Conceptualizing the Rule of Law in International Development Conceptualizing the Rule of Law in International Development I. Introduction….1 II. Defining International Development and the Rule of Law…. 2 III. A History of Rule of Law Projects in International Development…. 5 IV. Rule of Law Assistance Objectives…. 7 V. The Rule of Law as Essential…. 9 VI. A critical Approach to the Rule of Law in Development…. 11 VII. Alternatives to the Rule of Law Orthodoxy…. 16 VIII. Assessing the Impacts of Rule of Law Reform Projects…. 18 IX. Conclusion…. 20 X. Bibliography…. 23
Transcript
Conceptualizing the Rule of Law in International Development
Conceptualizing the Rule of Law in International
Development
I. Introduction….1
II. Defining International Development and the Rule of Law…. 2
III. A History of Rule of Law Projects in International
Development…. 5
IV. Rule of Law Assistance Objectives…. 7
V. The Rule of Law as Essential…. 9
VI. A critical Approach to the Rule of Law in Development…. 11
VII. Alternatives to the Rule of Law Orthodoxy…. 16
VIII. Assessing the Impacts of Rule of Law Reform Projects…. 18
IX. Conclusion…. 20
X. Bibliography…. 23
1
Introduction
International development institutions have recently taken
up massive projects related to of legal and governance reform in
developing countries. These projects seek to augment development
by providing a framework for the protection of rights, improving
legal education, and working with government and civil society to
cultivate a political climate of optimism about legal reform. But
the rule of law and development nexus has been the basis of
development projects in the past, and the results yielded little
empirical evidence to demonstrate the efficacy of the projects.
Yet the rule of law is conducive- perhaps essential- to the
protection of individual rights, whether human rights or property
rights. It is fitting then, that development institutions should
be preoccupied with the rule of law. But fundamental components
of the rule of law movement (or orthodoxy, as it has been called)
remain ambiguous. Elements of a common definition of the role of
2
the rule of law in international development still need to be
combined into a functional standard of measurement. Additionally,
there is a stark discontinuity within the rhetoric of the rule of
law and development that points to a discord in the way these
projects are conceived. This discord has been explicitly
identified by prominent authors such as Thomas Carothers, head of
the Carnegie Endowment for International Peace and David Trubek,
a legal scholar and contributor to the early Law and Development
movement.
While the broad objectives of international development
remain rooted in the elimination of poverty, in the augmentation
of economic growth and establishment of fair and competent
governments, the rule of law orthodoxy has impacted development
theory in significant ways. The rule of law is not a panacea for
developing countries; it can not lead directly to open markets
without violating the principles of national sovereignty or
undermining the democratic process entirely, but its limitations
can be understood through the use of a standard definition that
requires projects to operate in such a way as to create
measurable changes in a developing country.
3
The dearth of empirical evidence and conclusive connections
between rule of law reform projects is upsetting, and makes
analysis difficult. Yet an understanding of what the projects
are, how they have been attempted in the past, a general overview
of the myriad of objectives, an exploration of the importance of
the rule of law, and an overview of how the rule of law is
currently measured can make the criticism of the projects easier
to understand. What follows is a broad description of these
points.
Defining International Development and the Rule of Law
International development is a complex, intriguing field of
study as well as an agenda to eliminate poverty and suffering. It
is despised by some as a neo-imperialist project to subvert the
sovereignty of poor countries, yet is allocated vast sums of
money. The rule of law orthodoxy is only the latest fascination
in international development. Many orthodoxies have come and gone
before it, and in order to understand the rule of law movement it
is essential to understand the concept of development, and the
field of development studies.
4
In the context of international development, the term
development is, “synonymous with enhancing human rights and
welfare so that self-esteem, self-respect, and improving
entitlements become central concerns.”1 In this sense,
development is an act as well as something that can be achieved
and be improved. The term development implies a measurable, linear
progression where each stage is more advanced than the previous.
Development studies is a field of enquiry concerning the
relationships between countries in the global political and
economic system.2 Because the nature of development is linear and
progressive, development studies employs categorizational methods
in order to compare countries and their respective stage of
development.
The first method of categorization used in development
studies was established by American social scientists within the
bipolar political structure of the Cold War. Under this method,
countries are categorized as First, Second or Third world.3 The 1 What is the rule of law? (n.d.). Retrieved April 28, 2015, from http://www.americanbar.org/content/dam/aba/migrated/publiced/features/Part1DialogueROL.authcheckdam.pdf 2 Trubek, D., & Santos, A. (2006). The new law and economic development a critical appraisal. Cambridge: Cambridge University Press. 3 Desai, V., & Potter, R. (2013). The Companion to Development Studies, 2nd Edition (2nd ed.). Hoboken: Taylor and Francis.
