The dominant scholarly assumptions are that transitional justice is a pre-condition for establishing a rule of law-based society after conflict or repression, and that transitional justice and the rule of law are mutually-reinforcing phenomena. Though the imperfect conditions of transition invariably give rise to difficult dilemmas over justice with imperfect solutions, literature in the field has downplayed or ignored the long-term impact on the administration of justice in the transitional state of the tendency of transitional responses to past human rights abuses to readily depart from the core values we associate with the rule of law. As noted in Teitel's study of the rule of law's relationship to transitional justice, this tendency is manifest where criminal accountability is suspended so as not to imperil the transition or where due process is circumvented in the idealistic and over-zealous pursuit of idealized transitional dividends through trial, truth commission and reparation. As transitional justice scholarship moves from moral-philosophical and jurisprudential preoccupations to greater empirical and interdisciplinary analysis, the sweeping normative assumptions of the past are increasingly being questioned. The article argues that though such acts or omissions may be excused by the exigencies of transition and contribute to the development of the conditions where the rule of law can prosper, liberalizing societies are better served by understanding these deviations from what we understand as full legality as deviations and not as manifestations of a fluid and contingent transitional rule of law.

Rule of Law reform efforts in developing areas face daunting challenges: (1) the stigma of imperialism when Western-style institutions are imposed, (2) the unwillingness of local communities to embrace the reforms, and (3) a severe shortage of resources – human, physical, and financial.

At the same time, some of these developing and post-conflict societies have highly functional customary law institutions (in Africa, e.g., a tribal chief applying a customary law handed down by oral tradition). These systems enjoy public confidence and function on very limited budgets – often providing prompt and accessible dispute resolution in the community. Unfortunately these indigenous systems do not always adhere to minimum standards of justice and human rights. In response, Rule of Law reformers in such communities are now working to codify customary law, and/or create rights of appeal from the customary courts.

These efforts, however, threaten to deprive the indigenous communities of ownership of and control over their law. Rule of law reformers must learn the lessons of colonialism, lest they perpetrate a new imperialism. Instead, customary adjudication should be subject only to collateral review. Statutory courts should defer fully to customary law adjudicators on the principles and application of customary law, and review their decisions only for compliance with minimum standards of justice and human rights (ideally those recognized in the local constitution and international human rights instruments the country has ratified). Collateral review dignifies customary adjudication by respecting the customary courts' determinations of law, while providing a safety net for those whose fundamental rights may be violated in customary court process. This approach eschews the cultural imperialism inherent in so many rule of law reforms, relying on the more appropriate, and ultimately more effective, indigenous systems to build the rule of law in a way that the local populations will recognize, respect and, hopefully, embrace.

Part of the US project for Iraq following its invasion was the reconstruction of the Iraqi justice system. Many projects, both military and civil were launched in support of this goal with the intention of enhancing the rule of law. Based on seven month's experience on one such project in Iraq, the author discusses the various tensions, constraints and confusions in these reconstruction projects in the justice sector. Overall there was an absence of harmonization and coordination and these operated to the detriment of the Iraqi system. In the field of rule of law programs, aid providers generally seek to establish a western style rule oriented system similar to those prevailing in their own countries but seem unaware of how to best bring about this change. In the author's experience, this process was exemplified in Iraq. An alternative approach to justice reconstruction is suggested that would be holistic and strategic, based on local knowledge and practice, and one that incorporates both top down and bottom up knowledge.

Lon Fuller offered an analysis of the rule of law in the form of eight ‘canons’ of lawmaking. He argued (1) that these canons constitute a ‘procedural natural law’, as distinct from traditional ‘substantive’ natural law; but also (2) that lawmaking conforming to the canons will enhance human dignity – a ‘substantive’ result. This paper argues the following points: first, that Fuller mischaracterized his eight canons, which are substantive rather than procedural; second, that there is an important sense in which they enhance human dignity; third, that they fail to enhance human dignity to the fullest extent because they understand it in an overly libertarian fashion; and fourth, that Fuller's overall approach to jurisprudence, in which the standpoint of practicing lawyers (not judges, legislators, or citizens) predominates, offers important insights into achieving congruence between the law ‘in books’ and law's enforcement. However, to succeed such an account must emphasize the lawyer's counseling role and access to legal services, which Fuller neglects.

This article demonstrates that in many peace-building environments, public administration reform and justice sector reform are promoted as separate projects and underpinned by different paradigms, namely making the administration more effective and efficient while introducing and strengthening rule of law and human rights principles in the justice sector. The reasons for this division include lack of knowledge among international and national policy-makers concerning the relevance of the rule of law for public administration reform, vague and conflicting peace-building mandates and objectives, and differences in topical orientation and ‘culture’ among the international actors concerned. The resulting rule of law deficit in public administration reform has adverse effects on both states and individuals, not least for the protection of fundamental human rights. This deficit is also symptomatic of an even deeper dilemma: the distinction between ends and means in post-conflict efforts.

In order to more closely integrate rule of law dimensions in public administration reform, the article suggests an inventory of possible approaches, and relates these to current and future challenges and needs. The inventory comprises developing concepts of rule of law in public administration, promoting transformation of international rule of law principles to national law, facilitating institutional reforms to ensure the presence of institutions willing and able to adhere to the rule of law; the development of manuals, handbooks and other ‘aids’ for law-makers and administrators; developing tools for monitoring the ‘qualitative’ dimensions of public administration; transparency enhancement to enable individuals to enforce their rights; and improving inter-agency/sector co-operation in order to promote coordination and integrated approaches.

