With the expression ‘government of laws not men’, the rule of law promises the restraint of sovereign power. Its guarantee to bind government to law and keep tyranny at bay is arguably the rule of law's most compelling claim as a public good. Indeed, in the aftermath of September 11, 2001, discomfort with counter-terrorist measures ‘at home’ have been consistently articulated in rule of law language, while – as we shall see in Chapter 5 – similar measures undertaken abroad are described as ‘rule of law promotion’.

In keeping with the overarching theme of Part I, I will not be seeking here to define the ‘rule of law’ as a known art of subjection of sovereignty to law; rather I will be inquiring into the historical and thematic shaping of this central element of the rule of law register. In a first section I will revisit the inaugural, but highly ambivalent, discussion of the ‘sovereignty of law’ in Aristotle's Politics, a treatise often said to lie at the origin of the modern rule of law. A second section will turn to a contemporary philosopher, Giorgio Agamben, who describes a relation between law and sovereignty that is rather mutually expansive than restraining.

ARISTOTLE: NOMARCHY (THE SOVEREIGNTY OF LAW)

The conception of the rule of law as prioritising or guaranteeing sovereign restraint is often traced back to a statement of Aristotle's, often translated as follows: ‘The rule of law, it is said, is preferable to that of any individual.’

The present chapter focuses on market promotion in the strategic planning and project work of the United States Agency for International Development (USAID) and the World Bank. Having laid out the broad canvas of work undertaken by each agency, the chapter asks what benefits might be expected from applying a rule of law vocabulary, with its long-standing connotations of non-instrumentality and legal autonomy, to the explicitly goal-oriented work of economic development. In doing so it draws in particular on the Bank's explications of the rationale for its rule of law work.

US FOREIGN ASSISTANCE

About a decade after the end of the first US foray into legal intervention abroad, the ‘law and development movement’ of the 1960s–70s, the current wave of US rule of law work began, in the mid-1980s, with USAID-funded ‘administration of justice’ programmes in Central America and the Caribbean. The earliest programmes were created to gain bipartisan congressional support for the Reagan administration's military policies in Latin America. They focused in the main on criminal justice and law enforcement. In some countries (notably El Salvador), they were accompanied by targeted efforts to reshape the legal infrastructure in support of a market economy, through trade liberalisation, privatisation, and the nurturing of a business sector.These two prongs of what are now called ‘rule of law assistance’ – ‘democracy promotion’ and ‘market promotion’ – have traditionally been kept apart, both within the US policy-making apparatus and ‘in the field’.

Rule of law literature distinguishes between ‘economic’ and ‘political’ rule of law assistance – between market promotion, on one hand, and state-building in the interests of ‘peace and security’, on the other. Both deployments are now in wide circulation among a broad series of actors, though there is a disciplinary divide: those who mean market-structuring by ‘rule of law’ rarely use the term in reference to ‘peace and security’ and vice versa. This chapter looks at the latter phenomenon, comprising law enforcement and institution building: police and prison systems, crime prevention, the creation of judiciaries and protection of human rights. In a first section I will lay out ‘peace and security’-related rule of law assistance of, first, the United States, followed by the United Nations. In a second section, having laid out the main activities, I will examine some implicit questions raised by this deployment of the language of the rule of law.

THE UNITED STATES

Since 1985, the United States has supported criminal justice and ‘security sector reform’ (SSR) throughout the world. This work – which involves training investigators and prosecutors, building and equipping prisons, helping draft laws against terrorism, transnational crime and corruption, and training police and military officers – has traditionally fallen to entities other than USAID. Three key actors are the Department of Justice's International Criminal Investigative Training Assistance Program (ICITAP) and Office of Overseas Prosecutorial Development, Assistance, and Training (OPDAT) and the State Department's Bureau of International Narcotics and Law Enforcement Affairs (INL), initially created to run ‘counternarcotics’ programmes in Latin America.

In June 2008, a ‘blue ribbon’ Commission issued a report claiming that ‘four billion people around the world are robbed of the chance to better their lives and climb out of poverty, because they are excluded from the rule of law’. According to a report in The Economist, the Commission had difficulty, over its three years of work, reaching consensus on how precisely ‘the rule of law’ would ‘empower’ the poor. Nevertheless, the articulation of the problem in this form commanded unanimous support. A month later, the press release of an equally high-level ‘World Justice Forum’ in Vienna announced its participants' ‘collaborative programs to strengthen the rule of law and thereby solve problems of corruption, violence, sickness, ignorance and poverty in their communities’.

