"Promoting the Rule of Law Abroad: In Search of Knowledge" [Full Text]
Ed. by Thomas Carothers (Washington, D.C.: Carnegie Endowment for International Peace, 2006), 363 pp., $50 cloth, $19.95 paper
December 6, 2007
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.
University of Maryland, Baltimore County