Workshop on Role of Law in Developing and Transitional Countries
December 5-6, 2008
Lubar Commons, University of Wisconsin Law School
Introduction
There is an established social science tradition from Max Weber onwards that posits an
intimate relationship between law, and social and economic development. In the 1960s
and 1970s there was a vibrant law and development movement in law schools in the US
and other countries which attempted to apply these insights in the service of economic
development. The academic movement came under withering critique and had largely
dissipated by the 1980s. But with the turn to free market economies and democracy at the
end of the cold war, development agencies stepped up their investment in legal reform.
Law now became a solution to all problems, political and economic. From 1989 onwards
there was a wave of constitution-making and export of law from developed countries. In
some cases this effort involved former communist countries in the process of adopting
market economies while in others the focus was on the revival of law in developing
countries which were both liberalizing their existing market economies and adopting
human rights and other norms in an effort to promote democracy.
Today the rule of law mantra is dominant from China to Chile. International financial
institutions and bilateral development agencies support projects aimed at building and
enhancing what is described as the “rule of law.” Enormous resources have been directed
towards the invigoration of courts, from brick and mortar projects to computerization and
training aimed at making these institutions more efficient. At the same time countries are
encouraged to adopt higher legal standards protecting property rights and enhancing
economic liberalization as well as protecting human rights and pursing goals of gender
equality and other projects that reflect a dominant global vision of all that a modern legal
system should be.
In addition to these more standard forms of legal renewal, law is also being pressed to
take on a wider role in the regulation of political power. Law is now being employed in
an attempt to mold and control political culture, including the creation of a range of
independent institutions legally empowered to exercise control over currencies,
government procurement and spending as well as setting up institutions designed to
promote gender equality or control elections. These efforts are often mirrored at both
domestic and international levels with the promotion of domestic laws taking place in
tandem with efforts by international organizations to highlight a particular issue, such as
corruption. Even marginalized groups now turn to law as the preferred method of
advancing their political agenda. Thus everyone still agrees that law is important.
Despite this agreement, no one seems to know how law works in different settings,
particularly in contexts of dramatic political and economic change. Despite the
investment in legal change, we know very little about how law works in developing and
transitional societies and whether the reforms are achieving their intended objectives. Do
the new constitutions actually constrain power and protect rights? Do reformed economic
laws promote growth? Are better equipped courts more effective in protecting rights and
resolving disputes? Is law an effective tool for social movements? Is all this investment
yielding net results?
In order to begin to tackle these questions we plan to hold a workshop focused on five
different aspects of law in transitional and developing countries. These themes are a
starting point for the Research Circle on the “Role of Law in Developing and Transitional
Societies” and the workshop is designed to explore these themes in order to decide on
how much they might serve to further our understanding of law in these societies. Instead
of presenting papers, participants in the workshop will be expected to post copies of their
own work, published or works in progress, on the workshop website – which will be
accessible only to fellow registered participants – and then to talk about their own work
and how it relates to the theme of the particular roundtable they will act as lead
discussants on. This workshop format is designed to facilitate as much discussion as
possible between participants with the idea that by forming some common understanding
of these themes, the participants will be able to integrate these ideas and perspectives into
their own work as they prepare or encourage others to prepare formal papers for the
conference that will be held in spring 2010.
Roundtable One: Rule of Law and Dualism
Various indexes have been developed that attempt to measure the level of the "rule of
law" in countries around the world. Embedded within this approach are two problematic
assumptions. The first is that the concept of the "rule of law" has a universally accepted
definition. The second is that the legal system can be treated as a unitary system that can
be rated. There is a lively debate underway within the scholarly literature as to the
definition of the "rule of law." Less attention has been devoted to the question of
whether the legal system can be treated as a unitary actor. We propose to explore this
question by investigating how law is actually experienced. For example, even in
countries where the courts are fairly regarded as highly politicized, it may be possible
that mundane disputes are handled in accordance with the written law by judges in an
even-handed manner. Sharlet (1977) used the concept of a dualistic legal system to
describe the Stalinist system. It may be more useful in capturing the complexity of the
contemporary Russian legal system than trying to peg it in terms of the extent to which
the "rule of law" is present. Our project seeks to explore whether this concept of a
dualistic legal system has purchase elsewhere, particularly in countries teetering between
democracy and authoritarianism.
