LGD 2001 (2) - Mauro Zamboni
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Download'Rechtsstaat': Just What is Being Exported by Swedish Development Assistance Organisations?
Mauro Zamboni
Faculty of Law
University of Stockholm
mauro.zamboni@juridicum.su.se
This paper evaluates, from a policy of law perspective, how Swedish development assistance organisations try to 'export,' specifically to developing countries, the legal model of 'Rechtsstaat'. Several are the meaning(s) and accompanying values encompassed in the use of the Western concept of 'Rechtsstaat', in particular widely used is the typology distinguishing between a 'formal' idea of Rechtsstaat and a 'material' one. Looking at the policy documents produced by several Swedish development assistance organisations, it can be noticed both how such theoretical distinction is the product of wider ideological and political underpinnings and how it can give an explanation of failures in 'exporting' Western legal concepts and categories in developing countries.
Keywords: Rechtstaat, Development Assistance, Development Organisations, Policy, Law, Sweden.
This is a Refereed article published on 19 December 2001.
Citation: Zamboni M, "Rechtsstaat': Just What is Being Exported by Swedish Development Organisations?', Law, Social Justice & Global Development (LGD), 2001 (2) <http://elj.warwick.ac.uk/global/issue/2001-2/zamboni.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/zamboni/>.
1. Introduction
This paper evaluates, from a policy of law perspective, how Swedish development assistance organisations try to 'export,' specifically to developing countries, the legal model of 'Rechtsstaat'[1]. The focus here in particular is the use by such organisations of the concept of 'Rechtsstaat' in their policy documents.
The choice of the Rechtsstaat model is a result of the fact that this legal and political concept can be seen as constituting one of the most 'Westernised' legal models[2]. By referring to the 'Westernisation' of a concept, I wish to emphasise the fact that legal ideas always tend to be, to a greater or lesser extent, carriers of the values and ethics of a society or community in which the concepts have been developed. In the case of the concept of the Rechtsstaat, it can be viewed as the most 'Westernised' for two reasons: the first based on legal-geographical grounds, and the second, on a legal-historical basis. From a legal-geographical perspective, it can be noted that the idea of Rechtsstaat is so widely spread and deeply rooted in Western legal systems and legal ideologies that it is often cited as one of the features distinguishing 'our' legal systems from 'others'. From an historical perspective, the Rechtsstaat identifies features common to all contemporary Western legal systems (with the exceptions of the United States and the United Kingdom) as they developed during the 19th Century.
Western countries are often identified as belonging to the 'Western' legal hemisphere by their very fulfilment of that which is considered the criteria needed in order to speak of the Rechtsstaat's legal model. Therefore, when the attempt is made to export and 'transplant' this legal model into 'other' legal cultures, it is natural to pose questions concerning both the concrete possibilities and the 'rightness' of such a legal transplant[3]. This paper shall attempt to address the issues of whether it is actually possible and/or 'right' to export our legal concepts and legal models to other legal communities.
The first step necessary to answer these questions is to determine the meaning(s) and accompanying values encompassed in the use of the Western concept of Rechtsstaat. The first section maps out the most common distinctions of the different types of Rechtsstaat, namely between a 'formal' Rechtsstaat and a 'material' Rechtsstaat. We shall then explore the types of legal ideologies, or values, inherent in a choice of one model over the other. This distinction is based on Max Weber's 'ideal-types' model in that such legal models do not tend to correspond to the concrete application of the ideas of Rechtsstaat but, nevertheless, they play an important role in establishing the fundamental features of a 'Rechtsstaat in reality' phenomenon[4].
The second part of the paper will investigate the concrete effects of such a 'duplication' of ideologies as found in the concept of Rechtsstaat incorporated in the policy documents of Swedish development assistance organisations. In particular, the organisations have been chosen trying to respect the cultural, social and political positions represented in the wide spectrum of Swedish development assistance organisations. Moreover, the focus here will be on policy documents which primarily deal with legal issues, either on 'building' up a legal model in the country assisted or in providing it with 'legal assistance'[5].
The third, and final, section of the paper will discuss the problems arising with the intent to 'export' this duality in the Rechtsstaat model from Sweden to developing countries.
2. The Double Dimensions of Rechtsstaat as a Legal Model
In Western legal history, the concept of 'Rechtsstaat' has probably had the broadest definition attributed to a legal concept, broader than that given to concepts such as 'democracy' or 'liberty'. Even the most 'extreme' legal cultures developed in the Western world, namely those of the Nazis and Communists, have occasionally proclaimed their adherence to an idea of State based on the principles of Rechtsstaat. Both have stated that their forms of government and their uses of the laws were in order to realise a 'true' Rechtsstaat[6].
Born in 19th Century Germany, the idea of 'Rechtsstaat' has been scrutinised by most contemporary major legal thinkers[7]. Its centrality to contemporary legal thought is evidenced by the fact that the Rechtsstaat's legal model attempts to solve the often problematic relationship between two fundamental and constitutive element of modern legal life: the State ('Staat') and the law ('Recht')[8]. This legal model has been discussed from many perspectives and points of view: legal, political, economic, ethical, historical, etc. Here the focus will be on one of the most common typology for the definition of Rechtsstaat, the distinction between a 'formal' and a 'material' concept of Rechtsstaat.
In both approaches, it is well established that the principle 'Rechtsstaat' indicates a legal model in which the public authorities have to respect the 'Recht'. That which is controversial begins with the determination of the definition of the word 'Recht.' 'Recht' can be viewed as entailing the positive law, in other words, the law which the State has itself enacted or has authorised to operate inside its borders (for example, by signing a treaty or 'tolerating' certain commercial usage). In such a case, the Rechtsstaat primarily defines a relatively[9] value-free form of legal organisation, as there is no limit to the values that the State can implement through statutes or the positive law in general. Consequently, the limit of the power of the State is simply in the form (legal or otherwise) in which its decisions have been taken. This kind of Rechtsstaat is known as a 'formal' Rechtsstaat[10].
