From the ALI to the ILI: the efforts to export an American legal institution.

• Author: Krishnan, Jayanth K.

ABSTRACT

In this Article, the Author argues that those who believe that Americans can successfully export their visions of law and legal research to other countries need to consider--in addition to Japan and Germany, two countries that are often touted as exemplars--the case of India. India gained its independence from the British in 1947, and soon thereafter many U.S. experts traveled to India in an effort to foster a culture of Western legal intellectualism. As part of their mission to improve the status of law in India, the Americans, upon their arrival, strongly advocated for the construction of a national Indian legal research center--similar to the American Law Institute (ALI) which had been located in Philadelphia, Pennsylvania since 1923. The ALI had earned the reputation as a leading center that focused on the study and improvement of law. While almost all of the ALI's work concentrated on U.S. law, the idea was that India too could have such a center of its own where lawyers, judges, and academics worked to clarify outstanding legal questions. As the Author documents, however, U.S. efforts to create an Indian version of the ALI encountered serious difficulty. And as the Author concludes, the lessons from this study might well prove useful as U.S. experts attempt to help countries today, such as Iraq and Afghanistan, devise democratically-based legal systems.

 TABLE OF CONTENTS I. INTRODUCTION II. EARLY EXPORTING EFFORTS BY U.S. LEGAL ACADEMICS III. EXPANDING THE MISSION AND THE REQUEST

FOR U.S. INPUT IV. Now THAT IT'S BUILT, WHAT DO WE DO? A. Cooperation at the 1957 Stanford Workshop B. The ILI's First Formal Conference, December 1957: Setting the Agenda C. Initial Steps and Preliminary Observations V. U.S. ATTEMPTS TO STRENGTHEN THE ILI--SOME SUCCESSES, SOME DISAPPOINTMENTS VI. CHANGING DIRECTION--DIFFERENT IDEAS BUT FADING HOPES VII. A FINAL ASSESSMENT OF THE ILI AND WHAT WAS OVERLOOKED--CONCLUDING REMARKS

I. INTRODUCTION

On January 30, 2005, over eight million Iraqis went to the polls to cast their votes in what President George W. Bush referred to as a "great and historic achievement." (1) Indeed, even some of the harshest critics of the war in Iraq recognized the courage of the many who were willing to risk their lives to participate in this election. (2) Public admiration of the Iraqis was only heightened after the December 2005 election in which an estimated ten million people cast ballots for the national parliament. For President Bush, the ousting of Saddam Hussein, the two elections, and the recent drafting of a new constitution have served as important landmarks for Iraq as it begins the process of transitioning to democracy. (3) But as the President and his advisors have reiterated, meaningful change in Iraq will not happen overnight; the United States, they emphasize, must remain committed to helping the Iraqis build a free and just society--regardless of the time it takes. (4)

One critical aspect of this building process, according to the Bush administration, is that the rule of law needs to be established and consolidated in Iraq. (5) The U.S. government has already dispatched teams of legal experts to Baghdad to help the Iraqis develop a more transparent, rights-based judicial system. (6) Given the long history of U.S. lawyers, judges, and academics traveling to distant places to promote the democratic rule of law, (7) the President's belief that these experts might offer substantive assistance even in a society so enormously different from the United States--thus seems reasonable.

Consider, for example, the cases of Japan and Germany following World War II. Although the United States' involvement differed in scope and extent, the U.S. government sent officials soon after the War to assist the Japanese and Germans in developing liberal, democratic legal systems. (8) In the years that followed, U.S. legal experts visited various countries in Latin America and Africa to help reform these societies' judiciaries. (9) And after the end of the Cold War, U.S. lawyers once again traveled abroad to promote the rule of law--this time to Eastern Europe and the former Soviet Union. (10) (In fact, the American Bar Association, beginning in 1990, established a program that to this day sends U.S. lawyers and academics to these two regions to aid "these emerging democracies in modifying and restructuring [their] laws and legal systems." (11))

