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Promoting the Rule of Law Abroad

Promoting the Rule of Law Abroad: In Search of Knowledge

Thomas Carothers EDITOR
Copyright Date: 2006
Pages: 363
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  • Book Info
    Promoting the Rule of Law Abroad
    Book Description:

    "Over the past decade, Carothers has established himself as the leading U.S. expert on democracy promotion. He is a powerful critic not only of the nuts-and-bolts of democracy assistance but also of U.S. grand strategy overall." -SAIS Review Promoting the rule of law has become a major part of Western efforts to spread democracy and market economics around the world. Yet, although programs to foster the rule of law abroad have mushroomed, well-grounded knowledge about what factors ensure success, and why, remains scarce. In Promoting the Rule of Law Abroad, leading practitioners and policy-oriented scholars draw on years of experience -in Russia, China, Latin America, Central and Eastern Europe, the Middle East, and Africa -to critically assess the rationale, methods, and goals of rule-of-law policies. These incisive, accessible essays offer vivid portrayals and penetrating analyses of the challenges that define this vital but surprisingly little-understood field. Contributors include Rachel Belton (Truman National Security Project), Lisa Bhansali (World Bank), Christina Biebesheimer (World Bank), Thomas Carothers (Carnegie Endowment), Wade Channell, Stephen Golub, and David Mednicoff (University of Massachusetts, Amherst), Laure-Hélène Piron (Overseas Development Institute), Matthew Spence (Yale Law School), Matthew Stephenson (Harvard Law School), and Frank Upham (NYU School of Law).

    eISBN: 978-0-87003-292-9
    Subjects: Law, Sociology

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-viii)
    Jessica T. Mathews

    As thomas carothers observes in the opening chapter of this book, the rule of law is often held out these days as the solution to almost every international policy problem, from consolidating shaky democratic transitions, establishing sustainable economic development, and stabilizing post-conflict societies, to fostering new global norms. A concept that one rarely heard much about in foreign policy circles during the Cold War is enjoying a heady run on the international policy stage.

    With the rise of the ideal of the rule of law has come a mushrooming world of rule of law promotion. Almost every type of development...

  4. Preface
    (pp. ix-xiv)
  5. Acknowledgments
    (pp. xv-xvi)
  6. Part I. Framing the Challenge

    • CHAPTER ONE The Rule-of-Law Revival
      (pp. 3-14)

      One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the worldʼs 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...

    • CHAPTER TWO The Problem of Knowledge
      (pp. 15-28)

      When rule-of-law aid practitioners gather among themselves to reflect on their work, they often express contradictory thoughts. On the one hand, they talk with enthusiasm and interest about what they do, believing that the field of rule-of-law assistance is extremely important. Many feel it is at the cutting edge of international efforts to promote both development and democracy abroad. On the other hand, when pressed, they admit that the base of knowledge from which they are operating is startlingly thin. As a colleague who has been closely involved in rule-of-law work in Latin America for many years said to me...

  7. Part II. Questioning the Orthodoxy

    • CHAPTER THREE Competing Definitions of the Rule of Law
      (pp. 31-74)

      Developed countries and international organizations have spent more than a billion dollars over the last twenty years trying to build the rule of law in countries transitioning to democracy or attempting to escape underdevelopment.³ Like a product sold on late-night television, the rule of law is touted as able to accomplish everything from improving human rights to enabling economic growth to helping to win the war on terror. The rule of law is deemed an essential component of democracy and free markets. The North Atlantic Treaty Organization (NATO) demands that all new members demonstrate their commitment to it, and the...

    • CHAPTER FOUR Mythmaking in the Rule-of-Law Orthodoxy
      (pp. 75-104)

      The manifold efforts by Western development institutions to encourage and sometimes compel developing countries to create the rule of law often rest on a very formalist conception of the goal—that is, regimes defined by strict adherence to established legal rules and freedom from the corrupting influences of politics. Rule-of-law promoters contend that such reforms are essential to establishing stability and norms that encourage investment and sustainable economic growth in the developing world. In evaluating this new rule-of-law orthodoxy that has emerged in the development business in the past decade and a half, I question some of its underlying assumptions,...

    • CHAPTER FIVE A House without a Foundation
      (pp. 105-136)

      The rule-of-law orthodoxy, the dominant paradigm followed by development organizations seeking to promote the rule of law in developing countries, is a flawed and incomplete approach.¹ As principally practiced by multilateral development banks, which are major sources of rule-of-law aid, it concentrates on the reform of laws and legal institutions, particularly judiciaries.² It is state-centered and “top-down” in nature, focusing funds on government institutions and usually working through their top officials to design and implement projects. It conversely minimizes support for civil society or building the legal capacity of the poor. To the extent it does touch on such issues,...