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First World refers to developed Western countries, the Second
World to the developing former Soviet Union countries and the
Third World to those countries which were not directly involved
in the Cold War.
The second method of categorization was popularized in the
report by the Brandt Commission of 1981. In this method, the
world is broken into two hemispheres: the Global North and the
Global South, where the Northern countries are the traditionally
First and Second world, and the Global South are the
traditionally poor, former colonies.4 These categorizations of
the world’s countries provide some context for analyzing
bilateral and multilateral relationships, which is the primary
purpose of development studies.
Essentially, development studies is the theoretical lens
through which development needs can be perceived, projects can be
analyzed and new goals may be formed. Since the inception of the
field there have been competing yet functionally dialectical
4 Dodds, Klaus in Desai, V., & Potter, R. (2013). The Companion to Development Studies, 2nd Edition (2nd ed.). Hoboken: Taylor and Francis.
6
schools of theory within it, including modernization, structuralism, and
dependency.5
The the idea that market growth is dependant on the rule of
law has recently come under scrutiny from each theoretical school
of development studies, though with little consensus on a
definition, purpose and the implementation of rule of law
projects. The reality is that there is no true consensus about
what the rule of law truly entails in international development.
The legal definition of the rule of law, however, serves to
clarify this initial uncertainty. The American Bar Association,
for example, defines the rule of law as a system that is, “a
government of law, not of men.”6 In this sense, the rule of law
is an ideal that means judgement is not distributed based on the
whim of any one person or group of people. It also entails a set
of criteria which must be met in order for the rule of law to be
present. Most of these criteria are based on the American legal
5 About the Brandt Commission. (n.d.). Retrieved April 28, 2015, from http://www.brandt21forum.info/About_BrandtCommission.htm 6Hette, Bjornein Desai, V., & Potter, R. (2013). The Companion to Development Studies, 2nd Edition (2nd ed.). Hoboken: Taylor and Francis.
7
system like due process, separation of powers, social contract, judicial
independence, right to counsel, transparency and predictability.7
One fundamental principle of the rule of law that is
stressed in the context of international development and
development studies is the distinction between rule of law and
rule by law. A country lacks the rule of law when its leaders can
alter laws or be exempt from legal action based on political
position. For example, in Saudi Arabia the Saudi Royal Family is
not subject to the same legal terms as the country’s citizens,
thus the monarchy is said to rule by law.
History of Rule of Law Projects in International Development
The Law and Development (L&D) movement was the first modern
attempt to institutionalize the rule of law in the field of
international development. It was formed in the 1960’s by a small
community of legal scholars, academics and development agencies
but received little attention outside of this community. The L&D
movement lasted for only a decade- its failure has been
attributed to its approach, allegedly based on flawed foundations
7 Carothers, T. (2006). Promoting the rule of law abroad: In search of knowledge. Washington, D.C.: Carnegie Endowment for International Peace.
8
such as the transplantation of Western legal institutions and
thought to developing countries.8 According to Thomas Carothers,
who is the directory of the Democracy and Rule of Law Project at
the Carnegie Endowment for International Peace, the early L&D
movement met its demise because of a disconnect between its
ideals and its achievements.9
The movement did, however, successfully introduced the idea
of the rule of law to development institutions. Furthermore, the
L&D movement impacted the perspective that development
institutions have taken, namely that of the economic importance
of the rule of law.10 It has not been the case that rule of law
development projects have discredited or ignored other goals of
development like social concerns or democratic governance.
Rather, these problems have been viewed as being curable by
economic growth.
8 Trubek, D., & Santos, A. (2006). The new law and economic development a critical appraisal. Cambridge: Cambridge University Press. 9 Desai, V., & Potter, R. (2013). The Companion to Development Studies, 2nd Edition (2nd ed.). Hoboken: Taylor and Francis. 10 Trubek, David M., and Marc Galanter. "Scholars in Self-Estrangement: Some Reflection on the Crisis in Law and Development Studies in the United States." Law and Society (n.d.): n. pag. Http://www.law.wisc.edu/facstaff/trubek/publications.html. University of Wisconsin, Madison. Web. 27 Mar. 2015.
