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Law and development to Rule of Law 14 November Zajac Sannerholm

zajac sannerholm folke bernadotte academy

richard zajac sannerholm

on 4 October 2014

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Transcript of Law and development to Rule of Law 14 November Zajac Sannerholm

From law and development
to Rule of Law

Rule of law assistance on the increase
More actors and more money
More & new environments
Development states
Law and development
Critical Legal Studies
Dissolution of USSR

Millennium declaration
Rule of law in crisis management
Why capitalism worked in the West but nowhere else
Pre-existing rules to solve social conflict
Rules elaborated by a specialized profession using distinct methods
Legal norms that are consistent with one another
Universal application
Precise and clear
Rational law - autonomy

Political law - no distinction between private/public

Traditional law - transcendental, static, inaccessible
Imitation of Western (US) law
Pre-determined set of laws and institutions
Economic growth - state led
Hoping it would lead to spill over effects (political liberalisation)
Transform ‘backward’ legal cultures to modern legal systems - ‘legal orientalism’
Trubek & Galanter “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development in the United States” 1972

No spill over effect of the law and development
Ethno-centric - no understanding of the ‘third world’
Liberal rule of law model
Vietnam war and civil rights movement
Law not the priority - economic domination of the centre over the periphery
Transition in Central and Eastern Europe 1989
New laws and institutions for a market economy:
Company laws (entry)
Bankruptcy laws (exit)
Contract laws
Stronger protection of private property
General deregulation - aiming for one-stop
Training of judges, professionalism and capacity

Rolling back the state - theoretically grounded in the “Washington Consensus”
Chief ideology of the World Bank and US in late 1980s, early 1990s
Problems addressed through law proper
(formal and technical - e.g. laws and institutions)
Problems outside of law
Global, political, economic, resources, capacity, understanding, awareness, attitudes, culture, religion
(cc) photo by theaucitron on Flickr
(cc) photo by theaucitron on Flickr
The UN view: UN Secretary-General "Rule of Law and Transitional Justice in Conflict and Post-conflict societies
[a] concept at the very heart of the Organization’s mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights standards.
Rule of law
“The Government has this morning formed an anticorruption squad to look into the conduct of the anticorruption commission, which has been overseeing the anticorruption task-force, which was earlier set to investigate the affairs of a Government ad hoc committee appointed earlier this year to look into the issue of high-level corruption among corrupt Government Officers”.

Statement released by the Attorney General of Kenya; The Daily
Nation, October 28, 1997, Claes Sandgren, Korruption: Orsaker, efekter och strategier för bekämpning, Tidskrift för rettsvitenskap, 2005 (3)
(1) Origins
(2) "Methods of doing business"
(3) Concept of rule of law
(4) Conditionality and assessing rule of law

Methods of doing business
Concept of rule of law
”A non-democratic legal system based on denial of human rights, of extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies”

Raz (1979) p. 211.

Conditionality and assessing the rule of law
Rule of Law Conditions, Council of Europe (Art. 3, Statute of the Council of Europe)

“every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms…”

Rule adoption
Rule implementation
Rule internalisation
Afghan National Development Report – an ”Afghan rule of law definition”

“Afghans prize the notion of fairness, shaped by local cultural, moral, and religious factors, it is essential to pay attention to the sense of both justice and the rule of law expressed by ordinary people.”

“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread....”

Anatole France
Rule of law as the problem?
Main purpose of the rule of law?
World Bank, Governance Matters
1) Voice and accountability
2) Political stability and absence of violence
3) Government effectiveness
4) Regulatory quality
5) Rule of law: the extent to which agents have confidence in and abide by the rules of society, the quality of contract enforcement, the police and the courts, likelihood of crime and violence
6) Control of corruption

Data sources from surveys (perception-based) of firms and individuals, percieved level of governance (RoL)

Council of Europe, European Commission for the Efficiency of Justice (CEPEJ)
Evaluates the legal systems of the 47 member states
Consists of a small group of experts, relies on questionnaires (from gov) – qualitative and quantitative:
Access to justice
Functioning of courts and efficiency of justice
Use of information technology in the court
Fair trial
Public prosecutors
Enforcement agents and execution of court decisions
World Justice Project, Rule of Law Index
Composed of 10 factors, uses polls and expert (focus group) polls
Limited government powers
Absence of corruption
Clear, publicized and stable laws
Order and security
Fundamental rights
Open government
Regulatory enforcement
Access to civil justice
Effective criminal justice
Informal justice
European Union
Copenhagen principles for membership in the EU requires “achieved stability of institutions…rule of law”
Membership negotiations:
(1) supremacy of law;
(2) separation of powers;
(3) respect for fundamental rights;
(4) independence of the judiciary, and
(5) measures against corruption

Partnership Agreement Between the Members of the African, Caribbean and Pacific Group of States On the One Part, and the European Community On the Other Part, 2000, Art. 9 (1) - Cotonou Agreement Art. 3.1

“Respect for human rights, democratic principles and the rule of law are essential elements of the partnership”
European Commission checklist

How strong is the judicial system?
Does unlawful state violence exist?
Does civilian power control security forces?
Does organised crime undermine the country’s stability?