Whatever else we might think about these two proclamations, they feel firmly anchored in a certain zeitgeist. The claims appear both breathlessly novel and yet somehow already on the cusp of anachronism. They seem tense and stretched: extraordinarily broad in the scope of the challenges they address (poverty, ignorance, violence, corruption) and yet strangely narrow in their proposed remedy (something called ‘the rule of law’). They assume a kind of immanent agency: they are both oddly passive (who has ‘robbed’ and ‘excluded’ these people?) and exuberantly active (‘strengthen … and thereby solve’). Their evident hubris appears to derive from faith: the term ‘rule of law’ seems to play a magical, or at least talismanic, role in both pronouncements.

Part I of this book tracks the parameters of the rule of law as a term of art, with a view to determining the scope of its referential field. I aim in these chapters to capture not only the broad set of conceptions and suppositions – political, social, and economic – assumed within the term's ordinary penumbra, but also its historical weight: its role as a battleground for competing conceptions of the good life and as signalling an assumed outcome to those battles.

THE IMMANENT RULE OF LAW

In perhaps its most influential early articulation, drawing on a long tradition of political philosophy and in turn frequently reiterated today, the rule of law appears as a sort of social glue, a connective tissue holding society together. In this picture, a generalised obedience to the law combines with a pervasive legalism in both public and private spheres. The law itself functions in the background, largely internalised and functionally independent of the coercive and administrative power that guarantees its efficacy. Associated with the ‘social fabric’, this rule of law is immanent. It is already present in the everyday interaction of law-abiding citizens. Its reappearance in official and legal processes is the concrete expression of profoundly held principles and habits of thought – but not their source. Legal actors and public officials, in this view, do not arrive at law-sustaining conduct merely by following preassigned rules.

Whereas the language of contemporary rule of law promotion is new, its form – the active mobilisation of law across borders for economic and political ends – is not. Among the many precedents for the enactment of legal interventions abroad undertaken (at least nominally) to benefit the host country, one obvious and immediate precursor to contemporary rule of law reform is late colonialism.

The colonial encounter illuminates contemporary rule of law promotion for two reasons. First, interventions from that time laid the foundations for much current rule of law reform. While this is true in much of the world, the African context is especially illustrative since the foundations were laid relatively late, distilling previous lessons and introducing political and legal structures in a comparatively systematic and thorough fashion. Today's reformers thus work with materials – the basic administrative apparatus of the state – largely constructed by and inherited from the colonial authorities. Second, the techniques and practices associated with contemporary rule of law endeavours share many family resemblances with the colonial era. This is not to say that modern rule of law reform simply or simplistically repeats or continues colonial legal transplantations. To the contrary, very much has changed. The rule of law vocabulary is itself, as I shall suggest in Part II below, adopted in part precisely to highlight discontinuities (some very real, others rather more aspirational) with the colonial past.

Not long into the twenty-first century, the world looks very different from 1989, when international development policy turned so sharply towards the ‘rule of law’ paradigm. War seemed very distant then: today it is a persistent and apparently unshakable element of the political landscape. Climate change had just been recognised as an international concern; but it is only now beginning to expose the defects of international policy. Despite the wealth-generating boom of the last two decades, prosperity has not spread: by 2010, more people lived in slums and more were exposed to hunger than at any time in the past. The easy optimism of the early 1990s has, it now seems, long since dissipated into threat, risk and insecurity.

To what extent has insistent promotion of the ‘rule of law’ model sketched above contributed to the shape of developments over two decades? A study like the present cannot answer this question. It does show, however, that the rule of law policy mix has been more concerned with the generation than the distribution of wealth, that it does not lend itself to broad big-picture policy orientations of a kind presumably indispensable to managing large-scale problems like climate change, and that it is clearly designed to assist and facilitate resource transfers, to minimise labour costs and to reduce tax revenues, all of which might be expected to produce the kind of precariousness that might in turn be expected to underpin conflict.

