Is America serious about political reform and democracy in the Arab world? Does the neo-Wilsonian dimension of Bush administration policy in the Middle East presage a decisive departure from the longstanding realist policy of "regime maintenance"?
A definitive answer to this question is probably several years off. The administration's recent focus on "regime improvement" as an alternative to regime maintenance remains a work in progress.
It is possible, however, to illuminate some aspects of this question by considering why the U.S. has chosen judicial reform and the rule of law as prominent themes in the State Department's new Middle East Partnership Initiative (MEPI), a several-hundred-million dollar program to promote Arab political reform managed by the Vice President's daughter, Elizabeth Cheney. In September 2003, MEPI sponsored a major forum in Bahrain that brought together more than 200 representatives of Arab ministries of justice under the rubric of "Judicial Systems in the 21st Century." U.S. Supreme Court Justice Sandra Day O'Connor spoke, and participants discussed various judicial reform themes including judicial ethics, recruitment procedures for judges, court administration, and, somewhat more daringly, the role of the judiciary in human rights. MEPI is already funding several pilot judicial reform programs across the region.
A case can be made that promoting the rule of law, narrowly construed, permits the Bush Administration to perpetuate the ambiguity between the Wilsonian and realist approaches, because rule of law reads one way to Western audiences and quite another way to Arab leaders of authoritarian and semi-authoritarian regimes.
For most Americans and Europeans, heirs to the legal traditions of Montesquieu, Locke and their views of liberal governance, judicial reform and the rule of law would seem ideal entry points for a liberal reconsideration of the nature of the state in Arab society.
In the Ottoman and modern Arab traditions, however, the rule of law is a more ambiguous proposition. Indeed, "rule of law" does not have a linguistic counterpart in modern Arabic. The "sovereignty of law" (siyadat al-qanun) is the closest Arab legal construct, conveying a very different balance between the individual and the state in Arab society.
Law, the courts and the judiciary are essential elements of legitimacy for all governments. In the modern Arab world, where the legitimacy of most governments is not rooted in the consent of the governed, law and the judiciary are especially critical to secure regime legitimacy.
Promoting the rule of law, therefore, can provide a rubric that is comfortable for both sides. American and European officials understand the effort as a way to encourage human rights and an evolutionary approach towards more liberal institutions of governance. Middle Eastern regimes see it as a way to make their courts more efficient, and thus as an investment in the supporting infrastructure of their legitimacy.
An ambitious and broad-based set of initiatives in judicial reform could serve both ends. However, the past decade of American efforts in the region, along with the early MEPI programs, have not yet demonstrated remarkable ambition and breadth.
To date, the U.S. has operated largely in "safe areas" of rule of law programming in the Middle East, investing scores of millions of dollars in improving court administration, automating case records, training judges in commercial law themes and drafting modernized commercial codes in Egypt, the Palestinian Authority, Jordan and Morocco.
The largest investment has been in the areas of court administration and automated case management, making courts more competent, efficient and accountable. Pilot programs in Egypt and the West Bank have succeeded in increasing efficiency by measurably reducing delays in resolving civil court cases. These modest gains in court efficiency can be likened to railroad reforms in fascist Italy that improved on-time performance in the 1930s: citizens in these pilot program areas have no doubt benefited from more timely court judgments, but the quality of justice is unaffected. The elusive goal of more liberal governance remains essentially a chimera.
Tom Carothers of the Carnegie Endowment for International Peace has identified three broad areas of judicial reform available to the neo-Wilsonian promoters of change:
· Type one reforms concentrate on the laws themselves: revising existing code and law or writing entirely new laws;
· Type two reforms focus on strengthening law-related institutions, usually to make them more competent, efficient, and accountable. For example, training and salary increases for judges and court staff, court automation and improved dissemination of judicial decisions; and
· Type three reforms address the wider goal of increasing government's compliance with law. Carothers notes that type three reforms depend less on technical or institutional measures than on enlightened leadership and sweeping changes in the values and attitudes of those in power.
Both the USAID democracy programs in the Middle East and the more recent State Department MEPI programs have, so far, largely confined themselves to the relatively safe ground of type one and type two judicial reforms. America has financed the writing of new commercial codes and invested in court automation and court management. We have not ventured very far into the more problematic territory of seriously engaging Middle Eastern regimes on questions of regime compliance with the law.
Can the United States credibly venture into type three reform work in the Arab World? A common local reaction to MEPI in the region maintains that MEPI is illegitimate because broader American foreign policy in the region is illegitimate. At the close of the MEPI-sponsored Arab Judicial Forum, for example, an Islamist member of the Bahraini parliament challenged America's credentials to promote judicial reform on these grounds. Mohammed Khalid, who boycotted the Forum, said he "couldn't comprehend the participation of the U.S. in a forum that calls for developing a fair justice system. The U.S. has no right telling other countries to apply a just legal system while itself does the contrary in Iraq and Palestine."
Perhaps more fundamental, however, is the question of whether rule of law and judicial reform efforts, even when they are of this broader type, are constructive and promising entry points to encourage the evolution of more liberal institutions of governance in the region.
The global evidence is mixed at best. Rule of law, in the Montesquieu and Locke conception, seems to proceed from a more liberal conception of the state and its relationship to society rather than to precede it.
Until American policy objectives for the region become less ambivalent about the choice between regime maintenance and the long-term value of more open political institutions, it is unlikely that the neo-Wilsonians can aspire to anything grander than democracy-lite.
John Stuart Blackton is a retired Foreign Service Officer who served as director of U.S.AID Pakistan and director of U.S.AID Afghanistan. After leaving government service he directed a multi-year program of administrative and court modernization for the Egyptian Ministry of Justice, and he is currently a consultant on judicial reform issues in Afghanistan, Iraq and the Philippines.