A closer Look at the Rule of Law

» by Elisabetta Baviera

The rule of law is by now firmly entrenched as a cardinal element of governance-oriented reform programs targeting developing countries, heralded by governments, intergovernmental organisations, international financial institutions (IFIs), development agencies, non-governmental organisations (NGOs), academics and other civil society entities alike as a sine qua non of 'good governance', development, democratisation and the protection of human rights. While this statement requires little evidentiary support, it is useful to highlight that the relationship between the rule of law and development is emphasised frequently and forcefully by many of these actors: James Wolfensohn, President of the World Bank, has stated, for example, that ' effective legal and judicial system is not a luxury, but a key component of a well-functioning state and an essential ingredient in long-term development...There can be no good and clean government without respect for the rule of law, nor transparent and well-functioning financial markets, nor equitable and sustainable development.' As early as 1996, the International Monetary Fund (IMF) was urged by its Board of Governors to 'promote good governance in all its aspects, including by ensuring the rule of law, improving the efficiency and accountability of the public sector, and tackling corruption, as essential elements of a framework within which economies can prosper.' Similarly, the United States Agency for International Development (USAID) warns that '[w]eak legal institutions endanger democratic reform and sustainable development in developing countries.' What emerges from these statements is that the rule of law as a policy objective is considered central not only to economic development, but also to further-reaching development aims including 'democratisation' and the protection of human rights. Indeed, this more inclusive notion of development is a welcome progression in the work of the World Bank and the IMF, organisations that previously considered themselves constrained to 'purely' economic and financial policies, due to the restrictions contained in their constitutive documents. The fiction that development policy can be formulated without reference to law, politics, and wider social issues no longer constitutes such a crippling influence on these institutions' policies, although its legacy is still felt, thanks also to the increasing volume and diversity of academic research in this field.

Rule of law reforms themselves have also improved considerably since they first appeared on the international agenda; the multifarious calls from academics and some NGOs have been heeded to some extent, and international rule of law promotion policies have been refined accordingly. Top-down, formulaic and sector-specific reforms have, in some international aid circles, been supplemented or even replaced with longer-term, grassroots initiatives that seek to promote the development of a 'rule of law culture'. Furthermore, the intimate connection between the rule of law and human rights, as well as other deeply political issues, has been to some extent taken on board, with reforms targeting access to justice, corruption, freedom of the press and the independence of the judiciary, some of the essential elements of governmental accountability.

Nevertheless, this essay will suggest that there remain certain fundamental fallacies in the approach of the 'international aid community', particularly governmental agencies and IFIs, to the promotion of the rule of law in the context of development or transitional assistance. The enquiry will begin by taking a step back from the preceding comments, to engage in a brief terminological reflection, where the meaning and implications of 'rule of law' will be addressed (Part I). Consideration will be given in Part II to some of the problems encountered in attempts to promote it abroad, primarily by reference to Thomas Carothers' discussion in relation to the depth of reform, which concludes that '[r]ule of law aid has been concentrated on more easily attained [i.e. more shallow]....reforms.' As argued above, the concerns he raised as early as 1998 have to some extent been redressed, but much remains yet to be improved. The reasons for such persistent shortcomings will be explored in more detail in the main body of the essay, Part III. Special consideration will be afforded to conceptual critiques, aimed at the very foundations of international and foreign legal assistance. In particular, Susan Marks' illuminating analysis of efforts to achieve political democratisation in developing countries will be discussed in relation to the 'rule of law project'. This will lead to the elaboration of wider criticisms voiced by David Kennedy exposing the sidelining of politics he claims is produced by the flawed assumptions underpinning the 'international governance movement'. The implications of these criticisms for the promotion of the rule of law abroad will be considered. Kennedy will provide a springboard to address the fundamental problem that rule of law promotion initiatives lack sound philosophical and theoretical credentials; this will be submitted as a further underlying reason for their discouraging outcomes.

The terms of this enquiry are intentionally broad. What is undoubtedly lost in specificity is gained, however, in insight, since a broad-brush approach highlights that the shortcomings analysed here span far beyond the rule of law.

© Elisabetta Baviera 2004. To contact the author write to »

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