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Key Text Promoting the Rule of Law Abroad: The Problem of Knowledge

Author: T Carothers
Date: 2003
Size: 18 pages (186 KB)

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Summary

The causal relationship between rule of law promotion, and economic development and democracy is not as direct as it might appear but remains donors’ rationale for these activities. Is there a problem of knowledge concerning rule of law projects? What should practitioners know when they promote these activities?

This paper from the Carnegie Endowment for International Peace considers the apparent lack of knowledge supporting rule of law projects in developing countries. There is a surprising amount of uncertainty about the rationale for rule of law promotion and what actually constitutes the ‘rule of law’. There is limited knowledge about how system changes occur and what long-term effects specific changes will have on the development of the rule of law. Despite the amount of rule of law activity taking place, the knowledge of individual practitioners tends not to be systemised or absorbed by sponsoring institutions. The ‘lessons learnt’ in official reports are frequently too general and obvious. Appropriate reforms to aid programmes are often blocked by agencies’ underlying interests and incentives.

The common sense appeal of arguments supporting rule of law promotion is often too simplistic and can be misleading. It is not clear that foreign investment is required for economic development. In addition:

Whilst the rule of law and democracy are closely linked, reasonably democratic states often have significant shortcomings in the rule of law
There is no proof that a state must have an established and effective rule of law to attract investment. In fact, the presence of certain types of foreign investors may contribute to the development of the rule of law through demands for reform
Promoters tend to have a narrow outlook on what the rule of law is, focusing on institutions, especially the judiciary, and having little interest in non-Western forms of law, traditional systems of justice, or in some cases even civil law
A mechanistic approach is generally taken to developing rule of law, with promoters trying to reshape key institutions to match those of countries considered to have the rule of law. In many countries, this encounters strong resistance
The area’s knowledge accumulation is hindered by its conceptual and practical complexity; the particularity of each legal system; and the limited focus of academics and lawyers on empirical research about rule of law programmes
Aid agencies tend to be poor at accumulating knowledge due to limited resources being committed to evaluations; the frequent changing of personnel; and a certain defensiveness within a context of doubts about the value of aid.

There is no proof that improvements in one part of the system will ‘spillover’ into other parts. It is not clear whether judicial independence improves the rule-of-law. Other policy implications include:

Rule of law is not yet a field of activity, if such a designation requires a well-grounded rationale; a clear understanding of the problem; a proven analytic method; and an understanding of the results achieved
Donors know that rule of law projects may help economic development and democracy, but do not know how strong the direct causal relationship may be or whether similar resources targeted elsewhere might have had greater effects
The aid community should have a broader concept of what constitutes the rule of law, considering, for example, the role of the legislature and executive, and how citizens understand, use and value the law
It should not be presumed that change will happen once the right institutions are in place, but rather when key people within the system want it to happen and are given enabling assistance for them to carry out that change.

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Source: Carothers, T. 2003, 'Promoting the Rule of Law Abroad: The Problem of Knowledge', Rule of Law Series no. 34, Carnegie Endowment for International Peace, Washington, D.C.
Author: Carnegie Endowment for International Peace (CEIP), http://www.ceip.org
Organisation: Carnegie Endowment for International Peace (CEIP), http://www.ceip.org