9
The very idea of the rule of law is based on the fact that,
“economists led the pack… The lawyers were latecomers to the
development research game.”11 In this sense, the rule of law was
introduced into a field in which economists ruled. The
consequences were - and still are- the rule of law being used as
a means to achieve economic ends and not as an end in and of
itself.12
This employment of the rule of law concept is consistent
with the liberal era, the most recent development paradigm which has
been in effect since the 1980s. Overall funds directed toward
development projects have grown,13 during this phase in the
history of international development, the emphasis on market
deregulation emerged and projects focused on government and civil
society have peaked at nearly 14,000 individual projects from the
11 Williams, D. (2012). International development and global politics: History, theory and practice. London: Routledge. Figures 3.6 and 7.112 Williams, D. (2012). International development and global politics: History, theory and practice. London: Routledge. pg. 14513Ringer, Thom (2007) "Development, Reform, and the Rule of Law: Some Prescriptions for a Common Understanding of the "Rule of Law" and its Place in Development Theory and Practice,"Yale Human Rights and Development Journal: Vol. 10: Iss. 1, Article 5. (p 183).: http://digitalcommons.law.yale.edu/yhrdlj/vol10/iss1/5.
10
Organization of Economic Cooperation and Development countries
alone.14
In the early L&D movement the relationship between law and
development was approached with the idea of law as a tool to,
“increase man’s rational capacity to control the world… enhance
equality and promote freedom, and promote fuller participation in
the community.”15 This vision of the law as an effective medium
through which to improve both individual rights and freedoms and
curb caprice in government is still used in the conceptualization
of the rule of law today.
To wit is The World Justice Project (WJP), which was founded
on the premise that, “effective rule of law reduces corruption,
combats poverty and disease and protects people from injustices…
is the foundation for peace, opportunity and equality...
underpinning development, accountable governments, and respect
14 Trubek, David M., and Marc Galanter. "Scholars in Self-Estrangement: Some Reflection on the Crisis in Law and Development Studies in the United States." Law and Society (n.d.): n. pag. Http://www.law.wisc.edu/facstaff/trubek/publications.html. University of Wisconsin, Madison. Web. 27 Mar. 2015.pg. 1074 15 The World Justice Project | Strengthening the rule of law for ... (n.d.).Retrieved April 28, 2015, from http://worldjusticeproject.org/
11
for fundamental rights.”16 This description fits the definition
of development as stated previously in that its direct goal is to
enhance human rights and well being.
Rule of Law Assistance Objectives
That there is an interrelationship between the rule of law
and development is widely agreed upon. Yet the volume of actors,
goals and areas of reform in consideration by these projects
creates a web of interaction such that it can be difficult to
pin-point areas of consensus and coherence in the rule of law
development domain. Thomas Carothers created a taxonomy of the
major categories of legal assistance programs in Latin America,
where rule of law development programs proliferated in the 1990s.
The illustration demonstrates the multiplicity of institutions,
objectives and targets of reform projects.17
The largest category consists of projects to reform large
state-level institutions. This top-down approach has been
emphasized by the United States Agency for International 16 Carothers, Thomas in Domingo, P., & Sieder, R. (2001). Rule of law in Latin America: The international promotion of judicial reform. London: Institute of Latin American Studies. p. 7-8. graph on page 817 Domingo, P., & Sieder, R. (2001). Rule of law in Latin America: The international promotion of judicial reform. London: Institute of Latin American Studies.p 45
12
Development (USAID), which by 1999 had dedicated over $300
million to legal assistance projects in Latin America alone.18
USAID bases its rule of law reform projects around the justice
sector, which they define as the branch of government that is not
executive or legislative stating that, “it is the justice sector
which is largely responsible for making the rule of law operative
in society.”19 The justice sector is composed of a framework of
laws, institutions and actors.20 As in the case of assistance
projects to Kosovo in 1999 with the Effective Rule of Law Program
(EROLP), there was no discernable judicial sector in existence.
USAID projects helped to virtually create a justice sector,
including the formulation of laws to create a court, establish
the Kosovo Judicial Council (KJC) and the Kosovo Prosecutorial
Council (KPC).21 USAID is an example of a bilateral agency, which
Carothers categorizes as having a primary interest in democracy
18 GUIDE TO RULE OF LAW COUNTRY ANALYSIS: THE RULE OF LAW STRATEGIC FRAMEWORK. (n.d.). Retrieved April 28, 2015, from http://pdf.usaid.gov/pdf_docs/PNADT593.pdf 19 Insert list of public and private institutions here (from pdf.usaid.gov above)20 http://www.usaid.gov/news-information/fact-sheets/effective-rule-law-program21 Domingo, P., & Sieder, R. (2001). Rule of law in Latin America: The international promotion of judicial reform. London: Institute of Latin American Studies. pg. 8
13
promotion through the support of large state institutions like
courts.
