LGD 2000 (1) - Julio Faundez
|
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
DownloadLegal Reform in Developing and Transition Countries -
Making Haste Slowly
Professor Julio Faundez
Professor of Law
University of Warwick
j.faundez@warwick.ac.uk
This is an article published on 8 January 2001 as a tribute to Dr Lawrence Tshuma.
It is based on a paper presented at a Conference organised by the World Bank entitled 'Comprehensive Legal and Judicial Development - Towards an Agenda for a Just and Equitable Society in the 21st Century', Washington, 5-7 June, 2000.
It is also being published in 'Governance, Development and Globalization', edited by Julio Faundez, Mary E Footer and Joseph J Norton, Blackstone Press, January 2001, and has been subjected to editorial and refereeing processes for the book.
Citation: Faundez J, 'Legal Reform in Developing and Transition Countries - Making Haste Slowly', 2000 (1) Law, Social Justice and Global Development (LGD). http://elj.warwick.ac.uk/global/issue/2000-1/faundez.html. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2000_1/faundez/>
1. Introduction
The organisers of the Conference* have asked me to address two questions:
- Why is legal reform slow and difficult to achieve? and
- Are there are models for legal reform?
I am delighted that these questions are on the agenda of this important Conference. I am delighted because these questions confirm that law has finally established itself as an essential component of the development agenda. This is good news, for until recently those involved in the practice and study of development ignored or avoided law altogether.
I am also delighted because the questions suggest an awareness that law is a complex and often contradictory instrument. This is a welcome development because some publications on legal technical assistance depict law as simple and unproblematic[1 ]. The message that these publications seem to convey is that there is a single model for legal reform and that all is needed to achieve success is to take into account the five attributes of market friendly legal systems; namely, rules known in advance; rules actually in force; availability of mechanisms for the application of the rules; independent bodies to resolve conflicts over the interpretation of rules; and procedures for amending the rules[2]. The questions I have been asked to address suggest that perhaps there are doubts as to whether in fact there is a single model applicable to all developing and transition countries.
Finally, I am delighted because by linking the process of judicial and legal reform with the objective of achieving a just and equitable society, the organisers of this Conference acknowledge that a just and equitable social order is not a by-product of economic processes, but a goal that has to be consciously and deliberately pursued. If we take this goal seriously we cannot afford to ignore law and legal institutions.
The questions posed above, though they delight me, are also daunting. In order to carry out my task I will do the following: I will first offer a brief and schematic response to each of these questions. I will then explore selected issues that arise from this initial response.
1.1 Why is Legal Reform So Slow and Difficult to Achieve?
Because it is a process and, as such, it requires careful preparation, meticulous planning, effective execution, elaborate co-ordination of public officials and disparate institutions, as well as the agreement or at least acquiescence of those directly affected by it. Success in carrying out legal reform requires considerable commitment, patience and a certain amount of good luck. But success is elusive as the process of legal reform often has unintended consequences and sometimes is blocked by unexpected events. There are, of course, many examples of successful reforms. Yet, their success is difficult to measure and evaluate. Regardless of how success is measured, the number of new laws drafted and enacted is not the sole criterion. Indeed, although the enactment of new rules is generally part of the process, new rules often restrain rather than facilitate the objectives of the reform process.
1.2 Are There Models of Legal Reform?
Yes and no. Yes, if by model we understand a simplified description of what the reform process should achieve and it is used to assist those in charge of designing and implementing the reform process. Indeed, how could any process of reform proceed were there no model or vision of what the reformers seek to achieve? On the other hand, if by model we mean blueprint; that is, a detailed plan of the form and content of the reform process, then the answer is no. Yet, the question which should be addressed is whether a model, derived from an ideal type of market and legal system, can be made to work in every country, regardless of local circumstances.
I am aware that my answers are far too general and raise more problems than they solve. This paper addresses some of these problems. Part I examines whether and if so why legal reform is slow and why foreign legal experts tend to regard legal reform as mainly an exercise in legal drafting. Two examples, one from the United States and the other from Perú, are used to show that legislative change is not always the only or the best alternative available to legal reformers. Part II explores some issues that arise from externally funded projects. It examines the argument as to whether importing laws is better than allowing home grown products to develop and includes brief remarks on the role of foreign legal experts. It also discusses the political impact of externally funded projects in recipient countries. Under the rubric 'local ownership', Part III explores some issues related to the long-term sustainability of legal reform projects. Two aspects of local ownership are examined: technical ownership through legal drafting and legal ownership through training and legal education. The Concluding Remarks highlight some of the main points.
What follows is based largely on my experience in the area of legal technical assistance in Latin America and Africa. I have also drawn on the work of many colleagues who have similar experience in other parts of the world. I do not, however, purport to offer a comprehensive review of the literature in the field of legal technical assistance. The purpose of this paper is to raise questions and draw attention to aspects of the process often neglected both by academics and practitioners. To facilitate the reading of this paper I have avoided expressions of hesitancy. This is merely a stylistic device as the paper only purports to put forward provisional answers to the issues it raises. I would have fulfilled my purpose, however, if one or two of my comments provide the basis for a debate that helps us find solutions to the many problems encountered by legal reformers.
2.1 Is Legal Reform Really Slow?
The evidence of the past two decades seems to indicate that legal reform is neither slow nor difficult to achieve. After all, during this period there has been an unprecedented amount of legal reform. It started with the current wave of democratisation which prompted many countries to adopt new constitutions or to amend old texts. The comprehensive restructuring of the political rules of the game was followed by an equally comprehensive redefinition of the rules governing economic policy as virtually every country in the world incorporated the 'Washington consensus' into its legislative framework. This new legislation provided the platform to launch major programmes of liberalisation, de-regulation and privatisation. A well-known example of the speed and impact of the current reform process is the regulation of foreign investment. While in the 1970s foreign investment codes were largely hostile to foreign investment and imposed various hurdles, today foreign investment codes are entirely different. Instead of rejecting foreign investment they welcome it and instead of hurdles they contain various mechanisms to attract it[3]. This shift in the content and style of foreign investment regulation is replicated at the international level by the proliferation of bilateral and pluri-lateral investment treaties. The evidence of the last two decades thus suggests that legal reform is not only relatively easy to achieve, but that it can also be achieved in a relatively short period of time, both at the national and international levels.
