Eliminating autocrats won't generate rule of law

The capture of Venezuelan President Maduro and threats to destabilize the authoritarian theocratic regime in Iran have been welcomed by some observers as potentially ushering in regime changes that bring about rule of law and human rights.

These views constitute wishful thinking completely unsupported by what we know about how rule of law and democracy arise. Central to this understanding is the distinction between exogenous and endogenous legal change.

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Domestic legal and institutional change can be driven by either endogenous or exogenous sources. Both causal factors play greater roles depending upon circumstances. Each may be more or less efficacious in moving countries forward in terms of rule of law. Given the degree of interconnectedness in today’s world, external developments will certainly affect the trajectory of endogenous change but this is a matter of degree and the basic distinction is still useful.

Endogenous change involves forces that are primarily domestic in origin. Diverse actors and reasons can drive change within a country. Concerned citizens, organized civil society, informal civic associations, faith communities, universities, professional groups, voters, businesses, industrial federations, media, and political and economic elites all contribute to framing issues and advocating for change.

These diverse domestic actors respond to societal conditions whether based on their own interests or broader concerns. Some work together and some in opposition to one another. Out of the rough and tumble of domestic debates and deliberation, movements gain sway, coalitions coalesce, and agendas for change gain momentum.

Other sources of endogenous change include governments themselves. While we often think of governments as a source of rule of law deficiencies, at times public sector bodies may decide to reform themselves. Politicians may campaign promising institutional reform. Bureacrats and elected officials may initiate change based on perceived needs of society. Courts may bring about change by upholding constitutional norms or individual rights. Often these changes take place over decades, which may be frustrating to those fighting for needed reforms, but these long term processes may also help ensure the legitimacy and staying power of those changes once they occur.

In other cases, political violence may presage institutional restructuring. Following periods of conflict due to civil wars or mass violence, peace building and transitional justice processes may galvanize political will and cultivate social solidarity for rebuilding governance institutions in ways conducive to the rule of law.

Exogenous change arises through forces outide countries. In today’s world, states face enormous forces that bear on their governance and legal systems. So strong are these forces that some scholars have argued that states have declined in importance and are weak in the face of global governance and economic forces.

Relevant examples include World Trade Organization restrictions on domestic regulation protecting the environment or health to the influence of United Nations human rights norms and review processes. Such influences are thought to eclipse domestic governments’ capacities to defend their legal and governance institutions from outside pressures.

Likewise, markets police the activity of countries’ domestic policies and governance as when bond markets react negatively to loose fiscal policies. The coercive power of these exogenous forces varies between issue areas and the relative power of states and international institutions, yet those influences largely do not force states to do things they oppose.

At the extreme, military power is the most coercive driver of exogenous legal change. Notable examples include the imposition of new constitutions and governments by the Allies following the German and Japanese losses in World War II. Similarly, after conquering most of Western Europe in the nineteenth century, Napoleon imposed the Civil Code in France, Italy, Belgium, the Netherlands, and parts of Germany and Poland. Those legal changes took hold and in large part persist today.

When confronting autocratic and rights-violating regimes, it is thus tempting to think that endogenous processes can be sidestepped by simply dispatching the existing governments. Yet history demonstrates that the above examples are the exception rather than the norm. More often than not, exogenous forces are limited in their power to supplant existing social and economic structures.

These limitations were illustrated in the dramatic reversals of the massive investments in governance and rule of law reforms in Afghanistan following the US-led campaign to oust the Taliban in 2002. Similarly, although less dramatic, Iraq has largely scrapped the reforms imposed by the US and its allies following the removal of Saddam Hussein. The complete gutting of state capacity following the debathification process has only aggravated the situation.

It is thus hardly surprising that following Maduro’s removal, the power of the United Socialist Party of Venezuela not only remained intact but consolidated. Belief that bombing Iran will depose its entrenched theocratic regime is equally fanciful.

The resistence of countries to exogenous forces of legal and institutional change does not mean we should abandon commitment to international law, human rights, or rule of law. Rather it must be recognized that for those influences to ramify and gain social and political support with a degree of legitimacy, there is no substitute for endogenous change processes.

Unlike physics, social science does not generate rules that apply consistently across the universe. Yet we do gain some insights that support modest generalizations. There is a lot we don’t know about the emergence of rule of law in society but we have also learned a lot.

When political leaders start talking about “surgical strikes” and “decapitating autocrats”, don’t buy it. In these situations the overwhelming odds are that justice and the rule of law will not prevail and the ultimate victors will be the original oppressors.