Other institutions like human rights groups and private
foundations approach the implementation of rule of law projects
through the lens of basic-rights promotion. These types of
organizations are usually considered members of civil society,
can operate as NGO’s or non-profits and approach rule of law from
a citizen-level perspective. For example, Development
Alternatives Incorporated (DAI) is a global organization with
corporate headquarters in the U.K. and U.S. When developing and
implementing rule of law projects they, “strengthen the rule of
law by building citizens’ ability to demand better governance
through oversight mechanisms, civic education, civil society
strengthening, and legal support.” An example is their Security
Sector Accountability and Police Reform Programme in the
Democratic Republic of the Congo. Essentially, the program works
with on the ground civil society organizations in the D.R.C., as
well as citizens, government institutions and elected
14
representatives to foster an environment of trust and
cooperation.22
These two types of reform initiatives are based on top-down
and bottom-up approaches to legal reform, respectively. They are
carried out by different types of development institutions. But
there is a third type of institutions, whose approach to rule of
law and legal assistance projects has been more controversial in
development studies. These are economic institutions, like the
World Bank or the Inter-American Development Bank (IDB).23
Economic enhancement is the primary objective of rule of law
projects implemented by these organizations. Their objects
include market reform (liberalization), enforceable contract law,
and a legal climate that provides security to foreign investors.
The World Bank currently has 308 projects under way that are
dedicated specifically to building legal institutions for a
market economy.24
22 Projects & Operations. (n.d.). Retrieved April 28, 2015, from http://www.worldbank.org/projects/search?lang=en&searchTerm=rule of law23 International Covenant on Civil and Political Rights. (n.d.). Retrieved April 28, 2015, from http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx24 Jennier Elliot in Desai, V., & Potter, R. (2013). The Companion to Development Studies, 2nd Edition (2nd ed.). Hoboken:
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The Rule of Law as Essential
It is evident that development as it is defined in
development studies shares common ground with the attempt to
achieve the rule of law, like the protection of the individual
from arbitrary action, the enhancement of rights and improvement
of entitlements. The rule of law and development nexus also
shares common ground with the normative principles embodied in
the United Nations surrounding the rights of the individual.25
While neither rule of law projects or development in general
are explicitly seeking to embody the principles of the United
Nations Declaration on Human Rights, they do so implicitly
through the implementation of rights protecting programs.
Development studies has not always put weight on the value of a
rights-based approach to development, but since the 1980s and
1990s development has, “become more morally informed.”26 The idea
of a rights-based approach emerged as a concept and a policy
Taylor and Francis. pg 4025 Manzo in Desai, V., & Potter, R. (2013). The Companion to Development Studies, 2nd Edition (2nd ed.). Hoboken: Taylor and Francis. pg.. 41 26 Ibid.
16
directive in the ‘postmodern’ movement of the 1990’s and has
gained strength in the recent critique of neoliberalism.27
It should be noted that the rule of law does necessarily
mean compliance with international agreements or treaties.
Certain rule of law projects may seek to enhance compliance with
ratified documents such as United Nations (UN) declarations, but
a country does not need to be in compliance with it’s
international obligations in order to have the rule of law
domestically. To a certain extent, the opposite is true. In order
for a country to meet the stipulations set forth in treaties like
the Universal Declaration of Human Rights, it must have an
existing system that adequately distributes justice to its
citizens.
Hardly any international studies scholars have recognized
the fundamental importance of the rule of law orthodoxy to the
human rights campaign, with the exception of a few such as Paul
Zeleza on human rights and rule of law in Africa.28 On the
27 Programme De Bonne Gouvernance (PBG). (n.d.). Retrieved April 28, 2015, from http://www.dai.com/our-work/projects/democratic-republic-congo—programme-de-bonne-gouvernance-pbg28 Zeleza, P. (2004). Human rights, the rule of law, and development in Africa. Philadelphia: University of Pennsylvania Press.
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contrary, the rule of law has been strongly criticised. But
rather than being detrimental to the rule of law orthodoxy this
criticism has the potential to create a common understanding of
what the rule of law means in international development- and what
it does not.
