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December 6, 2007
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| Promoting the Rule of Law Abroad: In Search of Knowledge |
Simon Stacey(reviewer)
Rule-of-law (ROL) reform is a relative newcomer to the toolbox of the aid and
development field. Promoting the Rule of Law Abroad is an attempt to
collect some of the little known about it, and it does this creditably. The
evidence available is thoroughly canvassed, and though the book's contributors
are rather pessimistic about the theory and practice of ROL reform, they do
point to ways to improve its prospects. The book has, nominally, four parts: an
introduction and a conclusion flanking two longer sections, the first concerned
with conceptual questions, the other containing case studies of ROL programs.
The flanking pieces (very competently written by Thomas Carothers) situate ROL
reform efforts historically and anticipate the conceptual section, and sum up
the case study section, respectively.
The essays in the book's conceptual section—"Questioning the Orthodoxy"—all
proffer some sort of definition of ROL reform (no single definition of ROL is
ever really settled on), and then go on to criticize both the theoretical
justifications for and actual practice of its promotion. The essays make a
number of interesting and provocative claims, but too often these are the same
claims. All of these chapters (and almost all in the book) began their lives as
Carnegie Papers of some sort, so some family resemblance is perhaps
understandable; but the repetition of criticisms sometimes smacks of an
anti-ROL orthodoxy orthodoxy.
Readers pressed for time might be best served by Rachel Kleinfeld's essay.
Beyond its main focus on institutional versus ends-based understandings of ROL
reform, this is a careful and wide-ranging treatment of many of the pertinent
issues. Of all the authors, she most fully makes the point that ROL promoters
tend to understand the ROL in institutional terms, and that this leads them to
focus narrowly and technocratically on building institutions—legal codes and the
judiciary, especially—and to neglect the goals ROL reform is supposed to
achieve: ensuring legal equality, law and order, predictable and efficient
justice, the respect of human rights by the state, and subordinating politics to
law. Kleinfeld also shows that ROL reformers often attempt merely to replicate
the legal systems of their own countries, can be insensitive to local political
and cultural issues, and often underestimate the internal tensions of ROL (for
example, the competing demands of equity and predictability).
Frank Upham's subtle essay challenges two key ROL assumptions he regards as
insufficiently substantiated. First, he argues that the notion that ROL reform
is necessary for economic development is gainsaid by the economic successes of
contemporary China (not a ROL model by any definition) and, more interesting, by
Japan since the 1930s (a period during which law has played very little role in
its economic life). Second, he questions whether law and politics should be as
separate as the ROL orthodoxy dictates, pointing to the general well functioning
of American democracy, despite the politicization of its judicial and
legislative apparatuses.
Stephen Golub's two essays provide the least sympathetic account of recent
ROL-promotion initiatives. The first describes ROL reform as "flawed and
incomplete," characterized by "questionable assumptions"—the most questionable
of all being that formal structures and state institutions are the key to ROL
reform—and "unproven impact, and insufficient attention to the legal needs of
the disadvantaged" (p. 105), with the result that civil society's role in
establishing the rule of law is ignored. This essay seems a little shrill in
places, and here and there ROL reformers are tarred with a very broad brush;
they are criticized for "bureaucratic inertia," "improper incentives,"
"structural biases," and "lack of applied research" (pp. 128-31), problems,
surely, not unique to ROL promoters. To his credit, Golub presents an
alternative to ROL reform in his second essay. This approach, which he calls
"legal empowerment," focuses on civil society, involves a more cooperative
relationship between experts and the disadvantaged, "transcends narrow [ROL]
notions" and integrates legal reform with conventional development programs, and
is "fundamentally more about power than about law" (pp. 161-62). But this
description, and some very large claims made for the strategy's utility, left me
wondering (a) whether legal empowerment is really an alternative to ROL
promotion at all, rather than a quite different creature altogether, and (b)
whether the model is feasible.
In between Golub's two essays lies Wade Channell's, which catalogues the by
now rather familiar mistakes ROL programs have made. More important, though,
Channell also describes the factors that explain the reoccurrence of these
mistakes, including the false assumption that new laws will solve all legal
problems, and the way many grants are made to ROL promotion programs, which
encourages competition and the guarding of successful strategies, and often
defines success in convoluted, donor-driven ways.
Of the five essays devoted to regional experiences, three develop in more
detail some of the dispiriting themes of the preceding conceptual pieces.
Matthew Stephenson's essay on China details the reasons that the ROL-promotion
("Trojan Horse") strategy (p. 199) being pursued by the West there—promoting
legal reform in unthreatening areas, such as commercial law, in the hope that it
will somehow spill over into civil and criminal law—will likely fail. David
Mednicoff focuses usefully on the unique difficulties ROL reformers—especially
from the United States—face in the Middle East. And Laure-Hélène Piron describes
ROL promoters' failures in Africa to provide enough money, to think broadly
about the "justice sector" (p. 275) and not just about courts and judges, to
acknowledge political context, and to involve civil society in their
efforts.
On a more positive note, Matthew Spence's essay credits ROL promoters with
having played an important catalyzing role in the reform of Russia's legal
system, even if the broad background conditions favoring such reform were beyond
their power to influence; and Lisa Bhansali and Christina Biebesheimer of the
World Bank marshal some fairly persuasive evidence about the efficacy of Latin
American ROL programs in reducing the percentage of detainees awaiting trial,
speeding up trials, increasing ROL-related budgets, and introducing the use of
alternative sentencing mechanisms. These more optimistic essays leave one unsure
about what to conclude: Can it be true both that ROL promotion is theoretically
flawed and incomplete, and that it has been relatively successful in Russia and
Latin America?
No single-issue, edited volume can avoid some inconsistencies and repetition;
indeed, it may seem churlish to have noticed these in a work that addresses as
new a topic as ROL promotion. Promoting the Rule of Law Abroad is a
commendable effort to get the discussion of the topic started, and deserves
wide, if perhaps selective, reading by practitioners and academics in the aid
and development fields alike.
—SIMON STACEY
University of Maryland, Baltimore County
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