This formal view of Rechtsstaat was the result of a defence of the 'status quo' of the conservative German legal system in the first half of 19th Century against both the bourgeois and working classes. During the first half of the 20th Century, this approach has been widely embraced by ruling bourgeois classes in order to maintain the 'law and order' ideology against rising socialist, communist and nazi legal ideologies, all of which, more or less, embraced a 'material' idea of Rechtsstaat[11].
'Recht' can also indicate a complex of 'rights,' that is, a complex of legal positions (to which certain legal qualities are attached), pertaining to individuals or groups of individuals simply because they are human and exist in the space-time dimension. This type of legal position does not have to be 'created' by the State; it must simply be 'recognised' as already existing and 'translated' into the legal world[12]. In this process of translation, public authorities can (and, to some extent, must) disregard both the forms through which and whether such rights have been recognised in the state system (for example how and whether they exist at the constitutional level). The public authorities simply 'find' the limit of their legal activities, which can be both of an executive and legislative nature, in the areas such rights are intended to protect (for example, property or life). This interpretation of the word 'Recht' implies a value-charged idea of Rechtsstaat, as it is based upon the 'independent' existence of certain values (for example, the concept of 'property') that only the State can implement, but whose existence or 'goodness' is not discussed[13]. This is known as a 'material' Rechtsstaat as the limits of the activities of the public authorities are not prescribed by the form of certain legal positions (statute or simple usage) but by the material content of such positions[14].
Until World War II, the tendency in Western legal systems has been to give space to the value-free interpretation of Rechtsstaat[15], for example as seen in the works of Jellinek (1914, pp.613-615) or Weber (1954)[16 ]. After the defeat of the nazi ideology, and under the strong influence of the American 'natural rights' orientation, Western ideology has shifted strongly towards a material concept of Rechtsstaat as found in the works of Habermas (1998, pp.132-193) and Hayek (1972, pp.72-87). The State, in order to be called a Rechtsstaat and then be 'admitted' to the symposium of Western democracies, cannot simply respect the law through application and enforcement. It must also not violate certain legal arenas, that is, spheres of activity (for example, freedom of association) and/or possession (for example, life or property) considered 'per se' relevant to the legal order, regardless of any formal (in the sense of through a specific 'form') recognition made by the public authorities (both at the legislative and executive levels).
3. The Concept of Rechtsstaat and Swedish Development Assistance Organisations
The discussion will now turn to the Swedish legal discourse concerning the Rechtsstaat. In particular, the modalities and meanings of the concept of Rechtsstaat as found in the policy documents produced by Swedish development assistance organisations concerning the possibility of the 'export' of such legal ideas into developing countries will be explored[17]. Here it can be noted that a choice between the two possible ideas of Rechtsstaat, that is, as formal legal model or as a more material one, has very practical origins and implications.
The first agency scrutinised is the International Commission of Jurists –Swedish Branch (hereinafter 'ICJS')[18]. This organisation has been widely used by the Swedish government (and its development assistance intermediary agency –SIDA) in projects directed to create and/or implement a Rechtsstaat in South Africa.
The policy adopted by the ICJS is clearly in the direction of creating a Rechtsstaat in the formal meaning. The focus of the concern is with creating a legal structure that follows the law, rather than giving the structure any specific content, or values, which such laws would have to implement. The ICJS states as a basic aim for its South Africa project that of:
'providing people … with better possibilities to claim their rights and make their voices heard within the legal system' (<http://www.icj-sweden.org> under 'Internationella Projekt' – South Africa).
That which is prioritised in this context is not the type of 'rights' to which the population has legal access, but ensuring that the population has legal access[19]. This is primarily performed with the aid of Swedish lawyers who have the task of forming groups of indigenous 'barefoot jurists'[20] operating in local legal advisors offices and 'law clinics'. The use of these terms, by both the financing agency (SIDA) and the executive arm (ICJS), is not haphazard. It is clearly inspired by the intervention in developing countries by medical international associations, primarily 'Doctors Without Borders'. These terms stresses the fact that the Swedish lawyers and their foreign counterparts are not to conduct at 'high level', namely, politically or through the legislature, discourses concerning human, social or political rights. These lawyers are simply to create base legal structures with the goal of transforming the valid law into a law in-force, regardless of the content.
The basic reasoning behind such a 'formalistic' idea of Rechtsstaat can be traced and explained by looking to the main composition and backgrounds of the members of the ICJS. The overwhelming majority of the members, and the entirety of the board of directors, are persons educated in law faculties at Swedish universities. Moreover, the majority of the directors are academicians. The Swedish faculties of law are generally known as having a strong positivistic approach to the law[21], that is, an attitude that emphasises the distinction between that which belongs to the legal discourse (the law) and that which does not (morals, ethics, politics, etc.). This results in the fact that the legal academic world becomes dominated by a policy stressing the usage of the legal tools and models in the most 'value-neutral' definition offered. This policy explains the adoption of a formal Rechtsstaat. This avoids the 'embarrassing' question of admitting the existence of 'a priori' existing values (or their legal translation, 'rights'), as would be invoked with a material Rechtsstaat. Instead, the Rechtsstaat to be built in South Africa is to primarily be of a legal structure, permitting the transformation of valid law into law in force, regardless of the content of the law.
This policy in the construction of a Rechtsstaat in South Africa is also confirmed by the policy documents produced by another help agency, the Swedish National Police Board. The primary target of their help outside of Europe, beginning in 1990's, has been South Africa. This help has taken the form of advice, an exchange of experts, training activities and, in general, the transfer of knowledge. The basic intent has been to create an efficient police force, which should be able to respect and 'enforce' the existing law within the community (Justitie Departementet, 1996, pp.13-17). On the practical level, this means that the primary goal of Swedish aid is now in the direction of the construction of a Rechtsstaat in a formal sense, where the attention of public authorities is to be focused more on a respect of existing law rather than on making the existing law more adherent to 'universal values' such as human or political rights.
