"But nobody is even willing to state what they think Rule of Law is. Everybody has their own definition. Without agreeing on a definition, they are talking past each other."
I think you're being provocative, making generalizations based on a specific case. I'll concede the respondent spent most of her time off topic. But: First, a forum responding to "tweets" probably isn't the best one to expect a comprehensive reply to a complex question. Second, yes, there is no universally accepted definition of Rule of Law. But I'm guessing there are *more* accepted definitions and *less* accepted definitions. I'm also guessing if you looked up scholars who specialized in Rule of Law and State Building, they have constructed generally accepted definitions that allow the participants in said debates to talk with (not necessarily in agreement, but with) one another. I'm specifically using "guessing" because I don't "know" for sure, but I'm guessing with a reasonable degree of confidence. Bottom-line: I'm not as much a pessimist as you are on this one. I think this was more a fumbling attempt to answer a tweet.
://www.law.stanford.edu/program/courses/details/259/State-Building%20and%20the%20Rule%20of%20Law%20Workshop/
ADTS
But that's the problem.
... yes, there is no universally accepted definition of Rule of Law. But I'm guessing there are *more* accepted definitions and *less* accepted definitions. I'm also guessing if you looked up scholars who specialized in Rule of Law and State Building, they have constructed generally accepted definitions that allow the participants in said debates to talk with (not necessarily in agreement, but with) one another.
I don't think so. Scholars and practitioners are two separate camps. It's nice if scholars have whittled it down to a dozen definitions, but what about the practitioners?
I'm not as much a pessimist as you are on this one.
It's not about an attitude toward the issue, it's about getting the basics right. There is a lot of consensus that we need to focus on "rule of law." Well, that's nice. What is "rule of law"? Nobody agrees on the definition! See my first Rule of Law thread (linked in the original post). The guy I mentioned is a practitioner who has spent years in Afghanistan and other countries focusing on humanitarian law. If his definition of rule of law is so much more different than what this or that scholar says, then is it really defined? What's the point of a consensus that we need to focus on something if we don't even agree on what that something is? That sounds like some weird form of group think. Where does that get us?
I think this was more a fumbling attempt to answer a tweet.
Of course. But it was symptomatic. Rule of law is an accepted term, like GDP or mortality rate, except that it doesn't have an accepted definition.
Schmedlap:
I've honestly been trying hard to compose a response that doesn't read as though I've read your question or comment backward. :) My response is follows: There's a lot of concepts out there that lack accepted definitions. You could say there's no accepted definition of how to wage counterinsurgency. Would you argue the practitioners have whittled it down to an acceptable few (Nagl v Gentile?)? Or that one side (Nagl) has won and had its views imprinted (literally) into doctrine? What about the idea that you don't need - or perhaps shouldn't even desire - standardized doctrine (which Nagl discusses) because it makes one less flexible? In other word, each insurgency, and thus each COIN, is - or should be - different? Similarly, rule of law perhaps *should* be a vague concept - to some degree whose exact parameters we will never be able to define adequately - because each state we try to build is different. Finally, the line between scholars and practitioners isn't as stark as it may seem: as you may well already know, American law professors write constitutions for (say) post-Soviet republics (and elsewhere). Now, whether writing constitutions constitutes creating the rule of law is another matter, but perhaps it illustrates the point: in some countries perhaps imposing the rule of law is merely putting the right words in the right order on paper, in other countries it might mean much more. But my general point is that rule of law is a social scientific concept, and thus probably harder to measure than concepts in the physical or biological sciences, and probably harder to measure than social scientific concepts like GDP or mortality. I'm guessing this is because GDP is more easily reduced to metrics, as is mortality. What may be more intriguing is *why* GDP is more easily reduced to metrics. Was there a debate similar to that over rule of law about how to construct the concept of GDP, or even mortality for that matter? Could one make rule of law "metricable" (my sense is people have tried, at least in an oblique way, e.g., the World Bank and political risk firms) and how, at least in any rigorous, disciplined way?
ADTS
From the Department of Keeping It Clear:
I used too many "my point," "my general point," etc., when I was making *different* points. Lessons learned: write better; be more organized; use more paragraphs; don't refer to "my point" or "my general point" without having a specific point in mind.
