The Legal Architecture of Nation-Building: An Introduction

In the future, a historian studying the early twenty-first century will observe a trend: numerous lawyers applying their skill sets to the problems of pathological states. Our future historian will note that the topography of the post-Cold War international system was marked by weakly-governed states failing. Fragile states eroded, frayed, and disintegrated under stress, and their internal social processes became highly susceptible to external forces. Powerful non-state actors, including private armies, operated within the porous boundaries of entities that were once functioning polities. Legal authority became divorced from political control as non-state actors wielded naked power, challenging formal state structures and instruments of governance. Within these unstable systems, populations suffered from personal insecurity and an expectation of violence. Our future historian would observe that in these and similar contexts, lawyers possessing special skills and knowledge brought their tool kits to bear upon the many dimensions of distressed, failed, and reconstituting states. This participation of lawyers and the application of their tools inspired this Maine Law Review Symposium. The aim of this Symposium is to stimulate thinking about those questions among scholars and practitioners by exploring whether there is a discernable legal architecture of nation-building. Do apparently disparate nation-building enterprises lend themselves to “structure,” by one definition of architecture? Can goals be better achieved by a systemic arrangement of the elements of the structure? The contributors to this volume explore these questions by considering the foundation and cornerstones of the architecture. Thus, they join a conversation initiated by the earliest manuals for designing a polity, such as Plato’s Republic and The Laws. Although presented in vividly contemporary terms, the issues that are addressed in the articles and essays that follow transcend the practical contexts to which they are applied. They present design questions and choices that animate the legal architecture of nation-building. Architectural structure emerges from a design process which may begin with a sketch on the back of an architect’s napkin, and may later evolve into a blueprint to guide site selection and construction of the edifice. That process is guided by principles and the science of planning and constructing, or “architectonics.” As nation-building experience is accumulated and appraised in the growing literature, an effective architectonic of nation-building will become apparent. In the language of the law, this is jurisprudence. Following is a preliminary architectonic of nation-building that emerges from the problems addressed and the solutions proposed by the contributors to this Symposium