Tuesday, March 18, 2003

Are Rule of Law (ROL) programs a repeat of the Law and Development Movement?

There has been a resurgence in the notion of law in development in the last decade. I suspect that it was fueled by the end of the Cold War giving rise to a plethora of 'Transitioning Economies' that needed, among other things, to 'transition' their legal and judicial systems. I do wonder, though, how this phase of programs by international donors is different than the Law and Development Movement in the 1960s.

I ask this from afar, as the type of work that I did in Thailand and China in the 1990s were of a different nature, being more of a grassroots type of work such as:
  • legal assistance and empowerment of HIV patients in rural Thailand, 
  • legal issues faced by Thai and China hill tribes 
  • grassroots advocacy of human rights of Aung San Suu Kyi and Burma 
  • human rights monitoring in Kosovo 

My satisfaction in my work was complete. While we didn't do any impact monitoring per se (those were the earlier days where M&E was just becoming a topic), it was obvious to see the difference our efforts made in the lives of the people I was working for. I have friends in the legal and judicial reform world (also broadly known as 'Rule of Law'), where most of bilateral and multilateral money seems to be pouring into. It was frustrating when we were trying to raise funds for our programs so see so much funding go into government reforms where the 'trickle down' effect was truly questionable.

Anyway, I wonder if this 'flavor of the month' really helps, or if it is just a repeat of the 1960s Law and Development Movement of top-down, 'technical assistance'. I realized that I was not alone in asking this question, as there has been much debate about this question.

The proponents are saying that this is different because:

  • While some of the big World Bank or USAID projects appear similar, the implementation is different because the focus are on the substantive laws and institutions that promote growth (with local consideration taken into context), as opposed to a wholesale import of laws and legal culture. 
  • Recent economic analysis have shown that legal reform projects arguably have contributed to growth 
  • Moreover, there have been much documentation of lessons learned, that can be applied this round 
  • Rule of Law, even if arguably not central to development, should be a goal in itself 

The skeptics's arguments are:

  • The assumption that legal reform contributes to economic growth is still highly questionable, and there is not enough current research to refute it 
  • There is little agreement about priorities and strategy- each aid organization seems define and implement 'Rule of Law' entirely differently 
  • This is still a transfer of the 'American legal system' 
  • This is still a top-down approach that is dependent on the state government (which usually is the problem itself) 
  • This is still a 'technical assistance' that does not take political reality into consideration when designing projects (this argument is most directed at the Banks, many who have policies of 'non-intervention' in a country's politics) 
  • Law in Development is not a stand-alone legal field. It is in fact a complex, multidisciplinary field that should be both top-down and bottom up, as well as integrated into other aid sectors 

My takeaway

is that the development field, is more a social science field than a purely economic field. What that means is that unlike the latter which tends to create simple and general frameworks, it is a complex evolving learning which will never be complete. Unless we know the Truth of 'Life', it is hard to uncover what the Truth of 'development', or 'Law in Development' is. So I'm comfortable with not knowing, and in fact, find comfort not in the theories of development, but the impact I make which I can experience first hand.

Read more:
  • Faundez, Julio. 1997. Good Governance and Law: Legal and Institutional Reform in Developing Countries. New York: St. Martin's Press.
  • McAuslan, Patrick. 1997. "Law, Governance, and the Development of the Market: Practical Problems and Possible Solutions." In Faundez 1997.
  • North, Douglass C. 1990. Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge University Press.
  • Thome, Joseph R. 1997. "Comment on McAuslan's 'Law, Governance and the Development of the Market: Practical Problems and Possible Solutions.'

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