Michigan Law Review
June, 2003
101 Mich. L. Rev. 2275
THE NEW IMPERIALISM: VIOLENCE, NORMS, AND THE "RULE OF LAW"
Rosa Ehrenreich Brooks
[It] is not a pretty thing when you look into it too much. What redeems it is the idea only. An idea at the back of it: not a sentimental pretence but an idea; and an unselfish belief in the idea - something you can set up, and bow down to, and offer a sacrifice to ... .
- Joseph Conrad n1
I. Introduction
A. The Explosion in "Rule of Law" Promotion
The past decade has seen a surge in American and international efforts to promote "the rule of law" around the globe, especially in postcrisis and transitional societies. n2 The World Bank and multinational corporations want the rule of law, since the sanctity of private property and the enforcement of contracts are critical to modern conceptions of the free market. n3 Human-rights advocates want the rule of law since due process and judicial checks on executive power are regarded as essential prerequisites to the protection of substantive human rights. n4 In the wake of September 11, international and national-security experts also want to promote the rule of law, viewing it as a key aspect of preventing terrorism. n5
Given their conflicting priorities, human-rights advocates, economic analysts, and those concerned primarily with national and international security naturally differ on the proper law-reform priorities for transitional societies. They battle over whether commercial-law reform should precede criminal-law reform, whether the creation of new commercial courts should take priority over the creation of human rights and war crimes courts, and whether judicial reform ought to come before police reform. Since September 11, 2001, the three groups have also disagreed about the imperatives of the "war on terror," which many rights advocates see as privileging short-term security concerns over longer-term commitments to promoting human rights. n6 Nonetheless, the three groups (which can overlap) share the basic assumption that the rule of law is central to stable and modern democratic society. n7
The U.S. and other international actors n8 have supported programs designed to promote the rule of law for years, with many early efforts in Latin America. n9 The pace and funding levels of those programs increased dramatically in the early 1990s, as the collapse of the Soviet Union and the toppling of totalitarian regimes in other parts of the globe dramatically energized rule-of-law assistance. n10 According to Freedom House, a leading nongovernmental organization, fledgling democracies were springing up worldwide during the 90s, n11 and international organizations and donors rushed to help; in the wake of the Soviet Union's collapse, one commentator describes a veritable "explosion of rule-of-law assistance" around the world. n12
An increasing number of "failed states," civil wars, and human-rights crises have also helped fuel enthusiasm for rule-of-law promotion efforts, with ambitious rule-of-law programs in areas as disparate as Kosovo, East Timor, Sierra Leone, Afghanistan, and Iraq. Since 1990, the U.S. and other bilateral and multilateral donors have spent literally billions of dollars on promoting the rule of law, and those huge governmental sums have been matched by similarly large donations from private foundations. n13 The war on terrorism has given further impetus to U.S. and international enthusiasm for rule-of-law promotion; most recently, millions have been pledged for rule-of-law programs in post-Taliban Afghanistan and post-war Iraq. n14
Until less than a decade ago, rule-of-law assistance traditionally involved aid packages designed to encourage governmental law-reform initiatives and support law-related nongovernmental organizations ("NGOs"). n15 In recent years, however, with the upsurge in United Nations and NATO peacekeeping operations, there have been more and more situations in which the U.S., UN, and other key actors (The European Union ("EU"), the Organization for Security and Cooperation in Europe ("OSCE"), etc.) find themselves wholly or partially administering a society in crisis.
In Kosovo, the UN, the EU, the OSCE, and NATO still collaborate to administer Kosovo under a UN umbrella, assisting the fledgling Kosovar governance structure; in East Timor, the UN was the central government until the recent elections and still administers numerous "government" programs; in Sierra Leone, the fragile indigenous government relies heavily on UN administrators and peacekeeping troops to preserve the still-tenuous peace and help with everything from education, health care, and food aid to legal and judicial reform.
The Bush administration's early determination to resist Clinton-style "nation building" adventures collapsed in the wake of September 11. Today, Afghanistan is essentially run (though not particularly well run) by the UN, the EU, and dozens of international NGOs, with extensive assistance from U.S. troops and civilian personnel. Inter-national experts inspect Afghan prisons, train police and judges, plan elections, and help rewrite the laws. An international security-assistance force patrols the streets of Kabul, and American soldiers continue military operations to root out al Qaeda forces in the rest of the country. n16 In Iraq, the American presence is felt everywhere. Nearly 150,000 U.S. soldiers remain in Iraq today, n17 and Iraq is governed by an American civilian administrator who reports directly to the U.S. Department of Defense. n18 American military police are in charge at Baghdad police stations; American JAG lawyers supervise Iraqi courts; Iraqis accused of crimes are detained by U.S. soldiers at U.S. military bases. n19
In an increasing number of places, promoting the rule of law has become a fundamentally imperialist enterprise, in which foreign administrators backed by large armies govern societies that have been pronounced unready to take on the task of governing themselves. n20
B. A String of Expensive Disappointments
Despite billions of aid dollars, programs to promote the rule of law have been disappointing. n21 For example, in Russia, more than a decade after a massive infusion of foreign aid began, there have been few rule of law success stories. Organized crime continues to play an enormous role in the economy, corruption among public official shows no sign of abating, economic hardship continues for millions, life expectancy remains lower than it was under communism, the prisons are overcrowded and allegations of abuse routine, and Russia's ill-starred and never-ending military campaign in Chechnya has killed thousands, including many civilians who died as a result of massive Russian bombardments in Grozny. n22
In Kosovo, four years after a massive NATO bombing campaign, things are little better, despite the fact that the international community literally took over the province's administration. For three years after the air campaign ended, Kosovo was run by over 40,000 NATO troops and a civilian UN administration that amounted to almost ten thousand additional foreigners (including NGO representatives, civilian police, and OSCE, and EU staff). n23 This worked out to roughly one foreigner for every thirty-six Kosovars, a ratio of foreign occupiers to locals that would have inspired the envy of nineteenth-century colonial powers. Today, more than 20,000 NATO troops still remain, n24 but ethnic intolerance continues to rage, with daily assaults and frequent murders; thuggishness and organized crime grow virtually unchecked. n25 The fledgling UN-sponsored judicial system remains unable to offer even reasonably speedy trials, much less consistent and independent rulings. n26
The same story could be told in dozens of other places, all at varying stages in the "transition to democracy" (an optimistic phrase). In Latin America, many commentators have concluded that the earlier era of rule-of-law promotion programs have had little lasting impact. n27 More recent experiments have similarly been of questionable value. In Sierra Leone, 17,000 UN peacekeeping troops from thirty-one countries n28 remain unable to ensure basic security in parts of Sierra Leone's territory, n29 much less guarantee accountability for past abuses. n30 In East Timor, 5,000 blue-helmeted UN troops and the civilian UN administration struggle to maintain their credibility in the face of economic depression and continued security threats from pro-Indonesian militias. n31
The news from Afghanistan is similarly disheartening: the delivery of aid funds has been delayed; security problems have prevented judicial and legal assessments beyond the capital city of Kabul; in much of the country women reportedly face serious retaliation if they fail to wear the burqa; prison conditions are reportedly appalling; a resurgence of Taliban military activity has killed hundreds of Afghans; many Taliban-era regulations are still enforced, although technically no longer valid; and the new chief justice has spoken publicly in favor of punishments such as the execution of adulterers by stoning or flogging. n32
Meanwhile, in Iraq, five months after President George W. Bush announced the end of "major combat," American soldiers continue to be killed and wounded by hostile forces on an almost daily basis. n33 Sabotage has slowed the restoration of basic services such as electricity. n34 Deadly terrorist attacks on the United Nations and on nongovernmental organizations have slowed reconstruction efforts. n35 The newly reconstituted Iraqi police remain unable to prevent widespread violent crime, n36 and the police themselves have increasingly been the targets of deadly terrorist violence. n37
In a sense, citizens of Kosovo, Afghanistan, Iraq, and the like must put up with some of the worst aspects of imperialism (culturally insensitive occupying armies that drive up prices, distort local economies, and push through ham-handed "reforms") with few of imperialism's benefits, such as they were; the new imperialists lack the capacity or the will to stamp out crime, pick up the trash, or make the trains run on time.
C. What's Gone Wrong?
The very concept of the rule of law is rarely examined or understood by key U.S. and international decisionmakers, n38 although "promoting the rule of law" has become a mantra for many in the foreign-policy, human-rights, and international-development communities. n39 There is a substantial academic literature on the nuances of the idea of the rule of law, n40 but for the most part, decisionmakers and commentators - including many scholars in the international-law and human-rights-law communities - do not engage with this literature. n41 Decisionmakers and commentators tend to conflate formal and procedural aspects of the rule of law (such as structurally independent courts, "modernized" legislation, etc.) with a more substantive conception (such as respect for individual and minority rights, a commitment to nonviolent means of resolving disputes, substantive due process, and so on). n42 Most decisionmakers recognize in theory that the rule of law has important normative, substantive, and formal dimensions. Yet, in practice, rule-of-law promotion efforts continue to focus on establishing the formal dimensions of the rule of law, assuming with little evidence that this will lead reliably and predictably to the emergence of a robust societal commitment to the more substantive aspects of the rule of law. n43
For the most part, the U.S. human-rights and foreign-policy communities have applied an identical template to societies all over the world, taking little account of their differences or the template's failures in other places. n44 (And it is not only the U.S. foreign-policy community that does this: the UN, the World Bank, the EU, the OSCE, large philanthropic foundations such as Ford, MacArthur, Rockefeller, and other major players have all taken essentially the same approach.) n45 In his recent book Aiding Democracy Abroad, Tom Carothers of the U.S. Institute for Peace even offers (by no means uncritically) what he refers to as the "Rule of Law Assistance Standard Menu." It includes "reforming institutions" (judicial reform, strengthening legislatures, police and prison reform, etc.), "rewriting laws" (modernizing criminal, civil, and commercial laws), "upgrading the legal profession through support for stronger bar associations and law schools," and "increasing legal access and advocacy" through the support of legal-advocacy NGOs, law-school clinics, and so on. n46
This model simply does not work. n47 What this type of formalistic approach fails fully to recognize or acknowledge is that creating the rule of law is most fundamentally an issue of norm creation. n48 The rule of law is not something that exists "beyond culture" and that can be somehow added to an existing culture by the simple expedient of creating formal structures and rewriting constitutions and statutes. In its substantive sense, the rule of law is a culture, yet the human-rights-law and foreign-policy communities know very little - and manifest little curiosity - about the complex processes by which cultures are created and changed. n49
Recent U.S. and international interventions to promote the rule of law (interventions through military force and through massive aid infusions designed to alter fundamental aspects of societies) have been disappointing in large part because their architects are unwilling to grapple with complex issues of norm creation and the relationship between "law" and "norms." We have failed to define or justify our goals and we have failed to even ask, much less search for the answers, to some very basic questions about how and when societies change, what role (if any) law can play in such cultural change, whether law has any necessary correlation with order and violence, and how and when outsiders (or insiders, for that matter) can promote norm change in particular directions. n50
These questions are urgent and of far more than just academic interest. Globalization, the decline of state structures, intrastate group conflicts, and the rise of organized terrorist groups that recruit heavily in poor and "lawless" regions make it overwhelmingly likely that the U.S. and the international community will continue to become involved in what we once might have dismissed as the "internal affairs" of foreign states. (And although the theoretical insights about the relationship between law and violence are of urgent importance in the international domain, they are equally applicable to domestic settings.) The U.S. and the international community will continue to promote the rule of law through foreign-aid programs, through diplomacy, and at times through military interventions and peacekeeping forces. We will also continue to promote the rule of law through lawyers: through America's law schools and various American Bar Association projects, lawyers and legal scholars will continue to work as employees and consultants for the U.S. Agency for International Development, for foreign governments, for the UN, and for NGOs. n51 More and more law students will become involved in this work both while in school and after graduation, and these students will hunger for courses and scholarship on these issues. If we are to respond to this trend in a meaningful way, issues of norm creation will have to move to center stage in international and comparative law, and in the growing scholarly literature on promoting the rule of law in the international arena and individual societies around the globe.