It is undeniable that over the past two decades, developing and transition countries have enacted a large number of new laws. This process, however, has been both narrow in scope and partial. Narrow because it has focused on a relatively small area of legal regulation and partial because it has consisted mainly in the enactment of new legislation.
Legal reform has, so far, focused primarily on the linkages between national economies and world markets. In the case of transition economies, the focus has also been on the establishment of comprehensive frameworks to regulate private transactions[4]. Yet, these reforms, though narrow in focus, have nonetheless radically altered the basis upon which the state and legal systems operate. The interventionist state of yesterday is in the process of being replaced by a new, leaner and less obtrusive state - a state friendly to the market. The dramatic transformation of the state has generated its own momentum making national governments and international organizations aware of the need to extend the process of reform to other areas of legal regulation. Thus today, the reform agenda has expanded to include areas such as judicial reform, decentralization, labour standards, equal opportunities, gender equality, land tenure systems, criminal law and the protection of the environment[5].
Although the reforms carried out so far have already had a major impact, they have, nonetheless, been partial as they have concentrated mainly on the relatively easy task of drafting and enacting new legislation. The task that most national governments face today is to ensure that the laws they have so effortlessly enacted are rigorously applied, fairly interpreted and, if necessary, promptly amended. This is a complex process that requires time, patience and considerable political and legal skills. Not surprisingly, national governments and international organisations have already begun to shift their attention towards the task of strengthening and developing the capacity of the newly established or recently reformed state institutions. Accordingly, the emphasis today is on training and on changing the culture of public bureaucracies to ensure that the reforms already in place are not undermined by practices that in the past plagued the political and legal systems.
The process of legal reform has thus entered a new stage. The reform agenda is now broader. Perhaps some would say that it is too broad. Moreover, the efforts to ensure that new legislation is successfully implemented require legal reformers to look beyond the limited confines of legal doctrine and consider the compatibility of the new rules and institutions with the rest of their legal and political systems. This new stage of the process of legal reform will be more difficult than the first and will undoubtedly be slower.
2.2 Legal Drafting - A Fatal Attraction
I am certain that few would dispute the proposition that legal reform is a process and that it is not simply about drafting and enacting new rules. Yet, when foreign legal experts assess the legal needs of developing countries they almost always seems to assume that the problems they have identified can be resolved by the enactment of new legal rules. While in some occasions this diagnosis is correct, quite often it is not. Why is it that the prescription offered by these experts almost always tends to be the same?
There are several possible answers to this question. Firstly, simply because legal drafting is something that most lawyers do well and enjoy doing. Secondly, because by training lawyers are attached to closed systems of rules capable of resolving current problems and anticipating problems in the future. And thirdly, because foreign legal experts often do not have the time or the resources to inquire how the legal systems of recipient countries work before deciding whether prevailing rules and practices are effective or whether new rules are necessary.
The attraction that foreign legal experts have for new legal rules is curious. Indeed, most lawyers and policy-makers know that social problems are not always resolved by enacting new rules. In fact, it is often the case that new legal rules are not the best solution either because there is no agreement in society as to the content of the rules or because the rules simply do not reach the groups that the rules are meant to reach. The case of affirmative action in the United States and of the administration of justice in a remote community in the Andes illustrate this point.
3. A Foreign Lawyer Looks at Affirmative Action in the USA
Suppose that a lawyer from a developing or a transition country who has learned about the five attributes of market friendly legal systems - rules known in advance; rules actually in force; availability of mechanisms for the application of the rules; independent bodies to resolve conflicts over the interpretation of rules; and procedures for amending the rules - is invited to visit the United States to examine how affirmative action works in this country. What would she notice? What would surprise her? I suppose that for a lawyer who believes in the generality and certainty of the rule of law one of the most baffling features of affirmative action in the United States is how difficult it is to know with any degree of certainty which types of affirmative action measures are legal and which are not [6]. This uncertainty is not due to the absence of rules as there is an abundance of Federal or State regulations on this topic. She would also be surprised to learn that despite several attempts, the Supreme Court has not clarified this point. Indeed, and judging by the large number of law review articles published after each decision, our friend could well conclude that Supreme Court decisions add layers of complexity to an already complicated issue. Our friend would also be bewildered by the inconsistency between the policies of the federal government and that of some states[7]. She would probably ask: why doesn't the Federal Congress intervene setting out, once and for all, clear rules of the game? After all, uncertainty over affirmative action is bound to undermine the way firms operate and such confusion is not market friendly. Aware that Congress is reluctant to legislate on this matter, our friend would probably turn to the Court and ask the same questions again and again.
If our friend turned her attention to the political arena she would soon realize that, despite the fact that everybody agrees that affirmative action is an issue of fundamental political and social importance, there is no consensus as to how best to deal with it. Upon reflection she would realize that despite the absence of clear rules, law does plays an important role in channelling the debate and in the practice of affirmative action[8]. It does not, however, work as a mechanical device. It is part of a complex and often contradictory social process.
4. Conflict Resolution in the Andes
The assumption that legal reform requires new rules is especially absurd in cases where the formal legal system does not reach the whole territory of the state. This is indeed the case in many developing countries where the state either does not have the resources or the legitimacy effectively to rule over its whole territory. In most of these cases local communities are governed partly by their own customary practices and partly by the rules of the formal legal system. It is not self-evident that the existence of a plurality of legal systems is a problem. Indeed, allowing diversity and customary practices to flourish is probably the best way to improve the quality of governance and to democratise both the form and content of legal regulation. In any event, managing legal diversity is not an easy task. The integration of local communities within the state is certainly a matter of legitimate concern for state authorities. It is not the case, however, that this matter can be resolved by enacting laws or issuing executive decrees. This type of official intervention is likely, more often than not, to create rather than resolve problems.
The experience of an indigenous rural community in a remote area of the Andes, about 90 miles from Ayacucho, in Perú, is a case in point. With the financial support of the British Council I recently had the opportunity to visit this community and observe how the local people run their affairs. This is a community of some 200 families of Quechua-speaking peasants who live high up in the Andes in a place of extraordinary physical beauty, but where life and farming conditions are extremely difficult. In recent years, this community had to cope with untold atrocities. First they were victims of the activities of the Shinning Path, a terrorist group who sought its support through intimidation, torture and murder. Later on, when the government's military campaign against the terrorists reached their area, several members of the community were accused by the military of belonging to Shinning Path and there followed another round of intimidation, torture and summary executions. Caught between the cross-fire this small community was nearly destroyed.