    • CHAPTER SIX Lessons Not Learned about Legal Reform
      (pp. 137-160)

      The fall of the berlin wall in 1989 and the subsequent breakup of the Soviet Union presented an unparalleled opportunity for fundamental political and economic change in more than two dozen countries. As postcommunist countries sought to attain the economic development of their Western neighbors, it became clear that the existing framework of laws and institutions would not support the desired growth. Reformers and development experts soon identified a panoply of gaps and shortcomings in financial resources, human resources, and organizational capacity, all of which appeared ripe for outside assistance.

      North American and Western European governments responded rapidly to the...

    • CHAPTER SEVEN The Legal Empowerment Alternative
      (pp. 161-188)

      Legal empowerment is the use of legal services, often in combination with related development activities, to increase disadvantaged populationsʼ control over their lives. It is both an alternative to the problematic, state-centric rule-of-law orthodoxy and a means of making rights-based development a reality by using law to support broader socioeconomic development initiatives.

      This alternative paradigm, a manifestation of community-driven as well as rights-based development, is grounded in grass roots needs and activities but can translate community-level work into impact on national laws and institutions. It prioritizes civil society support because that is typically the best route to strengthening the legal...

  8. Part III. Regional Experiences

    • CHAPTER EIGHT A Trojan Horse in China?
      (pp. 191-216)

      Consider the following scenario. Members of the U.S. government, academic, and nonprofit communities notice that in an important region of the developing world, legal institutions and substantive law appear inadequate. Laws seem opaque, unpredictable, and unfair. Legal institutions are inefficient, inaccessible to ordinary people, and subject to corruption and political interference. These legal deficiencies, it is believed, threaten sustained and equitable economic development, the protection of individual rights, and the possibility for greater democratic political reform. Thus, it seems logical to these U.S. observers that the United States, with its sophisticated laws and legal institutions and its years of experience...

    • CHAPTER NINE The Complexity of Success in Russia
      (pp. 217-250)

      Mixed results from the proliferation of Western rule-of-law assistance efforts around the world over the past twenty years have taught us much about what does not work.¹ Criminal justice reform in Russia offers a different type of lesson; it is a rare success story of rule-of-law promotion.² In the 1990s, the U.S. government sought to promote the rule of law in many parts of the former Soviet Union and beyond, but few of these efforts outside Russia produced concrete results.³ Instead, lawlessness became a primary symptom of the apparent failure of many attempted rule-of-law reforms in the former Soviet Union.⁴...

    • CHAPTER TEN Middle East Dilemmas
      (pp. 251-274)

      The problem of knowledge in rule-of-law promotion, above all the basic question of whether Western rule-of-law aid programs are on the right track to help build the rule of law in recipient countries, is especially acute in the Arab world. Arab states generally share two features that render external rule-of-law aid particularly difficult—long-standing nondemocratic governments, and legal systems that graft Ottoman, European, and contemporary sources onto Islamic norms. We cannot presume that U.S. common-law practitioners can build the rule of law by transporting or transplanting their technocratic techniques into such different legal soil. Indeed, the very idea that people...

    • CHAPTER ELEVEN Time to Learn, Time to Act in Africa
      (pp. 275-300)

      Donor assistance to justice sector reform in sub-Saharan Africa has increased massively over the last decade. Official development assistance data for legal and judicial initiatives indicate a rise from $17.7 million in 1994 to over $110 million in 2002, while total aid commitments to the region remained stable at $12 billion. During this period, the United Kingdom overtook the United States as the largest bilateral justice aid provider to Africa.¹ These figures, however, need to be treated with caution and probably underestimate real aid volumes. Nonetheless, they point to a potentially significant change in donor priorities.

      This increase can be...

    • CHAPTER TWELVE Measuring the Impact of Criminal Justice Reform in Latin America
      (pp. 301-324)

      The need to be able to measure the changes generated by rule-of-law reform programs in developing countries is becoming increasingly acute. After nearly two decades of work in this area, it is no longer possible to claim that reform experiences are too recent to stand up to critical analysis. There is a growing emphasis in the development field on justifying projects based on measurable outcomes, thus necessitating better evaluation of reform interventions and the creation of specific indicators to measure results. Serious assessments of the impact of rule-of-law reform efforts would also be useful to help rule-of-law assistance practitioners understand...

  9. Part IV. Conclusions

    • CHAPTER THIRTEEN Steps toward Knowledge
      (pp. 327-338)

      During the past twenty years, a set of new areas of development aid emerged at the intersection of democracy promotion and support for market-based economic reforms—the twin imperatives that have come to dominate contemporary donor thinking about political and economic development. These new areas, which quickly became the topics for endless discussions within aid organizations and countless projects in developing and postcommunist countries, include good governance, anticorruption, state building, civil society development, legislative strengthening, decentralization, and, the subject of this book, promotion of the rule of law.

      These various aid endeavors differ in certain ways, such as in the...

  10. Bibliography
    (pp. 339-348)
  11. Index
    (pp. 349-360)
  12. Contributors
    (pp. 361-364)
  13. The Carnegie Endowment for International Peace
    (pp. 365-366)
  14. Back Matter
    (pp. 367-367)