ADTS
That's because to answer the question
....you have to use the forbidden word: culture. I'll let you all figure out what I mean by that.
I don't think you need to rely on that to define Rule of Law. But you do need to consider culture when determining what Rule of Law looks like in a specific country.
ADTS,
Similarly, rule of law perhaps *should* be a vague concept - to some degree whose exact parameters we will never be able to define adequately - because each state we try to build is different.
No, disagree. Rule of law can have a clear definition and "look" different in each culture. Think about our doctrine. There are guidelines for how to do an ambush. The first ambush that I ever did looked absolutely nothing like what was pictured in FM 7-8, but it was in harmony with doctrine. The terrain and situation dictated the formation and execution.
Now, whether writing constitutions constitutes creating the rule of law is another matter, but perhaps it illustrates the point: in some countries perhaps imposing the rule of law is merely putting the right words in the right order on paper, in other countries it might mean much more.
No. Writing a constitution or a law or a regulation is not "rule" of law. It is "writing" of law.
But my general point is that rule of law is a social scientific concept, and thus probably harder to measure than concepts in the physical or biological sciences, and probably harder to measure than social scientific concepts like GDP or mortality. I'm guessing this is because GDP is more easily reduced to metrics, as is mortality.
Of course. But just because something is a social concept that does not mean that it defies definition or defies qualitative assessment. When I was an observer/controller at JRTC, I did nothing but qualitative assessments of concepts that could only be defined in qualitative terms (for example, when planning perimeter security for your position, you will ideally have a machine gun overwatching each likely enemy avenues of approach - which ones are "likely"?). The difference between a good and bad assessment is that you have more good and less bad to say about the former.
Schmedlap:
Similarly, rule of law perhaps *should* be a vague concept - to some degree whose exact parameters we will never be able to define adequately - because each state we try to build is different.
No, disagree. Rule of law can have a clear definition and "look" different in each culture. Think about our doctrine. There are guidelines for how to do an ambush. The first ambush that I ever did looked absolutely nothing like what was pictured in FM 7-8, but it was in harmony with doctrine. The terrain and situation dictated the formation and execution.
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This seems confusing. Is FM 7-8 the controlling doctrine, then, or is the controlling doctrine the "guidelines?" Your example would seem to suggest the latter, since you state your ambush was in conformity with doctrine even thought it violated FM 7-8. Is the idea you're getting at the difference between formal (published?) and informal (not published?) rules, and that there's a prevailing rule of law (in this case, the informal, nonpublished rules)?
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Now, whether writing constitutions constitutes creating the rule of law is another matter, but perhaps it illustrates the point: in some countries perhaps imposing the rule of law is merely putting the right words in the right order on paper, in other countries it might mean much more.
No. Writing a constitution or a law or a regulation is not "rule" of law. It is "writing" of law.
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I generally agree with you here. I do take issue perhaps, in part, because I've known people (or at least one person) who consult(s) on constitution-writing and write(s) on rule of law issues. Google Comparative Constitutions Project, too. I doubt Googling will convince you that constitution writing constitutes rule of law (nor should it), and once more, I agree with you, I agree that rule of law means *more* than constitution writing. After all, plenty of corrupt kleptocracies or autocracies have constituencies that, on their face, are entirely egalitarian and democratic. However, I cannot imagine there isn't *somewhere* that hasn't benefited from a written constitution. But my imagination has been wrong before, and it may be wrong now.
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But my general point is that rule of law is a social scientific concept, and thus probably harder to measure than concepts in the physical or biological sciences, and probably harder to measure than social scientific concepts like GDP or mortality. I'm guessing this is because GDP is more easily reduced to metrics, as is mortality.
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Of course. But just because something is a social concept that does not mean that it defies definition or defies qualitative assessment. When I was an observer/controller at JRTC, I did nothing but qualitative assessments of concepts that could only be defined in qualitative terms (for example, when planning perimeter security for your position, you will ideally have a machine gun overwatching each likely enemy avenues of approach - which ones are "likely"?). The difference between a good and bad assessment is that you have more good and less bad to say about the former.
