05 June 2009

All Law Reform Is Local

Despite decades of efforts to build legal institutions abroad that would encourage economic development at a cost of billions of dollars, the results have been negligable. The assumptions of "law and development" aid groups have failed to sufficiently acknowledge the importance of local culture, "society" if you will, and it turns out that legal institutions are hard to transplant.

"The effects of this burgeoning rule-of-law aid are generally positive, though usually modest. After more than ten years and hundreds of millions of dollars of aid, many judicial systems in Latin America still function poorly. Russia is probably the single largest recipient of such aid, but is not even clearly moving in the right direction. The numerous rule-of-law programs carried out in Cambodia after the 1993 elections failed to create values or structures strong enough to prevent last year’s coup. Aid providers have helped rewrite laws around the globe, but they have discovered that the mere enactment of laws accomplishes little without considerable investment in changing the conditions for implementation and enforcement….

Efforts to strengthen basic legal institutions have proven slow and difficult. Training for judges, technical consultancies, and other transfers of expert knowledge make sense on paper but often have only minor impact." Matters are worse than this grim passage lets on . . . . During the same period, in excess of a hundred million dollars was spent in Africa on law and development, with results that have been characterized as “pretty depressing.” Throughout the law and development literature there is “a strong current of disappointment.”

I attended a panel at the Law and Society Conference in Denver a week ago on the role of lawyers in liberal democracy in Singapore, Sudan and India, that was also less than heartening. Singapore remains deeply authoritarian, despite having a functioning business law system. Sudan exiled or imprisoned most of its lawyers. India, the oldest of the post-colonial regimes, did better because it has had the time necessary to assimilate colonial legal culture and respect for rule of law, but even it has a tortured relationship with its constitution and did not develop a consensus on a key rule of law issue related to the constitution until after a state of emergency was declared and then lifted in the 1970s.

None of this comes as a great surprise to me. I've followed law and development issues for a quarter century, since before I went to college. In explaining what works, Brian Tamanaha explains:

“Context matters,” “local conditions are crucial,” “circumstances on the ground shape how things work”—variations of this insight has been repeated so often it is nearly a cliché. What stymies law and development projects time and again is the “the extreme interrelatedness of everything with everything else in a society.”

He also notes that, the "rule of law—law setting limits on government—can be easily transposed into rule by law—law as an instrument of government rule," and that "'palace wars in the North,' as one commentator put it, are being exported to and played out in the South," where the political issues that matter do not correspond to the hot issues in the developed aid providing world.

Put another way, "law and development" is simply one aspect of political reform, and all politics is local. The reason that law and development projects fail is essentially the same as the reason that so many post-colonial governments have coups. A thin Western style legal and political system riding atop a society total foreign to this imposition doesn't function well. When the English left Sudan, their system didn't work without the imported senior bureaucrats and political culture that colonial officals had supplied. Despite a small cadre of lawyers and judges highly trained to operate a British style court system, which was sucked up in multiple waves to provide political leadership, a few dozen people can't run a huge country with a system that has no grass roots base.

The places that I think will be the most successful in the long run are those that have adapted institutions of their own to their own circumstances. China and Iran, for example, have developed political and legal institutions more or less unique to their own countries. In Thailand, the monarchy has been crucial in intervening at key points to get the country on track (not that it has been a model of stability). Afghanistan's government has more legitimacy than that of Iraq, because at least a pretense was made at using local traditional processes to establish it. One of the reasons that the British were as successful as they were in India is because they were too few in number to impose their political and legal system coersively; they had to engage in local politics with local players to pull of a functional colonial system. Japan pro-actively decided in a deliberative way what to copy from the West, rather than having it imposed upon them by colonial rulers (and still its modernization came through great tumult and the legal and political system on paper works very differently in practice than it does in the societies that it used as models).

Simply getting out of lock step with international models opens the door to local innovation, which merely by being home grown has a greater prospect for success. The popular alternative history Korean Manhwa (i.e. manga) "Goong" suggests a Korea where the Korean monarchy had been reinstated after the Japanese withdrew and become a part of a British style Constitutional monarchy. While the story is largely a romance, the premise of the story, that the road to modernization would have been less rocky had the Koreans reinstated the monarchy and provided a symbolic center for the country, is plausible. This certainly seems to have been the case in Japan and Thailand.

Encouraging this kind of political development is a sensitive matter which requires someone with rare skills and outlooks and a light hand. But, I think that it could be done with rather modest resources by the right people.

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