Turning our attention now to Diakonia, another development assistance organisation, one sees that the meaning of the term Rechtsstaat as adopted in their policy documents changes considerably from that adopted by ICJS. Here, the development assistance organisation adopts a material meaning of the Rechtsstaat legal model. When Diakonia refers to Rechtsstaat in its documents, it is always related to a model of construction of a legal system in which such ideas/values as human and economic rights, recognised at an international law level, are to be implemented by the law, regardless of whether they are formally recognised by the national legal system of the country being assisted[22]. The Diakonia's Rechtsstaat results in the legal system actually intervening in order to protect certain rights and in order to defend and implement the legal institutions necessary for the existence and/or construction of a 'democratic' society. This is clearly a material concept of Rechtsstaat as it entails the structuring of a legal system in order to satisfy certain taken-for-granted values, for example, human rights and democracy-related rights (e.g. the right to participate in politics) (Diakonia, <http://193.13.81.214/show/index>,Ingelstam, 1998, 7).
The reason for this 'material' choice can be seen from the fact that Diakonia belongs primarily to the social sphere, that is the sphere in which legal concepts, tools and institutions are used in order to satisfy pre-established needs and values[23]. This means that, although translated into the legal discourse (to which the Rechtsstaat legal model primarily belongs), in this sphere the actors and the agencies are more concerned with the fact that such translations actually reflect their 'intimate' outer-legal values, as democracy or 'universal' human and economic rights[24]. While the agencies belonging to the Swedish legal sphere are more preoccupied with a respect for the 'formal logic' of the legal system, Diakonia and other religious development assistance organisations tend to concentrate their actions in the legal field according to a 'material logic' criteria. For such agencies, for example, the 'validity' of a decision by a court is primarily assured by its enforcing certain rights (for example the equality between men and women), not by the observation of the formal rules of legal production (for example, the fact that such equality is excluded by the adherence of the legal system in a restrictive interpretation of Muslim law).
These organisations, finally, can be viewed as embracing that which could easily be defined as a 'natural law' perspective, where the focus is on the realisation of certain values ('right to participate') not directly attributable to the legal system, as opposed to their realisation ('according to the existing valid law'). In the Swedish language, this can be seen as demonstrated by the use in the Diakonia's policy documents, as a central focus, of 'justice in a material meaning,' both in an economic and social nature (in Swedish, 'rättvisa') as the main goal of a Rechtsstaat[25]. This is because the work of development assistance organisations is intended as implementing, through legal tools, legal positions of both an economic and social nature, as stated in the UN Convention and regardless of their formal reception by the local legislator. Moreover, Diakonia policy towards the Rechtsstaat is inspired by the principle that, although the manner of implementation can vary from place to place, Rechtsstaat indicates a model of the legal apparatus directed to the realisation of certain values (namely human rights, democratisation, equality between men and women, and economic justice) with a universal and 'beyond-any-human-law' validity.
Existing within this same direction is the Olof Palme Center, a development assistance center comprising of several member-organisations. This agency also speaks of a Rechtsstaat in its policy documents within a material meaning, that is, as a form of a legal organisation of public authorities directed to the enhancement and implementation of certain values (<www.palmecenter.se>). However, in this case, the values that the Rechtsstaat is to promote differ sensibly from the ones for which religious organisations such as Diakonia are driven. While for the latter organisations the value-goals to be realised are primarily economic and political justice for the individual, for the agencies belonging to the Olof Palme Center the main goal of a Rechtsstaat is the construction and defence through the law of a strong civil society 'that can balance the power of the market and of the state'[26]. The value the Olof Palme Center consists of finding a 'way out' of the individualistic market economy, mainly though the formation of an active civil society alternative (as in the case of co-operative ventures such as the Swedish KF) or by moderating the effects of a capitalistic society (such as through labour unions).
This is not necessarily the polar opposite of 'individual justice', but the value of a 'civil society-creation' operating more on a 'collective dimension' does not necessarily imply the satisfaction of individual needs for political and economical justice. For example, the enforcement by local organisations of co-operative production as an alternative to the market and its individualism, does not necessarily imply an increase in 'economic justice' for the individuals belonging to such co-operatives or trade unions, as the different efforts, capacities and contributions of each individual are not considered.
Similar to the Diakonia and the other religious organisations, the Olof Palme Center's legal discourse concerning the type of Rechtsstaat to adopt is influenced by the fact that the member-agencies primarily belong to non-legal spheres. The agencies are composed mostly of persons active within both the political sphere (namely the Socialdemocratic party) and the trade unions (Lands Organisationen ) and co-operatives' world (Konsument Förening). They focus their attention directly on the 'social,' 'political' and 'economic' implications and values that can be pursued by adopting a Rechtsstaat legal model, without considering the more 'formalistic' and 'logical/legal' aspects.
In addition to the development assistance organisations, two other institutional actors are important in determining the meaning and practical implications of the idea of 'Rechtsstaat' within the legal discourse concerning legal assistance to developing countries. These two actors, namely the Government/Parliament and the Swedish faculties of law, play an important role in determining the content of the policy adopted by the development assistance organisations when it comes to the idea of Rechtsstaat in developing countries.
As to the political actors, their perception of the Rechtsstaat is significant as the vast majority of the agencies operating abroad receive the financing for the legal assistance of their projects almost entirely from SIDA[27]. The latter, although formally independent from political ties, is in its turn entirely financially dependent upon the political actors. Moreover, 'the Parliament and the Government decide on the economic frameworks, with which countries we shall conduct a partnership of development and what kind of direction the co-operation shall have'[28]. This indirect (that is, via SIDA) economic dependency of development assistance organisations upon the political actors renders the policy laid down by the Swedish political authorities concerning the development of a Rechtsstaat significant in developing countries. From the documents produced both by the government and the Parliament, it is clear that the actors inside the political sphere tend to identify Rechtsstaat with a legal state construction directed to the implementation of certain values. This means that the dominant concept of Rechtsstaat within the political sphere is a material one, loaded with 'the basic values' of Swedish society[29].