Roundtable Two: Legal Continuity and Legal Change
Understanding the role of law in transitional and developing countries has led us mainly
to focus on the reform or introduction of law in these societies. There is a long tradition
of studies that look at the reception or imposition of law, particularly in the law and
development tradition (Trubek, 2006) or more recently at the globalization or
harmonization of legal rules and institutions, (Braithwaite & Drahos, 2000) or the
introduction and support of legal reform by international institutions seeking to promote
the rule of law in these societies, (Santos, A.2006). While these approaches tend to focus
on ‘reform’ and what is ‘new,’ which is obviously important, it is our sense that in order
to understand the potential effects of the ‘new’ we need to explore the continuing
relationship between the existing law, legal institutions and legal traditions in these
countries and how this might effect the pattern of reception and change that unfolds with
each new reform. There is a tradition of scholarship that addresses this question in macrodimension, whether from the perspective of the ‘imported state,’ (Badi 2000) or
colonialism, legal pluralism and legal cultures, (Benton 2002, Chanock 2001), however
there remains a need to focus more specifically on this relationship, between ‘old’ and
‘new’ law and legal institutions, within particular societies. In this sense the panel will
seek to explore the interaction between what was, and what hopes to be, or put in more
temporal terms, the interaction between the ‘old’ and the ‘new’ and compare this
interaction across different societies. This may be thought of as building an
understanding of legal continuity and hybridity, which both anchors the law in some
respects as well as enables and shapes the outcome of legal reform or reception in other
respects.
Roundtable Three: Legal pluralism, indigenous groups, legal cultures, colonialism and
empires
In recent years, struggles for legal recognition of minority group rights have been
bolstered in many countries by shifts in international context and domestic political
conditions. The development, institutionalization and diffusion of international law on
minority group rights has garnered much scholarly attention. This panel balances the
more traditional emphasis on the top down diffusion of minority rights law with a focus
on bottom up legal strategies for combating ethnic and racial marginalization in
developing countries. Claims for corporate group rights based on race or ethnicity are one
legal strategy among others. What is the range of legal strategies being pursued to combat
racial discrimination or marginalization? What institutional, political, and cultural factors
influence which strategies are selected by which claimants? From the universe of
potential claimants, who makes claims and who does not, and who speaks on whose
behalf? Is the national state always the target of such claims, or do local or
provincial governments get involved? What challenges do claimants for new corporate
rights face? How do the historically specific legacies of the colonial period and postIndependence liberal state-building projects weigh in contemporary struggles to wrest
legal recognition of rights based on ethnic or racial difference? Why have legal claims on
behalf of racial or ethnic minorities been levied more successfully in some countries than
others? Do connections to international legal or activist networks play as large a role as
some suggest? The panel will consider how best to conceptualize and analyze
contemporary efforts to construct new foundations for legal pluralism in post-colonial
states.
Roundtable Four: International Law and Norms
The study of international law has begun to employ the methods and questions of social
science with more frequency (Dickenson, Merry, Mcguiness). This panel explores one
facet of this project: the relation between “the international” and countries in
development. Developing countries have traditionally been at the receiving end of
processes of transmission and reception of international laws, norms and other legal
institutions. Recently, the emphasis has gone from portraying this reception as a passive
absorption to portraying it as a proactive and instrumental ‘translation’ or even reinvention (ie counter-hegemonic globalization (Santos 2002); boomerang pattern of norm
change (Sikkink 2004). In this way, developing country actors are active participants in
the creation of international law and norms, even as they are subject to it. The roundtable
explores this dynamic, unpacking what is meant by “the international,” as well as “local.”
Roundtable Five: Participation
People’s participation in the decision making process is a feature of democracy and rule
of law. It has been used quite extensively in the human rights field and the
environmental protection field. Participation entails various entities at different levels of
governance. Participation by non-state actors has influenced not only the decision
making process at the national level (public participation in the environmental impact
assessment process is a good example) but also contributed to law reform, introduction of
new laws as well as influenced policy in various parts of the world.
Participation takes place at various levels: international, regional, national and local. At
the international level, participation of NGOs in the treaty drafting and negotiation
process – a process hitherto reserved exclusively for states - is becoming a common
phenomenon. A good example is the 1998 Aarhus Convention on Access to Information,
Public Participation and Access to Remedies in Environmental Matters where NGOs
were actively involved in drafting the Convention. While some actors may be active at
all levels, in many instances this is not the case. Thus, these actors form a network
working at different levels and at different institutions.
This roundtable will look at the role of various actors, particularly NGOs, in influencing
policy, law, and institutions, in various fields and particularly, human rights and
environmental protection.