Academic journal article Yale Human Rights and Development Law Journal

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

Academic journal article Yale Human Rights and Development Law Journal

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

Article excerpt

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. …

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