INTRODUCTION

This chapter summarises and concludes the first part of this work. In particular, it elaborates on matters of how international actors employ the concept of the rule of law as examined in the previous chapter. Three key points are discussed.

The first concerns the tendency to translate the idea of the rule of law into institutional check-lists, and the tension between formalism and instrumentalism. This includes the discourse on material as opposed to formal rule of law definitions, and the problems and constraints that respective definitions bring with them in terms of application to war-torn societies.

The second concerns the tendency to exclude from the conceptualisations of international actors, areas outside the justice sector – for example, customary law and public administration. Third is how the rule of law policies employed by international actors seems to ignore the users of the legal and administrative system undergoing reform.

FORMALISM AND INSTRUMENTALISM

Any comparative analysis of rule of law definitions made by international actors is compounded by the fact that those actors sometimes operate in various ways to achieve different ends.

The UN, for example, has had several rule of law definitions for distinct purposes. One emerged within the UN Secretariat because of increasing assistance in development cooperation. A second definition is the Human Rights Commission whose significance has to be read in light of the political compromises that characterises resolutions from the Commission. A third definition comes from the UN's engagement in war-torn societies in general, and in particular the mode of influence provided through the substitution of national governments. The EU, similar to the UN, also applies the rule of law to different situational responses. The first is the rule of law standard for EU membership. Second, the EU makes use of the rule of law as a criterion for its development assistance, as expressed in the Cotonou agreement. A third end is to be found in relation to the EU's recent rule of law missions to Georgia, Iraq and Kosovo where the EU now has adopted the UN 2004 definition of the rule of law.