There is an irony here that is worth noting. For years, legal scholars who focused on domestic legal issues dismissed international law as "not really law," but something else: unenforceable moral directive, for instance, or mere politics. n52 In other words, the claim was that international law is really a matter of social norms, not law. Today, however, domestic-law experts are beginning to recognize the powerful role social norms often play in guiding, buttressing, and sometimes undermining domestic law. n53
Ironically, at the very same time, many international-law experts are hailing a new age of international law, one in which international law is increasingly interpreted by judicial and quasi-judicial bodies whose decisions are increasingly backed by substantial coercive powers (in the form of a widespread willingness on the part of more and more states to use economic sanctions and, at times, military force to enforce those decisions). n54 In other words, just as many domestic-law experts are belatedly recognizing the critical importance of social norms to law, and the need to understand how norms and law interact, some international legal scholars are insisting triumphantly that international law has moved beyond "mere" norms. n55 A key challenge for international-and comparative-law scholars today is to reinvigorate the study of norms as part of the study of international law, international human-rights law, comparative law, and international affairs. n56
In particular, we need to study norm change in the places and moments where international law, domestic law, and comparative law intersect. Traditionally, international, comparative, and domestic law were seen by most scholars as largely separate areas for analysis: international-law scholars studied the rules governing interactions between states; comparativists examined different domestic legal systems in an effort to understand their provenance and seek out creative ways to borrow useful ideas from other legal cultures; domestic-law scholars studied the laws of their own country; and all viewed the occasional areas of overlap as more or less incidental. Thus, some studied the development of transnational legal process; some studied how different national legal regimes "borrowed" from one another; and some studied law and legal process within relatively bounded societies. Meanwhile, an important area of study slipped through the cracks - the study of how societies do or do not absorb the norms associated with international law, in a context where actors from different states interact in complex transitional and crisis situations.
The urgency of this project is only increased by the same trends that have led some scholars to assert that international law is beginning to look more like "real" law: the decline of the idea of absolute state sovereignty, the increasing importance of international human-rights law, the growth in transnational and regional tribunals and arbitration regimes, and the steady movement in many parts of the world towards the incorporation of international law into domestic law. These trends are partly a product of the emergence of new kinds of transnational actors, from NGOs, to multinational corporations, to globally diffuse terrorist networks. These developments blur the lines between international law, comparative law, and domestic law. Today, domestic, regional, and international regimes are increasingly interwoven and overlapping, albeit in ways that are ad hoc and constantly evolving. We are quite possibly in the midst of one of the greatest periods of global cultural diffusion and adaptation the world has ever known, n57 and we can no longer afford to ignore these emerging legal-process issues.
The goal of this Article is to participate in the challenging project of carving out a new area of study in the place where international law, comparative law, and domestic law intersect. In this Article, I use the story of flawed rule-of-law assistance efforts to demonstrate the importance of this inquiry.
I take as a basic premise that there are many situations in which it is justifiable and beneficial for the U.S. and other actors to seek to promote human rights and the rule of law abroad, and that at times even military interventions are a necessary and justifiable part of this effort. These are controversial statements (and do not imply endorsement of any particular past intervention), but I will simply assume their truth for the limited purposes of this Article.
If we assume that efforts to promote the rule of law are important and justifiable, however, we need to make those efforts as effective as possible. The initial goal of this Article, then, is to convince readers that there is indeed a problem with how we go about promoting human rights and the rule of law. n58 I argue that the root cause of the problem is the failure to take seriously issues of norm creation, and the complex relation between law and norms. In part, truly acknowledging this problem must involve recognizing something lawyers are often reluctant to acknowledge - that at times "the law" in its formal sense is of peripheral importance at best. Although we imagine that the trappings of formal law are central to creating order and reducing violence, there is little evidence that this is so. n59
Second, this Article seeks to map out a preliminary research agenda for this new field, outlining the kinds of questions we urgently need to start asking, and suggesting some of the things we will need to do to start feeling our way towards some answers. I recognize, of course, that we may never have complete answers to questions of such complexity, but insist nonetheless that we can be at least a little bit more sophisticated than we currently are. Finally, I want to suggest some very preliminary hypotheses about what those answers might look like.
II. Case Study: Kosovo
The previous section noted that many recent rule-of-law promotion efforts have been surprisingly unnuanced and formalistic, and their shallow formalism has condemned them to irrelevance at best. At worst, such approaches may not only fail to create the rule of law - they may actually undermine the rule of law. Several examples, all from events of the last few years in Kosovo, help illustrate these points. The Kosovo experience makes a useful case study because it is neither too far in the past to provide valid insight into current approaches and problems, nor too recent for us to draw meaningful conclusions about its successes and failures. n60
Much of the discussion that follows is drawn from personal experiences working in Kosovo in 1999 and 2000, as well as from follow-up discussions with numerous colleagues and former colleagues still working in Kosovo. First, some background. n61 When Milosevic agreed to withdraw Serbian troops from Kosovo after months of NATO bombs, the UN Security Council passed Resolution 1244, n62 which created an international civilian administration in Kosovo under the auspices of the UN. This civilian administration became known as UNMIK, short for UN Mission in Kosovo. Bernard Kouchner, the French human-rights advocate who founded Medecins Sans Frontieres, was appointed as UNMIK's head, the Special Representative of the Secretary General ("SRSG"). His deputy was Jock Covey, a former U.S. State Department official. n63
When Kouchner and a small army of international experts arrived in the battered city of Pristina in June 1999, they faced the daunting challenge of governing 1.8 million people in a devastated region with no functioning courts, no functioning prisons, and no police. A decade earlier, when the Serbs ended Kosovo's political autonomy within Yugoslavia in 1989, Albanians were dismissed from most public-sector jobs and denied access to higher education. As a result, immediately before the NATO air war began, all of the judges in Kosovo were Serbs, as were most of the practicing lawyers (discriminatory laws meant that Albanian lawyers had only very limited practice opportunities). All of the police were Serbs. Albanians were fired from the law faculty at the University of Pristina and Albanian law students were forced to study in private houses to earn a law diploma that the Serbs refused to recognize anyway. When NATO ended its bombing campaign and hundreds of thousands of angry Kosovar Albanians rushed back home from the refugee camps of Macedonia and Albania, many Serbs fled, fearing - rightly, as it turned out - that they would be subject to violent acts of revenge. The short-term result was that after the war, since most of the Serbs had fled and the Albanians were ten years out of practice, Kosovo was left without a functioning civil service. n64
A. Looking for the Law
When UNMIK set up shop in the summer of 1999, Kosovo lacked courts, police, prisons, lawyers, and judges. It also lacked an agreed-upon body of law. After all, if Serbia was no longer in charge, and the UN was running the show, what body of law was applicable in Kosovo? What laws should govern the apprehension and trial of criminal suspects, the thorny problem of disputed property claims, and the actions of UNMIK itself? The route UNMIK took to resolve these issues demonstrates that simplistic formalism is a dead end for reformers when more culturally potent symbolic issues are at stake.
After a brief consideration of the problem of applicable law, UNMIK head Bernard Kouchner decided that the simplest thing to do was make the applicable law in UN-administered Kosovo the same as the law that was applicable before the NATO air campaign began. He issued UNMIK Regulation 1, which stated that "the laws applicable in the territory of Kosovo prior to 24 March 1999 shall continue to apply in Kosovo," insofar as those pre-March 1999 laws did not conflict with internationally recognized human-rights standards, the UNMIK mandate under UN Security Council Resolution 1244, or any other UNMIK regulation. n65
A fine idea, one which William of Occam would have approved - until he saw the resulting chaos. The problem was that to Kosovo's one and one-half million ethnic Albanians, the applicable laws in Kosovo before the bombing campaign began were "Serb laws," a key symbol of Serbian oppression against the Albanians. While the concept of "honor" may have little salience in modern America, in Kosovo it remains of great cultural importance. n66 After ten years of Serb oppression, an ethnic cleansing campaign, an armed struggle, and, perhaps, a narrowly averted genocide, the idea that the UN would issue a decree requiring the Kosovar Albanians to continue to live under Serb law was profoundly insulting to many Kosovars. To the bureaucrats at UNMIK, the fact that the pre-1999 laws had been promulgated by Serbs seemed purely academic - but to many Kosovars, it was an offense to honor of the deepest sort.
It made no difference that UNMIK Regulation Number 1 said that human-rights standards would trump the laws on the books in the event of a conflict. To the Kosovars, Serb law was Serb law, and they wanted none of it. Nearly all of the fifty-five people sworn in by UNMIK to serve as judges and prosecutors in UNMIK's new "Emergency Judicial System" immediately declared that they would not apply Serb law.
A crisis ensued, complete with angry editorials and dozens of stormy meetings in Pristina, UN headquarters, the State Department, and other sites. UNMIK refused to rescind Regulation 1. At the same time, since most prosecutors and judges refused to accept Regulation 1, few judicial proceedings began in the makeshift courts. Most judges insisted that the applicable law should by right be the laws in force before 1989, since these laws were passed with the approval of the Albanian-dominated Kosovo parliamentarians before the Serbs ended Kosovo's autonomy. Some judges began to move forward with court proceedings, but applying pre-1989 laws. Other judges applied an eclectic mix of pre-and post-1989 laws. UNMIK continued to insist that such actions were effectively illegal, but a few creative Kosovar jurists noted that since the post-1989 laws were themselves arguably illegal (since they were imposed by Belgrade after the dissolution of the Kosovo parliament), they had never truly been legally applicable in Kosovo, which meant that the pre-1989 laws in fact were the laws applicable in Kosovo on March 22, 1999.
This particular controversy ended in defeat for UNMIK. Six months after issuing Regulation 1, UNMIK (without comment) made a full about-face in the form of UNMIK Regulation 24. n67 This new regulation declared that the law applicable in Kosovo would henceforth be the law in force on March 22, 1989, immediately prior to the ending of Kosovar autonomy. Regulation 24 in fact permitted Kosovar judges to pick and choose whatever law they liked best: when the pre-1989 laws failed to cover a given situation, Regulation 24 gave judges the freedom to apply any nondiscriminatory legal provision applicable in Kosovo after March 22, 1999. And, of course, all law applied had to be consistent with international human-rights standards - although Regulation 24, like Regulation 1, neglected to identify sections of the law inconsistent with human-rights standards, or lay out the procedures to be followed in the event of perceived conflict between a provision of the law and human-rights standards.
