to be discussed, and understood, from this perspective.

Outlaw 09

Fri, 12/13/2013 - 10:21am

Yesterday in an exchange with Robert who stated the following which is a potent comment and should be considered for including in the manual---because if we do not consider the comment we are in serious trouble for the coming years.

"Rule of Law has caused far more insurgency than it has ever prevented or cured."

Below was cut out of an article taken from www.borderlandbeat.com which goes to the heart of Robert's comment---in Mexico we have civilians now standing up and defending their individual communities in civilian defense groups and are pushing the government to adhere to "the rule of law" and provide them what is in their constitution----basic security--- from criminals and the drug cartels.

GUESS WHAT the governance is pushing back against them instead of defending them under the rule of law ----governance is attacking and imprisoning them as if they are equal to members of the drug cartels.

WHAT it says is if governance does not itself apply the rule of law fairly, equally and under the rule of law does not provide basic security to it's citizens THEN the governance cannot be surprised if the civilians defending themselves start resisting the governance.

EXACTLY what Robert refers to in his comment that the "rule of law" can in fact cause insurgencies.

EXAMPLE FROM BORDERLANDBEAT:

The arrests made during the large scale operations, in which Eleuterio and his comrades were arrested in, contrast with the negligence of the authorities responsible for providing security to the communities. The growth of this system is a reality that required the authorities to respect and see it as part of civic institutions that are contributing to the democratization of the police system. It’s like a call to purge and transform the security forces so that they can contain the crisis and take down (in a joint manner) the criminal onslaught. But up to this point in time, the State Attorney only reacts to these desperate calls, made by the police, with a reduced viewpoint of the Penal Code; a code which, incidentally, is never applied with the same rigor for all in Guerrero.

If this brave community police officer did commit an offence, it is certainly not the same as the ones being committed by organized crime, who dedicate themselves in kidnappings to meet their despicable economic ambitions; we are dealing with distinguishable phenomena, among them, from the severity, premeditation, and systematicity. By not seeing it how it is, like how the justice of Guerrero does, is using the law and imprisonment against those who, sometimes in desperate times but always honestly, decide not to tolerate the insecurity that is endemic in the state.

Eleuterio should not be away from his children. There is still time to amend this injustice.

TheCurmudgeon

Fri, 12/13/2013 - 10:16am

I had hoped to open a dialogue with the author, but since that does not appear likely I am simply going to respectfully disagree. In my opinion your definition is inaccurate and culturally biased – in short, it is wrong. I therefore reject your reality and will now replace it with my own.

In Western political thought the Rule of Law has tended to be viewed as a limitation on the powers of government and the political or social elite. It is basically the concept that the law should apply equally to all people regardless of your political position or social status. But that is a very restrictive view. It is one built on a Western cultural bias towards individual rights and individual equality. It is one that is in harmony with how Western states view political legitimacy. But the idea of the Rule of Law is broader and can be better thought of as applying the law in a fashion that the society finds appropriate. Thinking of the Rule of Law in that way expands the concept and allows it to exist even in places where the society may not agree with Western ideas on political legitimacy.

I therefore believe that the Rule of Law can best be thought of as nothing more than Procedural Legitimacy; does the government apply the laws in a manner consistent with the value system of the population. For example, in a society where individual human rights are the basis of the value system then the laws must be applied equally with respect for the individual’s rights. In a society that is built around religious values the law must be applied in accordance with religious dogma. For a more concrete example, in a Pashtun society the law must be applied in accordance with the Pashtunwali code of conduct.

Rule of Law has to do with the application of the law and not the law itself. The law should also be in concert with the values of the people, but the laws themselves are not the same as the Rule of Law. Rule of Law has to do with how you Rule.

Rule of law does not have anything to do with a monopoly of violence. The monopoly of violence is used by Weber to help identify the concept of a state. It is a bit of a misnomer since no government has a “monopoly” on violence. There are always exceptions; circumstances where society feels that the government’s interference with the personal use of force is inappropriate. In the US, it is generally accepted that you may use violence to defend yourself. In a Pashtun society it may be generally acceptable for you to use violence to restore your honor. In fact, the only case I can think of where a government could have a monopoly on violence most people would argue that the rule of law does not exist. This case would be in a totalitarian state where all powers vest in the totalitarian leader.