A Critical Approach to the Rule of Law in Development
There are two broad components of the rule of law: that
political authorities and institutions are subject to the law,
and that contracts (formal agreements between people or
institutions) are enforceable.29 The former of the two proves
challenging- though not impossible- to influence without
violating the principle of national sovereignty. Projects of
legal reform that seek to influence the government’s standing
under the law are often done after a forced regime change (which
does violate sovereignty). For example in Iraq the Bremer Edicts
was a system of laws imposed by the United States after the
forceful removal of Saddam Hussein from power. Along with reform
29 Krever, T. (January 01, 2011). The Legal Turn in Late Development Theory: The Rule of Law and the World Bank's Development Model. Harvard International Law Journal, 52, 1, 287-319.
18
of the economic system and protection of American armed forces,
the system sought to, “create a legal framework on which a
democratic system could be built.”30
It is not impossible to create a system of political
accountability without force, but it is almost ubiquitously
recognized that unless the desire to change a legal system arises
endogenously within a developing country it is often difficult to
cultivate the political will to change. Because development
institutions cannot use overt force to effect internal balances
of power in a political system and because it is extremely
difficult to cultivate political will as an exogenous actor,
development institutions have tended to focus on the second
component of the rule of law (enforceable contracts).
In his book, “The Mystery of Capital,” economist Hernando De
Soto points directly to contract and property rights as a
determining factor in the economic development of a country.31
Using examples of hard-capital accumulations (immovable assets
like buildings, land etc.) of the poor in Latin America, De Soto
30 Otterman, S. (2004, July 8). IRAQ: The Bremer Edicts. Retrieved April 28, 2015, from http://www.cfr.org/iraq/iraq-bremer-edicts/p7639#p431 Ibid.
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theorizes that economic development cannot occur if rights to
property cannot be enforced and if permits to build businesses
require too rigorous a process to start and maintain.32 If rights
an ownership cannot be protected in a consistent and fair manner,
owning and operating a business is dangerous endeavor, because
anarchy and thus, the most powerful social groups, determine
which businesses thrive and which are deprived of resources.
This theory is part of a broad move toward the recognition
of the importance of institutions in development theory and
policy known as New Institutional Economics (NIE). Economists and
development theorists Ronald Coase and Douglas North, “located
the institutional foundations of the neoclassical model of
economics and presented a theory of economic development in which
institutions took center stage.”33 The legal system is an
institution. It has been one of the focal points of development
since the 1980s, and the theory of NIE took root in the late
32 Soto, H. (2000). The mystery of capital: Why capitalism triumphs in the West and failseverywhere else. New York: Basic Books.33 Krever, T. (January 01, 2011). The Legal Turn in Late Development Theory: The Rule of Law and the World Bank's Development Model. Harvard International Law Journal, 52, 1, 287-319. p 303
20
1970s.34 Development institutions, most notably the World Bank,
were quick to point to this new theory as the missing piece from
the neoliberal agenda to establish open markets in developing
countries.
In this conceptualization, the the rule of law must be
present (and thus, should be reformed in countries where it is
not) in order for economic development to occur. It is this
perspective that has been highly criticized by legal and
development scholars. Tor Krever, author of “The Legal Turn in
Late Development Theory; the Rule of Law and the World Bank’s
Development Model,” insists that the World Bank has
“instrumentalized” the rule of law.35 That is, the wave of legal
reform projects does not seek to establish a rule of law wherein
the government is subject to the law, but rather seeks to use the
rule of law to create a stable business and investment climate.
The project of reforming markets through the establishment of a
strong legal system rests on the assumption that free markets
34 New Institutional Economics. (n.d.). Retrieved April 28, 2015, from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=11581135 Krever, T. (January 01, 2011). The Legal Turn in Late Development Theory: The Rule of Law and the World Bank's Development Model. Harvard International Law Journal, 52, 1, 287-319
21
will provide the basis for future development in sectors not
directly related to the economy. This relationship has been
critiqued from at least a dozen perspectives, but the most
relevant critique has to do with the “dark side of the rule of
law” because it takes into account the problems of both a too-
narrow definition of development (economic growth) and the idea
that the rule of law is a panacea for augmenting development.
The law’s “dark side” is explored by comparative legal
scholars Hugo Mattei and Laura Nadar, and by Washington
University law professor Brian Tamanaha. Mattei and Nadar
describe the “dark side” as inequality that is upheld and
reinforced by the legal system. Tamanha describes the laws “dark
side” as a phenomena that occurs when liberalism uses the rule of
law against democracy.
