Presentation on Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative

Stephen Golub- Lecturer, Boalt Hall School of Law at the University of California at Berkeley

Thomas Carothers- Senior Associate, Carnegie Endowment

Introduction to Beyond Rule of Law Orthodoxy

Tom Carothers introduced Stephen Golub, author of Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative. Golub's Working Paper, the latest in Carnegie's Rule of Law Series, contends that international law and development assistance focuses too much on legal formalities, lawyers, and state institutions, and too little on development, the poor, and civil society. Indeed, he doubts whether "rule of law orthodoxy," the dominant strategy pursued by many international agencies, should be the central means for integrating law and development.

Stephen Golub's presentation clarified and expanded upon critical facets of his paper. Golub defined "rule of law orthodoxy" as "a state-centered approach that emphasizes law reform and government institutions, particularly judiciaries, to establish business-friendly legal systems that presumably spur poverty alleviation." While current mainstream rule of law assistance programs are often uncritically assumed to utilize the correct approach, closer examination reveals serious problems with the prevailing paradigm. Indeed, little evidence supports the widespread belief that the rule of law functions as a prerequisite for economic growth and current aid programs have had, at best, very limited success in establishing the rule of law in target countries. Furthermore, rule of law orthodoxy suffers from major perceptual flaws. Advocates underestimate the costs of almost exclusively focusing on institutions, especially the judiciary, fundamentally misjudge legal reform aid's potential, and rely on inaccurate sustainability myths. Yet, despite major shortcomings, legal orthodoxy draws continued strength from improper incentive structures, bureaucratic inertia, and lawyers' dominance over rule of law programs.

While recognizing that the dominant framework remains appropriate in certain cases, Golub argued that legal empowerment frequently offers a more attractive option. Broadly conceptualized, legal empowerment entails "the use of legal services and related development activities to increase disadvantaged populations' control over their lives." In contrast to rule of law orthodoxy, legal empowerment seeks to make concrete improvements in people's lives through improved access to legal services and complementary non-legal services. Legal empowerment works to reduce poverty, build civil society, encourage development, and promote human rights. While admitting that existing studies were imperfect, Golub cited a wealth of multicountry documentation detailing legal empowerment programs' substantial results on both the local and national level. Though admittedly an imperfect tool that is not appropriate for every situation, legal empowerment programs deserve an enhanced role in legal development.

Participant Discussion

Tom Carothers asked the participants, a diverse group of scholars, development specialists, and policymakers, to discuss the accuracy of Golub's portrayal of the rule of law orthodoxy and the legitimacy of Golub's criticisms. Both questions provoked a lively and wide-ranging debate. Some contributors found it problematic that Golub examined rule of law assistance in isolation from other development programs. They contended that Golub makes an artificial distinction between often-complementary programs, which prevents him from appreciating some socio-economic aid already has a legal empowerment component. Others noted the crucial gap-filling role played by current legal aid work. While many groups perform tasks similar to legal empowerment projects, traditional rule of law aid targets legal practitioners and formal legal institutions precisely because no other programs are working to establish a workable and fair judicial system.

How to understand competing notions about rule of law assistance proved a major discussion topic. One participant suggested that Golub's characterization of legal orthodoxy conflates two distinct planes: a conceptual orthodoxy about what the rule of law assistance is and why it matters and a practical, or project implementation, orthodoxy. While the former is dynamic and adaptive to previous lessons learned, the latter is stagnant and does have many of the shortcomings Golub writes about. Many participants, though not all, agreed that Golub's critique carried more weight on a practical level. Participants also debated how and where to draw the line between legal empowerment aid, traditional rule of law assistance, and non-legal, or only tangentially law-related, political and economic development programs. Likewise, they discussed in what situations legal empowerment's inherently more localized approach may or may not achieve better results than development programs that seek to influence the national government. Still, even the individuals most sympathetic towards legal orthodoxy agreed that Golub's work raised important issues that are frequently left unexamined.

In response to the audience's comments, Golub explained that legal empowerment did not preclude the possibility that traditional rule of law programs may be more effective in certain situations. Similarly, in some states, such as Afghanistan, the micro-level nature of a legal empowerment strategy makes little sense, since establishing a viable constitution supported by solid government institutions is a far more pressing task. Legal empowerment programs should not preclude other alternatives, but they should be recognized as a valid approach that deserves increased funding and a greater share of scarce resources. Golub also emphasized that legal empowerment entails far more than ensuring that government officials enforce progressive legislation or helping disadvantaged individuals navigate complex, often hostile legal systems. At its core, legal empowerment means achieving political power for disadvantaged populations in a much larger sense by using the legal system, but simultaneously realizing that the most important political empowerment activities frequently take place outside the police station or the courtroom.

Synopsis prepared by Geoffrey Swenson, Junior Fellow with the Democracy and Rule of Law Project at the Carnegie Endowment.