This was not a trivial oversight. Ironically, the pre-1989 laws, so dear to the Kosovar Albanian community, were far less consistent with modern international human-rights standards than the post-1989 Serb law they had so vehemently rejected. The pre-1989 laws were designed in the Communist era, before the fall of the Berlin Wall and the advent of greater openness in Yugoslavia. n68 Not only did the pre-1989 laws fail to conform to international human-rights standards in numerous ways, but the property-and civil-law regime they created reflected a very different set of assumptions about how social life should be organized than most Kosovars held a decade later. On their face, the post-1989 Serb laws appeared to be an improvement on their predecessors. They included a more modern understanding of private property, and the criminal-law statutes covered war crimes and other humanitarian-law violations, unlike earlier laws. It was primarily the implementation of these post-1989 laws that had been discriminatory and oppressive. n69
This is a small example of how an overly formalistic approach to law foundered when it came up against certain "irrational" but powerful cultural understandings. Although this dispute seems ludicrous in many ways - after all, UNMIK only wanted to save everyone time and effort by adapting the by-and-large decent law that was already in use - its consequences were major. If UNMIK read the Kosovar Albanian rejection of Regulation 1 as irrational and obstructionist, the Kosovar Albanian community read UNMIK's initial refusal to take its objections seriously as evidence both that the international community had little respect for its history, fears, and aspirations, and as evidence that the "rule of law," UNMIK-style, was little different from rule of law, Milosevic-style. Furthermore, UNMIK's ultimate reversal on the question of applying the pre-1989 laws suggested to the Kosovars that law UNMIK-style was a matter of arbitrary decrees that could be issued and reversed by an unaccountable, appointed bureaucracy. UNMIK's law, therefore, need not have and should not have been followed by lawyers or judges, much less by ordinary people.
B. Self-Determination Versus Human Rights
The dispute over Regulation 1 was one small part of a larger problem that plagued efforts to create the rule of law in Kosovo. UNMIK could never entirely decide whether its ultimate goal was to promote self-determination, or to promote and ensure human rights. For that matter, UNMIK never truly confronted the question of whether a commitment to human rights requires a commitment to democratic decisionmaking, or what truly constitutes democratic decisionmaking in a society with no obviously legitimate representatives, or how to resolve crises in which majoritarian democracy seemed likely to trample on minority and individual rights. n70 These are complex issues without easy answers, but UNMIK's failure to confront them at all was particularly damaging given that UNMIK's whole raison d'etre in Kosovo involved protecting the Kosovars' right to self-determination and promoting human rights. Indeed, NATO went to war in Kosovo with the stated aim of protecting the Kosovars from Serb domination and human-rights abuses.
UNMIK proved unable to come up with any coherent mechanism for addressing these sometimes conflicting imperatives. In the early days of the UN administration, UNMIK established a variety of consultative bodies designed to include the Kosovars in decisions about the all-important project of reestablishing the rule of law. The Judicial Advisory Council ("JAC") was created, as were the Interim Advisory Council ("IAC"), and the Legislative Advisory Council ("LAC"). Including prominent Kosovar lawyers, academics, and political figures, these bodies were meant to help appoint judges, revitalize legal education, and produce legal codes. But time and time again, this consultative process foundered, as quarrels broke out over substantive issues and over who should serve on the advisory bodies (no clear criteria existed, and the different ethnic groups and political parties clashed both with UNMIK and with each other over how to divvy up the seats), and in what language the proceedings should be conducted in. (The Serbs insisted on Serbian and the Albanians on Albanian. Since the UN personnel generally spoke neither, this forced meetings to include multiple translators, leading to further inefficiency and misunderstanding.)
The consultative process also faltered on more substantive issues: not infrequently, for instance, Albanian participants would express the view that there should be no Serb judges, as all Serbs were war criminals, or that the property code should give all Serbian property to Albanians, since it had been stolen from them in the first place, even if decades or centuries before, or that revenge killings of Serbs by Albanians should be treated more leniently than other kinds of killings.
Such disputes did not bode well for the due process of law that UNMIK hoped to see emerge, and UNMIK responded by dismissing its advisory councils and making key decisions itself. In other words, when a majoritarian form of self-determination came up against human rights, self-determination lost; and the sequence of events leading to those decisions hardly looked like due process. Basically, UNMIK wanted the decisionmaking process to be as participatory and democratic as possible, but when the Kosovar participants came up with suggestions or demands that UNMIK found unpalatable, UNMIK simply dismissed them and made the decisions on its own. Unsurprisingly, this did little to enhance UNMIK's reputation with the Kosovars, as they saw UNMIK as increasingly arbitrary and unaccountable in its rule. Ultimately, the advisory councils became semipermanent battlegrounds, frequently dissolved by UNMIK, just as frequently boycotted by one or more Kosovar or Serb groups, and nearly always locked in angry paralysis.
C. Human Rights Versus "Law and Order"
In Regulation 1, UNMIK effectively incorporated international human-rights standards into Kosovo's law, and this was affirmed in Regulation 24. Although UNMIK's regulations never specified precisely how to identify a norm of international human-rights law, UNMIK legal advisers, other international actors, and Kosovars all took "international human rights" to include, at a minimum, the core rights at the heart of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights ("ICCPR"), the European Charter, and decisions of the European Court of Human Rights (since Kosovo was, after all, part of Europe, and the EU and the OSCE both had major roles in Kosovo under the UNMIK umbrella). Under each of these overlapping regimes, core rights include (among others) the rights to equal protection, due process, fair and expeditious judicial proceedings, freedom from arbitrary detention, adequate detention conditions, and representation by counsel. n71
The police, prison, and judicial systems established by UNMIK were unable to comply with those standards, however, or even with the generally less-stringent standards that had been laid out in pre-or post-1989 Kosovo, Serbian, and Yugoslavian law. An international civilian police force for Kosovo got up and running only slowly, and to this day functions poorly. In some regions of Kosovo, UN civilian police from around the world apprehend suspects and investigate crimes. In other regions, Kosovars who have gone through a basic training course at a UN police school patrol the streets. In some areas, NATO soldiers act as the police. In still other areas, all three share de facto responsibility for policing. These various policing agents speak different languages and apply widely varying methods in different parts of Kosovo. As a result, they have been notoriously ineffective at preventing crime or solving crimes in which suspects are not caught red-handed. Moreover, since police procedures vary widely depending on the nationality and experience levels of the police, NATO soldiers and police in different areas apply widely differing standards for stopping, questioning, and detaining suspects. n72
Detention facilities in Kosovo are equally variable. Most prewar prisons were damaged by bombs or arson, and some detainees end up in police holding cells or in NATO tents behind barbed wire. Few are held in facilities that were purposely built for long-term detention, which means that many detainees have no exercise areas, no health-care facilities, no private visitation areas (or set standards for determining when to allow access for visitors), and no access to legal materials. Few facilities allow full separation of men from women, juveniles from adults, or pretrial detainees from convicted criminals. There are few adequately trained prison and detention-facility guards, and detention-facility officials have, in several well-publicized cases, been unable to prevent ethnic violence among detainees, or escapes by well-organized groups of prisoners assisted by outsiders.
Court resources vary as well. Most courts use Kosovar judges appointed by the UN or the fledgling Kosovar government. Some courts make partial use of international judges (who are paid more than ten times as much as local counterparts, and given far better resources and security, which unsurprisingly breeds resentment). Many courts still lack law libraries or basic equipment. (Indeed, for many judges the issue of applicable law remained moot for well over a year after UNMIK took over. Until summer 2000, most Kosovar judges lacked copies of either the pre-or post-1989 statutes, as well as copies of international human-rights treaties, UNMIK regulations, and European Court of Human Rights case law.) For eighteen months after the NATO air campaign ended, most courts and prosecutors' offices also lacked vehicles, office equipment, furniture, and full staffs. n73
As a result of resource limitations, unresolved jurisdictional issues, and the dispute over the applicable law, most courts were slow to begin hearing cases. In many areas, no judicial proceedings were held at all for more than eight months after the beginning of the UNMIK administration, and Kosovo's courts still face a formidable backlog today. But NATO and UN civilian police ("CivPol") began arresting criminal suspects as soon as they were deployed, since the restoration of "law and order," in the sense of stopping the widespread violence, was viewed as a key priority. For most of the first year of UNMIK administration, NATO and CivPol resource limitations meant that only those caught more or less red-handed while committing serious crimes (rape, arson, kidnapping, murder) were actually apprehended; most other suspects were given a warning and released immediately. Nonetheless, within months after the UN administration started, several hundred criminal suspects were detained in makeshift NATO and UN jails. But for the most part, these detainees could not be tried or even indicted since the courts were so slow. Although virtually any straight reading of the applicable law (pre-or post-1989 Kosovo law, European human-rights law, whatever) made it clear that detainees could certainly not be held indefinitely without charge, many detainees were not released, even though they were not charged either. n74 Some suspects were also detained pursuant to the UN Special Representative's executive powers. n75
The UN administration's commitment to upholding human rights and the rule of law created another conundrum: holding people for indefinite periods without charge was surely a problem under anyone's reading of the law, but letting dangerous suspects - including a number of people accused of war crimes - back out into the streets also seemed unacceptable to NATO and UNMIK. Allowing criminals to run free would undermine all of the UNMIK and NATO efforts to restore order, reduce violence, and increase public confidence in the international community's commitment to good governance in Kosovo. UNMIK ultimately resolved this conundrum by issuing UNMIK Regulation 26, which noted blithely that "in order to ensure the proper administration of justice," pretrial detainees could be held for a full year if they were suspected of serious crimes. n76
Passage of this regulation did little to inspire confidence in the rule of law in Kosovo. Many Kosovars and international observers claimed that those suspects who were released (either through the exercise of prosecutorial discretion or because a judge determined that they had been held for excessive periods without charge) tended to be disproportionately Albanians who either had "connections" to powerful people or who had committed revenge crimes against Serbs and other minorities, while those who continued to be detained were often minorities or those without powerful friends.
The story of missteps in creating the rule of law in Kosovo does not end here - I could go on to discuss further and more recent instances of ethnic bias, corruption, and intimidation in the courtroom, prison escapes, and so on. n77 But I think I have said enough to demonstrate the perils of equating formalism with the substance of the rule of law. Although UNMIK did its best to create all the formal trappings of the rule of law, n78 in the end it accomplished little and arguably undermined the rule of law for years to come. When UNMIK set up shop with 40,000 NATO troops, the Kosovars had just emerged from a long period in which the law was no more than a naked instrument of oppression - and UNMIK's inept approach to reestablishing the rule of law sent the message that law is, indeed, an arbitrary and manipulable thing, nothing that a person of integrity ought to heed. And in a society such as Kosovo, in which other conflict-resolution tropes exist - most notably, bloodfeud and outright war - such an inept formalism ultimately undermines itself.