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I have to differ here: because something is a social concept *does* mean it defies definition. There are taxonomical debates in the biological and physical sciences, too, I imagine (know?). If something did not require rigorous, painstaking definition, there would be no need for academia, and without debate, there would be no progress in anything that purports to be a science, social or otherwise. I think one can have *better* or *worse* definitions of social phenomena, but fundamental concepts can - perhaps must - remain ultimately undefined. What is capitalism? What is democracy? What is insurgency? What is corruption? Now, these can be defined with some rigor, enough for attempts at quantitative measurement - see, e.g., transparency.org for an attempt to measure corruption - but ultimately, one could (and some do) write treatises on what these mean, and engage in never-ending debates with one's contemporaries (and perhaps one successor's) about whether the contents of said treatises are sophisticated or simplistic. Again, I think academia profits from some debate. The difference is that in the physical and biological sciences (weigh in here, Madhu!), these debates become more visibly resolved (I think), if only to be replaced by new debates; in the humanities, these debates never become resolved, for reasons I cannot articulate other than to say the object of study (human expression) defies some ultimate conclusion; and in the social sciences, knowledge accretes and accumulates (e.g., understanding whether free trade increases or decreases the wealth of a nation), but never becomes verified in the same manner as in the physical and biological sciences.
Moving on, don't/didn't your assessments ultimately become transformed into metrics? I'd be *very,* *very* interested in how you graded as an O/C, and if/when/how those qualitative assessments became transformed into quantitative measures. How, other than through quantitative "translation," does one compare and contrast the behavior of a large number of people (or other entities)? Your own description has a quantitative feel to it - "more" good and "less" bad; aren't you implicitly categorizing in a manner that is not purely qualitative? Even something as simple as "good" or "bad" can be transformed into ones and two, or zeroes and ones, etc. "More" and "less" are quantitative concepts, are they not? I've seen evaluations that have "very good," "good," "neutral," "bad," and "very bad." Ostensibly these are qualitative judgments, but needless to say, they correspond to a five-point scale, and the concomitant transformation into quantitative assessment occurs. Don't mistake me - I'm all for qualitative assessment. I simply acknowledge its limits (just as I acknowledge the limits of quantitative assessment). Its limits, I would argue, are that it is dependent in part on the expositional style of the assessor - if one is demonstrably good, then would not a talented writer be a superior advocate than a poor writer as an O/C? I'm not Robert Strange McNamara. I fully acknowledge the limitations of quantitative assessment, and at a minimum, where appropriate, think quantitative assessments ought to be supplemented with qualitative assessments. However, I think there is a heuristic tendency to make "things" if not explicitly, then implicitly quantitative (more good and less bad), and I also think that it's difficult to use qualitative assessments for reasons just specified, as well as other reasons (e.g., bias might be more prevalent in qualitative assessments than in quantitative measurements with well-defined steps about how to measure), and most fundamentally, I think it's very difficult to compare large entities based solely on qualitative assessments. To come full circle, or at least restate my thesis, a social concept does not defy qualitative assessment - there just might be some comparative advantages to using quantitative assessment.
At the end of the day, though, while this is an interesting discussion, I feel (fear?) I'm not answering your fundamental question: what is Rule of Law, and what is its relation to state building. I thought your prior explanation was pretty good, but I'm more attached to examples that might be termed more concrete, e.g., World Bank "Doing Business"-type examples. Instead of spewing on what I've spewed about, I'll need to think more. :)
ADTS
Your example would seem to suggest the latter, since you state your ambush was in conformity with doctrine even thought it violated FM 7-8.
No, I didn't type that it violated doctrine. I just said that it looked nothing like what was
pictured in FM 7-8. The illustrations are simplistic. There is a linear formation (appropriate because it appeals to the many linear thinkers in the Army) and L-shaped. Mine didn't look like either, but it conformed to the doctrine in 7-8 (which is a doctrinal publication).
I have to differ here: because something is a social concept *does* mean it defies definition.
I don't follow your reasoning in support of that. You seem to be saying that there can be better or worse definitions and some disagreement on them so there is no definition because the definition is inadequate. If something defies definition, then how is there any good or bad definition (rather than no definition)?
... didn't your assessments ultimately become transformed into metrics? ... How, other than through quantitative "translation," does one compare and contrast the behavior of a large number of people (or other entities)? Your own description has a quantitative feel to it - "more" good and "less" bad; aren't you implicitly categorizing in a manner that is not purely qualitative? ... I've seen evaluations that have "very good," "good," "neutral," "bad," and "very bad."
