The boring rule of law

Author: Richard Zajac-Sannerholm, Head of Rule of Law at the Folke Bernadotte Academy, the Swedish Agency for Peace, Security and Development.


About the image

Still from Orson Welles’ (1962) The Trial

Josef K. (or Anthony Perkins in this picture from Orson Welles 1962 film The Trial) is standing on his toes, looking over his shoulder, while trying to turn the handle of an oversized door (we can see it, Josef K seems to sense it, that this door will lead to another door, and yet another, and so on). One picture says more than a thousand words, as the saying goes, but so does a novel by Kafka, especially regarding the rule of law, rule by law or legal lawlessness.

Choosing Kafka to illustrate a point regarding the rule of law borders on the pretentious, but I’m willing to take the risk since the subject matter I want to raise is widely and typically seen as crossing another border into the unpretentious and even boring – that is, administrative law and administrative justice.

Rule of law reform has for some time enjoyed a hype of sorts. What this means is that more and more resources are devoted to law and justice, law and development or legal support programmes. Exact numbers or even guestimates elude us, but a few scattered efforts to quantify and describe rule of law reform point to an increase in volume. The popularity afforded rule of law in foreign policy has also resulted in a proliferation of academic and policy writing on the rule of law, or more specifically, rules of the game on how to establish the rule of law elsewhere.

Supporting rule of law reform is spurred on by the idea that situations of post-conflict peacebuilding, economic development, and post-authoritarian transitions, are in need of better laws and institutions, as well as legal professionals and public officials. Not just better in terms of new or modern but also normatively better in relation to principles such as legal certainty, legal security, transparency and accountability. These principles are in short supply in fragile and post-conflict countries, while there seem to be no short supply of such countries.

The international community’s response has been to concentrate resources on supporting the “law” in the rule of law where it is most symbolically identified – in relation to uniformed security personnel, courts and judges, prisons and bar associations. In short, the “law” pursued has more in common with law and order than the rule of law, and aims to redress lawless repression. This is certainly motivated, not least in post-conflict environments, but it is not responsive to the much more common aspect of many people’s lives, namely the mundane and everyday repressive law.

The door Josef K. is about to open dwarfs him in proportion; he is almost excluded by the sheer size of the door. Size aside, the door has an unimportant look as if where nothing of interest can be found if opened. However, what’s waiting for Josef K. behind the door is endless, meaningless, but also brutal and unchecked, bureaucracy.

Fiction is not far from reality in many countries around the world. Administrative law is in many ways a favoured tool for repression rather than the police and criminal justice system. Through administrative law and a byzantine land cadastre system, minorities’ property rights are violated in many Balkan countries. An unassuming census and civic registration process in Burma ask respondents to select ethnicity. For the Rohingya there is no box, but you are free to fill that in. This is a sinister move where members of the Rohingya can write their ethnicity and become exposed to repression, or leave the box blank and effectively erase their ethnicity from formal demographics. And it is all through the administrative machinery.

In many states of the former Soviet Union, administrative law features prominently when it comes to sapping the power of civil society organisations by applying onerous tax regulations. The same category of countries has made considerable efforts to “humanizing” their criminal codes. The trick is to shift minor offences from criminal to administrative law. This comes in handy during elections when people can be arrested for administrative offences such as disturbing the peace or anti-social behaviour (doublespeak for peaceful demonstrations). The thing with repressive law is that it is really about law. “Anti-social elements” are then brought before an administrative law judge and, if found guilty, can find themselves imprisoned for up to ninety days in some countries.

A common denominator in all these examples of uses and abuses of administrative law is that they are unassuming, neutral, boring; just like the door Josef K. is about to open. Administrative courtrooms are sometimes nothing more than the judge’s chamber, in buildings lacking the symbols of law that we often attach to criminal justice, and the same is true for the architectural design of land cadastre offices and census bureaus, but they are nevertheless capable of exerting power in ways that the international community often fail to identify and understand because of the perception that the rule of law is elsewhere.

Martin Krygier, ”Marxism and the Rule of Law: Reflections After the Collapse of Communism”, Law and Social Inquiry, 1990, p. 641: “repressive law is perhaps less terrible than lawless repression, but it can be terrible all the same.”