Law and Social Justice
Rittich, Kerry, UNESCO Courier
Law reform in the service of democracy must find ways of protecting the vulnerable
Legal reform and "good governance" have vaulted to the top of the development agenda. International financial institutions and influential donors continually stress the importance of the rule of law, a healthy regulatory environment and strong and consistent enforcement of rights to successful economic development. In the new world order, the state's role is to facilitate private activity rather than guarantee the welfare of its citizens.
But there is growing concern that market reforms and globalization are connected to greater social stratification and economic inequality. What is often overlooked is that legal reform may enhance rather than alleviate this stratification and inequality.
It is important to see legal reform as a key part of a broader set of policy, legislative and institutional reforms which are designed to create not simply rule- and norm-based societies but particular types of market economies. There are no "free" markets; functioning markets depend upon a legal infrastructure and a commitment to the rule of law. The growing interest in legal reform indicates nothing if not the widespread recognition of this fact.
Tradeoffs between efficiency and equity
Respecting the rule of law and protecting rights however does not mean that there is any one best set of laws, even in a market economy. Yet legal reform projects in developing and transitional countries have become inseparably associated with the idea of a single, optimal path or model. Current projects emphasize strong protection for property rights, the consistent enforcement of contracts and, increasingly, financial sector regulation as the foundation of an investor-friendly legal infrastructure. At the same time, states in transition to markets have been discouraged from adopting or retaining "excessive" regulations, including protective labour market policies that might impede growth and efficiency.
Market-oriented legal reforms can affect the fortunes of different groups in at least three different ways. The first is through the types of reforms that are implemented. Because legal reforms allocate rights and entitlements, different rule structures may well benefit different groups in different ways. In some instances, there may be tradeoffs between efficiency and equity. Strong property rights will protect owners and entrepreneurs but may contribute to the disadvantage of renters and workers; environmental and consumer protection laws protect the public at large but impose costs on businesses. …