Law-Dependent Public Goods: A Proposed Strategic Framework for a Results-Based Approach to Legal and Judicial Reform
Gopal, Mohan Gopalan, Proceedings of the Annual Meeting-American Society of International Law
Notwithstanding more than a half century of international assistance for legal and judicial reform--which has now grown into a global project covering nearly all donors and some ninety-three recipient countries--legal and judicial systems in developing countries face a mounting crisis. Justice for the poor is more elusive today than ever before.
There are a number of well-recognized reasons for the poor effectiveness of international assistance and national programs for legal and judicial reform.
--There is very little clarity or consensus about what constitutes a well-functioning legal system and how to define and measure the success of legal and judicial reform. What are the developmental outcomes of specific legal reform interventions? What is the relative role of legal reform in achieving desired developmental outcomes as against other dimensions such as economic, social and political reform? How should legal reforms be sequenced and prioritized to have the most beneficial impacts on development outcomes? The goals of legal and judicial reform are still vague. Key goals such as "rule of law" and "independence of the judiciary" are more idealistic political slogans than measurable objectives notwithstanding efforts to quantify them. There has been no adequate explanation of very important questions such as why China has enjoyed such high levels of economic development virtually without a Western-style legal system; or how India has transformed itself from a laggard in economic development to one of the fastest-growing economies in the world without any improvement in its creaky legal system (as a matter of fact, while the legal system may have been getting worse). There is very little independent evaluation of the quite massive international assistance for legal and judicial reform.
--Legal and judicial reform traditionally focuses on changes to legislation and on institutional reform and capacity building of judicial, legislative, and executive institutions concerned with the development as well as professional and legal educational institutions. This "supply side" approach to reform does not adequately focus on the "demand side" of the legal system (users and the public) or on the broader economical, social, and political context in which legal and judicial reform takes place.
--The conceptual dilemmas raised over the last half century are still unresolved. For example, is it necessarily a good thing for the poor to build formal Western-style legal systems and support legal education and the legal profession in poor countries? What is the risk that these institutions end up favoring the rich and exacerbating existing inequalities and inequities?
--As pointed out by Dave Trubek and Marc Galanter thirty-two years ago, the essential purpose of assistance for law and development continues to be the promotion of Western legal concepts and institutions, an enterprise that plunged scholars into self-estrangement thirty-two years ago and should push them even further into deeper estrangement today. (1) Law and development continues to be ethnocentric and heavily dominated by the Anglo-Saxon, common-law tradition of three countries. Should not law and development itself be democratized?
--"Law and development" is too much in bed with the "development" business (especially in terms of financial support for academic work). This is now turning to be a distinct liability as the "development" project itself is now struggling for relevance and survival, whereas legal reform is accepted as a high-priority, urgent need. This has had at least two consequences. First, the content of law and development has become greatly influenced by the highly political agenda of development, with its shifting goals and priorities, for example, from economic to social and political aspects in sync with the changing agenda of development institutions. Second, law and development focuses only on the problem of the role of law in "developing" countries unlike the "law and society" movement--from which it originated--which benefited from a broader analytical framework that looks at the role of law in all societies, North and South. …