Adding freedom of association is a red hearing. It has nothing to do with the rule of law. You could have added any of the freedoms associated with the International Covenant on Civil and Political Rights. But in doing so you inherently chose a specific value system, one that may not be universally shared even if it is enshrined by the UN as “international law”.

I agree that the idea of the Rule of Law should be thought of in socio-political terms. I believe that Procedural Legitimacy captures the socio-political element since I interpret legitimacy as being tied to the society’s value system. I also agree with R.C. Jones that you are better off to try to understand and work within the population’s legitimacy than to worry about the Rule of Law.

Outlaw 09

Thu, 12/12/2013 - 6:07pm

In reply to by Robert C. Jones

Robert---got the criminal thing but are we not starting to see a direct challenge to the legal governance now in Mexico---meaning the locals are rising up in their own defense against just about anyone they think is not providing security, the drug cartels via corruption and intimidation are cornering the elected officials if they are already not on their payroll, and the military at times makes no differences between self defending civilians and gangsters and in some cases are fighting with the civilian defense groups out of fear they are developing into a resistance movement against the governance.

There is a certain amount of propaganda and violence being exerted by the cartels to intimidate both the governance, the civilian population and the military thus creating an extraterritorial body within an existing form of governance.

If one is successful at stopping say the illicit profit what about the legal profits from businesses purchased via the illicit profits and from extortion-but legally obtained--at what point can governance then move against an entire form of legal business in an attempt to weed out criminal influence--we tried that with prohibition and it went nowhere.

At some point how does one define the genus when the species are owned and controlled by others or in the reverse say the species are the population and governance but what then do you define the genus to be?

Mexico might in fact force us to for the first time to really define the problem and I am not so sure the current national level decision makers have a definition that makes sense. I think national has been happy that the violence as been south of the border but now the cartels are so widespread in the US and the violence from them has increased to the point it can no longer be ignored by national level decision makers and the standard let the police do it is failing.

Robert C. Jones

Thu, 12/12/2013 - 3:50pm

In reply to by Outlaw 09

Mexico certainly has some small amount of insurgency. Segments of the population who act out illegally with the primary purpose of challenging governance. I suspect many of these may well dabble in the drug trade and other for profit criminal activities to finance their primary political purpose.

But these groups are not the major threat to Mexico that the drug cartels are.

The drug cartels are not "insurgency" as they may well be internal, populace-based, and illegal - but their primary purpose for action is profit. This makes them garden variety criminals little different than pick pockets or bank robbers. True, they are so large and so profitable that they are indeed a major challenge to Mexican governance, but that effect does not make them insurgents, or their role insurgency.

Why is this such an important distinction to me? Because what we name a problem should suggest a family of solution. When we call garden-variety for-profit crime "insurgency" we end up attacking the symptoms rather than the problem.

For insurgency one must understand and address the source of political discontent. The solution is usually one of improving the availability and effectiveness of peoples ability to legally change/improve their governance, along with a program of reforms by the sitting governance to work to address those grievances that are reasonable and do not create equal or greater grievances for the rest of the population.

For crime one must understand and address the source of illicit profit - it is more of a cost/benefit analysis of any particular decision to make some activity illegal. There are all kinds of benefits with making certain drugs illegal. No argument. The question is, can we afford to enforce that moral agenda?? Can we afford not to?? Reasonable minds differ, but the fact is the illicit nature of a drug industry this large and profitable is incredibly destructive to the fabric of society as a whole. Far more destructive that if the same number of addicts there are now, or even many more, remained addicted on drugs purchased, taxed, and managed legally.

We need to label things more by what they are, not by what they do. We'd be happier with the results of our efforts to manage these problems if we did. Number one question must be: "what is the primary purpose for action"? Once we get the genus right, then we can start working out what species it is and fine tune our solution.

Outlaw 09

Thu, 12/12/2013 - 2:49pm

In reply to by Robert C. Jones

Robert---this should be on a sign above the doors of every major decision maker---so true---liked the rest of the article as well.

"Rule of Law has caused far more insurgency than it has ever prevented or cured."

Is this sentence really what Mexico is all about even if it in the case of Mexico it is a criminal insurgency.