At the time of my visit, violence had subsided and the members of the community, with admirable courage and resilience, were attempting to reconstitute their social life. With the support of a local NGO they had elected a Committee of seven to lead this process. The Committee performed several functions, one of which was to resolve disputes between members of the community. This was an important function because as a consequence of the recent upheavals, there was considerable confusion as to who had a right to cultivate the various plots of land owned by members of the community.
I attended one of the hearings of the Committee. It involved a dispute between two women over a plot which each claimed had been cultivated by their respective partners. Both partners had been victims of the recent violence: one had been murdered by the terrorists and the other had been killed when the army had come in search for terrorists. After a brief hearing during which the women made eloquent speeches in support of their case and answered questions from members of the Committee, a solution emerged. The solution proposed by the Committee split the difference between the two claims. In his closing speech, the President of the Committee stressed the importance of resolving disputes peacefully, highlighting the fact that despite occasional difference they should remember that both parties were equally poor and dependent on the land for their livelihood. He finally urged the two women to accept the Committee's recommendation. The parties accepted it.
The risks involved in this type of informal justice are well-known[9]. There is always a danger that this type of procedure may degenerate into pure political justice. It is also likely that strict rules of due process will not be observed. What then is the solution? Self-help? Require the parties to travel a day by foot to seek justice from the nearest state court where proceedings are in writing and in Spanish? Or should the parties instead wait for the Government to deliver its commitment to carrying out a comprehensive programme of judicial reform? A few days after visiting this community I attended a seminar in Lima where one of the participants proposed that the solution was to legislate so as to ensure that community organs, such as the local Committee near Ayacucho, would carry out their activities within the terms of the constitution. As a lawyer, I must confess, I find this proposal attractive since it addresses my concerns about the constitutionality of the Committee's activities and about the possibility of conflicts of jurisdiction. Yet, on the basis of my limited knowledge of the area and of politics in contemporary Perú, I would not endorse it as I would be concerned that any form of legislative intervention would derail the process of reconstruction that is taking place in this community[10]. Perhaps in the future some form of state intervention might be helpful. Not now.
5. Taking the Context Seriously
The importance of understanding the local context is widely acknowledged in the literature on legal technical assistance[11]. The examples discussed in the preceding two sub-sections underscore the importance of understanding local conditions before deciding whether legal reform is necessary, and if so, how to implement it. Yet, despite the widespread agreement on this point, it seems that, in practice, a thorough analysis of the local context is rarely carried out either because of time constraints, shortage of resources or simply because there is no agreement on how it should be done.
I suspect, however, that one reason why legal experts from Europe and the United States who advise government in developing and transition countries often appear to disregard the features of the local context is because in their own jurisdictions they can afford to take the context for granted. Where institutions are stable and have the capacity to adapt to change legal reform slips into the process of social and political change in a relatively unproblematic way. To be sure, legal reform in industrialised countries is not easy, but it generally does not have the traumatic impact on the political system or society that it often has in less developed environments. Thus, it is not surprising that when lawyers reared in a stable milieu visit other countries as advisers they take local conditions for granted and assume that legal reform process is as easy as it is at home. Hence, not surprisingly, they become easily frustrated at the slow pace of the reform process and often assume that the reason for it is that local officials are either lazy, corrupt, uninterested or inefficient.
I am not concerned here with the important methodological question as to how best to carry out a proper analysis of the local context[12]. I would like, however, to highlight one feature of developing countries that international legal consultants often tend to forget; namely, the fact that most of them have weak institutional frameworks. Those familiar with the literature on political development and with World Bank publications on governance know that this is an important issue[13]. As a recent World Bank publication reminds us, it is also a problem that cannot be resolved overnight[14]. Yet, some international legal consultants seem to ignore the bearing that weak institutional frameworks have on the outcome of the reform process.
A state that has a strong institutional framework - a strong state - is a state that can get things done in accordance with pre-established procedures and with the minimum use of coercion[15]. A strong state is not necessarily authoritarian or ruthless. It is also not necessarily a large state - indeed size is often the reason for its weakness. Strong states can implement policies and laws, while weak states are generally unable to 'get things done', to formulate and implement policy or to secure compliance with the law by its citizens. State strength is, of course, a relative matter. In Latin America for example, few countries have all the attributes that one associates with strong institutional frameworks. Some have strong party systems; others have competent judiciaries; some have strong and lively civil societies; others have efficient bureaucracies; some have good systems of legal education and others have good parliamentary procedures. Yet, there is probably no single country in the region where the state has all these attributes. Some transition countries, as evidenced by the case of contemporary Russia, are also affected by the problem of weak institutional frameworks[16].
In countries where the institutional and political systems are weak legal reform, indeed any major reform, is difficult and at times almost impossible to achieve. In such countries it is difficult to distinguish the process of lawmaking from the process of institution building. Some publications on this topic point out that in order to strengthen the institutional framework the rule of law must be observed[17]. In many respects, this statement begs the question as it presents us with the classic chicken and egg dilemma. How can the rule of law be secured in countries where the institutional framework is weak; and how can the institutional framework be strengthened, if the legality and the rule of law are constantly flouted. This dilemma, though frustrating in practice, should not lead us into despair. It should, however, serve as a reminder that in countries where the institutional framework is weak, lawmaking and institution building are processes that cannot always be easily distinguished. Hence the importance of ensuring that managers of legal reform projects do not take the institutional framework for granted.
5.1 Undermining the Local Context
A paradox of the current stage of the reform process is that while one of its stated aim is to strengthen the institutional framework of recipient countries, in practice, the process itself may undermine it. As the agenda of legal reform expands, there is a serious danger that the institutional framework of many states may deteriorate as a result of the large number of reforms that have to be processed over a relatively short period of time. An overcrowded reform agenda makes it difficult for officials in charge of the reform process to spare the time to understand its wider implications. An overcrowded agenda also reduces the time for consultation and deliberation. Hence, apart from weakening the institutional system, an overcrowded reform agenda may unintentionally also undermine the democratic process.