The evaluations are not to result in a "score" or anything like it. It is feedback. My comment about more good and less bad was just referring to how the feedback is received by the chain of command in the unit that is being observed. Think of it like raising a child. You don't tell the kid at the end of each day, "your behavior score today is 85." You say, "wow, you were really well behaved today." You don't come to that conclusion by keeping a tally of occasions when he or she did something right or wrong. It's intuitive.
For my take on quantifying with scales ranging from very good to very bad, see my comment on the quant vs qual thread at Ink Spots. I think it's absurd. The margin of error in any gut reaction is enormous. Cobble a bunch of them together and the tally is worthless. If you're going to go non-quantitative, then just provide a narrative.
Schmedlap:
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I don't follow your reasoning in support of that. You seem to be saying that there can be better or worse definitions and some disagreement on them so there is no definition because the definition is inadequate. If something defies definition, then how is there any good or bad definition (rather than no definition)?
<P>
...
For my take on quantifying with scales ranging from very good to very bad, see my comment on the quant vs qual thread at Ink Spots. I think it's absurd. The margin of error in any gut reaction is enormous. Cobble a bunch of them together and the tally is worthless. If you're going to go non-quantitative, then just provide a narrative.
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With paragraph 1 above, I'm not sure what or how to respond. On the one hand, I think I probably phrased and argued my rebuttal poorly. On the other hand, I think we may *still* be in fundamental disagreement, and have to agree to disagree. And on my proverbial third hand, I may simply not be understanding you and am wrong. But to proceed: I think there may be some platonic definition of democracy. But needless to say, most if not all of us walk around with differing definitions of what democracy is. I doubt any of us have the platonic ideal in our heads, or it's written down anywhere. Now, I think, there are two ways to proceed from here.
A. One is instrumentalist. The only value in a definition of "political rights" lies in its ability to give you, say, analytical leverage (such as Freedom House's rankings). So the concept does defy a human articulation of the platonic ideal, but we construct definitions that may or may not correspond to the platonic ideal to greater or lesser degrees, because we want to use the word for something (Freedom House, for example, may not have decided "'Political Rights' - let's measure them," but rather, "We've measured a lot of things - let's call them 'Political Rights.'"
B. If something defies definition, the phenomenon may still exist. Permit me the following example. We would agree that there is something similar in the United States, France, and Japan, politically speaking, writ large, especially compared with, say, North Korea or the PRC. Could/would you and I offer precisely the same definition of what that is? One could say it is democracy, and you and I could sit in a room and try to define what that means, but let's imagine two other people undertook the saem exercise, and came up with a different definition. Can we agree that our (yes!) :) definition is better than theirs, even though democracy will never be perfectly defined? I just doubt there is some perfect definition out there, unless you *arbitrarily* just decide upon some doctrine. The Army can do so (even if it doesn't do so in the sense of arbitrary meaning "instantaneously" or "without thought") but other than an institution that can promulgate doctrine in the way the Army can, it's hard to make words have a unitary meaning (and even in the Army, look at the debates surrounding the formulation and interpretation of doctrine - without FM 3-24, would SWJ, Abu U, Ink Spots, or (!) your blog exist, or have nearly as much traffic?).
I think we may have to agree to disagree about about quantitative versus qualitative (and you may want to look at my responses to "Scott Wedman" on Abu M's "Revenge of Nerds" posting). I would argue that quantifying with scales *can* be absurb - strong lows can mask a lot of middling scores, for example. But I fail to see why qualitative assessments don't have problems too, as noted: bias in terms of an assessor's ability to construct a narrative; bias in terms of incommnesurability (how do I compare two really strong/weak evaluations - word choice?). Again, I'd go the instrumentalist route. The best vehicle for type of assessment depends on the type of assessment being undertaken. And I'll still think my idea of implicit "quantitative-ness" occurs. Let's say you have 10 subordinates, and you're transitioning. You tell your successor, So and so is really good, so and so are good, so and so are OK, and so and so is lousy. That doesn't seem too implausible a situation to me, and yet you can see how it is, ultimately, quantitative in a way. And you can see how word choice plays a role: "lousy" means something different to you than to me, possibly, and modifiers and amplifiers like "sort of" or "really" might play a different role, too.