Conditionality: enforcing the rule of law...

European context
Membership in the European Union
Membership in the Council of Europe
Linked with trade agreements and international assistance/financial/technical/
Recognition of states (Kosovo)

International multilateral context
UN Security Council resolutions
IMF/World Bank loans and assistance
Main challenge: why follow rules (if you have guns)?
Rule compliance
Read: Morlino and Magen (on blackboard next week)
Available choices
Rule of law reform areas
Gaining entry
Political will, access, constituency support (civil society)
Constitutional and legal framework
Capacity-building of institutions
Training/education: skills, new laws, sensitivity
Access to justice
Physical direct access
Poor/gender/children perspectives
Linking reform initiatives w national priorities: peace agreements, recent/upcoming elections, trade agreements, international obligations, membership (EU, IMF etc) crisis...
Guiding framework: Paris Principles (2005)and Accra Agenda for Action (2008)
Support to law making, law making bodies and commissions
Technical assistance; modernising, updating
Outreach and awareness
Role of international law
Why executive power/regime might care about rule of law:
Control over its own bureaucracy
Political prestige
"Buffer" against political controversial decisions
Financial support
International credit rating (Moody's, Standard and Poor's

Quality assurance: supervision and control
New institutions
Rule of law must be tested!
Monitoring (systematic or ad hoc)
Co-location (international expert sit at the Ministry/court etc)
Twinning - peer-to-peer
Help draft action plans, national strategies, policies etc
Rule of law assistance today
Birth certificates
(and other issues of civil registration)
Legal informality, nationality, health, economic activity, democratic rights, social security, discrimination
Land rights
Security of livelihood, security of property, identity, minority rights
Reliable services
For the state/administrative agencies
Human rights compliance, bad will, costs (corruption, confusion, appeals), weaker control = more difficult to enforce policy
Criminal law and justice sector reform
Who owns the issue?
...and public administration
Executive branch of the state
(excluding justice sector actors)
Horisontal and vertical

Physical insecurity, sexual and gender based violence, law and order deficits
Link to other peace- and state-building processes

General rule of law problems in public agencies

Injustice, high costs, discrimination, exclusion
Public administration reform = efficiency, organisation, managerial oversight, leadership, modernisation, fiscal discipline, service delivery
Rule of law reform = quality, norms, efficiency in judicial services and law enforcement, dispute resolution

Transitional justice/reconciliation
Administrative silence
Contradictory application of laws
Lack of access
Cumbersome or costly appeal procedures
Rule of law in public administration
right to be heard
access to information
right to appeal

Political will and entry-points
Executive branch, willing and able?
Decentralisation - local v. central
State interests v. community and individual interests
Culture of serving the bureaucracy
Legal frameworks
Regulation (excessive and sometimes constradictory) central v. local
Insulated from international law - strong on power, weak on rights
Rarely updated
Institutional capacity
Unclear institutional structures
Part of a broader administrative framework
("not our fault")
Instructions, job descriptions, procedures
Perception: far from the rule of law
"Decriminalisation" through administrative law
Administrative offenses: Azerbaijan, Georgia, Armenia, etc.
Center on International Cooperation (On Shaky Ground):“thin” rule of law in post-war transitions - cannot absorb “thick” demands

Pros and cons?
Competition from authoritarian regimes: sharing "legal" solutions on how to solve threats to power
What about human rights?
Thin or thick rule of law?
Is rule of law more relevant for the criminal justice sector than anywhere else?
Why the popularity?
Why now?
Death and taxes
Reform challenges?
Also rule of law conditions in Eastern Partnership and European Neighborhood Policy
Writing your essay
Create your own empirical data
Governance Indicators
Bertelsman Index
Freedom House
Look at a number of UN peace operations, World Bank projects (on world bank webpage)
European Commission documents on progress review (Eastern Partnership, Central Asia Rule of Law Initiative, EU enlargement,
Use course literature, articles and other information on blackboard
Westlaw, Heinonline, EBSCO
Reports and official documents from international, regional or state organisations (UN, EU, SIda, fx)
Think tanks and academic institutions (Carnegie Endowment for International Peace, United States Institute of Peace, Chatham House etc)
Full transcript