It must be noted that the relative success of the reforms introduced so far may also act as a brake on the pace of the current reform process. Indeed, as explained in the section, above, the reforms already introduced have largely achieved the objective of radically restructuring the state in developing and transition countries. Most of the agencies of these recently restructured states are new and their personnel, though technically well-qualified, are often inexperienced. Hence, burdening them with a large number of new projects may have the effect of stunting their development. Thus, paradoxically, the success of the first generation of legal reforms may undermine the reform process during this second stage.
6.1 The Inevitability of Politics
In general terms, all externally funded and externally managed technical assistance projects constitute a form of intervention in a domestic environment. Whether or not this intervention is consistent with international legal standards does not concern me here. My concern is to highlight the fact regardless as to whether the project has had its origins in a direct request by the government, a set of conditions for soft loans or a foreign aid package, externally funded or externally managed projects always have the potential of becoming the focus of political controversy in recipient countries. This potential for controversy is especially acute in the case of projects of legal reform as the power to legislate free from external constraints is an important attribute of sovereignty.
A certain amount of controversy and public debate over the reform is perhaps unavoidable. Indeed, in some circumstances, it may be a sign that there is local interest in the project. There are cases, however, where the agencies entrusted with the delivery of legal reform projects, unaware of local political sensitivities, create unnecessary political resentment or exacerbate existing tensions. In some cases, decisions by managers of the project may, unintentionally, deepen divisions within the bureaucracy or create rifts between NGOs. It could well be that the project attracts controversy because of the relatively large budgets controlled by those associated with the project. While many of these problems are unavoidable, there are some that can and should be avoided.
It is important to remember that recipient governments are not passive spectators in this process. Indeed, it is often the case that governments make use of externally funded projects to further their own party political agendas showing little regard for the objectives of the project. In these situations multilateral agencies are caught in a difficult dilemma: either withdrawing on the ground that the government is not seriously committed to the project; or continuing on the expectation that despite the government's behaviour the project will, in the long run, benefit the country as a whole. The dilemma that multilateral agencies face is difficult and not often fully appreciated by its critics[18]. Multilateral agencies should, however, confront this problem honestly and openly so as to ensure that political misunderstandings arising from their projects do not undermine the objectives of the project.
6.2 The (Real) Fear of Legal Imperialism
In addition to the immediate political impact that any technical assistance project is bound to have, legal reform projects also generate resentment as they are often depicted as tools designed to impose alien legal regulatory schemes which undermine the indigenous legal culture[19]. This criticism comes from all sides of the political spectrum. Some focus on the economic components of the current process of legal reform, while others focus on its political components. Thus, while some depict the measures that have led to the liberalization and de-regulation of national economies as evidence of a new form of international domination, others see the current stress on human rights as confirmation that imperialism is alive and well.
Academics from industrialised countries often dismiss these views as a symptom of naive nationalism. Whether or not this assessment is correct, what is relevant for our purposes is to bear in mind that honest and competent officials as well as responsible citizens in recipient countries genuinely believe that externally funded projects are either part of an alien political agenda or pose a serious threat to their legal culture and national identity. The interminable debate in the United Kingdom between the Eurosceptics and pro-Europeans - a debate that cuts across political class and generations - is a helpful reminder that concern about foreign imposition and control is not only an infantile disorder affecting so-called 'young nations'. As far as I understand it, however, the Eurosceptics oppose deepening the process of European integration because they do not want to surrender control of key political decisions - mainly, monetary policy - to a federal type of organisation or to un-elected officials of the European Union. I am not concerned with the merits of the British debate over Europe. I simply want to underscore the impact which the perception of alien political domination has on political debates. If citizens and responsible politicians of an old and stable country, such as the United Kingdom, are genuinely worried about the political consequences of deepening a process of integration that began nearly half a century ago, it should not be surprising that their counterparts in developing countries should have the same reaction towards projects which seek to integrate local institutions to the global economy.
The fact that legal reform projects are externally funded or externally managed is, of course, not always a source of controversy in recipient countries. Indeed, more often than not, governments of developing and transition countries actively seek the support of international agencies and bilateral donor agencies. In some areas, such as human rights, for example, the establishment alliances between local and international groups often provide the impetus to prompt reluctant governments into action. Moreover, many of the legal reforms currently implemented in developing and transition countries enjoy widespread legitimacy as they merely seek to incorporate into the legal systems of recipient countries standards and principles adopted by international organisations[20]. This is the case, for example, of international labour standards, of measures dealing with the protection of the environment and of the many new areas of regulation that have recently become part of the agenda of the World Trade Organisation.
In any event, officials from international agencies in charge of managing projects of legal reform should not forget that, whether justified or not, these projects raise sensitive issues that should not be ignored or lightly dismissed.
6.3 Imports vs. Home Grown Products
The debate as to whether imports or home-grown products are preferable is, in some respects, a restatement, at the technical level, of the political debate about legal imperialism. Though academically interesting, this debate, has, in my view, received far more attention than it merits. Perhaps the prominence of this debate is because of the fact that legal technical assistance projects have hitherto placed excessive emphasis on the drafting process.
The terms of the debate are fairly simple. Those against importing of legal texts generally point out that it is a form of colonial imposition and, as such, contrary to the principles of democratic governance[21]. Importing is also seen as objectionable because it undermines indigenous legal cultures. On the other side, there are those who argue that waiting for the home-grown product to emerge through social practices is inefficient and unrealistic. Inefficient because it takes a long time for social practices to develop and unrealistic because it is unlikely that social practice will be as clear or as coherent as rules contained in codes based on the experience of more advanced jurisdictions[22]. It has also been pointed out that copying and borrowing saves time, contributes to the process of harmonisation and generally avoids having to reinvent the wheel each time policy-makers confront a new problem[23].
We have all heard about lawyers who fly the world 'drafting' laws based almost word for word on the laws of their own countries[24]. Most observers are in agreement that this approach to legal technical assistance is in the end counter-productive as it is unlikely that such laws will ever be fully implemented, let alone understood by the recipients. Moreover, this approach is rejected because it breeds cynicism towards the legal system, apart from discrediting the enterprise of legal technical assistance. As ever, there are always examples that appear to show that sometimes this approach to legal technical assistance does indeed work[25].
While reckless copying of foreign legal texts should not be encouraged, policy-makers and legislators, however, should have a sound understanding of the experience of other countries - preferably countries that have similar features - in order to assist them both in the choice of policy and in the drafting process. Such understanding should enable them to identify good practice in the specific areas of policy. Given that public officials and their advisers do not generally have the time or the resources directly to carry out research on best practice, model laws prepared by international organisations or private associations are helpful tools, provided that they are prudently and wisely used.