Yet, whether it is the current legal work being done in the former Soviet bloc or the past work done in other parts of the world, the message from the U.S. lawyers to their hosts has been rather consistent: simply having citizens abide by constitutional provisions and democratically-enacted statutes is not enough to strengthen and consolidate the rule of law. (12) In addition, the law needs to be reflected upon, meticulously studied, and regularly researched to determine whether what is "on the books" is equitable and accommodating to that society's needs. And while many of the countries in which Americans have consulted are still not full-fledged democracies, Japan and Germany serve as democratic models that President Bush hopes the Iraqis, to one degree or another, will emulate. (13)

But what are the odds that in a country where democracy was silenced for decades the rule of law might soon be a subject that is contemplated and rigorously researched--as the Americans conceptualize it? This Article draws upon the lessons of history and argues that those who believe that Americans can successfully export ideals of law and legal research need to consider--in addition to Japan and Germany--the case of India. India gained its independence from the British in 1947 and, soon thereafter, many U.S. experts traveled to India in an effort to foster a culture of Western legal intellectualism. By all accounts, India would have seemed a hospitable environment to U.S. legal assistance; although it had been part of the colonial empire, India was exposed to various Western legal principles by the British and, after independence, India established a constitutional democracy modeled much after the United States. (14)

As part of their mission to improve the status of law in India, the Americans, upon their arrival, strongly advocated for the construction of a national Indian legal research center--similar to the ALI which had been located in Philadelphia, Pennsylvania since 1923. (15) The ALI originally was established to cure "two chief defects in American law, its uncertainty and its complexity, [which] had produced a general dissatisfaction with the administration of justice." (16) The ALI had earned the reputation as a leading center focused on the study and improvement of law. (17) While almost all of the ALI's work concentrated on U.S. law, the idea was that India too could have a similar center where lawyers, judges, and academics would work to clarify outstanding legal questions. As this Article documents, however, U.S. efforts to create an Indian version of the ALI encountered serious difficulty. And as this Author concludes, the lessons from this study might well prove useful as U.S. experts attempt to help the Iraqis devise a democratically-based legal system.

In Part II, the Article discusses how after World War II, the legal, political, and educational environments within the United States and India helped spark the momentum for the establishment of an Indian legal research center. Parts III and IV focus on those U.S. legal academics who went to India during the 1950s and 1960s. These Americans traveled on behalf of the New York-based philanthropic organization, the Ford Foundation. Ford, after the War, became interested in India because the country had embraced democracy and appeared as an exciting environment in which to export U.S. law, U.S. legal research techniques, and in particular, the ALI-model. (18)

As it happened, an "Indian Law Institute" (ILI) was soon established, and it eventually incorporated into its mission almost all of the U.S. law professors' suggestions. But as this Article explains in Parts V and VI, a tension arose. While on paper the ILI purported to pursue an ALI-like agenda, the reality was much different. Part VII concludes by discussing how the Americans admittedly failed to anticipate these difficulties, but also how they did not recognize that for centuries past Indian scholars had indeed contemplated promoting ideas of law and legal research--but on their own terms. Although the Americans, along with their Indian hosts, sought to improve the functioning of the Institute, the goal of exporting a U.S.-type legal research center to India never materialized as its architects had hoped. The result was that by 1970 the Americans withdrew much of their financial and advisory support for the ILI. The implications of these historical findings, as this Article suggests, have direct bearing on the United States' current hopes to assist the Iraqis (and other societies) develop a liberal, democratic legal culture.

2. EARLY EXPORTING EFFORTS BY U.S. LEGAL ACADEMICS

   India achieved its independence from Britain in 1947 and less than three years later adopted a broad, rights-based constitution. (19) Many U.S. observers looked on with awe as this economically poor yet fiercely independent nation sought to embrace political and legal principles that had long been valued within the United States. And as stated above, the Ford Foundation, in particular, soon also became infatuated with the promise and overall "idea of India." (20)

   By 1955, one area that Ford especially focused on involved the development of legal education. Policymakers at Ford headquarters in New York, as well as at Ford's New Delhi office, (21) believed that for Indian democracy to succeed the country needed to have well-established, rule-based institutions administered by those educated in the legal principles of equity, due process, and individual rights. (22) These...