This should not be a surprise. Much of the psychological and socio-legal work that has been done on why people obey the law reminds us that rational-choice theory tells us only a very little bit about law-abidingness. People may indeed weigh the risks and consequences of getting caught as they consider whether to break the law, but factors such as the perceived morality of the substantive law and the perceived legitimacy and procedural fairness of legislative and judicial processes are often of paramount importance in explaining why people do (or do not) behave in accordance with law. n79 In Kosovo, virtually every factor that might create the rule of law broke down, and UNMIK, because of its self-imposed limitations, proved incapable of putting the pieces back into place. Even a purely rational actor could certainly have concluded that despite NATO's overwhelming military presence, the odds of actually being caught and punished for committing a crime were quite low.
More important than that, however, the law struck many Kosovars as neither moral nor legitimate. In a society in which many people (by no means all, but enough) took seriously the idea that revenge was not
only excusable but perhaps even morally required, n80 attempts to clamp down on ethnically motivated revenge crimes and ensure equal treatment for Albanians and Serbs struck many as unjust: Why, after all, should the international community permit the Serbs to escape the consequences of what many Kosovars saw as their (collectively) evil actions? When the process for selecting law and deciding how to reform legal institutions was so arbitrary, high-handed, and confused, the basic criteria for legitimacy were unmet. Little wonder, then, that efforts to create the rule of law in Kosovo have been so disappointing, in ways that should give pause to those optimistic about the ongoing efforts in Afghanistan and Iraq.
Do these Kosovo stories imply that changes in formal law never matter? Not at all. In fact, in some societies, formal law very clearly matters in a reasonably straightforward way to most people, most of the time. In the U.S., for instance, where we basically share a substantive normative commitment to the rule of law, changes in formal law certainly affect our behavior, generally (although not always) in ways that are possible to predict. n81 If a judge orders a vote count stopped, it stops. If a statute is declared unconstitutional, it will not be enforced. If the law requires everyone to pay more in taxes, most of us groan, but comply.
In such a context - where there is a preexisting and broad cultural commitment to the amorphous bundle of values we call "the rule of law" - it makes perfect sense to see the law as an instrument of social change. Although the precise effect of changes in the formal law is often difficult to measure, it is probably correct to believe that changes in the law have helped bring about real changes in our society: changes in how minorities are treated, changes in the degree to which women are truly able to participate as equal citizens, changes in the distribution of wealth, and so on. n82 In such a context, too, "reforms" designed to make courts more independent and to make legislation more consistent and up to date and to improve court administration find fertile ground, and may make precisely the difference they are designed to make.
In the U.S., then, formal law matters, and the same could certainly be said for Canada, most of Western Europe, and many other countries around the globe, from Japan to Costa Rica to Botswana. Nonetheless, even in these societies, formal law almost certain matters less (and in more complicated ways) than lawyers and legal academics may like to think. As many legal realists have noted, what really goes on in the office of the divorce lawyer or the insurance salesman certainly has something to do with "the law" and with legal institutions, but that something is not always what we think; individuals and groups understand the law in different ways, and organize their affairs in ways that sometimes reflect the law, sometimes subvert it, and sometimes barely connect to it at all n83. The recent work of Robert Ellickson has reinforced this message: the law's shadow is sometimes distorted, and often simply irrelevant to the bargaining process. n84
Consider also the Kosovo-like societies within the United States: the many inner-city communities, for instance, that are simultaneously oversaturated with law (in its most coercive manifestations) and that at the same time least resemble any robust conception of societies in which the rule of law prevails. The punitive measures of the "war on drugs" - along with the legacy of racism and police brutality - have left some impoverished minority communities in America disdainful of the idea of the rule of law, n85 and have created an environment in which alternative means of organizing social life and ordering violence (such as gangs) may appeal to increasing numbers of citizens. n86
Even in the United States, formal law matters only in ways more complex and inconsistent than we would like to think. If the relationship between formal law and substantive normative commitments - the relationship between formal law and cultural assumptions and behavior - is quirky and complicated even in the U.S., a nation that prides itself in having been built upon the idea of law's supremacy, how much more quirky and complicated is that relationship in Kosovo, in Sierra Leone, in Russia, in East Timor, in Afghanistan, or in Iraq, all places where formal law has been so utterly discredited. The complex and sometimes tenuous relation between formal law and normative commitments that we find in the United States turns out to be culturally contingent and not generally exportable in any simple way. In societies that lack a strong and shared substantive commitment to the rule of law, changes in the formal law are likely to have little effect on people's behavior. n87
To put it a little differently, what we have is a serious chicken-and-egg problem: we know, more or less, that given certain widely shared normative commitments in a given society, formal law can lead to changes in cultural assumptions and behavior. But when such normative commitments are not widely shared, changes in formal law and the structure of legal institutions are likely to have little real impact. The paradox is that when people already believe law matters, it will matter; when people think law doesn't matter, it never can, and it is unclear how to go from the latter state to the former. n88
III. Law, Order, and Violence: A Misunderstood Relationship
Thus far, this Article has argued that international efforts to promote the rule of law tend to focus on changes in formal law and legal institutions, despite the lack of evidence to suggest that formalistic changes will lead reliably to changed normative commitments within a given community. In the context of Kosovo, I have suggested that such formalistic efforts may have actually undermined international attempts to create the rule of law, since UNMIK combined its formalistic approach with ignorance of local preferences, high-handedness when expressed local preferences failed to conform with UNMIK values, inconsistent messages, and, at times, sheer incompetence. But the problem goes even deeper, because recent international and U.S. efforts to promote the rule of law have been based on fundamentally flawed assumptions about the relationship between law, order, and violence.
The implicit assumptions about law, order, and violence at the root of most rule-of-law promotion efforts run something like this: "We need the rule of law in crisis-ridden societies such as Iraq, Afghanistan, Kosovo, East Timor, and Sierra Leone - as well as in more stable places such as Russia and Guatemala - because the rule of law is essential to ensure that society functions in an orderly, predictable fashion. Without law, there will be violence and disorder. Where there is violence, there is disorder, and where there is disorder, there is violence. But disorder and violence are bad for human rights, bad for commerce, and a threat to international security. Rational people dislike chaos, violence, and suffering, and they like peace, predictability, and economic prosperity. Therefore, rational people desire the rule of law, since law brings order, reduces violence and suffering, and enables prosperity." n89
There are two problems with these assumptions, the second more profound than the first. The first problem is that even if these assumptions are basically valid, serious collective-action problems arise in most postcrisis or "transitional" societies. The second problem is that most of our standard assumptions about the relationship between law, order, and violence cannot be justified at all. Law has no inherent ability to reduce violence or suffering, and what is more, some of the time at least, people actively prefer violence and suffering to peace and prosperity.
A. Collective Action and Conflict Entrepreneurs
The first problem is fairly straightforward. Even if we accept the notion that in the long run all rational people desire peace and order, in the short run some people profit greatly from disorder and from violence. Such people can be dubbed "conflict entrepreneurs." n90 The people who profit from disorder and violence may be most reluctant to see the rule of law emerge triumphant, since the rule of law threatens their position and profits - and in extreme cases may place them in serious physical jeopardy, if they are prosecuted for crimes committed during the period of violence and disorder.
Thus, in Kosovo, Hashim Thaqi's Kosova Liberation Army ("KLA" or, in Albanian, "UCK") was often (and accurately) accused by UNMIK and other international authorities of sabotaging rule-of-law promotion efforts by keeping stockpiles of illegal weapons, committing or encouraging politically motivated killings, and intimidating judges into ruling in their favor. n91 For the KLA, such a strategy made perfect sense: the KLA had been politically marginal in prewar Kosovo, sidelined by Ibrahim Rugova's Democratic League of Kosovo, which emphasized nonviolent resistance to Serbian oppression. In the years leading up to the NATO intervention, the KLA launched small-scale attacks on Serb targets (both military and civilian). It was labeled a terrorist group by many in the international community, but it slowly began to attract followers, mostly rural, mostly young, and mostly male.
Violent and disproportionate Serbian retaliation for KLA attacks created KLA martyrs - including civilians massacred indiscriminately by Serb forces - and the KLA gained more popular sympathy. During the NATO bombing campaign, the KLA recruited thousands of young men eager to avoid remaining passively in refugee camps and critical of Rugova's equivocal role during the conflict. Supported by generous financing from the Kosovar Albanian diaspora, KLA forces inflicted an unknown but probably substantial amount of damage on Serbian troops in Kosovo. As the only anti-Serb military force on the ground, the KLA was in frequent contact with NATO, which stopped just short of arming the KLA but provided tacit support by coordinating bombing attacks with KLA leaders.
When "peace" returned, however, the KLA's brash young fighters found the rug had been pulled out from under them. Initially hailed as heroes by other Kosovars for their wartime conduct, KLA fighters sought to transform themselves into a viable political force. They urged UNMIK to treat the KLA as the legitimate and effective (if unelected) government of Kosovo, the only group capable of administering and controlling Kosovo's villages. But NATO and UNMIK wanted to negotiate with older, clearer-headed Kosovars, not with young men mere steps away from terrorism, and Rugova reasserted his claim to be the moral leader of the Kosovars.
As it lost ground politically, the KLA found itself struggling to hold onto the power and wealth it had gained during the conflict. Organized crime quickly proved a natural and lucrative arena for the KLA, and soon the KLA could be relied upon to support the rule of law half-heartedly, at best. Without the rule of law, the KLA could have guns, power, and money, maintaining control by bribery and intimidation. Individual KLA supporters would have access to lucrative positions, fine houses taken from Serbs or from "uncooperative" Kosovars, and plenty of money and opportunities to offer their families. The rule of law, in contrast, offered few short-term attractions. With the rule of law, many KLA soldiers would return to the state they were in before the conflict: no jobs, no means of income, no power, no future.
Even aside from the KLA, there were plenty of other Kosovars for whom the rule of law was unattractive in the short term. Many ordinary people who did not particularly support the KLA were nonetheless reluctant to turn over stockpiled weapons to NATO and UNMIK, reluctant to use the new courts, and inclined to take law into their own hands. Few Kosovars believed that NATO and UNMIK could or would protect them if things went wrong, and to many, involving NATO or UNMIK in a dispute over a violent crime or a property matter seemed like an excellent way to become enmeshed in red tape, more or less forever, while one's enemies prospered. Some ordinary Kosovars "acquired" cars or houses or appliances during the chaos; all of these people stood to lose a great deal if the rule of law were truly restored. And for those who had lost a house or a relative, informal kin and friendship networks often led to the KLA, which might remedy a loss in exchange for support. Why have faith in the rule of law when organized crime and the KLA offered a more reliable way to solve problems? n92
Much of this, of course, was beyond the control of UNMIK and NATO. It might well be that if NATO and the UN had moved more aggressively to police the borders, confiscate illegal weapons, detain criminal suspects (not just those caught red-handed in the commission of the most serious crimes), create new jobs in rural and urban areas, and set up an effective system for reclaiming stolen property and compensating people for wartime economic losses, ordinary Kosovars would have been more willing to support the rule of law and the KLA's incentive structure would have shifted as legitimate opportunities opened up. But although sheer incompetence hindered UNMIK efforts at times, UNMIK and NATO were both captive to the interests of their member states - and like all UN entities, UNMIK was only as effective as UN member states were willing to let it be; NATO troops, in turn, were only as effective as NATO member states allowed. The U.S., Britain, France, Russia, and other key players kept NATO and UNMIK too limited in resources and mandate to be effective. To some extent, then, it was inevitable that efforts to create the rule of law in Kosovo would fall far short of the mark.