A problem arises when one attempts to determine what these 'basic values' are. Despite the common policy choice (a material Rechtsstaat), the values that the political actors indicate as primary goals of a Rechtsstaat differ considerably from the ones identified by the development assistance organisations. Until the 1990's, the major concern was the implementation within assisted countries of certain political values through the law, for example the Social democratic idea of 'social equality'. During the conservative government (1992-96), the values to be implemented were changed considerably in content but not in type. It was an issue of the implementation of material values (not 'to respect the law' but always 'to respect x right'). However, now the attention is more focused on more 'liberal' ideas such as 'democracy' and 'human rights'. Nowadays, the political sphere, as a majority and in following the directions indicated at international levels[30], has more and more stressed the importance of a Rechtsstaat as a legal system implementing, protecting and ensuring a free market economy. Development assistance organisations are to help third world countries build up a legal system that, for example, recognises and protects individual private property. The first value the Rechtsstaat is to implement is economic, in other words, the economic development of the poorest countries and of the poorest populations within them. Of course, this is to be done balancing such development with other value-issues, such as environmental protection, human rights, etc. However, the political sphere advertises free market economy development as the 'primary motor' of any other kind of development. This is in contrast to other development assistance organisations (such as the Olof Palme Center) that tend to focus their efforts in constructing a legal space where the economic activities of civil society organisations are permitted and protected as an alternative and moderation to a free market economy.
The other actors important to the concept of Rechtsstaat as implemented abroad are the Swedish law faculties, actors primarily belonging to the legal sphere. Their importance in this context can be seen from two main developments. First, in recent years, more and more projects have had a direct engagement by the law faculties of Swedish universities as main legal development assistance organisations, sending their own personnel directly into third world countries (like the case with Vietnam and Umeå University, Sevastik, ed, 1997b, 7). Second, law faculties have always had an indirect impact on the implementation in third world countries of legal models, such as the Rechtsstaat. It is usually Swedish law faculties that train Swedish lawyers and legal experts, who in their turn are sent to third world countries as 'legal experts'.
As stated above, the general attitude towards the concept of Rechtsstaat within the Swedish academic world is, with some few exceptions, of formal nature[31]. This is due to the fact that the positivistic attitude described above is combined with the adoption, within the highest legal source in Sweden, namely the Swedish Constitution, of a typical 'formal' interpretation of that which is to be intended for a Rechtsstaat[32].
On the other hand, these lawyers and legal experts often operate, after receiving their formal training, in agencies (such as Diakonia) or public authorities (such as the Government), which usually have adopted a policy of a material interpretation of the Rechtsstaat model. Once within the organisation, the individual's concept of Rechtsstaat then must shift inconsistently from the extremely formal, that is, to make the public authorities in the assisted country obey the law, to the material, that is, to make the legislator enact legal measures directed to protect and/or implement certain economic, political or social values 'consistent to the Swedish basic values'.
This is particularly evident with the legal experts working for SIDA. On one side, they have been indoctrinated as to the formal characterisation of that which a Rechtsstaat should be. On the hand, they are under 'pressure' from the actors belonging to the political sphere, demanding legal intervention in developing countries directed to implement and make possible a free market economy. Moreover, SIDA's legal experts have contact with and determine the financial support given to development assistance organisations belonging to the social sphere. Such agencies, like Diakonia or the Olof Palme Center, have as a main purpose the 'satisfaction' through the legal model, of universal values and human needs. These values, in their turn, do not always fit into a free market legal and economic context, at least as 'normally' intended when expressed in a 'western capitalistic' context[33].
For example, the right of a certain tribe to maintain its traditional form of the collective use of land is sponsored by the Olof Palme Center, being a right of self-determinacy, a right that a material Rechtsstaat 'has to' implement. This can clash with the protection of the right of individual private property as implemented by statute, a statute formed under the 'consultancy' of experts sent by the Swedish Government. At the same time, legal experts (such as those within the ICJS), following their formal idea of Rechtsstaat, still focus their efforts on creating a functioning legal system regardless of its content.
This last section discusses a series of problems that arise in the contemporary use of the concept of Rechtsstaat in the legal discourse of Swedish development assistance agencies.
First, there is a need for clarification, at least on a policy level. A summary of the content of the legal ideas and ideologies behind the concept Rechtsstaat as used in the legal discourse, both of the public authorities and the assisting organisations, should be drawn. An answer should exist that, if not unique, should at least be consistent, as to the question of the type of Rechtsstaat (formal or material) to which Swedish legal assistance should be directed.
This question, which may appear to be highly theoretical, actually presents very down-to-earth aspects. For example, accepting a formal concept of Rechtsstaat is to accept an ideology according to which 'the valid law has to be enforced'. This implies increasing help and education in a legalistic direction (that is, the observance of law validly enacted) for the judicial and police forces, the primarily tools for the enforcement of law. In contrast, with the acceptance of a more material concept of Rechtsstaat, Swedish development assistance organisations will focus more on political authorities (to initiate a process 'to make certain rights laws'), legislative authorities (in order to formally enact such laws) and grassroots organisations, such as women's rights movements (both to promote such legislative process and to check and 'help' its application in the field). Therefore, a unique approach is most likely necessary, within either the material or formal direction, to maximise the efficiency of Swedish intervention abroad.
