The Judiciary, Military, and Harshness of Violence

Abstract:     
In observing the many legal assistance projects around the world, one cannot help but be struck by the dilemma of violence and the Rule of Law. No justice system can operate effectively in the midst of chaos but chaos cannot be forestalled effectively without a functioning justice system. It is tempting to conclude that the Rule of Law effort is fruitless in a society that is plagued by violence and corruption because it is unrealistic to expect people to turn to law when their very lives are at risk on a daily basis. But the military experience in these countries itself demonstrates that it is not realistic to believe an area can be stable and peaceful without a state that has a near-monopoly on the use of force.

No justice system can operate in the midst of chaos but chaos is difficult to forestall without a functioning justice system. So where do we start? The U.S. military has done significant soul-searching in recent years around its obligation to engage in what is was once known as “civil affairs” and now “stability operations.” There are some important lessons to be learned from this soul searching. First, Rule of Law initiatives, including those directed toward an independent judiciary, cannot be successful without effective control of the countryside. Although civilian government support efforts are essential from the very beginning of a newly emerging nation, they must coincide with a realistic assessment and involvement with the military. Second, a legitimate government is the creature of the local populace. It is not our judiciary but their judiciary which must be supported. Third, a government that is accepted as the sole legitimate governing body will be accessible to the people ‒ this means risk to judges as well as other officials.

Can we make a case that judges deserve protection more than the rest of the populace? Of course not, but we can make the case that the judges are greatly at risk and their safety is a critical component in realization of the Rule of Law, which is in turn a critical component is achieving a healthy and productive society.

Number of Pages in PDF File: 6

Keywords: judicial independence, rule of law, violence

JEL Classification: k33, h56

working papers series