Judicial Independence in the Face of Violence

Abstract

In observing the many legal assistance projects around the world, one cannot help but be struck by the dilemma of violence and the Rule of Law. No justice system can operate effectively in the midst of chaos but chaos cannot be forestalled effectively without a functioning justice system. Consider three places in which the United States and a number of European nations have taken an active military role while trying to assist nascent or renascent judicial systems: Bosnia, Afghanistan, and Iraq. Not only is day-to-day life dangerous and the Rule of Law tenuous, judges are physically at risk because of their role while corruption threatens their integrity.

It is tempting to conclude that the Rule of Law effort is fruitless in a society that is plagued by violence and corruption because it is unrealistic to expect people to turn to law when their very lives are at risk on a daily basis. Meanwhile, the military experience in these countries itself demonstrates that it is not realistic to believe an area can be stable and peaceful without a state that has a near-monopoly on the use of force. The now-famous Counterinsurgency Field Manual attributed primarily to General David H. Petraeus sets out a blueprint for dealing with uprisings against an occupying force. Some version of Rule of Law efforts must coincide with programs, whether military or civilian, to control the violence and corruption. In some of these situations, it may be necessary to establish some appearance and rhetoric of the Rule of Law in aspirational levels, while the reality is that the society will continue to struggle with violence until changes in the culture of the community address the underlying causes of violence.

Keywords: judiciary

JEL Classification: K49