David Marshall, editor of The

International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward, discusses the

international rule of law as an industry–one that has been promoted as offering solutions in post-conflict and fragile

states and that too often fails. Marshall discusses some of the reasons for these failures and outlines some alternative

approaches to interventions in fragile states. (September 2014)

The following is a transcript

SARAH SCHWEIG:

Hi, I’m Sarah Schweig of the Center for Court Innovation and today I’m

speaking with David Marshall, who has just edited and released a new book called “The International Rule of Law Movement:

A Crisis of Legitimacy and the Way Forward.” David Marshall is a senior law and policy advisor at the U.N. Office

for Human Rights. His background is in trial work, mainly in criminal defense and death penalty cases. He has extensive

field experience in post-conflict states including Afghanistan, Iraq, Kosovo, Nepal, and South Sudan. Thanks for

speaking with me today, David.

DAVID MARSHALL:

Great, thank you for the invitation.

SCHWEIG:

Rule of law, very, very basically, as I understand it means that individuals, institutions, and even the government

itself agree to be held accountable to a code of rules, correct?

MARSHALL:

That’s about right. There’s a equality of arms. There’s equity in the process however the process

is defined, non-discrimination. There are some sort of core principles: supremacy of law is one of them. But one

thing, which we’ll get to, which is–why the book–is, the content of the Rule of Law was much discussed in

2012 by the global community when all member states of the U.N., as the world countries, got together to discuss

the rule of law and its content.

SCHWEIG: The new

book is on the International rule of law movement, so maybe you could talk about what this movement really means,

sort of what you just mentioned, and why, as your title says, it’s currently in a crisis of legitimacy.

MARSHALL: Just to make clear on the outset that obviously these are my views.

These views may or not represent the organization I work for, the U.N. as a whole. The rule of law movement has been

around forever and thus. It has probably been around for 60 years. It’s an attempt initiated by the West to

help emerging states, those states moving away from communism, those states coming out of former Yugoslavia in the

80s, in the 90s, fragile states:  Congo, Afghanistan.

The

last 40 or 50 years has been a huge endeavor to help states reform, repair, rebuild justice systems; it’s been predominately

focused on criminal justice reform and it’s been an endeavor that has had modest success, at best. The movement has

become an industry. Up until 2003, there was some efforts by some countries. This country, the U.S., is a major player

in this movement, but 2003 and beyond, which is sort of one of the reasons for the book, is this being an explosion

of activity. The consequence is you have thousands of NGOs. You have thousands of guidance materials. Thousands of

experts, all mainly from English-speaking countries.

We

have all of this information about the rule of law, but we really understand so little. I wanted to explore in 2013

or 2014, given this being such modest success and this being a mini-industry–exploring why it’s been a failure.

 I wanted to explore, why, not the standing the modest success, why has there been this explosion, which

is that coupled with the 2012 declaration by the world’s countries as to the rule of law was sort of the catalyst

for the book.

SCHWEIG: You’ve had experience

on the ground in Afghanistan, Iraq, Kosovo, and other more moratoria countries. What were some of the things that

you observed, maybe on the ground, that led you to compile this book?

MARSHALL:

I learned that the international community

has a profound deficit of knowledge, of where it works, where it doesn’t: Afghanistan, Iraq, Haiti, Liberia;

I mean choose your fragile state. Our knowledge around the language, the culture of justice means the deficits are

profound around who we are, and why we’re there, what we’re doing, what we know about what we’re doing.

And that hasn’t changed. That has dogged the industry for decades, the knowledge deficit, and secondly, that

obsession with institutions. We have a lot of rhetoric around supporting national ownership, nationally driven processes,

but generally the international community tends to focus on institutions and persons working therein, as opposed

to the individual. The consequence is that we are focused on institutions, institutions generally around criminal

justice, so an addition to a deficit of knowledge, that  is, I would suggest, profound. The other problem

is that our theory of this work, the rule of law, it’s more of a law-and-order narrative.

We generally, the international community, sees the rule of law through

a law-and-order prism, and that is basically supporting police, supporting prison reform. But that’s usually

building prisons and supplying batons to police officers. I’m not suggesting that there isn’t a need in

some stage for security apparatuses and supportive to coercive institutions is clearly needed. But we seem to get

stuck in that for decades. I also think that one thing I’ve learned is that rule of law is, and it’s a bit of

a cliche, but it’s truly indigenous. We have this sense that we arrive with this model called the Rule of the

Law: “If you please build your institutions that look like ours, you are good to go.” The evidence, I suggest, is

in and that’s been a failure. That’s one thing in the book that I think it’s important to recognize,

is that it’s okay to say, “It’s been a comprehensive failure.”