The Relationship between Language and Cultural Identity

It seems appropriate to conclude this book with a focus on language and linguistic expression. After all, we have seen throughout the book that language is essential to both culture and law, playing a role that transcends its normal and most obvious function simply as a vehicle of communication. Quite likely, it actually structures and thereby influences individual perceptions and actions. According to the famous Sapir-Whorf hypothesis, language filters sensory information so significantly that it shapes our understanding of reality. The effect is a particularly profound example of the role of culture, given the primacy of language.

The manner in which individuals express themselves can both enhance intercultural communication and help foment conflict. Consequently, and even in the absence of conflict, the use of language often raises serious political and legal questions for society and its governance. Intervention by the state may be necessary but also problematic. For example, a decision to officially recognize one or another language or perhaps more than one language may affect the allocation among persons of social services, education, political participation, the judicial process, and regulation of the media. As we will see, linguistic human rights address the resulting domestic and international issues.

The inspiration for this book has several sources. The core themes of linguistic and other cultural rights, cultural identity and differentiation, cultural heritage, traditional knowledge, sports, and religion are of fundamental importance to humankind. They are matters that truly engage people at the grass roots, often commanding their daily attention. The related legal processes are both significant and complex. It is therefore not surprising that a vast legal literature has blossomed concerning themes of cultural activity and artifacts. And yet this intellectual development remains on the fringe of legal and social science education. Courses on issues of cultural law or culture and law are few and far between. To the best of our knowledge, this is the first comprehensive coursebook covering a broad range of these issues.

A first source of inspiration for this book, then, is the need we have perceived to bring cultural law more into the mainstream of legal and social science education. A second, related source of inspiration is the opportunity to offer a more integrated, coherent framework for studying the diverse themes of cultural law. Clearly, there are common threads running through these themes and the related legal processes. Certain rules of tort, contract, constitutional, and administrative law, as well as methods and procedures of dispute resolution, recur throughout the book, regardless of the specific cultural theme. Likewise, we consider the role of international law – both customary and conventional – throughout the book. Although the specific topics of “art law,” “sports law,” “law and religion,” “cultural rights,” “traditional knowledge,” and so on, serve important organizational and analytical purposes, they also minimize the reality of a common framework of cultural law. These discrete rubrics are also misleading insofar as students and practitioners alike may fail to appreciate the possibilities of broader professional specialization in cultural law.

Ricardo J. Elia, Looting, Collecting, and the Destruction of Archaeological Resources, 6 Nonrenewable Resources, no. 2, at 85–86, 88–89, 91, 93, 95 (1997)

Archaeological resources are frequently described as nonrenewable resources. It is true that new archaeological sites are being formed every day by the same processes that created sites in the past – the disposal of refuse, the [abandonment] of living and working spaces, and natural causes like alluviation, flooding, and earthquakes. But archaeological resources from past epochs can never be renewed. The surviving stock (including recorded and as yet unrecorded sites) of Sumerian temples, early hominid sites, or Anasazi pithouses is all that we will ever have; the resource base of past sites may be preserved or diminished, but will never be augmented. To cite one specific example, historical records indicate that between 1492 and 1520, the period of European exploration of the Americas, slightly more than 50 vessels were lost in the New World. Considering that some of these ships were later stripped for parts and materials, the actual number is probably smaller. The result is a strikingly small potential database for underwater archaeologists who are interested in this important period of nautical history.

The physical remains of the past constitute a fragile and finite archaeological resource base that is regularly threatened with depletion, destruction, and disturbance from several causes, some deliberate and others unintentional. The principal causes of the attrition of the archaeological record are environmental forces, development, warfare, vandalism, and looting. Each factor varies in intensity and scope, but all produce the same result – a steady, irremediable erosion of the record of our life on the planet.

The Cultural Dimension of the Legal Process

Legal issues may lead multiple lives. They can be political, economic, social, historical, or cultural. Normally, the particular classification of an issue, in the abstract, is not so important. What is important, however, is to understand how a particular nonlegal dimension may condition the analysis of an issue and the appropriate response to it. Gaining this understanding is a matter not only of viewpoint or specialized information but also of professional skill. It is a skill that is best acquired by gaining a comprehensive understanding of the manifold ways in which a particular dimension of human experience – for our purposes, the cultural dimension – affects the legal process.

The first two chapters in this book address the problem of cultural conflict, the interaction of culture and law, a working definition of cultural law, and the characteristics of both culture and law. The remaining chapters examine the interaction of culture and law in specific contexts of cultural expressions, practices, and activities such as art, traditional knowledge, sports, and religion.