Such collective-action problems are not unique to Kosovo. They plague most transitional and postcrisis societies, since there will always be those who reap short-term profit from violence and disorder. In Afghanistan, for instance, the U.S.-backed warlords of the Northern Alliance are currently a larger threat to security and the rule of law on the ground than the Taliban or al Qaeda. For many ordinary Afghans, warlordism is a disaster, but for the warlords, warlordism works exceptionally well. With profits from the opium trade and illegal-weapons trade, Afghan warlords and their clients fare far better now than they conceivably would in a peaceful, democratic Afghanistan. n93 In Iraq, we see early indications of the same phenomena, as individuals and groups rush to take advantage of the current leadership vacuum, seeking profit, revenge, or political power. n94
B. The Lure of Violence
Standard assumptions about the relationship between law, order, and violence often overlook the kinds of short-term, collective-action problems described in the preceding section, but they also suffer from a more profound flaw. To put it bluntly, contrary to much legal mythologizing, there is little correlation between law, order, and violence. This is in part because many people value moral meaning more than they value safety and prosperity. n95 As a result, for some people, in some places, some of the time, violence and suffering are actually more attractive than peace and prosperity, not simply because violence offers a chance to gain power and wealth, but because killing (or dying) for a cause can seem far more important - indeed, more appealing - than mere survival or acquiring wealth. Are such preferences "rational"? Perhaps not, but such preferences can certainly be powerful. n96
The myth we tell ourselves about law still owes a great deal to Hobbes. From a Hobbesian perspective, law is necessary because a world without law is a world of pervasive and uncontrollable violence. n97 In this view - shared, to one degree or another, by most Enlightenment and post-Enlightenment legal theorists - law arises as a response and an alternative to violence. Indeed, many would assert that law is the very antithesis of violence, since law seeks to create a system of social order and moral meaning based upon reason rather than brute force. n98
Empirically, there is little reason to believe this is true, at least if we consider law in the formal sense n99 (and, as I have already argued, most rule-of-law promotion efforts are premised on a deeply formalistic understanding of law n100). In fact, empirically there seems to be little correlation at all between law, in the formal sense, and order and violence.
Consider several brief examples:
Order without law: In his study of cattle-related disputes in rural Shasta County, California, Bob Ellickson explicitly took on Hobbes's equation of anarchy with chaos. In Shasta County, the laws governing wandering livestock were unknown to most residents. To the extent that county residents were aware of relevant laws, they often misunderstood the nature of the laws in significant ways, and the laws rarely influenced people's behavior. Indeed, Ellickson noted, "large segments of social life [were] located and shaped beyond the reach of law." n101 Nonetheless, Shasta County was, by and large, a peaceable, orderly place, although little law was in evidence, and even the shadow of the law was rarely evident. Indeed, strong norms favoring cooperation, nonhierarchical coordination, and "neighborliness" prevailed and actively discouraged the use of centralized, legalistic solutions to problems involving straying livestock. n102
Nazism and the "order of terror": n103 In Hitler's Germany, there was a superfluity of formal law: no matter was too large or too small to be minutely regulated, and some scholars have in fact attributed the Holocaust to deeply rooted German cultural attitudes towards law and authority. n104 In the purely positivist sense, the Nuremberg laws and ultimately the death camps were all "legal," n105 and the death camps themselves were triumphs of orderly murder, complete with roll calls, parades, inmate numbers tattooed upon flesh, and minutely detailed records. Law was pervasive and order rigidly maintained; yet both the law and the order coexisted comfortably with the most appalling violence and suffering, deliberately inflicted. Here, law and order not only failed to decrease violence - they were intimately and causally bound up with horrific violence. n106
Urban America and the "code of the street": Consider certain American inner-city communities in the 1980s and 1990s. Marred by poverty, crime, and violence, such communities were seen by many outsiders as nests of disorder, areas in which ordinary behavioral rules did not apply, and outbreaks of illegal violence could be as unpredictable as they were lethal. n107 Nonetheless, such communities were filled with "law." Indeed, as I have already noted, they were oversaturated with law in its most coercive manifestations. The criminal law remains a daily presence in many poor urban communities, extending its long arm through the war on drugs and, more recently, the war on gangs. In part as a result, America's prisons are populated disproportionately by young, black men from inner-city areas. n108 But despite the irreducible centrality of law, such communities remained, from the perspective of outsiders, stubbornly prone to violence. Even with nearly a fourth of young black men in prison at one point or another, the violence (some, but not all, drug-related) continued more or less unchecked. n109 In this setting, law, though omnipresent and overtly coercive, has proven utterly unable to fulfil its promise to replace and minimize violence. If anything, the law may have even increased certain kinds of oppositional violence: law became so discredited that illegal violence took on its own mystique for some people. n110
Despite the violence, there was also plenty of order in even the most "dysfunctional" inner-city American communities, although the nature of the order was far from apparent to most outsiders (and bewildered some insiders as well). By and large, even the violence in inner-city communities followed certain widely understood rules: there was "good" and "bad" violence, heroic violence and shameful violence, violence that was easily understood as following inevitably from certain kinds of competitions, challenges, and transgressions. To the (mostly young) men and women at the center of the violence, the violence was sometimes exhilarating, sometimes appalling, but generally perfectly intelligible and predictable. n111
This widespread extralegal violence contrasts with the situation in Nazi Germany, where almost unimaginable violence was an integral and carefully planned part of the legal order. Under the Nazis, law created extreme order, and it also (not coincidentally) created unprecedented kinds of violence and suffering, all wholly "legal." In some American inner-city communities, by contrast, law has utterly failed to constrain illegal violence, and may indeed have encouraged extralegal violence through its crudeness and inequity. Meanwhile, order has nonetheless emerged - although that order has everything to do with violence, and little to do with "law."
Bloodfeuds and martyrs: In nineteenth-century Albania, there was effectively no central government. n112 There were no legislatures, no statutes, no courts, no police, and no prisons. Albania was a violent land; murders were frequent, and from time to time bloodfeuds depopulated whole villages. But although law was absent, and violence pervasive, Albanian society was both exceptionally egalitarian n113 and extremely well-ordered. No social or economic elites held even a near-monopoly on violence or the means of production, and the violence itself followed an elaborate system of rules laid out in oral tradition (and eventually recorded by a monk as the "Code of Lek" or the "Kanun of Leke"). The oral tradition associated with the Code of Lek laid out rules governing numerous aspects of social behavior, from marriage and family relations to murder, revenge, and compensation.
Crucial to the entire code was the notion of honor. n114 Without honor, life was not worth living; a man without honor was socially "dead." n115 The primary way for the dishonored to be restored to honor was through revenge, and the Code of Lek offered detailed guidelines for responding to various degrees of insult and injury. Revenge was never to be arbitrary or excessive; the Code specified the precise ways in which revenge might be taken, and outlined the limits on revenge and the etiquette of revenge (for example, revenge could not be taken on women, except in certain specified and exceptional circumstances; also, the relatives of the dead must be notified in certain specified ways and times that their loved one had been murdered n116). By and large, most nineteenth-century Albanians seem to have taken the Code of Lek quite seriously, and obeyed it to at least the same degree to which modern Americans obey the law. When transgressions occurred, they were punished by social disapproval - and in extreme cases, by collective punishments, shaming rituals, or exile from the community. n117 In nineteenth-century Albanian society, there was no law in the modern formalistic sense - no courts, no legislatures, and so on - but one finds plenty of order, albeit a violent order.
The cult of martyrdom promulgated by some extremist Islamic organizations such as Hamas and al Qaeda presents similar issues. Those who are willing both to kill and die on behalf of their religion are people who (more or less by definition) disobey earthly laws in order to be obedient to a higher law. As in bloodfeud cultures, some people in such extremist cultures value honor or religion over life. Although formal law may be minimal or ignored, the violence that exists is orderly, intelligible, and in fact may appear laudable when seen from within the perspective of extremist religious belief. n118
"Anarchy" and state dissolution: State structures never truly existed in nineteenth-century Albania. If we look at a more recent example of state structures that existed and then imploded, we see similar developments. In Somalia in the early 1990s, state dissolution was rapid and experienced by many Somalis as chaotic. Nevertheless, although state structures remain nonexistent in most of Somalia, "disorder" was short-lived in the sense that people rapidly fell back both on older modes of social organization (based on lineage and clan loyalty, in some cases, and on Islam in other cases) and on newer modes of social organization that became suddenly useful. n119 Levels of violence remained high in postdissolution Somalia, but for most Somalis, the violence itself became ordered and predictable within a relatively short time. n120 (The same could be said for Kosovo after the NATO air campaign ended: a period of chaos ensued, but Kosovar society rapidly became orderly again, although the nature of the order was violent.)
For some Somalis, life after the dissolution of the state was more dangerous and less pleasant than before; for others - including many of the young fighters employed by clan warlords - life in postdissolution Somalia was markedly better than it had been before. For most people, life went on somehow or other; as Bill Finnegan noted in a 1995 New Yorker article, "Even while Somalia has no government, a great deal of political decision-making does get done, most of it ... indistinguishable from what goes on ... when there is a government." n121 As a result, in postdissolution Somalia, ordinary people continued to have children, celebrate marriages, observe religious rituals, start businesses, borrow and repay debts, teach their children, and invest in the future - even while clan warfare continued unabated around them. In postdissolution Somalia, then, as in Albania, the absence of law coexisted with both order and a great deal of violence.
C. The Moral Meaning of Violence
What should we make of all this? First, we should probably conclude that "order" is the default setting in human societies. All societies go through periods of genuine chaos and rapid change, caused sometimes by natural disaster, sometimes by war, sometimes by economic collapse. During these periods, social relations may be disrupted, institutions may collapse, and old modes of interacting may rapidly become irrelevant or impossible. But even in the midst of "chaos," patterns can usually be found: modes of interaction that persist in times of crisis, n122 and new modes of interaction that emerge rapidly to fill gaps created by the collapse of old institutions and customs.
As anthropologist Anna Simons suggests, it may be there is "an organization to dissolution" itself, n123 and that disorder and dissolution are best viewed "as the liminal phase between two segments of order and structure." n124 Nature abhors a vacuum, and humans abhor disorder. It is probably in the nature of human beings to create order as quickly as possible, since total unpredictability makes species survival difficult. Human societies appear able to carry on for long periods of time with astronomically high levels of violence and suffering, as long as there is at least some reasonable degree of predictability and pattern to the violence.