The

international community has an aversion to failure, so we can better understand when we spend $4 billion dollars

in Afghanistan, of American taxpayer money over 12 years on justice reform, and the inspector general says basically

this can come to naught, within a year, we need to sort of really stop and think about why we’re doing this.

SCHWEIG: Obviously, throughout the book there’s some agreement and

some disagreement, some tension in perspective. Can you tell us a bit about the ideas that you think harmonize in

the book and then some of the ideas that conflict across the different essays?

MARSHALL:

I think one of the major ideas I think where there’s a consensus is the deepening of knowledge. I mean it’s

a bit of cliche–it’s been identified as a problem for years, but there’s a great piece on when the rule of

law movement meets Iraq. We meets context where the Islamic law is applied.  An increasing issue for the

world community is we’re building the rule of law in Somalia, Mali, and Afghanistan. We don’t really talk enough

about when the movement hits an Islamic state and that chapter by Haider Hamoudi from Pittsburgh is terrific and

also the piece on South Sudan. Sometimes these often indigenous processes, customary processes, are okay. They are

delivering some semblance of justice and have been for decades, so rather than trying to suppress and replace these

customary processes, tribal chiefs or religious shuras in Afghanistan and Iraq, why don’t we learn about them?

The other thing is that we’re a little tired of the rule of law. It

has such baggage–the evidence doesn’t support that rule of law will lead to economic empowerment, more or greater

human rights promotion or protection. So if we can all just lower the rhetoric a bit. Stop the rhetoric around comprehensive

approaches to rule of law reform because modest goals are honestly more achievable. Modesty, humility would be helpful

and Deborah Isser talks starting by identifying injustices and insecurities the population are suffering. Let’s

start there, well that’s the conversation sort of. What’s the major injustice in that country and often

it has nothing to do with criminal justice.

I think

there’s a little bit of tension mainly with Jim Goldston’s piece, which is that the endeavor is a good

faith endeavor by the international community. There have been some modest success and the rhetoric is to some extent

a runaway train, but all it basically needs is a bit of adjusting, more investment, and knowledge, and skills and

capacity of the internationals. That’s not my view for what it’s worth.

The

piece that was done by Todd Foglesong at Harvard is interesting because it’s just a small project with reforming

the prosecutor’s office in Lagos, Nigeria. And I’m coming back to the issue of modesty. Where you have

a concrete example of where there’s a small modest project. The success was about both modesty and about relationships

and how they built over four years a relationship with the prosecutor’s office. That really helped them stress

the issue of arbitrary detention, prolonged detention in Lagos. That’s a really fascinating piece. The question

is whether the international community, which goes big, right, is looking for the Big Bang of success in the rule

of law. It doesn’t exist, stop looking. I don’t know whether the international community can accept modesty

and humility. Time will tell. I mean $4 billion dollars in Afghanistan of taxpayers’ money is a lot of money. And

I’m wondering when our people will say enough?

SCHWEIG:

What do you think the way forward now would be?

MARSHALL:

The way forward is radical change. The way forward is basically stop. The best we can, however improbable that suggestion

is, to stop and digest who this community is, what they’re trying to achieve, so that the objectives of this

endeavor–what the key objectives? Because I say in my chapter that surely the objectives are basically human rights

objectives. We need to sort of stop, take stock of what we’ve done, what we’re learning. I’m suggesting

for the U.N. that we play a more strategic role, helping states think through the strategic direction of a new justice

system and that’s more than law, more than the human rights law. That’s, in my view, the only really leverage

tool we have in our tool box.

I think it’s okay

to ask these deep questions. It’s whether or not the international has the maturity and the patience to do so.

SCHWEIG: Thanks so much for speaking with me today. I’m Sarah Schweig

of the Center for Court Innovation. I’ve been speaking with David Marshall of the U.N. about his work in post-conflict

states and his new book, “The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward” from

Harvard University Press. To learn more about the Center for Court Innovation, please visit us at www.courtinnovation.org.

Thanks for listening.