This need for a unique approach of Rechtsstaat within the legal discourse is more emphasised with the acceptance of the material concept. The problem of adopting such a solution is, indeed, that the different Swedish development assistance organisations can, and usually do, then promote different kinds of values through the legal idea of Rechtsstaat. They claim, and operate in such a way that the legal apparatus of the state has to enforce certain values recognised as universal. The problem that then arises is that different organisations tend to promote different and often clashing values. For example, development assistance organisations, such as those belonging to the Olof Palme Center, stress the basic value of legal co-operative forms of organisations (in order to have a strong role for civil society within in the economy of a country)[34]. On the other hand, political actors and SIDA regard the legal recognition and implementation of forms of individual private property rights as the highest priority in their assistance to third world countries (in order to establish a free market economy).
Moreover, the legal discourse floats between two poles, or better, two complexes of values (in the previous example, the co-operative model and the individualistic model) that actually are typical 'Western' produced values (either with a social-democratic origin or liberal). There can be, and it often happens, a crisis of rejection towards values felt as completely foreign to the local legal culture. For example, on a legal level, the desire to implement the value/right of appeal against 'unfair' decisions by administrative bodies can be felt as 'disrupting' or 'endangering' the harmony of the societal community in many Asiatic legal cultures, which are still based on the Confucian idea of resolving legal problems via non-legal means (mainly through the discussion and compromise of different interests, not appealing to the idea of a 'right' and a 'wrong').
Even if this rejection of 'Western-based' values does not occur, another problem can arise: the actual implementation and enforcement of values by the legal instruments and tools incorporated with the concept of Rechtsstaat. In many of the states helped by Swedish organisations, the valid law actually recognises and protects certain values that are considered a basis for each Rechtsstaat, for example, human rights, and they have also enacted procedural rules created for the application and realisation of these laws. That which is lacking is the culture of a formal Rechtsstaat among the main actors inside the legal sphere, in other words, judges and police forces at their disposal. This mean that certain rights cannot be implemented in these communities, as either they are not the products of the monopoly of force (for example, the judges lack the legal tools to make their decision a 'reality') or such a monopoly is not sanctioned by the imprint of legitimisation (the decision of the judges, despite being valid law, are not considered as such by the police forces and therefore are not implemented). In both cases, that which is lacking is a functioning legal system, a legal system that, accepting a 'minimal' idea of Rechtsstaat, has as a primary goal the focus for the actors inside the legal sphere to be responsible for their duty of transforming 'valid law' into a 'law in force'.
Another comment can be made as to the results of Swedish projects directed at providing legal assistance to underdeveloped or developing countries in constructing a Rechtsstaat. The problem arises with defining the degree of 'success' for such projects. In particular, it appears to be difficult to speak of a 'successful' program when introducing a material, value-loaded Rechtsstaat model into a country. This is due to the fact that the criteria, or values encompassed by a certain model, namely the Rechtsstaat, are determined by the assisting country, and not by the country assisted. At its conclusion, the success of a program implementing a Rechtsstaat is evaluated according to whether the values of the organisation have been implemented through legal tools, i.e. whether the development assistance organisations succeeded in getting their ideas through. For example, is the concrete implementation of the institution of private property in a country 'successful' for the receivers of such values, which probably view this new legal form as a form of 'implantation' bearing with it 'foreign' extra legal-values or ideas (for example, the prevalence of the individual within the community), or is it more 'successful' for the Swedish companies that can now operate there 'on their own legal terms'?
One thing that should be kept in mind is that the definition of the success of a certain project is not exhausted by considering only the impact such project had on the legal system of the country assisted. That which is also pertinent to any evaluation is whether such impacts or modifications of the legal system are simply the product of the transplantation of a 'foreign' tissue inside a local legal body, or whether they are the actual products of an endogenous process. The latter, although fermented with foreign help and sustained by 'counsellors', is developed by the same 'supported' community and consists of the realisation of 'indigenous' values through the law. If such an endogenous process is desirable, then the most appropriate tool is a 'minimal' concept of Rechtsstaat, where the duty of 'foreign' help merely consists of ensuring that the law will be respected and implemented into real life, regardless of its content.
This last thought dovetails the choice Swedish development assistance organisations have made between a formal and a material concept of a Rechtsstaat. As we have already seen, the different interpretations have a significant impact on the practical level, both in the direction and modalities of help. Despite the statements made by both political and social actors within policy documents, the choice of which Rechtsstaat to implement is not made according to the type and conditions of the assisted State's legal system. To the contrary, the choice is based on the internal conditions and orientations of the development assistance organisations. If the organisation is of a political nature, such as the Olof Palme Center, it will opt for a material Rechtsstaat. If the agency is of a more legal nature, such as the ICJS, it adopts a more formalistic idea of Rechtsstaat.
This disregard of the conditions of the legal system of the State being assisted is demonstrated through a comparative analysis between the projects involving the construction of a Rechtsstaat in South Africa and in Vietnam. The main goal of the Swedish legal intervention in South Africa was the construction of a 'formal' Rechtsstaat, that is of a legal system where the legal actors (judges, lawyers, police officers) are educated and trained to respect and implement valid law. In Vietnam, the main idea behind the legal intervention financed by the Swedish government was to implement a material Rechtsstaat, a legal order where the legal actors (in particular at a legislative level) implemented certain 'values' (for example, human rights or private property) considered 'universally valid' (in other words, internationally valid regardless of their formal enactment in the form of a valid national law). This difference in attitudes taken cannot be traced back to the conditions of the countries.
The South African legal system is actually stronger than the Vietnamese system[35]. The concept of a judicial power autonomous from the political one is stronger in South Africa. Disputes tend to be resolved in a more predictable fashion and the behaviour of the police force is under more judicial control than in Vietnam. Regardless of these facts, the Swedish intervention in South Africa focused on making people obey and observe the law, instead of intervening and providing a specific content for the legal rules, rules that were (more or less) already being observed. In contrast, in Vietnam attention was focused on giving the legal system a certain 'content' despite the fact that the judicial system and the legal sphere in general were absolutely unable to transform such a 'valid' legal content into an 'in-force' legal content, i.e. into legal rules and normative behaviour concretely observed and followed by the population[36].
