Rule of Law against the Odds: Overcoming Poverty and the High Cost of Compliance in the Developing World

• DOI: http://doi.org/10.1111/lapo.12052
• Author: Susan L. Ostermann
• Published date: 01 April 2016
• Date: 01 April 2016

Rule of Law against the Odds:

Overcoming Poverty and the High Cost

of Compliance in the Developing World

SUSAN L. OSTERMANN

The sociolegal compliance literature, which suggests that compliance is motivated by fear, duty,

or social license pressure, relies on assumptions that are often specific to the developed world.

Are developing world conditions, including low state capacity, not conducive to regulatory

compliance? Along the open India–Nepal border, I examine variation in compliance with wood-

taking regulations in contiguous conservation areas located in different countries. I find that

widespread poverty, which makes the cost of compliance for large swaths of the population

extraordinarily high, significantly reduces compliance rates. I go on to show that there are

policies that even cash-strapped, weakly-institutionalized states can adopt that make compliance

more affordable. These policies, and the resulting programs, are associated with much higher

levels of compliance.

I. INTRODUCTION

The sociolegal compliance literature’s standard deterrence model suggests that people are

largely motivated to comply with laws and regulations by fear of legal sanctions, fear of

social sanctions, or by a felt sense of duty to comply with the law and/or its underlying

social norms. This literature, however, is built on research and on a set of assumptions

that are largely specific to the developed world, where, in general, state enforcement

capacity is substantial and remains largely undiminished by corruption. This allows gov-

ernments to, at a bare minimum, use fear to generate compliance.

Such a situation stands in stark contrast to that of the developing world, and it is not

thought to be a coincidence that we find rule of law to be quite weak in developing areas.

But does this mean that developing world conditions are simply not conducive to regula-

tory compliance, particularly when the regulations in question require behavior that dif-

fers from that dictated by social norms? This article addresses that question by drawing

on an empirical study along the India–Nepal border; it finds that policies that lower the

cost of compliance for a significant proportion of the population can make widespread

For helpful feedback I would like to thank Pradeep Chhibber, Bob Kagan, David Vogel, Sean Farhang, Amit

Ahuja, Adnan Naseemullah, Vasundhara Sirnate, Nafisa Akbar, Matthew Baxter, Francesca Jensenius, Rahul

Varma, Tanu Kumar, Jennifer Bussell, Ashutosh Varshney, Vikram Chand, Stuart Pilorz, Alexander von

Rospatt, and three anonymous reviewers. I would also like to acknowledge the support of the Institute of Inter-

national Studies at UC Berkeley and the American Institute of Indian Studies for financial assistance that

made this research possible. The World Wildlife Fund in New Delhi also provided valuable assistance.

Address correspondence to: Susan L. Osterman, University of California—Berkeley, Travers Department of

Political Science, 210 Barrows Hall,Berkeley, CA 94720, USA. Telephone:909-224-0171; E-mail: sostermann@

berkeley.edu.

LAW & POLICY, Vol. 38, No. 2, April 2016 ISSN 0265–8240

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doi: 10.1111/lapo.12052

regulatory compliance possible, even in developing world conditions and in the absence

of a strong state and the institutions typically associated with one.

THE EMPIRICAL PUZZLE

In the Terai region in the South of Nepal and in the North Indian state of Bihar, there are

two conservation areas located directly across the border from one another—Chitwan

National Park and Valmiki National Park and Tiger Reserve. These conservation areas

are ostensibly managed for the same purposes: to protect endangered big-game species

and, because these species require certain habitat for their survival, to protect the environ-

ment in which they reside. As a result, collecting timber is prohibited by law in both parks.

This is so in spite of the fact that individuals living in this area have been collecting

wood—from what is now park area—for centuries, if not millennia, and refraining from

doing so means that they have great difficulty keeping warm and cooking. Moreover, the

states on either side of the border have little to offer in terms of traditional, deterrence-

based enforcement capacity (i.e., policing) in this context: thousands of square kilometers

of jungle augmented with only minimal infrastructure. In such a scenario, the standard

deterrence model of compliance suggests that we should expect similar rates of compli-

ance with wood-taking restrictions on both sides of the border—which is to say, similarly

low. This is particularly true because the human populations that live near these parks are

nearly identical, both culturally and demographically, and have been permitted to pass at

will, unimpeded by legal restrictions, across the India–Nepal border for as long as this

border has existed.

Yet, instead of comparable compliance (or noncompliance), my data—both qualitative

and survey based—indicate that compliance is more widespread on the Nepali side of the

border than on the Indian side. Even observationally, compliance appears starkly differ-

ent in locations that are just kilometers apart. In Valmiki, in India, one can hear timber

being cut throughout the park, and one can observe a steady stream of individuals carry-

ing fallen wood (what locals call “firewood”) out of the park. In Chitwan, in Nepal, one

sees little more than a few poorly-clothed children collecting fallen wood and the occa-

sional group of older ladies carrying firewood out of the park with their friends, as they

have done their whole lives. As local norms and self-interest dictate behavior that is differ-

ent from that required by law on both sides of the border, one wonders, why are those liv-

ing on the Nepali side of the border, some of whom are originally from India, complying?

Why have they shifted from following local norms to following a legal norm dictated by a

seemingly distant government?

While compliance is quite different on both sides of the border in the region around

Chitwan and Valmiki National Parks, it is important to note here that when I say com-

pliance, I mean behaving in a manner consistent with a complete prohibition on collect-

ing wood in these parks. I do not measure or analyze forest loss, deforestation, or any

other possible result of widespread noncompliant behavior. While deforestation is cer-

tainly a problem in both India and Nepal, and illegal logging, which seems to be carried

out by criminal gangs, does threaten the large stands of lucrative teak trees that are

indigenous to these parks, it is not clear to me that the noncompliant wood collection of

ordinary individuals living just outside of these parks contributes to this problem.

Indeed, there are few indications of deforestation in these parks. This is perhaps because

the roads in these parks on which one could transport illegally-logged trees are so lim-

ited and because tropical jungles like these seem to regenerate at an incredible rate dur-

ing the monsoon season. Forest loss and deforestation in other areas of both India and

Nepal varies quite dramatically. In the high Himalaya, where trees only end up growing

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