Academic journal article Prism : a Journal of the Center for Complex Operations

Advancing the Rule of Law Abroad: Next Generation Reform

Academic journal article Prism : a Journal of the Center for Complex Operations

Advancing the Rule of Law Abroad: Next Generation Reform

Article excerpt

Advancing the Rule of Law Abroad: Next Generation Reform By Rachel Kleinfeld Carnegie Endowment for International Peace, 2012 281 pp., $49.95 ISBN: 978-0-87003-349-0


I was given a copy of Rachel Kleinfeld's Advancing the Rule of Law Abroad: Next Generation Reform just as I was in the process of trying to codify my own lessons from more than three decades of working in and around conflict countries to restore and strengthen rule of law. Since 9/11, "rule of law" has had a flavor-of-the-month feel to it, and a number of authors have weighed in on the subject. As a practitioner, however, I have found that while most of the current thinking is helpful for advancing academic dialogue and debate, very little is of practical use on the ground.

To my surprise, Kleinfeld's book turned out to be an exception. She has presented a solidly researched, common-sense analysis that does not gloss over the complexity of her subject. Her underlying thesis - that power structures and not institutions are the most crucial objects of change - parallels my own experience in the field. She studies the impact of what she refers to as "first-generation" reform efforts and offers the reader a "secondgeneration" approach for planning and implementing sustainable programs and activities that are contextually and culturally appropriate and genuinely make sense. Her book should be required reading for anyone who contemplates reforming the rule of law abroad.

In 2010, I was asked by the commander of the North Atlantic Treaty Organization (NATO) Training Mission-Afghanistan (NTMA) to join the military mission as the first (and only, as it turned out) senior civilian rule of law advisor to the policing development mission. The NTM-A leadership at the time was concerned there was no clear vision for the future of the Afghan National Police that connected policing with rule of law. Without a vision, there could be no strategy, and the generals knew that as NTM-A's train-and-equip mission matured, that gap had to be filled.

On my arrival, I asked what I thought was a very simple question: "What do the Afghans need their police to do?" I discovered that no one had asked this of the Afghans themselves. When we finally did, the question triggered a larger effort to understand what "Afghan right" looked like and, furthermore, how NTM-A could translate that understanding into more effective Afghan-appropriate training and leader development.

This type of inclusive, Afghan-focused adjustment is what Kleinfeld would characterize as "second-generation rule of law reform." She summarizes, saying, "Second-generation rule-of-law reform starts with the actual problems of a country and then looks at which part of the rule of law must be improved in order to address those problems. Reformers consider a society's sociology to determine reform efforts that locals would support and to locate the best fulcrum for reform."

She accurately points out that "first-generation reform" tends to focus on altering laws and institutions to make them look more like those in what we generally think of as "rule-oflaw countries," by which she means the United States and European countries. I saw first-generation reform thinking behind almost every rule of law program in Afghanistan, where even the governing National Priority Plan, "Justice for All," was conceived by international donors and contained a set of milestones that the Afghan government refused to endorse.

Afghanistan may be the most prominent example of first-generation thinking in action, but it is hardly the only one. While conducting a strategic security sector reform assessment in Albania in 2009, I asked the American attorney who headed the prosecution development team why she was training Albanian prosecutors in U.S.-style adversarial techniques when Albania had a civil law system. Her answer? "Our [U.S. common law] system is better." For 2 years, this chief of party had focused all her efforts on creating an Albanian national-level institution that mirrored the U. …

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