While in South Africa, the emphasis most likely should have been to 'give' directions (i.e. values to realise) to the working legal machine, in Vietnam, the most paramount need was the construction of a system for the effective implementation of the law; only then would it be possible to give a specific direction to such a system (for example, with respect to the implementation of human rights)[37].
In summary, Swedish efforts in South Africa were focused on a stronger observance of the law than it already (more or less) received. In Vietnam, the focus was on giving a certain content to the legal rules, rules that while valid law were not a law in force.
The basic criteria for these choices of less appropriate types of Rechtsstaat for South Africa and Vietnam were not the result of an evaluation based on the conditions of the legal situation of the country assisted, but rather upon the composition and orientation of the assisting agencies, namely legal for ICJS in South Africa and political for Vietnam. In summary, the model of Rechtsstaat was chosen not according to the 'on-the-field' legal conditions, but rather by the 'at-home' situation of the development assistance organisations.
The purpose of this paper has been to explore the types of legal policies underlying the attempts of Swedish assistance development organizations to export typical 'Western' legal concepts and models to other, very different social and legal contexts. This is not a sociological survey so no analysis has been conducted as to that which has actually occurred within Vietnam or in South Africa when the Swedish legal assistance was delivered. Instead, the theme here has been on the enquiry of legal policy; therefore the focus has been on the Swedish legal discourse concerning the 'export' of the Rechtsstaat legal modelling, the types of ideologies behind each actor's choice as to the interpretation of such modelling and the types of outputs such discourses have actually produced[38]. Moreover, the paper has tried bring to the surface the potential problems that can arise in choosing one concept of Rechtsstaat over another, as well as the dissonance arising through the conflicting actions of the Swedish assistance development organizations.
There are two lessons that can be drawn from the above discussion. The first is that the 'globalisation' process occuring inside the legal world, and the consequent circulation of legal models[39], is not a process than can be 'taken-for-granted'. To 'export' a legal model to a foreign legal culture does not necessarily mean that such model will be 'imported' by the adressee country. As was the case in Vietnam, within the legal world there still exists a wide open space between the 'law in books' (i.e. valid law) and 'the law in action' (law in force). To place Western legal ideas into a written constitutional or a legislative format does not necessary mean that such ideas become a part of the local legal culture and a working legal system. The Swedish assistance development organizations, in their legal policy process, have to invest more resources (both financial and human) to preliminary investigations and scrutinize the actual conditions of the legal system and culture of the country assisted. In particular, as the initial phase they must focus on the existence (or lack thereof) of a properly working legal order, where legal norms (regardless of their content) are actually implemented by independent courts, and the police forces act according to the legal norms which are a part of the valid law in the country (either because they are directly produced by national legislative organs or because they are a part of treaties or conventions signed by such organs). Otherwise, it is quite pointless to narrowly describe and prescribe what kind of directions (i.e. values) a machine (i.e. a legal system) has to take, when this machine does not work properly or does not work at all (i.e. the law is simply valid law without becoming a law-in-force).
The second lesson to be drawn concerns the legal ideas and concepts which Swedish development assistance organizations wish to export. As this discussion demonstrates, the legal ideas 'taken-for-granted' as belonging to Western legal history are often not so 'taken-for-granted'. The dilemma between a 'formal' interpretation of a Rechtsstaat legal modelling and a 'material' one (with its far-reaching practical consequences on the entire legal system) is often not resolved in the exporting country. There is, therefore, a need for a policy co-ordination between the different assistance development organizations in order to reach a common base upon which to operate. 'Co-ordination' does not necessarily mean 'homogeneity' in that the different agencies cannot adopt a unique idea of Rechtsstaat. The understanding must exist within these organizations that in the absence of such a co-ordination, the risk exists of sending contradictory messages (e.g. 'respect always the positive law' and 'respect always the human rights, even if the law states the opposite') to the same target-country.
1. In order to avoid controversy concerning the translation of the term, 'Rechtsstaat' to English, for example, to 'State governed by law' or 'Constitutional State,' I have simply used the German expression. The term 'Rechtsstaat' is a unique legal concept in that it encompasses both the complex problem of the relationship between the public and private sectors on one hand, and the legal order on the other (Böckenförde, 1991, pp.47-48). According to Böckenförde, a noted German scholar, it is not even possible to translate the concept of Rechtsstaat into French. This perhaps, is not entirely correct as the French concept of 'État de droit' seems to parallel many of the features of the German 'Rechtsstaat'. Both schools define Rechtsstaat/État de droit as a legal model based on the premise that the State should act in accordance with pre-existing general norms. It is true, however, that the French doctrine has focusedon the separation of powers and the respect for 'natural rights', as recognised in the revolutionary Declaration of the Rights of Man and of the Citizen (Chevallier, 1994).
2. Another typical Western legal concept, similar to that of the Rechtsstaat, is the 'rule of law'. Although these concepts may appear identical, as noted by McCormick, a Rechtsstaat requires as a fundamental and constitutive element, the existence of a State, which is not directly necessary for a 'rule of law'model. Important in the latter model is the role played by the courts, which guarantee respect for the law by both the Government and the public authorities (McCormick, 1984, pp.65-66).
3. As to the 'transplantation' of legal rules and concepts (although in a more legal historical perspective), see the debate which can be found in the comparative legal literature particularly between Alan Watson ( 1993) and William Ewald (1995).
4. 'The ideal type [is] essentially… a mental construct for the scrutiny and systematic characterisation of individual concrete patterns which are significant in their uniqueness' (Weber, 1949, pp.99-100). This means that in reality it is not possible to draw a sharp distinction between the concrete application of a 'formal' Rechtsstaat and a 'material' Rechtsstaat. For example, often hidden behind the 'formal' idea of Rechtsstaat are values which this legal model is directed to implement, as can be seen in the 19thCentury with the rejection of the individualistic orientation of the 'law of reason' (see footnote n. 14). As pointed out by Böckenförde, the formal neutrality of a concept does not necessarily guarantee its 'political neutrality' (Böckenförde, 1991, pp.54 and 60). However, a distinction can be drawn at the policy level, which focusses on whether organisations in their policy documents explicitly attach certain values to the legal definition of Rechtsstaat.
