Law and development as democratic practice.

• Author: McInerney, Thomas F.

ABSTRACT

The importance of law and institutions to development is now widely recognized. Significant amounts of development assistance now target legal and institutional reform. These efforts have generally viewed legal and institutional reform as technical matters. Designing laws and institutions appropriate to local circumstances has been seen as primarily requiring the application of competent expertise. Yet practitioners in this field may gain a different perspective. Reforms that on paper seem wise may not get implemented, and those that are implemented may not achieve their intended aims. In this Article, the Author contends that one reason for this outcome is the failure of those involved to account for the political dimension of the work. Once it is recognized that legal and institutional reform in the development context is just as political as in any other context, the need to come to terms with the political dimension of the work becomes clear. To reconcile the objectives of legal and institutional reform for development with the need for some degree of political legitimacy associated with the activity, a political-theoretical account is needed. As a first attempt at articulating that view, the Author relies on the ideals associated with the discursive theory of law developed by Jurgen Habermas. This view is in turn given more practical grounding by reference to contemporary accounts of empowered participatory governance, which seek to involve citizens directly in defining state policy and practice. Three examples of what this strongly participatory account of legal and institutional reform might look like in practice follow.

TABLE OF CONTENTS I. INTRODUCTION II. CHALLENGING CONCEPTUAL AND METHODOLOGY ASSUMPTIONS A. Orthodoxy and Hierarchy B. Money is the Root of All Politics C. Rethinking Agency D. State-Level Incentives III. DELIBERATIVE DEMOCRATIC MODEL OF LEGAL REFORM A. From Civil Society Alongside the State to Empowered Participatory Governance B. Applying the Direct Deliberative Model in Developing Countries C. From Lock of Will to Will-Formation D. After Elites and Technocrats, Citizens IV. ILLUSTRATIONS AND APPLICATIONS A. World Bank Institute Participatory Governance Diagnostics B. Kerala Economic Development Project C. Legal Services for Poor Women in Ecuador V. CONCLUSION I. INTRODUCTION

Despite appreciable gains in the stature of law and development during the past decade, new doubts about the field's viability have surfaced. Recent scholarship seems united in the belief that the promotion of the rule of law and good governance have, until now, failed to deliver either improved rule of law or improved governance. (1) The causes of these alleged failures are not yet well understood. (2) This Article contends that the problems that critics have identified are principally the product of conceptual and methodological weaknesses of efforts in this area. After identifying some of these foundational problems, this Article attempts to re-conceptualize law and development in terms of a broader process of democratic development. In a departure from the prevailing instrumentalist agenda, this Article contends that rule-of-law promotion activities must respect the internal relation between law and democracy in order to bring about the conditions under which legitimate legal orders can emerge.

The recent commitment of the international community to law and development differs in kind from earlier experience. (4) Law is now generally accepted as a critical development priority. Evidencing the development community's consensus on the central importance of the rule of law, donors have allocated substantial sums for its improvement. Estimates are that approximately U.S.$3 billion has been allocated to rule-of-law activities in the past decade. (5) It is against this backdrop that challenges have emerged.

While the latest law and development movement has settled upon the centrality of law in improving the well-being of citizens in developing countries, the field is, according to one critic, incompletely theorized. (6) In fact, there appears to be no theoretical apparatus at work in most discussions of the subject. Generalized governance truisms, combined with instrumentalist agendas, have spawned orthodox technocratic prescriptions. This state of affairs stands in stark contrast to legal thought in other contexts. Legal and political theories play little, if any, role in informing the approach to law and development. One significant consequence of the field's weak conceptual foundations is the rigid analytical distinction maintained between concepts such as the rule of law and democracy.

An examination of law and development through the lens of political and legal theory can generate new insights into the purposes and processes legal reform should take. One crucial insight is the interdependence of democracy and the rule of law. One normative conclusion this Article draws from these premises is the need to democratize governance and rule-of-law promotion activities. Honest observers recognize that much legal and judicial reform implemented to date has lacked the involvement of the public beyond the legal community. (7) Despite the acknowledgement by some of the need for more inclusive practices, (8) it is not clear that the lesson has been absorbed in practice. Owing to the highly technical and specialized nature of the field, rule-of-law and good governance promotion has generally been insulated from the prevailing move toward participatory development.

This Article seeks to rebut some underlying assumptions about rule-of-law and governance assistance and offer conceptual grounds on how to move forward. Part II of this Article describes problems both at the level of expectations and in the overall approach to law and development that may undermine its effectiveness. In Part III, the Article develops a directly deliberative democratic account of how law and development programs should be conceived and structured. This account can be justified on normative, cognitive, and instrumental grounds. In conclusion, the Article suggests in Part IV that treating law and development as a democratic practice is more consistent with the stated aims of the movement--fostering more legitimate and democratic polities--and is thus a notion better suited to supply convincing answers to the movement's critics. At the level of practice, the Article contends that donor-financed rule-of-law assistance strategies should prioritize the creation of institutions that foster direct democratic participation in law reform.

2. CHALLENGING CONCEPTUAL AND METHODOLOGICAL ASSUMPTIONS

   As law and development has become more mainstream, many of its underlying assumptions have come to be taken for granted. Strengthening the rule of law has gained widespread recognition, even among the general public, as a development priority. What conventional accounts leave out, however, is any discussion of the endeavor's complexity. Even those who recognize the complexity of advancing the rule of law in difficult post-conflict states, for example, conceive of the problem in roughly instrumental terms. (9) The rule of law is seen as something tangible and definable; therefore, putting it into practice is just a matter of finding the right technocratic package and applying sufficient political muscle.

   To plot a realistic approach to this field, four interrelated problems must be addressed. Broadly conceived, these problems arise from widespread misunderstanding of the dynamics and pace of social and political change. Lacking this understanding, law and development interventions frequently rest on flawed premises. The persistence of these underlying assumptions fosters the view that technocratic rather than democratic mechanisms can generate democracy and the rule of law.

   The first problem concerns the frequent adoption of hierarchical and orthodox stances. Such approaches tax the cognitive abilities of those involved and fail to respect the multiplicity of institutional arrangements capable of supporting the rule of law. A second consideration involves the political nature of many legal-reform initiatives, particularly those with implications for the distribution of resources in society. The third issue concerns the naive concept of human agency employed in law and development work. It is argued here that a sufficiently rich conception of agency encompasses the cognitive grounding of existing social, political, and legal arrangements. The final consideration suggests a partial explanation to the troubling question of why many law and governance reforms have been ineffective. Examining the high-powered incentives for law reform presented by international integration exposes the lack of incentives presented to most developing countries for such efforts.

   Together these problems speak to the need for collective and democratic solutions to rule-of-law promotion. In a world of increasing complexity, traditional approaches to governance no longer work. Strong central controls over political and economic actors can no longer deliver the goods as in the days of triumphant Keynesianism. In Western Europe, as in the United States, we have moved from an interventionist to a regulatory model of the state. (10) The function of the state in this model is to steer, not row. (11) Underlying this model is an understanding that it is cognitively impossible for one group or a select group of actors to control the workings of a single firm, let alone the entire economy. (12) To meet the challenges posed by these forces, we must seek new forms of democratic decision-making in both mature and developing legal systems. Before embarking on that constructive venture, we must first develop a more dynamic conception of the political, social, and economic factors affecting rule-of-law promotion activities.

   1. Orthodoxy and Hierarchy

      By now, most observers of law and...