by Michael Veglucci
Consistent and effective rule of law is critical to the success of developing countries. However, justice systems are typically difficult and slow to reform. Well-functioning rule of law is often essential to enforce property rights and uphold laws which investors, both foreign and domestic, consider necessary for investment (Upham, 2002). Unfortunately, even though rule of law is often considered a priority by the World Bank and similar donors typically the concept of “rule of law” as defined by the World Bank either doesn’t exist in the developing countries or existing models don’t take into account local cultures and norms when applied (Upham, 2002). The World Bank measures and tracks rule of law as a development indicator and defines the variable as “Rule of law captures perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence (World Bank, 2017).”
Of course, the World Bank’s definition of rule of law is only one of many and does not capture the reality of rule of law for many developing countries that rule of law exists in both formally, typically in the form of a country-wide legal system, and informally, practices which operate with respect to respective social, political, economic, and cultural contexts (Upham, 2002). Advocates for rule of law development can struggle in addressing informal systems within developing countries due to lack of understanding of the local context. Failures in defining rule of law contextually for specific developing countries as well as not accounting for both the formal and informal rule of law systems as made improving rule of law within developing countries difficult.
Attempting to apply a signal definition to rule of law for all countries to achieve is counterproductive since many laws are born out of norms and customs that are specific to the people for which they were created (Chirayath, 2005). Adriaan Bedner identifies struggles in defining rule of law in the 2010 article “An Elementary Approach to the Rule of Law” as thin or thick (2010). Bedner describes thin definitions as fairly restrictive while the thick are often elaborate (2010). Bedner also identifies that these definitions often provide little justification for which elements are included within the definition and which elements are left out (2010). Since the application of any definition for rule of law for a developing country without understanding the context is unjustified Bedner offers a model to analyze a countries rule of law providing an improved understanding of existing systems as well as a method of comparing systems. Bedner’s framework uses three categories, procedural elements, substantive elements, and controlling mechanisms with several supporting research questions to improved researchers understanding of rule of law elements and contextual factors (Bedner, 2010). By applying a framework as Bedner suggests development workers can better define rule of law specific to a developing country and work to identify possible areas for improvement.
Rule of law can result from both formal and informal institutions and even a combination of the two. Developed countries have pursued both formal and informal approaches with varying success even though either system has flaws. However, even the systems adopted by developed countries are unlikely to serve as an appropriate model for developing countries (Upham, 2002). Neither top-down formal systems or bottom-up informal systems that have been successfully implemented elsewhere will not likely account for the cultural context of a developing country. Although frameworks such as the one discussed above offered by Bedner can provide increased understanding of both formal and informal systems, other methods can also be implanted to help spur rule of law reform. A 2005 paper, Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems, suggests that even exhaustive methods to understand local legal systems may not result in true “understanding” (Chirayath, 2005). Further, these efforts to understand local systems to reconcile difference with the formal legal system could be ineffective in achieving reform (Chirayath, 2005). Instead, the authors promote creating incentivized opportunities for actors of both the formal and informal systems to meet and agree on enforceable rules, by both formal and informal institutions, for judicial reform (Chirayath, 2005).
Functioning and effective rule of law is essential for economic growth and often an area of required reform among developing countries. Fortunately, frameworks exist to help understand the formal and informal rule of law institutions to identify areas of possible reform. Further, development initiatives can incentivize informal and formal actors to agree on rule of law reform initiatives providing a local and enforceable opportunity. By improving understanding of country specific rule of law contexts as well as pursuing opportunities for local solutions, rule of law reform, however complicated, is attainable.
Bedner, Adriaan. “An Elementary Approach to the Rule of Law.” Hague Journal on the Rule of Law, Vol. 2, No. 1 (2010), pp. 48-74.
Chirayath, Leila, Caroline Sage and Michael Woolcock. 2005. Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems. (Background paper for the World Development Report 2006) Field, Erica (2007) Entitled to Work: Urban Property Rights and Labor Supply in Peru –
Upham, Frank. “Mythmaking in the Rule of Law Orthodoxy,” 2002.Carnegie Endowment for International Peace Working Paper #30 (Rule of Law Series), September.