To support their thesis, Mattei and Nadar use the example of
colonialism as historical evidence that the rule of law can
itself be illegal. They point to fallacious legal concepts such
as terra nullius (empty lands) and to case examples, such as India
during British colonization, where the rule of law was used a
method of oppression and a mechanism for extracting resources
22
“legally.”36 They contend that the current wave of rule of law
projects is a continuation of this system by suggesting that,
“foreign imposed liberalization laws that facilitate
unconscionable bargains at the expense of the people are vehicles
of plunder, not of legality.”37 They are not arguing against the
rule of law itself but only against its use as a mechanism for
promoting liberalization, against the conceptualization of the
rule of law as a stepping stone for “economic empowerment”
because this “empowerment” is biased towards the economic elite.
Their criticism of the rule of law is concerned largely with the
economic impacts, realities, and implications of the development
initiatives.
Writing on the political implications and realities of the “dark
side of the rule of law” is Tamanaha’s argument that liberalism,
democracy and the rule of law do not always coincide neatly with
one another. His argument is related to the plunder debate set by
Mattei and Nadar, in that the economic elite, once in control of
a legal system can be difficult to oust. He demonstrates these
36 Mattei, U., & Nader, L. (2008). Plunder: When the rule of law is illegal. Malden, Mass.: Blackwell Pub. pg 1-337 Ibid. pg 4
23
political relationships clearly through historical analysis.
Liberals support the rule of law in so far as it protects
individual property rights, but historically these liberals have
been the owners of property. So when the rule of law protects
these property rights, economic liberals will support the rule of
law. But under democracy property rights can be threatened if
popular opinion holds the distribution of ownership to be
unequal. The current culmination of this complex relationship is
the “Washington Consensus” and the use of structural adjustment
programs (SAP) which refers to a set of economic and political
reforms intended to open markets, free trade, establish
enforceable contract and property rights and create Western style
capitalism in developing countries. While it is often assumed
that rule of law projects seek to establish both a free and
democratic system, historically,“the rule of law has been
entwined in a broader liberal agenda with adverse implications
for democracy.”38
38 Tamanaha, Brian Z. "The Dark Side of the Relationship Between the Rule of Law and Liberalism." NYU Journal of Law & Liberty (n.d.): n. pag. NYU Law. New York University Press. Web. 27 Mar. 2015. pg 539
24
Joel M. Ngugi, a legal professor at the University of
Washington postulates that rule of law reform projects
essentially undermine the democratic process by introducing
substantive legislation without any input from the society to
which they will be applied. He analyzes this conceptualization of
the rule of law in the context of “thin” and “thick” concepts of
the law itself. “A ‘thick concept’ means a concept that, by being
both descriptive and evaluative, hopes to create the conditions
for action and to urge the action at the same time. The result is that
the rule of law projects predetermine politics.”39 Under the conceptualization
of the rule of law as a mechanism for opening markets,
legislation that is enacted under the influence of development
programs or SAP is intrinsically imbued with substantive content.
“The nature of market oriented reforms in which the rule of law
is expected to be one of the procedural institutions is a pre-
determined form of politics.”40
39Ngugi, J. (2005). Policing Neoliberal Reforms: The Rule of Law as an Enabling and Restrictive Discourse. University of Pennsylvania Journal of International Economic Law, 26(3), 513-599. p. 56140Fukuyama, F. (January 21, 2010). Transitions to the Rule of Law. Journal of Democracy,21, 1, 33-44. pg 35
25
In “Transitions to the Rule of Law” by Francis Fukuyama, he
traces the origins of the rule of law to the monotheistic
religions and their conceptualization of government as being
under the law of god.41 He uses this historical context to give
an example of how the rule of law can be presented as procedural
and non-substantive, when in fact it assumes Western cultural
values. Legal system reforms may often assume that women have
equal juridical status, when this may not be compatible with the
societal views into which the law is being introduced.42 He then
asks, “is it better to proceed incrementally in building legal
institutions that work, even if we find the content of the law
not to our liking?”43
Alternatives to the Rule of Law Orthodoxy
Though the problem of reaching a comprehensive definition of
the role of the rule of law in development still exists, there
41Fukuyama, F. (January 21, 2010). Transitions to the Rule of Law. Journal of Democracy,21, 1, 33-44. pg. 4242 Ringer, Thom (2007) "Development, Reform, and the Rule of Law:Some Prescriptions for a Common Understanding of the "Rule of Law" and its Place in Development Theory and Practice,"Yale Human Rights and Development Journal: Vol. 10: Iss. 1, Article 5..: http://digitalcommons.law.yale.edu/yhrdlj/vol10/iss1/5. pg 20143 Ibid. pg. 201
26
have been prescriptions from legal and development scholars
concerning the path that the movement should take. Thom Ringer,
writing in the Yale Human Rights and Development Law Journal in
2008, suggested that the rule of law movement should follow the
perspective of development scholar and economist Amartya Sen- as
a “capability building” tool. He contends that the only point of
universal consensus necessary for the rule of law project
movement to agree upon under the capability-building
conceptualization is that of freedom.44 “By displacing wealth as
the sole object of equalization, the capability approach pulls
into focus a variety of other qualities…. the capability approach
treats low income as instrumentally significant… an impoverished
life is one bereft of choice and the ability to make choices, not
just financial resources.”45 This perspective also speaks to
Fukuyama’s cultural dilemma of women as equal under the law; if
freedom, not resources, is the most conducive element for
development, then gender discrimination would be a severe
impediment. So, the capability approach demands a legal system
44 Bhansali and Beibensheimer in Carothers, T. (2006). Promoting the rule of law abroad: In search of knowledge. Washington, D.C: Carnegie Endowment for International Peace. (p 319)45 Ibid.