If order is the default mode for human societies, however, it is almost certainly wrong to imagine that formal law (in the modern sense of statutes, courts, and legislatures) has much of anything to do with order. The examples I have just given strongly suggest that as long as there is not a constant barrage of disastrous and unpredictable external events, human societies will find patterned ways to organize themselves to allow planning and predictability. They will use custom, rituals, habits, cooperative behavior, and sometimes force - but order will almost certainly emerge, law or no law. As Bob Ellickson rightly suggests, this should give pause to those who imagine that the modern regulatory state is the only possible way to successfully organize human society. n125
Of course, not all types of "order" are equal. A high degree of order is entirely consistent with extraordinary amounts of violence and suffering, and to say that order will inevitably emerge from periods of chaos says nothing about the degree or distribution of suffering. n126 In Nazi Germany, order (and plenty of law) coexisted with appalling suffering, differentially distributed to affect Jews and various other "undesirables" such as gypsies, communists, and homosexuals. In nineteenth-century Albania, women had little role in public life, and had simply to accept the bloodfeuds that could ultimately claim all their male kin; "outsiders" such as gypsies and foreigners were entirely marginalized. n127 In Shasta County cattle disputes, there was little violence or suffering, but as Ellickson's work implicitly suggests, the order that existed benefited some more than others. Thus, "newcomers" were more likely to turn to formal law, since they lacked other means of penetrating a tightly knit social network and resolving disputes collaboratively. n128 In postwar Kosovo, ethnic Albanian men with guns thrived; others (especially in minority groups) suffered enormously. In Somalia, people with close ties to powerful clans did rather better than others. n129 In some American inner cities, the violent order that has been created by gangs may be experienced as positive by those young men who find status and wealth through gang affiliations and conflicts, but older citizens and many women experience the violence as debilitating and painful, making bringing up children and going to work exceptionally difficult. n130
It should also be evident that the presence or absence of formal law has as little to do with violence as it has to do with order. Like order, law can coexist with extreme violence, and the existence of law tells us little about how violence and suffering are distributed within society. As the most cursory dip into the rich ethnographic literature on stateless societies suggests, lack of formal legal structures can be accompanied by equitable and peaceful forms of social organization, equitable and violent forms of social organization, peaceful but inequitable forms of social organization, and forms of social organization that are both violent and inequitable. Similarly, societies possessing the full legal apparatus of the modern state can be organized in a very wide range of ways.
But if law is not creating order or reducing violence, what is it doing? The answer is that law is simply one of the many mechanisms human beings have developed to give moral meaning to violence. Every human society experiences some degree of conflict and suffering; the central question for each society is how to make sense of the kinds of violence and suffering that occur.
In societies without law in the modern sense, myths, customs, and rituals give moral meaning to violence. They tell people that killing a relative is bad, but killing an "enemy" from another group is good, or that death in battle is blessed, while death through illness is shameful, or that illness is sent by God to test a person's mettle, or is caused by witchcraft and must be avenged, or that a brave person turns the other cheek. There are as many ways to organize and make sense of violence and suffering as there have been human societies in the world.
In modern states, law is itself a form of ritual and, to use anthropologist Paul Bohannan's phrase, a set of "double-institutionalized" norms. n131 Formal law will be most successful when its rituals are widely acknowledged as meaningful and appropriate, and when the norms it embodies are widely shared by its subjects. But whether or not law's subjects regard it as legitimate, law always represents an effort (at least on the part of those who create it) to organize and give moral and social meaning to violence and suffering.
Again, however, law does not generally or necessarily operate to reduce violence and suffering. Sometimes law is part of broader cultural patterns that do tend to reduce violence and suffering. But law can equally be part of broader cultural patterns tending to increase violence and suffering. (And in either case, law cannot be cleanly separated from other aspects of culture.) Law attaches labels to certain kinds of violence and suffering. It labels violence and suffering socially beneficial or socially detrimental, deliberate or accidental, preventable or inevitable. n132 As such, in many modern societies in which the law embodies widely shared norms, the law is an important part of how people come to terms with suffering and violence.
D. Auto "Accidents" and Felony "Murders"
Law's role in giving meaning to violence can be illustrated by reference to several examples from modern America, where most of us accept the law's legitimacy (in other words, where most of us believe in something we call "the rule of law"). First, consider some familiar aspects of criminal law. On the most obvious level, law tends to excuse "self-defense" and "accident," while it punishes "murder." n133 Modern criminal law, as Austin Sarat and others have pointed out, also defines most state-sponsored violence as good or appropriate violence, while defining most private violence as bad. n134 Thus, the pain and suffering caused by imprisonment or even the death penalty are deemed acceptable, while the murderer's act fill most of us with horror and are punished by the law.
Of course, it could be said that American criminal law assigns such meanings to violence and suffering precisely in order to reduce violence and suffering. But it is far from clear that modern American criminal law in fact operates to reduce violence and suffering. This is a hotly contested issue, but many have produced compelling evidence (both theoretical and empirical) to suggest that our criminal law spawns quite as much violence as it prevents - and that our law defines out of existence certain categories of human suffering. Thus, it is argued that the death penalty not only fails to deter violent crime, but may indeed send a contrary message, one that indicates that life is not terribly important after all, since the state itself may take it away from its citizens. n135 Similarly, some note that many acts of private violence are seen as "law affirming" by their perpetrators. n136
Moving away from criminal law, consider modern American tort law. Guido Calabresi has argued that tort law can be understood as a method of allocating the costs of accidents. n137 Tort law thus represents a set of implicit (and sometimes explicit) judgements about cheapest-cost avoiders, but it also represents implicit judgements about good and bad acts, avoidable suffering and unavoidable suffering, acceptable violence and unacceptable violence. n138 More than fifty thousand Americans die every year in auto accidents, and hundreds of thousands more are injured; thousands are permanently maimed. These injuries and deaths occur as a result of collisions between speeding hunks of metal, which, in turn, occur because American society has decided that convenience and speed are worth more to us than saving lives.
As Calabresi reminds us, we know perfectly well that torn, charred, and crushed flesh and bones will result from our desire for speed and convenience, and in this sense the thousands of deaths every year are knowingly inflicted by all Americans, collectively. Tort law may assign one party to an accident the responsibility for paying damages, and in extreme cases the criminal law may label one party criminally liable. But for the most part, our law regards fifty thousand mangled corpses as "inevitable" and "accidental," a regrettable but acceptable by-product of the American desire for convenience. n139
Contrast this with the many fewer deaths that occur as inadvertent by-products of robberies motivated by drug addiction or economic desperation, the deaths that occur when poor people who rob convenience stores panic and end up killing the store clerk, and so on. In some sense, such deaths are also "inevitable" and "accidental" in a society characterized by great income inequality, yet our laws label the resulting corpses anomalies that must not be permitted to exist. Thus, in many states, felony murder (where a defendant was merely a participant in a felony that led to a murder, although he did not participate in the murder, and did not desire the murder) is punished as severely as other murders.
My point here is not that automobiles should be forbidden and felony murderers set free. On the whole, I benefit from and approve of the social order that puts felony murderers in prison and allows the rest of us to drive with abandon, even though the death and suffering caused by our greedy desire for speed is far greater than the death and suffering caused by the felony murderer's greedy desire for cash. My point (as many others have noted before me) is that there is nothing "natural" or inevitable about how we categorize things: auto "accidents" and felony "murders" both represent choices about what behavior we approve and what behavior we dislike.
E. Terrorism and Torture
I want to move a step beyond this basic argument, however, and note its implications for how we think about violence and law. Auto accidents and felony murders represent, specifically, a decision to assign different kinds of moral meaning to different kinds of violence and suffering. The many deaths from auto accidents are "no one's fault," although driving carries a known and quantifiable risk of death. The fewer deaths from felony murders are the "fault" of the hapless accomplices to felonies. Thus, even in America, with its "rule of law" culture, it is far from clear that the law reduces violence and suffering in any abstract sense. Instead, the law assigns moral and social meaning to violence and suffering. It is less interested in the sheer quantity of violence and suffering than in labeling that violence and suffering so as to render it more intelligible and meaningful. Humans may well desire peace and prosperity, but often they desire meaning even more.
When we examine them closely, even those areas of law that we consider most centrally concerned with reducing violence and suffering reveal themselves as having different preoccupations. Take an example from international human-rights law: human-rights law insists that the prohibition on torture has the character of a peremptory norm. Unlike certain other human rights, the prohibition on torture is nonderogable. According to the Torture Convention, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." n140
When it comes to torture, human-rights law has a Kantian absoluteness. There is no possible end that can justify torture as a means. Thus, when faced with certain old chestnuts, human-rights law offers a rigid response. If the police catch the terrorist who knows how to defuse the hidden nuclear bomb that will shortly destroy New York City, may the police torture the terrorist to find out the bomb's location? The answer from human-rights law is a resounding no. From the perspective of human-rights law, if the terrorist cannot be convinced through reasoned argument to reveal the bomb's location, then New York will just have to vanish in a nuclear holocaust. n141
It would be difficult to claim, in this instance, that human-rights law is primarily concerned with the reduction of violence and suffering. n142 From the viewpoint of the utilitarian, preventing ten million deaths is far more urgent than cosseting one terrorist. So what is human-rights law trying to do? It is trying to make a statement about the moral meaning of human action. It is not in fact terribly interested in anyone's death or suffering. n143 Mostly, it is concerned with how we live our lives - and it is insistent that the act of torturing someone, for whatever reason, so distorts human beings that it can never be permitted. It is with voluntary evil that human-rights law concerns itself.
F. Atrocity and Duress
Take a last example of the way law gives meaning to violence, this one involving humanitarian law. In 1995, the International Criminal Tribunal for the Former Yugoslavia addressed the troubling case of Drazen Erdemovic, a young Croatian soldier who joined the Bosnian Serb army in order to support his wife and small child. n144 Sent to Srebenica in 1995, Erdemovic was ordered by his commanding officer to participate in the massacre of thousands of unarmed Muslim civilians. According to Erdemovic's own account, he at first refused to participate, but was told that if he did not cooperate, he would be shot himself. At this point, Erdemovic agreed to participate and joined in the killing; by his own estimate, he may have killed as many as seventy or eighty people.
Erdemovic later told his story to a journalist, and ultimately came before the International Criminal Tribunal (more or less voluntarily), where he pled guilty to committing crimes against humanity, but noted that he had committed these crimes under extreme duress:
Your Honour, I had to do this. If I had refused, I would have been killed together with the victims. When I refused, they told me: "If you are sorry for them, stand up, line up with them and we will kill you too." ... I could not refuse because they would have killed me... . I said immediately [to my commanding officer] that I did not want to take part in [the massacre] and I said, "Are you normal? Do you know what you are doing?" But nobody listened to me ... . n145
After some procedural confusion, the Appeals Chamber addressed the question of whether Erdemovic's claim of duress should properly have led him to plead not guilty - in other words, the Appeals Chamber had to decide whether or not duress, if proven, constituted a complete defense to charges of war crimes and crimes against humanity. By a vote of three to two, the Appeals Chamber declared that while duress might be a mitigating factor that would affect sentencing, duress was not a complete defense. n146
This is, in some ways, an astonishing conclusion. Erdemovic had no desire to kill innocent civilians, and he did so only when threatened with his own imminent death. In the context, his death would have served no consequentialist purpose; the Muslim civilians would have been killed with or without Erdemovic's participation, and refusal to participate in the massacre would merely have added Erdemovic to the list of victims. In some sense, then, Erdemovic's acquiescence in the massacre could be said to have reduced violence and suffering, since at least it meant that his own corpse would not be added to the pile at the end of the day. His refusal to participate would have injured him and benefited no one, and his participation benefited him while injuring no one who would not have been injured anyway. n147
Why then establish a legal standard that insists that duress was no defense for Erdemovic? By establishing this standard, the majority on the appeals court essentially declared that Erdemovic's legal guilt was foreordained when he was ordered to Srebenica. The only way he could have maintained his innocence would have been to allow himself to be shot along with the civilian victims. As the Appeals Chamber put it,
[We reject] utilitarian logic... . The approach we take does not involve a balancing of harms for and against killing ... . Our rejection of duress as a defence to the killing of innocent human beings does not depend upon what the reasonable person is expected to do. We would assert an absolute moral postulate which is clear and unmistakable ... . n148
In some sense, the Appeals Chamber was insisting that Erdemovic ought to have opted to die, rather than choosing life, if life meant participating in terrible crimes.