In any event, as Alan Watson reminds us, modelling institutions on the experience of another country or on a general model is a long-standing practice[26]. As such, sometimes it fails and sometimes it succeeds. Some, for example, regard Presidentialism in Latin America as an example of a failed transplant. Inspired by the United States Constitution, most Latin American constitutions adopted a presidential regime. Yet, while in the United States the Presidential regime has evolved within a dynamic and open system of government, in Latin America presidentialism is, according to its critics, the main factor that has led many countries into authoritarianism[27]. Regardless as to whether or not these critics are right, there is no doubt that the Latin American version of presidentialism is quite different from the model on which it was based.
A contemporary example of a successful transplant is the case of the Office of the Ombudsman in Perú, the Defensoría del Pueblo. As we know, the Ombudsman originated in Sweden and from there it spread to several industrialised countries and then to the rest of the world. Many Constitutions enacted by developing countries in recent years make provision for such an office. The objective of the Office of the Ombudsman is to protect members of the public against abuses committed by public officials. It does not have enforcement powers. It merely investigates and makes representation to public authorities on behalf of members of the public. In Perú, the Defensoría del Pueblo , based on the Spanish model, was established in 1979 and has recently become a major force in the promotion and defence of civil, political and social rights[28]. Remarkably for Latin America, and particularly for Perú, the Defensoría has managed to maintain its independence from the Government.
The Defensoría's leading role in the protection of human rights has been widely acknowledged. To a large extent the prominent role of the Defensoría stems partly from the weakness of the judiciary caused mainly by the notorious tendency of the Government to interfere with the courts. Given these circumstances, the Defensoría has stepped in to fulfil the demands for justice and fair treatment, particularly from the weakest and poorest sections of the population. So far, the success of the Defensoría is largely attributable to the courage, intelligence and diplomatic skills of the incumbent and of his talented team of lawyers. Whether the Defensoría's excellent record in the defence of human rights will continue beyond the term of office of the present incumbent is an open question. I hope it does, although countries in Latin America have a poor record at institutionalising good practice. In any event, the experience of Perú's Defensoría del Pueblo is a good example of how imported institutions can flourish and develop in unexpected ways even in relatively hostile political environments.
The foregoing shows that the discrete and careful use of model laws and model legislation does not necessarily undermine legal culture. On the contrary, it often enriches and adds diversity to local legal cultures.
The participation of lawyers in technical assistance projects is sometimes viewed with suspicion by members of the local bar. It is of course not surprising that lawyers from different countries and often different cultures should view each other with a degree of reticence as lawyers are, by training, parochial. They are experts in the operation of a single legal system and tend to find exotic, silly and incomprehensible rules and institutions with which they are not familiar. These parochial attitudes - which could be described as epistemological self-righteousness - occur at all levels. It is well-known that many lawyers trained in the civil law have great difficulties accepting that the common law is a 'scientific' legal system. Likewise, many common law lawyers believe that civil lawyers are good at memorising rules, but not at applying them. Even lawyers who belong to the same legal tradition display considerable intolerance towards colleagues from other jurisdictions. Indeed, despite the apparent respect and close links that exist between Wall Street lawyers and City of London solicitors, I wonder whether they really regard each other as equally competent.
Given the parochialism prevalent among lawyers it is not surprising that when they are called upon to advise foreign governments they almost invariably offer their own laws as solutions to every problem they encounter. Moreover, their parochialism leads them often to behave arrogantly, dismissing as irrelevant or silly what they cannot understand. It should be noted, however, that international legal consultants often irritate local colleagues simply because of their ignorance of local practices. If in order to compete in global markets multinational companies train their employees in local customs, why shouldn't multilateral banks require their legal consultants to take similar courses?
Despite these problems, the contribution that international legal experts can make is invaluable. An area where they do make an important contribution is in the diagnosis and assessment of the legal and political systems of recipient countries. In my experience, I find that the most interesting studies of my own country - Chile - are those written by scholars from other countries who, apart from being experts in their respective fields, take the time and trouble to understand local conditions[29].
In the drafting of new legislation, international legal consultants also make a valuable contribution[30]. Yet, in order fully to take advantage of their skills they should form part of teams with local lawyers who should always have the ultimate responsibility for the drafting process. Foreign lawyers should not attempt to lead the team. If they feel that their local counterparts are inefficient, slow or uninterested they should pause and consider whether their feelings have any factual basis or whether they stem from their impatience and parochialism. It is true, of course, that often international teams such as the one I am proposing do not work effectively because recipient governments regard the drafting process as a purely technical task[31].
The concept of property has slipped, perhaps inadvertently, into the analysis of the reform processes in developing and transition countries. Experts on these processes now speak about local ownership of reform projects[32]. By local ownership they mean that all those directly affected by the project should be informed, consulted and hopefully participate in its design and implementation. Local ownership is regarded as essential for the long term sustainability of the project. These are splendid objectives which I am sure many endorse, provided, of course, that the methods through which ownership is 'acquired' are genuine. That is, provided that the efforts to secure local ownership of projects are not mere gestures by irresponsible politicians or unscrupulous local or international bureaucrats determined to demonstrate at any cost that local communities want, understand and share the objectives of a particular project.
Although strategies to develop local ownership focus mainly on securing the support of the wider community - the stakeholders - there are two aspects of local ownership that are especially important in projects of legal reform. One concerns the understanding and technical expertise of local officials; and the other concerns the extent to which, in the long run, the local legal profession is capable and willing to sustain the reform process.
It is generally agreed that local input in the conception, design and drafting stages of a project of legal reform is essential. The literature on legal technical assistance contains helpful tips on how to secure this objective. Policy-makers should have a clear idea of what they are seeking to achieve; they should thoroughly understand the objectives and implications of the project; there should be widespread consultation of stakeholders, local lawyers should be involved in the drafting process and there should be suitable mechanisms to evaluate the project's outcome[33]. Applying this advice in practice is, as ever, quite difficult. My participation, as an external legal adviser on two ILO-sponsored projects, one in Namibia and the other in South Africa, illustrates this point. The projects involved advising the Departments of Labour on the design, drafting and implementation of policies to eliminate discrimination in employment and to improve employment opportunities for the victims of apartheid.
