Development, reform, and the rule of law: some prescriptions for a common understanding of the "rule of law" and its place in development theory and practice.

• Author: Ringer, Thom

In spite of the ubiquity of the phrase in contemporary development discourse and policy, there exists no generally, or even substantially, agreed-upon definition of the "rule of law" for the purposes of development. This Note investigates the intellectual and normative tensions created by the conceptual conflict surrounding the rule of law in development theory and practice. Drawing on both moral and economic understandings of human development, I attempt strenuously to identify the obstacles to consensus on the meaning of the rule of law. I conclude that the rule of law must be construed as a means of development rather than one of its fully-fledged ends. I also advocate greater attention to the dynamic character of institutions in the developing world, and theoretical moderation in specifying the normative goals of rule of law.

INTRODUCTION

In a widely cited essay for Foreign Affairs, development expert Thomas Carothers notes the ubiquity of "rule of law" rhetoric in development, foreign affairs, and human rights circles:

One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world's troubles. How can U.S. policy on China cut through the conundrum of balancing human rights against economic interests? Promoting the rule of law, some observers argue, advances both principles and profits. What will it take for Russia to move beyond Wild West capitalism to more orderly market economics? Developing the rule of law, many insist, is the key. How can Mexico negotiate its treacherous economic, political, and social transitions? Inside and outside Mexico, many answer: establish once and for all the rule of law. Indeed, whether it's Bosnia, Rwanda, Haiti, or elsewhere, the cure is the rule of law, of course. (1) Backing up some of the rhetoric is a considerable sum of money from donor countries--most notably the United States--in the form of grants and loans earmarked for rule of law related projects in the developing world. A quick survey of the work of the largest principals gives a striking impression of the magnitude of wealth pouring into such endeavors.

While the United States Agency for International Development ("USAID") projected spending just $2.6 million on explicitly identified rule of law initiatives for the fiscal year 2006, (2) this relatively small figure does not include the sizeable sums spent on rule of law reform and development under other rubrics. In an October 2005 report, for instance, the U.S. State Department Embassy in Baghdad estimated that the USAID's "Transition Initiative" in Iraq would spend $277 million in that fiscal year on some 3,750 different rule of law projects, (3) ranging from the construction of prisons to judicial education to the development of educational curricula aimed at fostering a "culture of lawfulness." (4) In 2002, one USAID official estimated that his agency spent over $135 million per year "promoting democracy and the rule of law in Latin America," on initiatives ranging from efforts to "advance communication and build additional legal infrastructure to address key issues in the context of the [Free Trade Area of the Americas]," (5) to anti-corruption programs, (6) the implementation of a Criminal Procedure Code in Bolivia, (7) and legal education in Colombia. (8)

It is difficult to attach a precise figure to the United Nations' ("UN") net spending on rule of law reform and development initiatives. The UN agency responsible for such programs is the United Nations Development Programme ("UNDP"), whose local country offices make individual decisions about particular programs under rubrics such as democratic governance and social development. Some of these programs can be roughly described as rule of law related. Examples include a UNDP Argentina sponsored project entitled "institutional reinforcement of national politics for the promotion and defense of human rights," (9) and UNDP Sierra Leone's civil society programme. (10) Since local offices are given considerable discretion, the UNDP's budget is not itemized to identify spending on particular classes of initiatives, including rule of law reform and development projects. The UNDP itself had an operating budget of $575.2 million for the biennium 2004-2005, of which roughly 88% went to fund programs. (11) Richard Wilson also notes that private donors such as the Soros Foundation, the Ford Foundation, and the American Bar Association make a substantial contribution to rule of law reform initiatives, notably by funding clinical education programs in the developing world. (12)