Here too, it is hard to square such a decision with the idea that humanitarian law is primarily concerned with reducing violence and suffering. n149 Again, the law appears far more interested in attaching moral meaning to violence, and making statements about how human beings ought to relate to violence. In other words, the law is concerned with establishing what it is to live a moral life - death is barely relevant. Better by far, said the appellate court majority, to suffer and die but be innocent than to taint one's life by committing crimes against humanity.
Erdemovic himself seemed to agree with the majority: he wept as he explained to the judges why he decided to plead guilty, despite the fact that he acted under duress:
[My attorney] told me, "Drazen, can you change your mind, your decision? ... I do not know what will happen." I told him because of those victims, because of my consciousness, because of my life, because of my child and my wife, I cannot change what I said ... because of the peace of my mind, my soul, my honesty, because of the victims and war and because of everything.
Although I knew that my family, my parents, my brother, my sister, would have problems because of that, I did not want to change it. Because of everything that happened I feel terribly sorry, but I could not do anything... . Thank you. I have nothing else to say. n150
Erdemovic's reaction, though perhaps belated (at least from the view of the majority), points to something critically important and often underestimated. Legal scholars - especially those of a law-and-economics bent - often take it for granted that rational people eschew suffering and violence. But for many people, much of the time, living a "moral" life, or an honorable life, is more important than finding guaranteed safety and prosperity. Drazen Erdemovic was tormented by the memory of his own action, even though he felt that he had had no choice; for Erdemovic, pleading guilty - and accepting his sentence - was part of restoring his sense of himself as a moral person. Since the only evidence against him came from his own statements, he could certainly have avoided prosecution and punishment had he wished to do so, and this would surely have been the "rational" course of action. But for Erdemovic, suffering his sentence was necessary to redemption.
Words like "redemption" are out of fashion in legal academia, but the idea retains its power. Both committing and suffering acts of violence can come to be heavily laden with moral meaning. Human-rights law has tended to view violence and suffering as destructive of moral meaning, and assumed that good people never desire violence or suffering. n151 But this overlooks millennia of evidence that war and killing are often the primary locus of moral meaning for many societies: to many, manliness, or courage, or tradition, or honor requires acts of violence. Conversely, suffering and sacrifice have historically been deeply attractive to many: consider the many potent stories of political and religious martyrdom, or the events of September 11, or the ongoing violence in the Middle East. n152
This is part of the reason that law correlates only weakly, if at all, with the degree and distribution of social violence. Formal law, when it exists, is primarily concerned with assigning moral meaning to violence and suffering, rather than with reducing it. Since some people and some societies actually value high degrees of violence and suffering, or value unequal distributions of violence and suffering, it stands to reason that formal law in such societies may reflect these preferences.
IV. Taking Norms Seriously
Where does this leave those who believe that violence is neither desirable nor inevitable; that human beings can and do consciously change the cultures in which they live; that much involuntary suffering can therefore be alleviated; that both moral imperatives and sheer self-interest give us reason to try to alleviate such suffering, and that the complex mix of cultural commitments we call the rule of law does in fact correlate with a less agonizing, more equitable, and less explosive kind of social order?
I have argued so far that rule-of-law promotion efforts have been disappointing in large part because they don't take enough account of norms and culture. They tend to confuse formal law with substantive normative commitments, assuming that the substantive values that are at the core of most western concepts of the rule of law will flow naturally from the creation of certain kinds of formal legal structures (modernized statutes, courts, etc.). In practice, these rule-of-law promotion efforts stumble when they come up against countervailing cultural commitments that are resistant to clumsy and formalistic efforts to change them. I have suggested that rule-of-law promotion efforts face a chicken-and-egg problem: changes in formal law matter where prevailing cultural norms say that formal law matters. But when formal law has little resonance for people, changes in formal law cannot by themselves create new normative commitments to the rule of law.
Delving deeper, I have suggested that rule-of-law promotion efforts are based on a false premise: that formal law produces order and reduces violence and suffering, and that law is therefore the cure for violence and disorder. I have argued that there is in fact little correlation between law, order, and violence, and that law is merely one mechanism that many modern cultures use to establish the moral meaning of different kinds of violence and suffering. In many modern societies, law is an important mechanism for establishing moral meaning, but it is not the only such mechanism. Thus, it is na<um i>ve to imagine that changes to formal legal structures will have any necessary impact on the degree and distribution of violence and suffering in a given society. In some societies that lack a shared normative commitment to the rule of law, only nonlegal initiatives are likely to have any immediate effect on the degree and distribution of violence - and they will be effective only if they succeed in offering alternative narratives that assign new cultural meaning to violence and suffering.
Although law, order, and violence are not always causally linked, certain societies are clearly more equitable and less violent than others. n153 Societies organize and understand violence and suffering in many different ways, and while "law" plays no inherent role in reducing violence and suffering, certain cultures give law an important role in regulating violence and suffering. When societies decide that law is a good mechanism to regulate and assign meaning to violence, changes in formal law can indeed lead to changes in the amount and nature of violence. Law reflects social norms, but in societies that believe in the rule of law, law can also shape norms, albeit in ways that are often complex and less predictable than we might wish. n154
A. Three Clusters of Questions
If we consider interventions to promote human rights and the rule of law to be justifiable and important at times, whether for moral reasons, economic reasons, or security reasons, we are then faced with some very fundamental questions indeed, questions to which legal scholars have as yet paid insufficient attention: What precisely are the cultural conditions in which law matters? What are the circumstances in which legal rules become enforceable and accepted as legitimate? Under what conditions can law play a role in shaping cultural understandings of violence? When and how can "outsiders" help create those conditions in a given society?
Most fundamentally, these are all issues of norm creation. And although social norms are tightly linked to law in some societies, they are not at all linked in others. When they are delinked, changing the law will have little effect; only an explicit focus on norm creation is likely to lead to the possibility of the rule of law.
Of course, it is easy to state this, and less easy to know what to do about it. Let me begin by laying out a research agenda involving three clusters of questions. None of the questions are easy to answer, but if we do not begin to grapple with them, international interventions designed to promote human rights and the rule of law will continue to have disappointing results.
1. Choosing and Justifying Norms
First, what norms should we be trying to create, and how can we justify them? In other words, what precisely are the norms that underlie a substantive commitment to the rule of law, and that can thus enable formal law to be an effective mechanism for further cultural change and adaptation? What norms are conducive to less violent and more equitable societies? And how do we justify trying to "interfere" in other societies to create these norms?
2. Effective Norm Change
Second, how can these norms be created effectively in societies where they are not widespread to begin with? Can we make any cross-cultural generalizations? At what stage is norm creation better accomplished through education, the media, civil society, and means other than "law"? When does focusing on political elites pay off, and when do bottom-up methods work best?
3. Constraints
Third, does a commitment to the norms underlying a substantive conception of the rule of law place limits on the methods the U.S. and the international community should use to create new norms in transitional societies? n155 In other words, does the answer to question one place ethical or legal limits on the ways we can answer question two?
Of the three clusters of questions I have laid out, I consider question two most compelling. I want to bracket the first question, since I see it as primarily a question for the philosophers among us. If we are not careful we can go around in circles with it for quite a while. After all, in a sense it is akin to the relativism/universalism debate that has plagued human rights for a long time. n156 In The Law of Peoples, John Rawls recently weighed in on this broad debate, suggesting that there certainly are some core values that a liberal state may require other states to respect if it is to recognize their sovereignty - including the obligation to honor human rights. n157 Martha Nussbaum has suggested that we move beyond the discourse of human rights to a universalism based on the idea of essential human capabilities. n158 Various other scholars have focused on the somewhat narrower question of the normative commitments underlying the rule of law and suggested reasons to consider the rule of law a value system worthy of exporting. n159
All of these approaches are compelling, in their different ways. I am fully persuaded that there are certain core values, capacities, or rights (I am agnostic about which description is best) that are universal. These values act as imperatives, justifying both individual action when they are denied and, at times, concerted action by governments and intergovernmental groups, even when such concerted action involves violating state sovereignty, and even when it goes against the wishes of a majority of people affected by the intervention. These are fighting words. I think they can be defended, but that is not my primary concern here - I know that others have already taken these questions on and will continue to do so. So I will leave these questions to one side for the time being.
The second question I raised is particularly urgent. Once we decide what norms we are trying to create and how interventions to create them can be justified - once we have recognized that formal law will only make a difference when we have certain widely shared normative commitments - how do we figure out how to create those normative commitments?
I find this question most compelling because it is both critical and understudied, especially in the international context. It is critical especially in the wake of September 11, as the U.S. struggles to confront widespread global resentment and the occasional acts of terrorism that such resentment inspires. But while a good deal of recent work on domestic legal issues takes on the descriptive project of analyzing how norms and law interact, n160 only a few legal scholars have addressed the question of how purposive governmental or nongovernmental norm-creation projects might actually work. n161 This lacuna is even more noticeable in the domain of international and comparative law. n162 As I noted towards the beginning of this Article, these issues of norm creation in the complex context of modern, international interventions are located at the interstices of international law, comparative law, and domestic law, traditionally conceived. They have found no disciplinary home, and tend to slip through the cracks, always at the periphery, never at the center of attention.
Answering these questions about how to promote norm change involves taking stock of what we, as lawyers and legal scholars, know about how cultures change and about how individuals and groups come to alter their normative commitments. Unfortunately, we do not know very much. Most of the time, it doesn't even occur to us to ask the right questions.
But although lawyers and legal scholars may not know much about how cultures change, there are others who know at least a good bit more. n163 Some anthropologists, for instance, study the question of how cultures change - and how and when law changes and is changed by norms. n164 There is also an emerging literature coming out of business schools and sociology departments about how cultures change - work that is often pitched in the context of how corporate organizational cultures can be changed, n165 but that may nonetheless hold important implications for those of us interested in Kosovo or Russia, or America's troubled inner cities, for that matter. Hollywood marketing experts and advertising-agency executives also may know a surprising amount about norm creation. After all, they appear to be rather good at convincing people around the world to watch certain films, listen to certain music, and desire certain clothes and cars.