Both Namibia and South Africa have democratically elected governments which enjoy overwhelming popular support. Their governments also control the majority of seats in their respective legislatures. In both countries affirmative action (as it is called in Namibia) or employment equity (as it is called in South Africa) was seen as part of the wider process of dismantling apartheid. The aims of the legislation were twofold: to secure both equitable representation in employment for individuals belonging to groups excluded from the job market by the apartheid regime; and to achieve a culture of non-discrimination in the workplace in line with constitutional principles and international labour standards. In both countries the potential beneficiaries of the new legislation are the majority of the population. The differences in the process of implementation of the two project are quite interesting. While in Namibia the process was slow and plagued by intra-bureaucratic problems, in South Africa the process was fast, efficient and lively.
8.2 Affirmative Action in Namibia
In Namibia the project was launched in 1990, shortly after independence. The members of the ILO team immediately concentrated all their efforts in ensuring that Government officials as well as all relevant stakeholders - employers' associations, trade unions, women's groups, representatives of the disabled - were informed and consulted about the new initiative. This stage of the project was not subject to rigid deadlines as the ILO team was conscious that it was essential to ensure that all relevant groups were properly consulted. The outcome of this stage was, however, disappointing. Meetings between the ILO-team and Department of Labour officials were difficult to arrange, attendance to meetings was poor and often, meetings were unexpectedly cancelled. Other government Departments showed little interest in the project. The Prime Minister's Office, which has overall responsibility for public sector appointments and, at the time, was busy making new appointments, was reluctant to participate in consultations. Indeed, at times, officials from the Prime Minister's Office seemed positively hostile towards the project. Equally disappointing was the lack of interest shown by grass-root organisations that represented those who stood to benefit most from the project. The response of employers' associations was, however, quite different. They attended every seminar and offered written comments and proposals to the Department of Labour. Though they regarded the project as unnecessary and potentially dangerous, they made many helpful suggestions, many of which were incorporated into the draft bill.
The project had envisaged that the bill on affirmative action would be drafted by a team of three: two local officials - one from the Department of Labour and the other from the Prime Minister's Office - and a foreign legal consultant. The team, however, never quite worked as such since the local officials assigned to the team had neither the time nor the interest to participate in the project. One was quite senior in his Department and was understandably busy with other matters. The other, had neither seniority nor relevant experience, was dissatisfied in her current job and was actively seeking a transfer to another Department. In any event the drafting team was doomed from the start as neither the Minister of Labour nor his Permanent Secretary understood the importance of having such a team. They simply expected the ILO to provide them with a draft bill in the shortest possible time - a week was considered long enough. Their sole objective was to get the bill approved by the Parliament as soon as possible.
In the event, the ILO submitted a draft bill less than a year after the project was launched. The expectations of the Department of Labour of getting the bill approved by the Parliament were, however, not fulfilled because the process was blocked by the Cabinet. Four years later, after the appointment of a new Minister of Labour, the project was revived. In the event, in 1998, after another round of consultations which was more successful than the first, the bill was finally approved by Parliament, some eight years after the initiative was launched.
8.3 Employment Equity in South Africa
The development of employment equity legislation in South Africa was quite different. In 1996, with the support of local and international consultants, the Government launched the process with the publication of a Consultative Document[34]. This Document set out in general terms the objectives of the proposed legislation and requested feedback on specific topics. After receiving responses to the Consultation Document, the Government appointed a Drafting Team made up of three South African lawyers all of whom worked in private practice. I joined the Drafting Team as external consultant.
The Consultation Document issued by the Government, though comprehensive, was vague on the crucial and difficult question concerning the meaning of the phrase employment equity. Did employment equity require preferential treatment of those who had been discriminated against by the apartheid regime; or, was employment equity merely designed to secure equal opportunities without seeking to remedy the present consequences of past discriminatory practices? As this was a key matter of policy, the Drafting Team sought clarification from the Department of Labour. After further consultations with employers' associations, trade unions and other stakeholders, the Department decided that employment equity should include preferential treatment for individuals who belonged to groups discriminated under apartheid. After the policy was clarified, the Drafting Team completed its task and submitted the first draft of the bill to the Government. The draft submitted by the drafting team was discussed within the Department of Labour and in December 1997 was published in the Official Gazette. The publication of the draft opened up an intense period of consultations during which the unions, employers' organisations and other stakeholders expressed their views on the text and made concrete proposals for changes. After completing this stage of the process the Government, with the assistance of the Drafting Team, prepared a new version of the bill. The bill was approved by the Parliament in October, 1998, two years after the Government published the first consultation document[35].
8.4 Comparing the Two Experiences
The relative ease with which the South African Government developed its employment equity legislation contrasts sharply with the difficulties that the process encountered in Namibia. There are, of course, many factors that account for the differences between the two processes. In Namibia the process was launched at the wrong time, only days after independence, when the new political leaders who had virtually no experience of Government, were busy dealing with more urgent issues. Moreover, the new political leaders could not count on the loyal or efficient support of the civil service personnel appointed by the preceding administration. The Government in South Africa, on the other hand, had a diverse and politically experienced leadership, many of whom had been active during the long years of struggle against apartheid. Moreover, the transition to democracy in South Africa had been preceded by a lively political debate which involved all sections of society and yielded a complex, but interesting document. The most important factor which accounts for the differences between the two processes is that while in South Africa affirmative action was a live political issue, in Namibia affirmative action had little, if any, resonance in civil society. In South Africa, the government was confronted with the need to establish a legal framework for affirmative action not only because the constitution allowed it, but because affirmative action had become a social fact that required urgent regulation. Indeed, soon after the advent of democracy, the private sector, in an attempt to distance itself from the previous regime and anticipating what it regarded as inevitable, had began to implement policies of preferential treatment. The fact that affirmative action was already a social and political fact prompted the Government to respond quickly by introducing rules to regulate the process. Thus, while in South Africa the Government was catching up with social change, in Namibia the Department of Labour wanted to bring about change that, at the time, neither officials from the government nor stakeholders understood or regarded as urgent.
The irony of this story is that many of the reports, background papers and drafts of the bill prepared during the slow process in Namibia provided invaluable assistance to policy makers and legal drafters in South Africa. Indeed, some key clauses in the South African Act are based on drafts prepared during the years when the reform process in Namibia was at a standstill.