5. All the projects submitted by development assistance organisations, deal with, to a greater or lesser extent, 'legal' issues (e.g. the creation of a micro-credit system in Latin America inevitably intersects with the legal models of taxation or business law in the assisted country). Here attention will focus on the projects primarily directed to 'solve' or 'export' legal issues and legal solutions.
6. However, this cannot be said of the most prominent of the scholars of the Nazi legal thought, namely Carl Schmitt.
7. Some authors trace the origins of the Rechtsstaat ideology back to article 39 of the Magna Charta signed in 1215. The fact that the Charta states that the power of the king is 'legally' bound does not allow us to speak in terms of a Rechtsstaat's legal ideology (Zippelius, 1991, p.281).
8. It is worth mentioning that, according to Kelsen, the concept Rechtsstaat is pleonastic. Kelsen stresses that each Stateis a Rechtsstaat, since the term 'State' is used to identify a specific type of legal order, i.e. a complex of legal norms ('Recht'). However, he recognises that Rechtsstaat usually indicates a State that has some specific features (like an administration bound to legal norms,or an independent judicial system or the guarantee of some fundamental liberties) (Kelsen, 1970 , pp.312-313). See also the interpretation of Kelsen's Rechtsstaat's theory, (McCormick, 1984, p.67).
9. This can be viewed as relatively value-free asthe choice of this kind of interpretation is already, per se, value-loaded. A basic initial-value choice always exists. An individual or authority may choose to implement only those kinds of values that have been created/recognised by the State, according to their own specific (legal, political or ethical) orientation. Their choice is then justified as the 'right' choice, as their values have been verified by the State. Perhaps the chosen values have not been formally recognised by any particular state authority, but they still 'operate' as a normative factor. However, there are two arguments in favour of this relatively value-free interpretation. Firstly, certain personal values tend to influence the interpretation of a legal activity, not the legal activity in itself. Secondly, once the fact that the initial act of choice is value-loaded is explicitly recognised, this creates space for an interpretation that is more 'open'-oriented towards alternative value-positions (Weber, 1949, pp.82-84).
10. This was the interpretation adopted in the 19th Century by the most conservative representatives of the Rechtsstaat's ideology, primarily, Fredrich Julius Stahl. His 'formal' definition of Rechtsstaat was based on the idea that the legal system of the State should not be 'contaminated' by human (i.e. social, economic or moral) values; the legal system was simply a machine to be used to reach 'far-beyond' values (or, in Stahl's word, 'God's plan for the world', Stahl, 1830-56).
11. The the use of a formal concept of Rechtsstaat by the ruling groups can be explained from a legal theoretical perspective, by the fact that the formal approach, in neglecting the 'material' aspects of the Rechtsstaat, also expels the 'purpositive aspects' (i.e. of social or economic reforms) from the juridical concept of the State (Böckenförde, 1991, p.58). However, this is simply a tendency, and therefore examples can be found in legal history with respect to ruling groups adopting a material idea of Rechtsstaat ( e.g. the Nazi or Soviet legal regimes).
12. See, for an international law perspective as to this inherent feature of the Rechtsstaat model, Aubert, 1989, pp.412-413.
13. Böckenförde speaks of a 'material' Rechtsstaat when the model of the legal system is created to satisfy 'supreme legal principles and legal values' (Böckenförde, 1991, p.66). It perhaps would be more correct to speak of 'supreme values' of an extra-legal nature (e.g. economic, social, moral or religious), as the formation of a 'formal' Rechtsstaat is per se a value of a legal nature.
14. Despite the fact that some of the features of this 'material' concept of the Rechtsstaat are already present in Kant's legal philosophy, the first representative of this interpretation is usually considered to be the liberal legal scholar Robert von Mohl. According to von Mohl, the 'Rechtsstaat' is a State where the legal apparatus is governed by the 'law of reason'. This is a material concept of Rechtsstaat as the legal order, and the State apparatus in general, had as the supreme goal the respect not only of the existing positive laws but also of the principles of reason. Such principles were a mixture of liberal principles (e.g. freedom of belief), political principles (e.g. parliamentary control concerning legislation) and legal principles (e.g. equality before the law) (von Mohl, 1829, and, more clearly, in von Mohl, 1866).
15. It is true, however, that the material concept of Rechtsstaat started to receive more attention within the German legal system and doctrine already with the promulgation of the Weimar Constitution (1919), which recognised the existence of 'social rights' that the State apparatus had to enforce (Böckenförde, 1991, p.66).
16. Particularly important is Weber's focus on formal rationality as a modality of legal thinking in a fully developed capitalistic society.
17. The most comprehensive book on this subject in English certainly is Legal Assistance to Developing Countries: Swedish Perspectives on the Rule of Law (1997).
18. Differing from the Swedish Branch, the policy of the International Commission of Jurists as a whole focuses its attention more on the 'rule of law' idea than on the 'rechtsstaat' concept. See the policy document of ICJ on the Internet, <http://www.icj.org> under 'Objectives'.
19. This same approach by the ICJS has been argued for the full implementation of Rechtsstaat in Sweden also. As to the latter, attention has been focused both on the role of the courts and on the implementation of 'access to justice' (in Swedish, rättshjälp, <http://www.icjsweden.org/rattsstatenmfl.htm>).
20. Similar to the barefoot doctors, barefoot jurists are those legal specialists whose work is primarily directed to give simple and unpretentious legal advice and counselling without getting involved in more extensive issues of a political or national nature.
22. This approach as taken by Diakonia is valid as general legal policy, in other words, it does not change according to the region of intervention by the religious development assistance organisation (Ingelstam, 1998, p.25).
