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Defining our path to the 'Rule of Law'

Lisa Bhansali's picture

Strengthening the Rule of Law (ROL) has been and remains an important element of the Bank's development agenda in response to the needs of our clients and beneficiaries. Unlike in years past, today, the Bank is being called on to support ROL in many different contexts and for different reasons.{C}While the Bank began this work through a specific focus–on Legal Technical Assistance (LTA)–in places like Central and Eastern Europe, we soon realized that legal drafting or legislative reforms (de jure or 'as a matter of law' type reform) alone were limited without the institutional capacity (de facto) to implement them. As a result, today’s ROL movement tends to cover at least four types of broad objectives and these have proliferated throughout the Bank in the tasks found across networks and departments. They are:

(1) Democracy promotion, identified by such donor agencies as USAID, includes criminal procedural reform as a cardinal element of its support in the Latin America region. See the Justice Services Improvement Project (Peru) and Justice Services Strengthening (Colombia).

(2) Economic development and good governance represents another ROL objective to assist governments with Foreign Direct Investment–the main justification for many programs, particularly in transition economies or those moving into 2nd generation reforms. Unlike the Law and Development movement of the 1960 and 70s, this objective identifies the market, as opposed to the State, as a catalyst for change. The rationale is essentially the following: as more private actors begin to influence the direction of an economy, their competition would not be limited to the marketplace, but also felt in the courts, and the courts are not up to the task (for numerous reasons–antiquated procedures, judicial corruption, lack of modern case management, etc.). By the mid-1990s, the Bank and other agencies began connecting “poor governance” or corruption as a cause undermining development and the implementation of solid economic policy reforms.   See the Second Sustainable and Participatory Energy Management (Senegal) and the Legal and Judicial Reform Project, (Mongolia).

(3) Human rights and social development has also been linked to the promotion of ROL through gender equality, legal literacy, public legal education, and truth commissions. While these actors tend to be mostly representative of civil society interests, their voice and global connections via international treaties and multilateral institutions such as the UN have made them important stakeholders capable of defining the development agenda. See "Bringing Gender into Formal Institutions and Policies" (pg. 345, World Development Report 2012 on “Gender Equality and Development”) and the Judicial Capacity Building Project, (Bangladesh).

(4) Law enforcement, often connected to the larger objective of the fight against terrorism, has included capacity building programs conducted by police and military in post-conflict states or countries struggling to address soaring crime and violence rates. See "Rebuilding the Rule of Law in Liberia" (pg. 25, “Africa- Regional Justice Note: A Review and Lessons Learned”) and the Judicial Reform Project (Afghanistan).

Over the past two decades, some would suggest that these objectives have “morphed” into one other due to a focus on the broad, all-encompassing concept of ‘good governance’ for development and taking into account analytical contributions from World Development Reports in 1997, 2000, 2006, and 2011. The Bank has provided some support, while others have obtained bilateral or regional multilateral donor financing, but ALL would identify promoting the ROL as their objective. So here's a question: Does a specific "definition" even matter anymore if the overall objective is enhancing ROL for development? How do you think the Bank should engage in strengthening ROL in countries in the early stages of democracy?

Comments

Should not the first objective of ROL initiatives be to promote the creation of a widely accepted equitable and inclusive legal system? Most poor countries, and especially fragile states, do not have such a thing. Instead, they typically have competing, conflicting systems that undermine the ROL. Institutions such as the World Bank are ill-equipped to fix these problems. Donors do not sufficiently understand the nature of the problem and what solutions might work in what are foreign sociocultural environments. Better to invest in capacity building initiatives that can equip local people who understand their countries well with the skills necessary for them to solve their own problems. One way to do this would be to establish ROL institutes that were mandated to research the competing systems and propose hybrid legal systems that made the most of all of them. In most cases, this will require making use of both local traditional systems and the Western system that currently is largely irrelevant to the needs of most of the population. Here is one example of how this might work: http://www.fragilestates.org/2012/02/14/ghana-hybrid-legal-systems-work-best/ I will write more about this problem in the future.

Submitted by Anais Reding on
Thanks for this very interesting article, and raising a good question Lisa. In my experience, using one same definition to encompass a range of concepts can come from a lack of framework about how the different components come together. The risk then with using one term to refer to multiple concepts is that we can forget how change can be expected to occure under activity x or y. There is a logframe that underpins "enhancing RoL" and we need to keep track of it if we are to engage in results-based monitoring. Have you seen a useful and comprehensive framework of the tools for development and how they come together? I haven't so far, and am starting to think it might be a good thing to develop!

Submitted by Anais Reding on
Hi all, This article is dealing with a similar question: http://www.ssrresourcecentre.org/2012/04/03/%e2%80%9crule-of-law-and-security-sector-reform-%e2%80%93-a-pragmatic-approach-to-addressing-the-security-and-justice-spectrum%e2%80%9d/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ssrresourcecentre+%28Security+Sector+Reform+Resource+Centre%29 Anaïs

Very interesting read, thank you for post. I would also like to bring your attention to the World Justice Project's working definition of the rule of law: The WJP uses a working definition of the rule of law based on four universal principles: 1) The government and its officials and agents are accountable under the law. 2) The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property. 3) The process by which the laws are enacted, administered, and enforced is accessible, efficient, and fair. 4) Justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. More information can be found on our website.

Submitted by Ramesh Srinivasan on

Interesting article. Thought evoking questions. I would like to add a comment with specific reference to the fourth aspect mentioned above-Law Enforcement.

This aspect is not merely linked, as correctly pointed out,to the fight against terror. The functioning of Police and Judiciary in countries afflicted with terrorism are definitely pointers to the efficacy of these systems in curbing anti-social activities. More importantly, their functioning (or malfunctioning in the negative sense)reflects the value the government apportions to the safety and security of the citizens right to life and property. The efficacy of these institutions also has a direct effect on the citizens faith in governance. ROL is not just an indicator of the justice system in the country, it IS the primary indicator of the governance since every other parameter of good governance will go into the negative if the judicial fabric of the country is weak.

In my opinion, defining ROL is essential, though there is an opinion in some quarters that culture specific sensitivity is essential to understand the justice systems in certain societies. Irrespective of region, religion, gender, caste, creed and color, some values are fundamental to every society: Right to life & property; Right against torture; Right to access & avail fair justice; Right to freedom of speech, worship and expression and such like Rights can never be said to belong to only one set of people and therefore culturally reject-able in any other society. If we look towards a world without fear and oppression, then these are the fundamental tenets by which every society must live. So, we must define ROL.

There are two aspects that the Bank must look forward and assess, in so far engaging a country is concerned. One, quality of education - not just in schools and colleges, but of all stake holders, for example, Police, Judges, military, government officials and general awareness programs for the public. This must also include legislating laws that grant Right to Information and Strong Anti-Corruption laws. Second, the functioning of these institutions needs evaluation. Here, reputable NGOs and Media houses can also be involved. The functioning of anti-corruption agencies (like the one in Indonesia now) can also be an important indicator.

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