Chapter 4 argues that to think clearly and well about the rule of law idea and ideal we should begin by asking what we want it for and what we want from it, not by attempting first to define its specific components and then wondering what we might do with them. Only if we come to some view of what we are after can we be in a position to explore possible and available ways of getting there. At this point, the role(s) that law might play, the forms it needs to assume, the institutions that would best serve, what else besides law and institutions would be needed, are all in principle open questions, as is the relative salience of whatever particular measures and institutions we light upon – not completely open, because this is not the rule of law’s first rodeo, but open enough. Since the world does not always present even the same sorts of problems in the same sorts of ways, different ways require different responses and there are new problems.

This chapter introduces and criticises the common underlying features of mainstream approaches to the rule of law. However much they differ from each other, they have two unfortunate features in common. First, they all are responses to a prematurely posed question – what is the rule of law? Second, conventional answers – notwithstanding their many differences from each other – are drawn from within a common, narrowly and legalistically conceived, frame of options. They start by trying to delineate the legal anatomy of the rule of law rather than ask after what sort of problem it is supposed to solve. The chapter criticises this sort of approach wholesale rather than trying to choose retail between one or other examples on offer. The ingredients of a solution depend on what they do to help solve the problem. They cannot be read off from some preconceived list of legal forms and institutions. For, however intelligent and insightful any particular anatomical answers might be, they begin with the wrong question, and so their answers – some extremely intelligent – are, to real if varying extents, beside the point, and they suffer from seven characteristic weaknesses.

This chapter examines the question of when expanded channels of community consultation and redress are made available in infrastructure project-affected communities, are grievances aggregated or reduced? To provide context for the nature and functioning of redress mechanisms and requirements for community consultation alongside other safeguard policies including information disclosure, this chapter examines the increasingly stringent application of such principles in the practices of a select number of global multilateral development banks (MDBs) supported by the Partnership for Global Infrastructure and Investment and Belt and Road Initiative. This includes the World Bank, Asian Development Bank and Asian infrastructure Investment Bank to explore how their Environmental and Social Frameworks are designed to mitigate negative social and environmental impacts of project investments beginning in the early 2000s. This is followed by a statistical comparison of the proportion of grievances per project raised prior to and after bank policy amendments between 2010 and 2020 expanding access to pre-project consultation, informed consent and formalised grievance mechanisms amongst 10 of the world’s MDBs in order to determine whether increasing channels of consultation and accountability lead to an increase or reduction in the number of project disputes. The findings indicate that the percentage of grievances per project peaks at 15.4% in 2019 then drops significantly in 2021 to 7.1%.

This chapter presents a series of six investor–community case studies in the Asia Pacific region during the pre-2013 period, during which pre-project community engagement and accountability on the part of infrastructure investment banks were relatively less stringent, in order to understand the impact of relatively relaxed community engagement standards on subsequent grievance claims. This set of six cases will be compared with a set of six cases presented in Chapter 6 after heightened diligence standards were introduced after 2013. The cases reviewed in this chapter were either sole financed projects by the World Bank/International Finance Corporation or collaborative projects with the Asian Development Bank and European Investment Bank in the Asia Pacific region. The sectors include investment in transport, the extractive industry and special economic zone development. The key finding of this chapter is that during this pre-2013 discretionary community consultation phase, most cases resulted in either full or partial project cancellation, delay, suspension, compensation for harms or transfer to local courts for resolution. A small portion were dismissed due to insufficient information. In total, of the six cases examined, four were cancelled or stalled, one proceeded to court litigation and one was closed. The cases highlight the risks of insufficient attention to community consultation.

This chapter provides an overview of the aims and structure of the book, which explores the emergent development and challenges in implementing community–investor consultation, dispute prevention and facilitation mechanisms amongst multilateral and national development banks operating in the Asia Pacific region. In the several decades since the development of the first multilateral community–investor dispute resolution and accountability mechanisms, much has been learned about public facilitation, community engagement and dispute prevention during the early stages of major infrastructure development programmes. Drawing on a qualitative triangulating approach that compares public facilitation policy design with case-based practice, the remaining chapters of the book will examine community–investor dispute resolution policy design, supplemented by case studies, surveys and interviews of select private non-state actors in the Asia Pacific region to address the question of whether, and if so how, multi-stakeholder community–investor public facilitation methods contribute to the prevention and early resolution of infrastructure disputes and advance sustainable development objectives.

The final chapter of the book argues for a reorientation of priorities between the rule of law and tempered power, better to serve their common purpose. It is its potential contribution to tempered power that makes the rule of law matter, for and to the extent that it is among the possible and variable means that might help us achieve that goal. Thinking this way might involve displacing the rule of law from the centrality it has come to assume in lawyers’ offices and international press releases. However, it might help us focus more clearly on what we value it for, and what it might need to do, and combine with, to deliver that valued end. With that end in mind from the start, we might proceed with more specificity, precision, and nuance to ask what – along with other things though perhaps in distinctive, often indispensable ways – it might be able to contribute, where, when, and how. It is in everyone’s interest that power be tempered (though intemperates are reluctant to admit it), and so it is in everyone’s interest to seek out every which way that can be done.

This chapter explores the construction of Twa as global development subjects within the Rwandan context and asks how they position themselves within that landscape, formed by the intersection of the global development narrative and Rwanda’s unity and reconciliation agenda. This chapter interrogates the state’s development narrative in the context of the global development discourse and examines its ability to offer a believable and accessible vision of progress. The Twa in our study push back against the de-politicising effect of development and its processes, whereby the emphasis is placed on the individual and their mind-set. However, they do so not to emphasise their ethnic apartness but to assert their right to the attributes of Rwandanness, notably land. Their answer is thus not to refuse to participate in the modern Rwanda but actively to seek it by demanding equal care.

The chapter presents three models of what courts how courts operate in hybrid regimes. The first two are what this book calls the Pessimistic model and the Optimistic model. They represent two different bodies of literature and two contrasting views of constitutional courts in hybrid regimes. Under the Pessimistic model, a court can do very little to resist an authoritarian, let alone promote democratic norms. On the other hand, the Optimistic model views a constitutional court as the guardian of liberal democratic norms, possessing the capacity to bring democratic change to a hybrid regime. This chapter argues that while each model captures distinct elements and raises important issues regarding constitutional courts in hybrid regimes, each has gone too far. Drawing on the lessons learnt from the analyses of these two models, the chapter presents a third – and what it argues to be a more attractive – model, namely, the Realistic model, under which the constitutional court can play a meaningful, if limited, role within the hybrid regime.

Doubtless law does have distinctive resources to offer the tempering of power, and Chapter 8 considers some of them. It discusses the significance of the letter of the law but notes that it can conceal arbitrary abuse by acting as camouflage for what is really happening. It is also susceptible to the phenomenon of dual statehood, where the law follows the letter in some domains and for some people and is ignored in others and for others. It can also be manipulated by contemporary populists who often ‘rule by cheating’. Philosophers have commended law of a certain character, so that it be predictable, but that too is subject to manipulation. A lot depends on the kind of legal traditions that the legal order embodies. Law is a crucial frame for interactions, solving a lot of problems ahead of time and engendering possibilities of deliberative adjudication. However, it needs a lot of support from sources outside the law itself.