23. In the terminology of Weber, it can be posited that in the social sphere, the actors tend to operate according to a 'substantive rationality' of the law. This means that though they still use legal language in suggesting solutions for legal problems, they do so in order to satisfy values external to the formal logic of the legal system. At the opposite end of the spectrum, the actors belonging to the Swedish legal sphere tend to follow a 'formal rationality' criterion. This means that, in the law-making and interpreting process, they tend to take into consideration primarily the logical adherence of definitions and already fixed legal concepts in the form of highly abstract rules. In other words, they attempt to create norms through a logical generalization of abstract interpretations of meaning (Weber, 1954, p.63).
24. These types of values are defined as outer-legal not because they do not have an impact on the legal system but because they are primarily thought of as producing effects upon other systems, such as economics or politics. For example, democracy has the primary goal of the modification of the political and (as in the case of Dahl's theory) the economic systems, although it also has a significant impact upon the legal system (Dahl, 1985).
25. In contrast, the Swedish word 'rättsfärdighet' identifies the process through which judicial or legislative decisions adhere to strictly formal legal criteria, for example, jurisdiction.
26. In this perspective, grassroots aid organisations and other collective entities are considered instrumental for the realisation of such an ideal of 'justice' (<www.palmecenter.se> under 'About the Olof Palme International Center').
27. See the statistics concerning Diakonia, for example, where projects concerning 'democracy and human rights' were funded in 1999 by SEK 94.8 million given by SIDA and only SEK 1.2 million was 'own resources'.
28. See the policy documents of SIDA on the Internet (<http://www.sida.se> under 'Så arbetar Sida').
29. Regeringskansliet, 1997 and 1998: 'We need… to pay particular attention and respect to the ideas, culture and situations of others. Such attention, however, can never lead to Sweden disregarding or compromising its own basic values' (translation from the Swedish, italics added).
30. See in particular the document by the OECD/OCDE – Development Assistance Committee (1996), which is based on several conferences organised by the UN during the 1990s.
31. This is not to say that exceptions cannot be found in particular among scholars within public international law and comparative law, i.e. within disciplines which are per se forced to be more open to non-national influences (Fogelklou, 1997, pp.33 and 39).
32. The Swedish Constitution, Chapter I, article 1, 3rd paragraph states: 'Public power shall be exercised under the law'. At the opposite end of the spectrum, a substantive idea of Rechtsstaat is adopted in the German Constitution, art. 20, paragraphs 3: 'Legislation is subject to the constitutional order; the executive and the judiciary are bound by law and justice', and 4: 'All Germans have the right to resist any person seeking to abolish this constitutional order, should no other remedy be possible' (italics added). Thus it is clearly stated in the German Constitution that the mere obedience by public authorities to the valid law (i.e. that which is required by the 'formal' idea of Rechtsstaat) is not sufficient to speak of a Rechtsstaat-based legal system, but also includes a 'value-justice' as constitutive segment of a Rechtsstaat.
33. An example of such a shifting of attitude from a 'formalistic' idea of Rechtsstaat to a 'material' one can be found in Sevastik's contribution to the book Legal Assistance to Developing Countries (1997). While on page eleven he clearly adopts a formalistic perspective in stressing the necessity of education in law schools for creating 'obedient' legal practitioners and judges, on page eighteen he embraces a more material position, where the Rechtsstaat is identified with pursuing the values of democracy and human rights (or, as on page 23, more in general by adopting 'Western standards').
34. It should be noted that within Swedish political and legal discourse, only in very recent years has the idea of 'civil society' as complex of grassroots organisation and their goals and operative modalities, as an alternative to the State apparatus, been included. Until the 1990s, the Swedish concept of the function of 'civil society' was more of a complementary character to that of State. This can partially explain why, within many development assistance organisations' policy documents, it is considered absolutely normal to mention the goals civil society is to pursue inside the wider spectrum of the ultimate goals of the activities of the State apparatus.
35. 'Stronger' here does not have a qualitative denotation ( e.g. it does not mean 'superior). It simply means that the South African legal system, compared to the Vietnamese one, has a stronger presence, as a legal regulatory order legitimised by and in the vast majority of the population and public authorities and in the everyday life of both the national and the local communities.
36. Among the main critics concerning the ineffectiveness of the work within the Vietnamese legal system, see in particular Ove Bring's article (1998), in particular pp.28-34. Bring uses the English terminology of 'rule of law' and 'rule by law' instead of 'material' and 'formal' Rechtsstaat, respectively, and he stress the importance of the adherence of the Vietnamese legal system to a 'material' perspective, including in particular human rights.
37. Of course, in reality there is no clear-cut distinction between the construction of legal machinery and the predisposition of such machinery towards certain directions. Many 'pure' procedural aspects or mere technical legal devices actually imply the acceptance of certain extra-legal 'values'. For example, the idea of a judicial review of administrative acts implies the acceptance of the value/idea that judges actually can control the executive power (an idea, for example, rejected by the French legal system until the end of 19th Century). However, it is probably easier for an assisted country to receive such values cloaked in a more 'procedural' form, such as the value choice of applying the principle of pacta sunt servanda within private law, than when they have a specific 'Western' substantial connotation, such as the idea of property rights or the rights of women.
38. It is important to stress the fact that one speak of outputs when referring to the effects of the process of conversion from ideology into a specific system (legal, political, economic, etc.); outcomes, on the other hand, refer to the type of impacts such outputs/products have on the surrounding systems.
39. This theory is clearly formulated in an article by Heger Boyle and Meyer (1998).
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Hyperlinks
International Commission of Jurists' policy documents: <http://www.icj.org>.
International Commission of Jurists –Swedish Branch policy documents http://www.icj-sweden.org>.
Diakonia' policy documents <http://193.13.81.214/show/index>.
Olof Palme Center's policy documents <www.palmecenter.se>.
SIDA's policy documents <http://www.sida.se>.