Other organizations such as the International Monetary Fund ("IMF") and the World Bank, which do not directly subsidize rule of law reform, nevertheless actively encourage it, both by conditioning their assistance on certain institutional reforms by recipient countries, (13) and by researching and advocating best practices. (14) Even development organizations such as these, which tend to prefer a fairly narrow definition of development as economic growth, have reason to fund some legal reforms on the view that, as Brian Tamanaha puts it, "law is essential to economic development because it provides the elements necessary to the functioning of a market system." (15)

1. CONCEPTUAL CONFLICT: MEASURING AND DEFINING THE "RULE OF LAW"

   The effectiveness of the sorts of initiatives discussed above, however, has proven extremely difficult to assess. Kevin Davis asserts that, while there has been an "abundance of optimism" (16) about rule of law reform initiatives, the limited available data is largely equivocal. (17) Part of the problem is undoubtedly methodological: (18) like many social scientific phenomena, rule of law entrenchment and reform are measurable in a number of quite different dimensions, none of which has elicited universal approval by experts. For instance, the International Country Risk Guide ("ICRG"), the most commonly used index of rule of law entrenchment, is susceptible to criticism for its choice of dependent variables, its weighting of hard-to-code factors such as a country's "legal heritage," and its inclusion of non-legal indicators. (19)

   A more intractable problem, however, and the one on which this paper shall focus, is the conceptual anarchy among development theorists, experts, and donor agencies surrounding the very meaning of the expression "rule of law." Indeed, one fundamental problem with measuring the success of rule of law reform initiatives is that the parties assessing them may have something quite different in mind to those implementing them.

   To be sure, conceptual neatness is more of an academic obsession than an achievable standard. Some material disagreement about the precise meaning of fraught terms like "rule of law" is inevitable and, indeed, desirable, as critique and debate open up space for innovation and improvement. However, I consider that deep disagreement about the normative and political implications of the rule of law may become a serious obstacle to development if the parties funding rule of law reform part ways fundamentally with the people designing, operationalizing, and (most importantly) living under such programs. I speculate that there are at least three broad categories of advantages to greater consensus on the meaning of the rule of law.

   1. "Benchmarks" and Shared Expertise

      All rule of law reform initiatives, if they are to be effective, must establish clear institutional benchmarks: indicators of success applicable to particular legal institutions, such as the judiciary, law enforcement, the legal education system, the prosecutorial system, the penal system, etc. "Benchmark" is simply a term of art that captures the idea that there must be some standard, even if tentative, by which success, failure, and progress are to be measured, and through which accountability can be exercised effectively. Yet conceptual anarchy about the meaning of the rule of law is likely to produce competing and conflicting benchmarks in different states and systems.

      This conflict has at least two important consequences. First, conflicting standards may deprive rule of law development programs in different countries of the benefit of a shared experience. Tamanaha argues forcefully that "[l]aw-and-development theorists should be striving to devise ways in which the rule-of-law model can be adapted to local circumstances and nurtured into maturity." (20) Yet if reform programs in different states employ incommensurable benchmarks, it becomes far more difficult to "transplant" successful initiatives from one to another, or, more generally, to apply lessons learned in one circumstance to another. (21) As a result, much valuable expertise and experience may be wasted.

      Contrast, for example, a judicial reform initiative that aims at fostering judicial accountability in country A, with an initiative that aims at improving judicial independence in country B. Without some broad basis for consensus on the relationship of judicial accountability and independence, it will be difficult for country A and country B to learn systematically from their counterpart's successes and failures, even though the obstacles and circumstances faced by both countries may be quite comparable.

      Second, it may produce flawed or inappropriate initiatives, if conflicting benchmarks produce confusion about the source of a particular initiative's success or failure. A good example is the reform of local court systems in Africa to ensure improved access and efficiency, a major focus of internationally-funded rule of law programs. In African countries experiencing post-conflict transitions, efficient access to justice is not just desirable; It is essential for the longevity of peace and democracy. As Jennifer Widner claims, "observers too often tend to assume that courts can easily promote peace and democratic change in post-conflict regimes, without looking closely at the...