Should we even have a Rule of Law project in Iraq?

Because of my temporary and purposely broad role here as a rule of law advisor, I have the luxury of being able to think about the bigger picture (and indeed am occasionally specifically asked to do so). For example, is it even right to talk about developing "rule of law" -- as we understand that term -- in Iraq? Does it not betray a Western bias (not in the politically correct sense, but in terms of political anthropology)? And even if it is right, and what we should do, in theory, be doing, is it realistic -- in Iraq generally but especially under the current conditions of insurgency? Here's my stab at some answers to these questions:

1. Is Rule of Law a Western concept unsuitable to, e.g., Iraq?

Answering in the affirmative explicitly consigns a society to whatever is not the rule of law: arbitrary detention and punishment, state (and non-state) actors behaving with impunity, rule by personal or oligarchic caprice (or by war-lords). On the other hand, we can't simply impose a foreign legal system (substantively or procedurally) and expect it to take root. Like political institutions, legal ones must be organic -- and foreign-borne innovations must be graftable onto local legal/political cultures -- or they will be rejected.

Clearly, establishing law and order is a vital component of both counterinsurgency and post-conflict reconstruction. People must be able to live without fear, and feel secure that the rules under which they conduct their lives today will be there tomorrow, for a country to prosper. Which doesn't mean that every country is ready for American-style (or French- or German- or Singaporean- or whichever model you prefer) justice. You cannot implement centuries of development overnight. For example, it is much harder to implant modern conceptions of human rights than it is internet cafes and cell phones. Conversely, it is probably easier to implant evidence-based trials -- Iraq's criminal justice system has functioned almost exclusively on confessions -- than to introduce and maintain a technologically sophisticated police/detainee database. Which brings us to the second question.

2. Is it realistic to talk about instilling Rule of Law in Iraq?

This is a separate issue because it is wholly practical whereas the above is legal/political/anthropological theory. But before we begin to answer it, we must ask what it is the practicality of which we are questioning. I began to answer that above: We're neither transplanting the Constitution and U.S. federal statutes nor simply codifying tribal dispute resolution practices. Instead we're advising the locals on best practices and thinking about what those mean for conditions on the ground -- acting as consultants given local customs, traditions, culture.

Of course, where those local customs, traditions, and culture are wholly illiberal, universal principles must trump, because part of nation-building is fixing what's broken. Like the British general said in India, "We can respect their custom of [suttee] but then we have a custom too; we construct a gallows and hang the people responsible."

Establishing the rule of law is just as much development work as creating industry and agriculture and a financial system and all the rest of it; indeed, it's a condition precedent for those things. (Just as quelling the insurgency and ensuring physical security is a condition precedent to establishing the rule of law.) We are "developing" (as in advancing) their legal system. In doing so, we must be aware (as the Law & Order Task Force is, I believe), that the system must be perceived as locally run and not an extension of American "imperialism." In Germany and Japan, we were dealing with completely defeated and unconditionally surrendered countries where we could impose whatever we wanted with a virtual guarantee that it would take (and still we respected local legal traditions). Here in Iraq we would need several multiples of troops to be able to do that, and the legal culture is far more primitive.

The goal, then, should be to simultaneously stand up a regularized legal system while at the same time gaining popular support (read: legitimacy) for that system. It is moving the ball up a hill without having it roll back, and the steeper the hill, the smaller our steps must be.

That's realistic here so long as we have the manpower and (domestic) political support to do it -- which is probably the response to inquiries into the practicality of any part within Operation Iraqi Freedom.