The role of lawyers in the process of development was a matter of great concern for the group of American law professors who in the 1960s launched the well-known, but short-lived law and development movement[36]. In their view, legal education in developing countries was inadequate as it placed excessive emphasis on rote learning of legal rules and doctrine, a method which, apart from dull, did not enable the students properly to understand social and economic reality. As a consequence, lawyers in developing countries were unable to make full use of the law either to protect the rights of citizens or to further the objectives of economic development[37]. As these law professors believed that lawyers had a major role to play in the development process they set out to help a select number of developing countries reform legal education. As we know, the enterprise was cut short because funds dried up and the professors became aware that it was futile to attempt to export legal liberalism[38].
The diagnosis of legal education by the law and development movement is still valid today, as the quality of legal education in developing countries has not significantly improved since the mid-1970s. Although it is self-evident that a well-trained legal profession is essential for ensuring the long-term sustainability of legal reforms, the issue of legal education is notoriously absent from current debates on legal reform. I am, of course, aware that the World Bank and other multilateral agencies support the establishment of judicial academies and sponsor training programmes for judges and lawyers in various countries. These activities are undoubtedly useful, but do very little to improve the overall quality of legal education in recipient countries. Although I feel strongly that the reform of legal education in developing and transition countries is urgent, I do not believe that multilateral banks should add legal education to their already heavy agendas. The primary responsibility for this task lies with governments, universities and local professional associations. International agencies can do much to support activities which contribute to improving the quality of legal education, they should not, however, attempt to lead the process.
Bilateral donors also have a part to play in this process. One important activity which bilateral donor agencies have supported, but which in recent years seems to be losing popularity among donors, is sponsoring transnational links between law schools. These links provide a lively and relatively inexpensive mechanism which has immediate practical benefits - such as updating and facilitating curriculum development - as well as long-term intellectual benefits as they enable legal academics to organise conferences and launch joint research projects on topics of mutual interest. It must be noted that, contrary to what happens in legal technical assistance projects, these exchanges benefit both sides. This is the case of my own institution which, with a relatively small budget, currently has formal and informal links with law schools in more than twenty countries. I would like to think that our partners have benefited from these links as much as we have. For my colleagues and I at Warwick University these links are essential as they allow us fully to develop our teaching and research potential.
Legal reform is slow, because it is a process. I restate this platitude because, in practice, it is often forgotten. Recipient governments tend to forget it because most politicians operate within restricted time frames and naturally want to take credit for the introduction of major legal reforms. Multilateral Agencies also often behave as if they are unaware that legal reform is a complex and slow enterprise. Their impatience is probably due to budget restrictions and a heavy agenda. I am afraid, however, that their impatience may also stem from a misplaced devotion to theory. Indeed, while it may be true that, theoretically, market friendly legal systems have some attributes in common; in practice, the interplay between law, the state and markets is complex and far from predictable. Hence my scepticism about excessive legal drafting and my insistence on taking local contexts seriously.
I am concerned that those who are impatient with the slow pace of reform may end up endorsing authoritarian regimes on grounds of efficiency and speed. Indeed, it was not long ago that some multilateral agencies applauded Third World tyrants because of their ability to get things done. Today things have changed. Democratisation is now the prevailing trend. Yet, many of these new democracies are fragile. It would be a disaster if impatience led to the re-emergence of authoritarian regimes which, as before, would cynically proclaim their adherence and loyalty to the reform process in order to achieve international legitimacy.
Amartya Sen has recently reminded us about the importance of democracy in the process of development[39]. I am certain that most of those who are impatient with the slow pace of legal reforms share his views and are keen to safeguard and further enhance the current wave of democratisation. The successful implementation of the current package of legal reforms should contribute towards cementing the link between development and democracy. It should also provide the foundation for ensuring that the benefits of globalisation are equitably and fairly shared. The reform process should be carried out with vigour and commitment.
Endnotes
* 'Comprehensive Legal and Judicial Development - Towards an Agenda for a Just and Equitable Society in the 21st Century', Washington, 5-7 June, 2000.
1. See, for example, Robert D. Cooter, 'The Rule of State Law and the Rule-of-Law State: Economic Analysis of the Legal Foundations of Development' in Annual World Bank Conference on Development Economics 1996 (Washington, 1996) pp 191-237.
2. World Bank, Governance and Development (Washington, 1992) p 30.
3. For analysis of the impact of a foreign investment code, see, Philip M. Nichols, 'The Viability of Transplanted Law: Kazakhstani Reception of a Transplanted Foreign Investment Code' 18 U. Pa. J. Int'l Econ. L. 1235 (1997).
4. See, Cheryl W. Gray (et. al.) Evolving Legal Framework for Private Sector Development in Central and Eastern Europe (World Bank: Washington, 1993).
5. On the expansion of the reform agenda see, Ibrahim F. I. Shihata, 'The Role of Law in Business Development' 20 Fordham, Int'l L.J. 1577, 1586 (1997).
6. For a recent and very stimulating discussion of affirmative action, see, Jed Rubenfeld, 'Affirmative Action' 107 Yale L. J. 427 (1997).
7. On California's policy on affirmative action see Girardeau A. Spann, 'Proposition 209' 47 Duke L. J. 187 (1997).
8. On this point see, Cass R. Sunstein, 'Public Deliberation, Affirmative Action, and the Supreme Court' 84 Calif. L. Rev. 1179 (1996)
9. On this topic, see, for example, Ross Cranston, 'Access to Justice In South and South-east Asia' in J. Faundez (ed.) Good Government and Law (London: Macmillan, 1997) pp 233-255.
10. For an overview of the plight of indigenous people in Latin America, see, Jorge Dandler, 'Indigenous People and the Rule of Law in Latin America' in Juán E. Méndez (et. al.) The (Un)Rule of Law and the Underpriviledged in Latin America, (Notre Dame, Indiana: University of Notre Dame Press, 1999) pp 116-151.