I think the issue ultimately resides in how many intangibles there are (which by definition are incapable of being quantified), and the extent to which one needs to have units of comparison. If there are a lot of units to be compared (officers in the Army?), then there will be a push to quantify. Let me flip the question. Do you object to, say, the collection of quantitative statistics during the Iraq War (say, prior to and during the Surge) in order to maintain some idea of how things are/were?
Also, I'd recommend you take a look at, if you're so inclined, Scott Sigmund Gartner, "Strategic Assessment in War." He has a great anecdote in there about how the British thought that convoying in World War I was impossible, because the numbers one bureaucracy requested from another included small fishing boats, and so the number was bloated, and convoying was deemed impossible. Once the proper numbers were obtained with fishing boats excluded, it became clear that convoying *was* possible*. So the quantitative was combined with the qualitative. (And by the way, it's pretty good aside from the anecdote.)
As before, I'm not sure I've answered your question, and I still haven't gotten around to Rule of Law and State Building, but...
ADTS
I'm reminded of a recent course that I took on corporate governance. It was taught by a guy who has been a director on many corporate boards who thinks that he has found the holy grail of good governance. His solution? Checklists of countless variables and standards by which you rate the board with numbers (1 to 10) or with "qualitative" measures ranging from "very bad" to "very good." How do you discern "fair" from "acceptable" or 3 from 4? Why is a corporate board with a quorum requirement of 60% better than one of 55%? Why is a board with 40% women better than one with 25%?
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"How do you discern 'fair' from 'acceptable'" Precisely. First, word choice, and verbal ability, becomes the vehicle that influences assessment to an undue degree. Second, now, can you differentiate a 3 from a 4? Probably not on a standard 5-point scale. It depends on the scale's sensitivity and construction. In a way, you're picking at the holes, but the structure remains relatively robust, because these are the cases at the margins. Yes, there are certainly situations where you'd not want to permit the choice of a 3 over a 4, or vice versa, to influence a decision, for the obvious reason. How often does this occur, though? Part of the reason I come back to "comparing large numbers of entities" is because while you may have two high performers and to label one a 4 and the other a 5 is unfair, if you accumulate enough sample or units of comparison, you'll also find a group of 1s and 2s, and you'll be content to pick a 4 *or* a 5. Finally, there's nothing that says you can't have both quantitative measurement and qualitative assessment. I think Morningstar does this; Ebert does it; others do it.
All that having been said, "Why is a corporate board with a quorum requirement of 60% better than one of 55%? Why is a board with 40% women better than one with 25%?" are great questions to which I know not the answers. My hunch is that the justifications are less "rational" than "path-dependent." Put very crudely, this is how we always did it, or have been doing it for some time (since a "critical juncture") so this is how we do it. Justifications get constructed around the choice of how things get done, but ultimately, the facts dictate the rationale rather than the reverse.
ADTS
I think you can make qualitative assessments based in large part on quantitative analysis. I don't think you can make quantitative assessments based upon qualitative analysis. The Qualitative inputs have margins of error that are unacceptable to render a quantitative assessment that has any reasonable degree of certainty.
Moving on: Is rule of law a prerequisite to state building, or does it come after or while the state is built?
ADTS
While.
State building is a misnomer. You no more build a state than you build a person. The primacy of that law must remain high throughout the development process or the state will either die or only sustain itself on life support (a police state to control all elements of society - rule of men, rather than rule of law).
State building is a misnomer. You no more build a state than you build a person.
Hate to give such a curt response, since I gave the question prompt, but I would tend to agree. Most if not all states - at least successful ones - evolved rather than were "built." At the same time, I can't help but question the role of colonial powers in state building. Did colonial powers help build states, even if only through fourth- or fifth-order effects? I'm thinking, say, of the American Revolution. By providing an opponent against which to rally, the British may have supplied the impetus for a rebellion to occur, which (of course) subsequently turned into a nation. And how does/did rule of law fit into that process? And in terms of rule of men rather than law, isn't Singapore one of the most successful examples of state-building (internally) ever seen, yet essentially a dictatorship (even if one with a superb bureaucracy and, in that sense, rule of law)?
ADTS
Regarding those pizzas, whatever you do don't order them with anchovies!
Quite possibly the most well-reasoned comment ever left on this blog. I agree.