Robert C. Jones

Thu, 12/12/2013 - 12:25pm

"Rule of Law has caused far more insurgency than it has ever prevented or cured."

That should be your opening sentence on any section on "Rule of Law" in a manual about insurgency.

Your second sentence needs to be about the goal of equitable justice across the entire population affected by the system of governance that is seeking to counterinsurgency among some sub-set of that entirety. Perceived injustice in the application of the rule of law is historically one of the primary causal drivers of the conditions that must exist for insurgency to occur.

So a second sentence might look something like this: "An essential task for any system of governance faced with growing subversion or insurgency from one or more population groups under their governance is to seek to understand and cure any perceptions of injustice under the rule of law."

The next area to address is the role of legitimacy. Not legal legitimacy, that external recognition of the effectiveness of some government or external recognition of the legality of their right to rule. This seems to be the focus in the West, and frankly, for purposes of insurgency is largely moot. Actually, to call this focus on legal legitimacy moot masks the damage that comes from being overly focused on externally recognized legal legitimacy, as too often that leads to rationalizing efforts to put in power and/or sustain in power some government that makes foreign parties happy, but that is widely perceived as lacking in political/popular legitimacy in the eyes of the people actually affected by this government. In simplest terms, political legitimacy is a recognition of the right of some system of governance to affect one's life. This can apply to formal or informal systems, and also to internal or external systems. Any that affect one's life through their governance are naturally assessed for this critical factor by people everywhere.

"Winning Hearts and Minds" is really just a poetic way of saying "earning political legitimacy in the perceptions of the people affected by some system of governance."

To simply write about "rule of law" or how only the state has a "legitimate right to violence" is simplistic and serves to reinforce some of our worst behavior when dealing with insurgency, be it our own, or our efforts to help someone else out with theirs.

The archetypal hybrid legend of Robin Hood highlights both of these critical points. Even young children hearing the story for the first time instinctively appreciate that Prince John has legal legitimacy, but has little political legitimacy in the eyes of the people he seeks to rule; and how the Sheriff of Nottingham is doing his duty in enforcing the rule of law, and employing the legally legitimate use of violence against the people in that effort; but that his law is widely perceived as unjust, and serves only to reinforce the perceptions that John's governance has no political legitimacy despite the clear legal legitimacy that placed him in power in Richard's absence.

Until we are willing to step back and reframe how we think about and understand the fundamental dynamic of insurgency we are simply rearranging the proverbial deckchairs when we write new manuals on counterinsurgency. Governments possess a natural bias against insurgency, and reasonably so. This bias is then built upon through the bias of the inherently illegitimate missions of colonial rule and political manipulation to conduct containment strategy during the cold war that so much of our doctrine is derived from. Bias layered upon bias. These are not our missions today. We do not seek to maximize profits through political control of others, nor do we seek to control who is in charge of places seen as critical for containing some greater threat. These are approaches as obsolete as the hollow square. Rifled muskets and Machines guns rendered massed troops obsolete; modern information technology did the same to approached based in external political control of others. We need to work much more diligently than we have to date at distilling this bias out of our thinking on insurgency.

In fact, once all of that bias is distilled out, an insurgency exists when all of the following four factors are present: Internal, populace-based, illegal, politically purposed challenge to some system of governance. What I find fascinating is that if one changes one factor, "illegal" to "legal" one has democracy. So the only difference between insurgency and democracy is legality. That needs to be your dropkick bottom line in your section on the rule of law.

Best,

Bob

TheCurmudgeon

Thu, 12/12/2013 - 7:32am

Max,

I will write more later, but I would like to know why you altered Weber's definition of a state. You cite it as "a state is a human community that (successfully) claims the monopoly of the legitimate use of force within a certain territory" but then when you apply it you leave out legitimacy.

"the rule of law can be said to exist in any area where government has achieved a monopoly on the use of force and citizen association is uninhibited. The condition may be conceived of as a sense of mutual trust wherein the people, having either rendered or been stripped of their ability to legitimately commit violence among themselves,..." using the idea that they have been STRIPPED of their ability to legitimately use violence creates the impression that the state took that power illegitimately.I am curious why you felt you needed to use that terminology?