27
which facilitates protection of the most basic civil and
political rights of the people.
In confronting the problem of the economic conceptualization
of the rule of law, Ringer points to the school of NIE.
Extrapolating from other theorists, the NIE approach is important
because it incorporates and emphasizes the role of governing
bodies other than the government in designing a system of effective
rights enforcement. The NIE approach recognizes that property
rights are intrinsically essential for development and that the
reformation of the institutions that create these rights is the
most conducive approach to further development. To summarize
Ringer, the role of the rule of law in development projects
should be defined, or conceptualized as focusing on more than
just economic development, and conscious of the benefits of
reformations of institutions. Where Ringer’s definition could be
seen as inadequate is in his attempt to avoid the controversy of
substantive law being introduced; Ringer advocates for a very
“thin” procedural process of legal reform. This approach ignores
the presence of international recognition of normative legal
standards, like the Universal Declaration of Human Rights.
28
Assessing the Impacts of Rule of Law Reform Projects
A number of challenges arise when attempting the analyze the
empirical results of rule of law reform projects, most
importantly in determining causality- “the relationship between
something that happens or exists and the thing that causes it.”46
In measuring the impact of criminal justice reform projects, for
example, it is not possible to observe success or failure of a
project by observing the broad social and economic indicators of
a country that has experienced reforms.47 In countries that have
experienced reforms in the criminal justice system, there tends
to be a higher official number of registered crimes, likely
because in the reformed system it is easier to file a complaint.
So in order to measure impact the actual criminal proceedings
should be observed and measured, since these are the most likely
to have experienced changes as a direct consequence of the
reforms. Indicators like speed of trials, the number of accused
who are held without trial and the use of alternative sentences
(sentencing accused to punishment other than incarceration) are
46 (n.d.). Retrieved April 28, 2015, from http://www.merriam-webster.com/dictionary/causality47 Golub, S. (2003). Beyond the Rule of Law Orthodoxy; The Legal Empowerment Alternative.Democracy and the Rule of Law Project, 41. pg 9-20
29
the most effective in determining whether or not a criminal
justice reform project has had causal effects.48
As Golub indicates in his analysis of the rule of law and
development orthodoxy, there are a myriad of questionable
assumptions upon which the theory if based. An understanding of
these assumptions leads to the conclusion that the movement rests
on unstable foundations.49 Measuring the impact of the projects,
then, requires an understanding of the shortcomings that are
inherent in the orthodoxy, so as not to confuse the sometimes
ambiguous results of individual projects with problems in the
overarching movement.
There is resounding lack of evidence that rule of law
projects actually have their intended consequences, largely
because each development institution has its own method of
measurement that is specific to each individual project. For
example, when USAID drafts projects relating to any field of
48 Jordan Rule of Law Program; 14th Quarterly Report. (2012, January 1). Retrieved April 28, 2015, from http://pdf.usaid.gov/pdf_docs/pa00jc6w.pdf49Jordan Rule of Law Program. (2015, January 1). Retrieved April 28, 2015, from http://www.tetratechintdev.com/index.php?option=com_k2&view=item&id=162:jordan-rule-of-law-program&Itemid=227&lang=u
30
international development, the institution defines and measures
the outcomes of the project itself.50 More specifically, the
USAID often contracts out their projects to civil society
organizations who also have their own set of criteria.51 For
example, the recent governance project in Jordan was designed and
funded by the USAID, yet the private development agency Tetra
Tech was the primary actor on the ground in Jordan.
