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Key Text Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative

Author: S Golub
Date: 2003
Size: 52 pages (379KB)

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Summary

This paper argues that, in integrating law and development, many multilateral and bilateral development agencies overemphasise 'rule of law (ROL) orthodoxy', which concentrates aid on 'top-down' support for state legal institutions and law reform. It suggests an alternative approach, legal empowerment—the use of legal services and related developments, to increase disadvantaged populations’ control over their lives. Legal empowerment builds civil society to provide pro-poor legal services and to increase the capacities and power of the poor so they can better assert their rights, often in the context of agriculture, health, gender, natural resources, and other 'non-justice' sectors. As indicated by a growing array of quantitative and qualitative evidence, legal empowerment contributes not just to governance and justice, but also to social development and poverty alleviation.

As most prominently practiced by multilateral development banks, the dominant, ROL orthodoxy paradigm concentrates on law reform and government institutions, particularly judiciaries, to build business-friendly legal systems that presumably spur poverty alleviation. But many bilateral and other development agencies similarly take a top-down, state-centred approach in their law programs, albeit in pursuit of other ends. The problems with the paradigm are not its various economic and political goals, per se, but its questionable assumptions, unproven impact and insufficient attention to the legal needs of the disadvantaged.

Legal empowerment represents an alternative, more balanced approach. It prioritises civil society support but engages government where possible and does not preclude important or even leading roles for dedicated officials and ministries. It also addresses a central reality that ROL orthodoxy overlooks: in many developing countries, laws benefiting the poor exist on paper but not in practice unless the poor push for laws enforcement.

Legal empowerment is more than an alternative to the dominant paradigm; it should be integrated into many mainstream socio-economic development efforts that generally do not address ROL or the legal needs of the poor. It puts community-driven and rights-based development into effect by offering concrete mechanisms, involving legal services, to alleviate poverty, advance the rights of the disadvantaged, and make the ROL more of a reality for them. So far, however, legal empowerment efforts mainly consist of diverse civil society initiatives rather than deliberate donor programs. As a result, it is under-appreciated and underused. The message for ROL development practitioners is that they need to think less like lawyers and more like agents of social change. Conversely, development practitioners in other fields could benefit from thinking more like lawyers and human rights advocates. The changes in perspective will create opportunities for using law to enhance development. Both groups should also stop assuming that assistance to state institutions yields greater impact and more sustainable outcomes than support for civil society. In fact, there are significant arguments and evidence to the contrary.

Legal empowerment differs from ROL orthodoxy in at least four additional ways:

Attorneys support the poor as partners, instead of dominating them as proprietors of expertise.
The disadvantaged play a role in setting priorities, rather than government officials and donor personnel dictating the agenda.
Addressing these priorities frequently involves nonjudicial strategies that transcend narrow notions of legal systems, justice sectors, and institution building.
Even more broadly, the use of law is often just part of integrated strategies that include other development activities.

Because research suggests that legal empowerment has helped advance poverty alleviation, good governance, and other development goals, it merits substantially increased financial and political support. Such assistance can be provided:

As aid specifically directed at legal empowerment.
In conjunction with ROL promotion.
As part of mainstream socio-economic development work embracing such fields as agriculture, education, gender, health, natural resources, and water.

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Source: Golub, S., 2003, Beyond Rule of Law Orthodoxy. The Legal Empowerment Alternative, Rule of Law Series Working Papers No. 41, Carnegie Endowment for International Peace, Washington D.C.
Author: Carnegie Endowment for International Peace (CEIP), http://www.ceip.org