The New Imperialism: Violence, Norms and the Rule of Law

Abstract

In the international sphere, questions about promoting the rule of law and reducing violence have been of increasing urgency since September 11. This article takes on the recent rise in international programs designed to promote the rule of law in transitional and post-conflict societies such as Kosovo, Afghanistan and Iraq. It argues that most such programs have been unsuccessful, in large part because they rest on inadequate and under-theorized conceptions of what constitutes the rule of law. In particular, such programs conflate formalistic aspects of the rule of law with substantive aspects of the rule of law, and incorrectly assume that there is a strong correlation between law, order, and reduced violence.

This article asserts that in fact the quantity and type of formal law in a given society has virtually no bearing on the level of orderliness or violence in that society. What Americans call the rule of law is a particular set of cultural commitments that has little to do with formalistic structures, and this means that promoting the rule of law is essentially a project of norm-creation, rather than a project of legal formalism.

While the article draws its examples primarily from the international domain and the author's extensive field research in the Balkans, Africa, the Middle East and elsewhere, the article's theoretical insights about the relationship between law and violence are equally applicable to domestic settings. The article closes with suggestions for a research agenda based on these theoretical insights, and some preliminary hypotheses about what further research may reveal.