Extrapolating aggregate data and consequences from all rule
of law related projects would have to account for all of the
different end-goals of each institutions participating in the
rule of law. Rather, rule of law related projects should have a
common, overarching goal or set of criteria that the project must
seek to meet. The World Justice Project (WJP) has attempted to
provide a universal definition of the rule of law. Its criteria
include government accountability to the law; transparent laws
that uphold a just society and are applied without
discrimination; legislative, judicial and enforcement processes
50 What is the Rule of Law? | The World Justice Project. (n.d.). Retrieved April 28, 2015, from http://worldjusticeproject.org/what-rule-law51 WJP Rule of Law Index™ 2014. (n.d.). Retrieved April 28, 2015, from http://data.worldjusticeproject.org/#/index/USA
31
that are fair and measurable; and justice officials who are
representative of the society they serve, competent and just.52
While this definition can serve as a fundamental basis for the
goals of rule of law reform projects, it does little to specify
what the common goals of these projects should be.
Until a consensus on the meaning of the rule of law in
international development is reached, it is necessary to rely on
large-scale data collection such as the WJP Rule of Law Index.
The Index compiles aggregate data on areas like constraints on
government, which is includes measurement of lawful transitions
of power, limits by the judiciary, etc.53 Whereas these types of
measurement can be helpful, they are ineffective for measuring
the aggregate consequences of individual reform projects because
their scope is too broad, as it its smallest indicator is the
nation-state.
52Golub, S. (2003). Beyond the Rule of Law Orthodoxy; The Legal Empowerment Alternative.Democracy and the Rule of Law Project, 41. pg. 9 53 Ringer, Thom (2007) "Development, Reform, and the Rule of Law:Some Prescriptions for a Common Understanding of the "Rule of Law" and its Place in Development Theory and Practice,"Yale Human Rights and Development Journal: Vol. 10: Iss. 1, Article 5..: http://digitalcommons.law.yale.edu/yhrdlj/vol10/iss1/5.
32
So drawing cause and effect implications between rule of law
projects and social consequences has proven to be a highly
segmented process. There is evidence that states with higher rule
of law indicators also have lower rates of poverty, infant
mortality, and higher literacy, but no laudable causal connection
can be made between rule of law projects and these aggregate
development indicators.54
Conclusion
The rule of law is not a panacea for developing countries;
it can not lead directly to open markets without violating the
principles of national sovereignty or undermining the democratic
process entirely, but its limitations can be understood through
the use of a standard definition that requires projects to
operate in such a way as to create measurable changes in a
developing country.
Legal systems and development initiatives both seek to
protect personal rights and freedoms, and thus they share common
objectives. This relationship has been utilized previously, in
54 Uildriks, N. A., & Tello, P. N. E. (2010). Mexico's unrule of law: Implementing human rights in police and judicial reform under democratization. Lanham, Md: Lexington Books.
33
the Law and Development movement of the 1960s. Yet the lessons of
the failure of this movement have not been adequately learned;
there is still no universal definition of the role that legal
reform projects should seek to play in developing countries. But
the goals of development and the goals of the rule of law are
dependant on the provision and protection of rights, which in
turn, depends on security, protection from arbitrary abuse and
enforceable contracts- the rule of law. So the rule of law is a
fundamental component of any society, if it is to be free and
functional.
Development projects have attempted to reform judicial
systems, often (as in the case of the World Bank) with the
objective of establishing a system of property-rights protection.
These projects assume that property rights will lead to a true
rule of law system, and that this system will then augment
development in other areas of the society. But as critics of this
perspective argue, this assumption may be based on only a partial
representation of the interrelationship between the law,
liberalism, and democracy.
34
In order to mitigate the negative effects of establishing a
legal system exogenously, development projects should approach
reform from the perspective of institutional stabilization,
augmented by civil society efforts. Top-down approaches and
judicial system reforms are often ineffective, for example in
Mexico the USAID successfully completed a project of justice
sector reform, only for the system to overthrown.55 Furthermore,
tangible causal connections between legal reform projects and
actual poverty alleviation are scarce.56
Understanding the limitations of what exactly rule of law
project can achieve requires a definition of what the rule of law
is and the application of this definition the all rule of law
reform projects. This would enable better measurement of impact,
and reduce the confusion that is the result of competing
definitions of the rule of law. Finally, rule of law projects
should not be attempted entirely from a top-down approach, as
this has been shown to influence the politics of the developing
country without popular participation. Rather, institutions and
civil society should be the targets of partnership and reform.
55 Ibid. (emphasis added) 56 Ibid.
35
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