11. See, World Bank, The World Bank and Legal Technical Assistance (World Bank, Legal Department, January, 1995) p 11.
12. There are good accounts by scholars/consultants who have taken the wider context of the reform process into account. Perhaps the most elaborate theoretical and practical statement on this topic is the Seidman's account of their experience as legal advisers of a UNDP project in China. [See, Ann Seidman and Robert B. Seidman, 'Drafting Legislation for Development: Lessons from a Chinese Project' 44 A.J.Comp. L. 101 (1996) and Robert B. Seidman, 'Drafting for the Rule of Law: Maintaining Legality in Developing Countries' 12 Yale L. J. 84 (1987)].
Bernard Black and Reinier Kraakman's account of the new company law in Russian provides a good illustration of how modern general principles in a particular area of the law can be adapted to an environment where the private sector is at a relatively early stage of development [Bernard Black and Reinier Kraakman, ' A Self-Enforcing Model of Corporate Law' 109 Harv. L.Rev. 1911 (1996); for a critique of this approach see, Yevgeniy V. Nikulin, The New Self-Enforcing Model of Corporate Law: Myth or Reality' 6 J.Int'l L. & Prac. 347 (1997)].
For a case study of an African country see William L. Andreen's article on Tanzania ['Environmental Law and International Assistance: The Challenge of Strengthening Environmental Law in the Developing World' 25 Colum. J. Envtl. L. 17 (2000)]. It describes his experience drafting environmental laws in Tanzania and offers interesting insights on the bearing that the institutional framework has on the process of legal reform.
13. See, Leila Frischtak, 'Political Mandate, Institutional Change and Economic Reform', in J. Faundez (ed.), Good Government and Law (op.cit.)pp 95-119. See also the excellent collection of articles on this topic edited by Merilee S. Grindle, Getting Good Government (Cambridge, Harvard University Press, 1997).
14. World Bank, World Development Report 1997: The State in a Changing World (Oxford: Oxford University Press, 1997) p 151.
15. On weak and strong states see, Joel S. Migdal, Strong Societies and Weak States (Princeton: Princeton University Press, 1988).
16. See, Kathryn Hendley, 'Law and Development in Russia: A Misguided Enterprise?' 90 Am. Soc'y Int'l L. Proc. 237 (1996).
17. See, World Bank Development Report, 1997, op.cit., p 80.
18. The failed negotiations of a loan for judicial reform between the World Bank and Perú is a good example of the difficult dilemmas that multilateral agencies face when governments are less than forthcoming regarding their commitment to the objectives of the reform process. For a critique of the World Bank's role in this process see, Lawyers Committee of Human Rights, 'El Banco Mundial y la Reforma Judicial en el Perú', IDEELE (Revista del Instituto de Defensa Legal) (Lima) No. 126, Marzo, 2000, pp 73-76.
19. For an interesting proposal on how comparative lawyers can avoid undermining local legal cultures, see, Nora V. Demleitner, 'Combating Legal Ethnocentrism: Comparative Law Sets Boundaries' 31 Ariz. St. L.J. 737 (1999).
20. Some may of course argue that decision-making processes in some international organisations should be improved in order to enhance the legitimacy of their decisions.
21. For a lucid summary explanation of this argument see, T.W. Walde and J.L. Gunderson, 'Legislative Reform in Transition Economies: A Short-cut to Social Market Economy Status,' in Ann Seidman, Robert B. Seidman and Thomas W. Walde (eds.) Making Development Work (Cambridge, Mass: Kluwer Law International, 1999) pp 84-89. On this topic see also, Mohan Gopalan Gopal, 'Law and Development: Toward a Pluralistic Vision' 90 Am. Soc'y Int'l L. Proc. 231 (1996).
22. René David, ' A Civil Code for Ethiopia: Considerations on the Codification of the Civil Law in African Countries,' 37 Tulane L. Rev. 189 (1963).
23. Alan Watson, Legal Transplants (Edinburgh: Scottish Academic Press, 1974).
24. See, for example, the anecdotes recounted by Jacques deLisle, 'Lex Americana?: United States Legal Assistance, American Legal Models and Legal Change in the Post-Communist World and Beyond' 20 U. Pa. J. Int'l Econ. L. 179 (1999).
25. See, for example, Paul Drake's study of legal and economic technical assistance by a Princeton Professor in Latin America during the 1920s: The Money Doctor in the Andes (Durham DC: Duke University Press, 1989).
26. Alan Watson , 'Aspects of Reception of Law' 44 Am.J.Comp.L. 335 (1996).
27. See Juan J. Linz and Arturo Valenzuela (eds.) The Failure of Presidential Democracy: Volume 2 - The Case of Latin America (Baltimore: Johns Hopkins University Press, 1994). For a critique of this view see, Scott Mainwaring and Matthew Soberg Shugart, Presidentialism and Democracy in Latin America (Cambridge: Cambridge University Press, 1997).
28. See, Jorge Santistevan de Noriega, ' La Defensoría del Pueblo,' in Ana Teresa Revilla Vergara (ed.), Acceso a la Justicia (Lima: Oficina Técnica de Proyectos de Cooperación Internacional del Poder Judicial, 1997) pp 63- 68.
29. See, for example, H. Ieetswart, 'Labour Relations Litigation: Chile, 1970-1972' 16 Law & Soc. Rev. 625 (1981).
30. See generally, Ann Seidman, Robert B. Seidman and Thomas W. Walde (eds.) Making Development Work (Cambridge, Mass: Kluwer Law International, 1999).
31. See section 3.1.1, below.
32. World Bank, World Development Report 1999/2000 - Entering the 21st Century (Oxford: Oxford University Press, 2000) pp 18-21.
33. See, for example, Rolf Knieper and Mark Boguslavski, 'The Concept of Legal Counselling in Transformation States' in Ann Seidman, Robert B. Seidman and Thomas W. Walde (eds.) Making Development Work (Cambridge, Mass: Kluwer Law International, 1999) pp 115-144.
34. Republic of South Africa, Employment Equity Proposals (Government Gazette, Vol. 373, No. 17303).
35. T. H. Mandala, 'Affirmative Action - A South African Perspective' 52 SMU L. Rev. 1539 (1999).
36. For an authoritative history of the law and development movement, see David M. Trubek and Marc Galanter, 'Scholars in Self-Estrangement' 25 Am.J.Comp.L. 492 (1977).
37. A critical analysis of the educational objectives of the law and development movement, see James Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America (Madison: University of Wisconsin Press, 1980).
38. See generally, John Henry Merryman, 'Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement,' 25 Am.J.Comp.L. 457 (1977).
39. Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999) pp 146-159.