The past ten years have seen an avalanche of literature on the rule of law, but little agreement on a definition of the concept – if it is defined at all. The present article offers a conceptual framework to deal with this situation. Departing from the two main functions the rule of law intends to serve – protecting citizens against the state and against one another – it dissects the various definitions in use into elements. These elements are discussed one by one and arranged in three categories: procedural elements, substantive elements and control mechanisms. The result may not only be helpful in structuring debates about the rule of law, but also in evaluating claims about the success or failure of ‘rule of law development’. Finally, the article contains suggestions on how to use this framework as a starting point for interdisciplinary research into the rule of law.

This paper develops a framework and some hypotheses regarding the impact of local- level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, although these substitutes tend to be limited in range and scale; they are flexible and could conceivably be adapted to serve the interests of the poor and marginalized if supportive organizational and social resources could be brought to support the legal claims of the disempowered; and they are more likely to support personal integrity rights than the positive liberties that are also constitutive of development as freedom.

Over the last two decades, there has been a proliferation of indicators designed to measure and quantify the delivery of justice services. This paper describes the range of justice system indicator instruments that are currently in use and the data sources and measures that they employ. The authors identify 53 instruments assessing various aspects of the rule of law and a subset of 31 instruments that specifically address the operation of law enforcement agencies, judicial systems, corrections, and informal justice mechanisms. This review, conducted for the United Nations as part of the Rule of Law Indicators Project, considers the strengths and shortcomings of existing justice indicators in the light of common challenges facing countries recovering from conflict, including: political instability, problems of legitimacy and corruption; safety and security; and, challenges relating to capacity and infrastructure. We conclude with suggestions for supplementing existing indicators to develop measures that can inform efforts to enhance the rule of law in post-conflict settings.

Southern Sudan is in the midst of a massive transformation from a society ravaged by fifty years of war to a democracy governed by the rule of law and a modern judiciary. Violence, especially against women, remains rampant and police and the justice system remain largely unable to meet the needs of communities. In this context traditional or customary justice systems composed of chiefs and clan headsmen continue to resolve disputes and apply traditional practices of restorative justice. The South is on a quest for modernity in its institutions but is it at risk of destroying these already functioning traditional systems of dispute resolution in its rush to develop? There is a need for more analysis of the harms and benefits traditional courts provide. And while legal pluralism does not have a perfect track record in Africa there might be important lessons that can be applied to the Southern Sudan context. This article combines reflections on previous African experiences with a recent study of customary courts in Southern Sudan. The research reveals a contrast between structural benefits of customary courts and chronic miscarriages of justice for violence against women. The article builds on this analysis to suggest reforms through a balanced bottom-up and top-down approach, including a potential framework for a pluralist justice system.

Justice sector reform and access to justice initiatives in developing countries are often pre-occupied with addressing challenges related to proximity of judicial institutions, costs of filing cases, and technical deficiencies in the system. One of the major obstacles, however, for a well-functioning rule of law can be paradigmatic contradictions between formal laws, judicial processes and local understandings of justice. In the arid north of Kenya, for example, pastoralist societies adhere to their own norms delivering justice. Indigenous means of conflict resolution have proven to genuinely reconcile and pacify society, even in serious criminal offences. Problematic is that local socio-political realities are much stronger than state institutions. Government authorities have been compelled to work with local solutionsin order to pacify the region. This sounds an alarm for the formal justice sector of the failure of its main mission – the maintenance of peace in society. If laws and judicial processes do not become increasingly responsive to socio-cultural contexts, justice sector institutions run risk of rendering themselves redundant.

The breakdown of the Soviet Union, the emergence of new independent States, their constitutional promises and factually rough transition to different economic, social and political relations, to market economies, the rule of law and democracy, provoke important practical questions and theoretical debate. They concern the interrelation between law and social change, the State and the market, private vice and public benefit. Different schools of thought intervene and confront each other: adepts of auto-regulatory mechanisms, trust in market forces and shock therapies versus defenders of institution building, of legal and judicial reforms setting a strong frame and giving shape to the dynamics of market forces; systematic codification and guaranteed independence of the judiciary versus paced evolution of law embedded in specific legal cultures. The paper tries to give answers by advocating formal institutions and codified law. They are borne by the practical experience of legal advice which in turn is exposed to methodological problems: Is law ‘transplantable’? Is it, in other words, unmoveable, solidly entrenched in ethnic and national mentalities and cultures or is it of a universal character; and if of the latter, is universalism defined irrespective of history and social structure or does the force of law – in action and in the books – depend on context? Again answers are proposed in building on controversial theoretical approaches. They plead the possibility of an historical and contextual universalism, without alleging evolutionary supremacy.

On 16 December 2009, the UN General Assembly, upon recommendation by the Sixth Committee, adopted its annual resolution on the ‘rule of law at the national and international levels’. Surprising as it may sound, this was only the fourth time that the General Assembly considered this topic, as the agenda item had only been introduced in fall 2006 by the delegations of Liechtenstein and Mexico as a follow-up to the substantive references made to the rule of law in the 2005 World Summit Outcome. Obviously, the General Assembly had previously worked on rule of law issues, in particular under its Charter mandate relating to the codification and progressive development of international law. But until the introduction of the generic agenda item in 2006, the Assembly's work on the rule of law was primarily driven by subject-specific initiatives, in particular the elaboration of international conventions. The new item provided an opportunity for the General Assembly to discuss the issue more broadly and to strengthen the coordination and coherence of United Nations activities in furtherance of the rule of law in a holistic manner.

This paper reviews the World Bank's existing work in access to justice and suggests directions for further Bank engagement in this area. Access to justice efforts are grouped here into six categories: court reforms, legal aid, information dissemination and education, alternative dispute resolution, public sector accountability, and research. The paper is motivated in part by recent discussions of ‘legal empowerment’; a thread of inquiry that runs through the review is: how do World Bank efforts to increase access to justice affect the agency of poor people? The paper concludes with insights and recommendations that emerge from the Bank's experience.