The "bad guys" - the "conflict entrepreneurs" - also know quite a lot about norm creation. Human-rights advocates and scholars who study norms are fond of using the term "norm entrepreneurs" n166 to describe people such as Gandhi, Nelson Mandela, and Mother Teresa. The term is not ill-used; all of these people managed to persuade quite a lot of other people to alter some of their most deeply held beliefs. But if Mandela is a norm entrepreneur, so is Osama bin Laden, and so are the planners of Palestinian suicide bombings. So was Slobodan Milosevic, and so were the Hutu leaders whose names are unfamiliar to most of us, but who succeeded in dramatically shifting the normative commitments of several million Rwandan Hutus. Osama bin Laden convinced the September 11 hijackers and a large network of other supporters that America's evils justified killing several thousand civilians - and that striking against America was worth certain death. n167 Palestinian suicide bombers (or Tamil suicide bombers, for that matter) must similarly believe their cause so exalted as to be worth both killing and dying for. And Milosevic and the Rwandan genocidaires succeeded in convincing an awful lot of ordinary people that their next-door neighbors - the very people from whom they had been borrowing sugar and for whom they had been babysitting - were fundamental ethnic threats, sub-humans who had to be eliminated or "cleansed" before they could do untold damage to the community of Serbs or Hutus. Hitler, too, was a norm entrepreneur, a chillingly successful one. (And it is worth noting that Milosevic, Hitler, and the Rwandan genocidaires all made ample use (or misuse) of "law" to advance their genocidal agendas.)
Those who care about human rights and the rule of law cannot afford to leave all of the creative insights about norm creation to the anthropologists or to Hollywood - and we certainly cannot afford to leave them to the bad guys. n168 Yet so far, that is precisely what most of us have done, and this has to change.
Let me touch briefly on the third question I mentioned: whether a commitment to the norms underlying a substantive conception of the rule of law places limits on the methods the U.S. and international community should use to create new norms in transitional societies. The answer is certainly yes: bin Laden and Milosevic and the Rwandan genocidaires may have been such effective norm entrepreneurs precisely because they were unconstrained, which is to say that they were able to use murder and terror and lies to alter norms. Murder and terror and lies may well be effective ways to alter norms, but are these methods that the international community should use in Iraq, Afghanistan, Kosovo, or East Timor?
Indeed, the constraints on what we do in places such as Iraq and Afghanistan, Kosovo, or East Timor may arise not only out of our basic normative commitments, but also out of the very fact that we can engage in the project of norm creation in these places precisely because we have superior powers of coercion. The U.S. now runs Iraq through force majeure, and although interventions elsewhere have enjoyed more multilateral support, the UN similarly runs places like Kosovo and Afghanistan by dint of thousands of heavily armed soldiers (and by the threat of even more soldiers and airplanes and bombs). Precisely because the balance of force is so much in our favor, our methods of norm creation must be constrained. In Afghanistan and Iraq in particular, U.S. claims to represent and advance the rule of law will inevitably be contrasted with our often ham-handed use of coercion. This contrast will be noted by ordinary citizens, who may view the notion of the rule of law skeptically when it appears to come only from the barrel of a gun. And the contrast will be exploited by supporters of ousted regimes and international terrorist groups. n169
How we answer question one - what norms are we trying to create, and how do we justify them - inevitably affects how we answer this last question about the constraints on our norm-creation methods. I want to note here that the question of whether a commitment to human rights requires a commitment to democracy and self-determination is of particular importance to the question of how our norm-creation efforts should be constrained. If we believe that a commitment to human rights and the rule of law requires a simultaneous and evenly balanced commitment to democracy, the possible norm-creation methods open to us may be fewer in number than the techniques available if we decide that democracy is in fact a legitimately lower priority than human rights. n170
But I want to bracket this question as well - as similarly best suited to the philosophers - and return to the second cluster of questions: How do you change norms effectively? How do you create the conditions in which law matters? These questions are far larger than this Article, and there will never be any definitive answers to such complex questions. Nonetheless, I want to do two things in the remainder of this Article: first, offer some suggestions of fruitful ways to feeling our way toward some answers; and second, offer some preliminary hypotheses about the kinds of lessons that might emerge if scholars take up this research agenda.
B. Research Methods
A serious effort to develop answers involves moving beyond the terrain in which lawyers are most comfortable to engage with the literature of other disciplines: the literatures on corporate organizational change, on advertising methodologies, and on political socialization, as well as literature from the more traditional academic disciplines of anthropology, history, psychology, and sociology. n171 But even more importantly, feeling our way towards some answers will involve serious empirical work, and the development of comparative case studies. We will have to identify instances of rapid and wide-scale norm transformation - for better or for worse - in various societies, and try to analyze the factors that contributed to that rapid norm transformation. It will also be useful to compare unsuccessful attempts to shift norms, and identify frequently made mistakes. Obviously, every society is unique, heterogeneous, and subject to differing external pressures and differing internal contestations. As such, comparing successful and failed norm-transformation efforts in different societies will hardly be a scientific endeavor. Nonetheless, I believe that the exercise is one from which we can learn.
As a start, for instance, it will be useful to look closely at both negative and positive instances of rapid norm transformation, some well in the past, some more recent. We might look closely at the period in Germany leading up to the rise of Hitler and World War II, in which moderate and episodic anti-Semitism and xenophobia was transformed into a willingness to participate in the extermination of Jews and other groups for some, and a willingness to simply look away for others. n172 But it will be equally useful to look at West Germany after World War II came to an end, under the Allied occupation, a period that for all its problematic aspects led to rapid and apparently deep transformations of German political culture, as Germans redefined their national self-conception, becoming a society that prides itself on political pluralism and pacifism. Looking closely at pre-and post-World War II Japan may be equally instructive. n173 There too, rapid norm transformations both preceded and followed the war, and both periods involved conscious efforts on the part of the authorities to shift norms. n174
Closer to the present, looking at Rwanda and the former Yugoslavia will be useful, both before and after their collapse into genocide and near-genocide. What caused the rapid norm transformation in Rwanda that led thousands of ordinary Hutus - people who had lived side by side with Tutsis for generations, worked with them, and frequently intermarried with them - to willingly hack their Tutsi neighbors to death with machetes? n175 How are Rwandans today learning to live together again? What, if anything, was the role of law in the period leading up to the genocide? And what is the role of law today in rebuilding a multiethnic Rwandan society? The same questions can be asked of Yugoslavia: how did an obscure politician called Slobodan Milosevic turn his dream of a greater Serbia into the animating force for the most brutal ethnic cleansing Europe had seen since the Holocaust? n176 How and why are efforts to move beyond the politics of ethnic hatred succeeding or failing today in Slovenia, Croatia, Macedonia, Bosnia, Serbia, and Kosovo? And, of course, we can ask these questions about the rise of extremist Islam in some corners of the globe: How have so many young Palestinians been persuaded that suicide bombings are worthwhile? Why was the Taliban appealing to so many Afghans? How has Osama bin Laden so successfully recruited so many would-be terrorists?
We also need to look at the genocides and wars that did not happen. These are harder to identify, since they are the dogs that did not bark in the night, but South Africa and Czechoslovakia both come to mind. Both are places in which racial or ethnic hatreds might have turned into civil war, but did not. In both places politicians struggled hard to create cultures of toleration and pluralism. South Africa in
particular may hold useful lessons: despite its continuing difficulties, it is a success story in which conscious and creative government sponsored norm-creation efforts have played an important part.
Implicit in all I have said so far is the assumption that history is something made. It does not just happen. Genocides require conscious design n177 - and so does nation building, as does the creation of the rule of law. n178 Human society is far too complex for us to be able to understand these processes in any scientific way. (As Marx famously said, "Men make their own history, but they do not make it just as they please ... .") n179 Nonetheless, I am convinced that we will be able to draw some cross-culturally useful answers from deliberative, comparative work. n180
Here, too, the project of developing useful case studies will take time. Nonetheless, let me offer a few brief anecdotes and vignettes to illustrate some of the reasons I believe this comparative work will pay off - followed by some tentative general hypotheses.
Consider four brief examples from four very different societies:
1. In the former Yugoslavia, during the years preceding dissolution and war, the images of different ethnic groups in the state-mandated primary-school textbooks changed steadily. Over time, the images of non-Serbians grew steadily more bellicose and negative, as the stories of Serbian history came more and more to emphasize both a history of Serbian victimhood and the Serbian "tradition" of "incomprehensible and amazing heroism, obediently laying down one's life for the fatherland." n181 Serbian "turbo-folk" music sent the same message, insisting that the time for glorious vengeance was near. n182
2. In Rwanda, the years leading up to the genocide saw a significant rise in government-sponsored hate radio and hate newspapers (such as Kangura and Radio-Television Libre des Mille Collines). Frequently, the media depicted Tutsis as nonhuman, often as "inyenzi": cockroaches - who naturally required extermination. n183 In 1990 the "Hutu Ten Commandments" were broadcast on radio stations throughout Rwanda; the commandments included "Hutus must stop having mercy on the Tutsis." n184 One popular song of the era leading up to the genocide went, "Where are those Tutsi who used to phone me? Ah, they must have all been exterminated. Let us sing: The Tutsi have been killed. God is always just! The criminals will be exterminated!" n185 The phenomenon of hate media in pregenocide Rwanda was identical in many respects to the caricaturing of Jews as nonhuman simians and rodents that was typical of pro-Hitler media in post-World War I Germany and Austria. n186
3. In postwar Japan, MacArthur's efforts to create a democratic Japan relied on indirect rule, making extensive use of existing Japanese law and institutions. n187 To the extent MacArthur and the Allies eliminated and reformed some laws and institutions, they built heavily and consciously on existing traditions and tropes as they did so - including the near-divine status of the Emperor, whom the allies exonerated from blame for the war and Japanese atrocities, despite his clear complicity. The Allies relied heavily on censorship and control of the media to send democratic messages. n188
4. In South Africa, the postapartheid ANC government sought to alter South Africa's political culture through a participatory constitutional-revision process in which ordinary South Africans were encouraged to participate. n189 The government sponsored constitutional idea hotlines, placed cartoons in regional newspapers encouraging people to mail in their thoughts on how the new South African state should define itself, sponsored school debates and television shows, and plastered posters all over South Africa. People were urged to send in or call in their ideas on everything ranging from which rights should be enshrined in the Constitution to what the new state flag and songs should be. The government also used traditional African concepts such as "ubuntu" (meaning, loosely, harmony and mutual respect) to advance a conception of the new, tolerant, multiracial society that would peacefully replace the old, divided society of the apartheid era. In many ways, the government took a Wizard-of-Oz-type approach to using the formal law to create a culture of the rule of law: believe in the Wizard, don't look behind the curtain, and the Wizard is real; act as if law matters, and it will. In South Africa, there is some evidence that this collective, government-encouraged leap of faith created something real. n190
C. Preliminary Hypotheses
What lessons might we learn from these anecdotes and the comparative case studies yet to be developed? Right now, only the most tentative hypotheses can be advanced, which will have to be tested against more extensive theoretical and comparative work. Nonetheless, let me offer some thoughts, based on what has already been discussed in this Article and on my own additional preliminary field and library research, about how we might make rule-of-law promotion efforts more sophisticated and nuanced - and thus more successful. Although it may be too late for these lessons in many rule-of-law promotion efforts, it is not yet too late in Afghanistan and Iraq (although the early signs are that few lessons have been learned).
At this preliminary stage, we might consider seven proposals for more effective rule-of-law promotion. They all overlap, but are conceptually distinct, and they can be abbreviated as follows: A) Know what you want; B) Know the culture; C) Build on what's there; D) Acknowledge the lure of violence and sacrifice and offer alternative narratives to provide moral meaning; E) Don't assume law's centrality; F) Make-believe may sometimes work; and G) Pick your battles.
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