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.'

World Summit Information Society (WSIS)- What is it?

WSIS stands for World Summit on the Information Society, and is a UN summit that is to be held in two phases- in Geneva in 2003 and Tunis in 2005. Its legal basis is in the UN General Assembly Resolution 56/183 adopted on 21 December 2001, a result of the instigation the International Telecommunication Union (ITU) which placed the question of the holding of such a conference on the agenda of the United Nations. In January 2002, the United Nations General Assembly endorsed a proposal for a global summit on Information and Communication Technology (ICT) issues. The International Telecommunications Union (ITU) took the lead in organizing the event, which included the participation of more than 50 heads of state. WSIS is also related to UNESCO.


What is a UN Conference?

A UN Conference (or "Summit") involves Heads of state and government and other high-profile world leaders from intergovernmental and non-governmental organizations as well as from civil society and the private sector, usually dealing with themes of humanity. Summit events have put long-term, difficult problems like poverty at the top of the global agenda. The participation of thousands of NGOs, citizens, academics and businesspeople, in both the official and unofficial meetings, has turned these conferences into "global forums".

UN Summits have been held on a variety of issues that have commanded the attention of the world. The World Summit on the Information Society is unique in that it was envisaged to meet in two phases: The Geneva Summit in December 2003 will lay the foundations with a Declaration of Principles and a Plan of Action. The Tunis Summit, meeting in 2005, will monitor and evaluate progress on the Action Plan and devise an Agenda that will target goals for achievement by 2015.


Why a Summit on the 'Information Society'?
(from the formal ITU-WSIS) literature

The Digital Revolution

The digital revolution, fired by the engines of Information and Communication Technologies, has fundamentally changed the way people think, behave, communicate, work and earn their livelihood. It has forged new ways to create knowledge, educate people and disseminate information. It has restructured the way the world conducts economic and business practices, runs governments and engages politically. It has provided for the speedy delivery of humanitarian aid and healthcare, and a new vision for environmental protection. It has even created new avenues for entertainment and leisure. As access to information and knowledge is a prerequisite to achieving the Millennium Development Goals – or MDGs -, it has the capacity to improve living standards for millions of people around the world. Moreover, better communication between peoples helps resolve conflicts and attain world peace.


The Digital Divide

Paradoxically, while the digital revolution has extended the frontiers of the global village, the vast majority of the world remains unhooked from this unfolding phenomenon. With the ever-widening gulf between knowledge and ignorance, the development gap between the rich and the poor among and within countries has also increased. It has therefore become imperative for the world to bridge this digital divide and place the MDGs on the ICT-accelerated speedway to achievement.

Read more at the ITU website's WSIS section.

The 1960s Law and Development Movement

What is the Law and Development Movement?

In the 1960s, about a decade after the aid industry started, USAID and Ford Foundation (with other smaller donors), started an ambitious project on legal and judicial reform in developing countries. Some key assumptions and features of this movement included:

• Law is CENTRAL to development (ie is it not a means nor context-dependent)- law is an engine of change and can lead to development.
• Law reform (changes in substantive laws, in large part based on US laws) needs to take place
• The major actor is the legal profession (judges and lawyers) who will spearhead and push for reform, so legal education was key
• A technical, top-down transfer of the American legal system and its culture
• Led by US lawyers and law professors (not multi-disciplinary)

Did it fail?

A little more than a decade later, key academic participants (Trubek and Galanter 1974; Merryman 1977) and a former Ford Foundation official (Gardner 1980) declared the program a failure, and support quickly evaporated. Reasons cited for failure:

• The assumption that law is central to development (ie law reform will impact development) might be incorrect
• It was a packaged, top down approach (from US to developing countries) with no participation from the recipients- the simplistic transfer of the US legal system does not work
• There was little consideration of local realities, such as culture and informal legal systems

However, not everyone agrees that the movement failed, mainly for the following reason:

• Impact of reforms usually take decades before they can be seen, it was too soon to concede failure only after one decade. Some recent works (30 years later) report that some impact can be currently witnessed.  

Read more: 

• Trubek, David M., and Marc Galanter. 1974. "Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development." Wisconsin Law Review 1974: 1062–1101
• Burg, Elliot M. 1977. "Law and Development: A Review of the Literature and a Critique of 'Scholars in Self-Estrangement.'" American Journal of Comparative Law 25:492–530.
• Gardner, James. 1980. Legal Imperialism: American Lawyers and Foreign Aid in Latin America. Madison: University of Wisconsin Press.

• McClymont, Mary and Stephen Golub, eds. 2000. Many Roads to Justice: The Law-Related Work of Ford Foundation Grantees Around the World. New York: The Ford Foundation.
• Tamanaha, Brian Z. 1995. "The Lessons of Law-and-Development Studies" American Journal of International Law 89:470-486.

Technology hits the international development scene?

In November 2002, UN Secretary-General Kofi Annan issued a Challenge to Silicon Valley^[1] to create nearly up-to-date computers and communications systems that would enable villages to afford Information and Communication Technologies for Development (ICT4D). Some examples from around the world were:

• the Simputer movement in India
• Pocket PC from Microsoft in Redmond, Washington, United States
• free metropolitan wireless systems
• the MIT Media Lab program to create a $100 laptop
• localization of Linux into languages not supported by commercial vendors

Welcome to San's Blogger blog!

I have decided to Google's blogging platfom a try. I have been resisting it for the last few years, and using Movable Type, but now that it is so full featured, I'm ready to give it a run!  This is a platform where I intend to write about the work I'm involved with- mainly international development, law and (increasingly) information and communications technology (IT, or ICT, the term used in the development industry). 


DISCLAIMER:
(I do have a legal background after all!). All materials on this blog are:

• For informational and discussion purposes only 
• My opinion, which may be based on incorrect assumptions or facts, and which (as opinions do) may change from time to time
• Do not in any way reflect those of my employers, affiliates, partners, clients or any individual or organization that I might have any relationship with. 
• not in any way making representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and the authors or commentors will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. 

UPDATE: 8/5/07

I am merging my work travel blog with this blog. These days, because of my travel schedule, I seem to update that blog more than this one, and I'm adopting the philosophy of keeping things simple. They are very similar in focus, and I thought that you might also like to read about my work-related travel in this blog.

UPDATE: 1/3/10 

It is time to review and renew my web strategy. Wow! In just a few short years, my presence on the web has exploded first with Linkedin, then MySpace, Facebook, and Twitter, and many other social networks. Moreover, I now have a few blogs that, like unattended closets, have become disorganized and cluttered, in addition to my professional resume site. So, I'll be taking the next few months to strategize and execute. (FURTHER UPDATE 1/19/10) Unfortunately, I moved the content to Wordpress, thinking that I would like a more open platform, but lost all blog comments in that migration. In panic, I moved the blog back again, but it seemed that my backup file did not include comments to begin with. My massive apologies, to my commentors, but I promise that I have ALL your comments in my email, and I will try to slowly reinstate them after I've sorted out my strategy.