Posted on Tuesday, November 23rd, 2010 at 1:11 pm
Author: Feature Writer
Gc contributor: Aseel Barguthi
To borrow the words of former World Bank president James Wolfenson: “there can be no clean government without respect for the rule of law”. It is perhaps also true that there can be no respect for the rule of law without shared public ownership of its core values and assumptions.
While boasting some of the most modern infrastructure on the globe, the countries of the Middle East continue to rely on archaic and unrepresentative legal frameworks that are discriminatory and dysfunctional. Justice is often replaced by power, and individuals are commonly judged on the basis of personal ties rather than existing facts. This perception is reflected on the community level, whereby personal affiliations often determine the extent of an individual’s social, economic and political success. At times the law seems to exclude rather than encourage the participation of citizens, serving mainly the interests of few. Any efforts to establish the rule of law in the region must therefore take into account the importance of an open public space and recognize that the law is meaningless without the institutions and individuals that enforce and revise it continually.
While a great deal of international organizations have made significant efforts to bolster judicial institutions and legal operations in the Middle East, only recently have some of these organizations realized that the top-down approach is failing. They have increasingly turned to grassroots initiatives aimed at promoting a “culture” of law in the region. However, the implicit logic behind these endeavors is that any credible legal reform can only be sparked internally, and cannot be supplanted by external forces. Unlike many commodities and concepts today, the rule of law cannot be imported.
A sound legal framework is derived from the social order in which it is embedded. It must both reflect the will of the majority and be established in partnership with all segments and sectors of the local population.
I do not intend, however, to discount international human rights conventions and standards – I merely suggest that their application is precluded by the lack of a fundamental internal appreciation and application of the law. For example, a great deal of regimes in the region have adopted a “take it or leave it” approach to many of these conventions. This kind of behavior continues to go unchecked due to the absence of local independent legal institutions; without a system to “call-out” such discrepancies, accountability is compromised in favor of authoritarianism.
What then, can and should be done to promote the development of a rule of law culture in the Middle East region? I believe that the beginning of any real change in this realm must be preceded by reforming mindsets and instilling the values of justice and equality on a local level. Investments in human capital vis-à-vis strengthening education and promoting innovation can provide a starting point for such an endeavor. Minds must be opened to allow for critical interpretations of situations and decisions, thus paving the way for a legal system of precedents that is evaluative, reflective and that takes into account the logic of the majority culture.
Establishing a system that encourages critical and creative thinking can revitalize Arab society and promote increased openness and respect. What is needed at this stage is not the construction of additional judge/lawyer training institutions and courtrooms, but rather the establishment of an organic and open public order, based on values of justice and tolerance and unmarred by bigotry or monopoly.
The role of government in this capacity is to allow and encourage the opening of a space for social discourse and critical inquiry: the preconditions for substantive and deep-seated reform. In the absence of such a space, the countries of the region will fail to rise to the proverbial occasion and may face great difficulty in confronting the challenges of the future.
Aseel is a former employee of the World Bank Group-Middle East and North Africa Department and holds an M.Sc. in International Public Policy from the University College of London. Her research interests include: Law & Development, Institutional Reform, and Political Economy.
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