Articles questioning and challenging ROL practices

I have been doing development work for long enough to start to ask the hard questions. Starting with HIV/AIDs rights in Thailand, then moving on to China, and Kosovo before settling down in Seattle over the last few years, I've experienced an array of development practices. Especially with my work with the NGO Leaders Conference in recent years that brings together top NGO leaders to talk, I am now seeing the development world for the industry that it is.

Anyway, this prelude is to say that I understand the debates (or at least the necessity of debates) in the field. In particular, with law and development, the revival of the field (if it is in fact one) in the last decade has emphasized the concept of 'Rule of Law' (ROL). This seemed to have resulted in aid agencies focusing on legal reform and governance work, as part of the popular "institutional building"/New Development Economics paradigm.

I recently questioned in this post if ROL programs, as practiced, are really just a resurrection of the Law and Development Movement (which I also blogged about here). My reaction was pragmatic one: While I am interested in these debates and intend to continue to follow them, my belief is that there will not be one true solution, and I seek solace in the practical differences I make to people. Still, from my humble bottom-up grassroots beginnings in the development world, in recent years I find myself focusing increasingly on strategic and institutional issues, governance and legal/judicial reform work, and high level policy and law. Definitely top-down. And at the 1000 foot level it is sometimes different to see if we do make any impact at all. 

In fact, the ROL practice have been increasingly questioned on effectiveness, and as in the post I mentioned above, challenged on not being different than in the 1960s. There seems to be increasingly more voice in academia abut ROL, such as in the following two articles:

• In Mythmaking in the Rule of Law Orthodoxy, by Frank Upham is professor of law at New York University School of Law, the criticism of the ROL practice sounds suspiciously like that of the Law and Development Movement of the 1960s: 

Summary: As governments and donor agencies struggle over questions of aid and international development, a growing consensus is emerging that there is an explicit link between rule of law reform and sustainable growth. However, this new rule of law orthodoxy ignores evidence that the formalist rule of law advocated by the World Bank and other donors does not necessarily exist in the developed world. Moreover, attempting to transplant a common template of institutions and legal rules into developing countries without attention to indigenous contexts harms preexisting mechanisms for dealing with issues such as property ownership and conflict resolution.As governments and donor agencies struggle over questions of aid and international development, a growing consensus is emerging that there is an explicit link between rule of law reform and sustainable growth. However, this new rule of law orthodoxy ignores evidence that the formalist rule of law advocated by the World Bank and other donors does not necessarily exist in the developed world. Moreover, attempting to transplant a common template of institutions and legal rules into developing countries without attention to indigenous contexts harms preexisting mechanisms for dealing with issues such as property ownership and conflict resolution.

• Also, as a follow up to his previous research work which I blogged about earlier this year, my colleague Stephen Golub (officiated with the Asia Foundation) recently published a paper not only challenging the current ROL practice, but proposing a bottom-up alternative focusing on marginal groups, an approach he calls 'Legal Empowerment'. This concept, in the last few years, seems to have made its appearance in many development circles as well. Not that it is a 'new' concept, as Stephen pointed out, because many local NGOs have been practicing it for years. It is a 'new' concept only in relative to the dominant top-down, ROL  reforms practiced today by big aid agencies. In Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative:

Summary: The international aid field of law and development focuses too much on law, lawyers and state institutions, and too little on development, the poor and civil society. In fact, it is doubtful whether "rule of law orthodoxy," the dominant paradigm pursued by many international agencies, should be the central means for integrating law and development. This working paper examines legal empowerment—the use of legal services and related development activities to increase disadvantaged populations' control over their lives—as an alternative.

Maybe I can hope: Might the big aid agencies go where the smaller grassroots have gone with the 'Rights Based'?approach?