Promoting the Rule of Law Abroad: In Search of Knowledge

384 Pages·2006·5.317 MB·English

by  Thomas Carothers

Promoting the
Rule of Law Abroad
Democracy and Rule of Law Books from the
Carnegie Endowment
Uncharted Journey: Democracy Promotion in the Middle East
Thomas Carothers and Marina Ottaway, editors
Critical Mission: Essays on Democracy Promotion
Thomas Carothers
Aiding Democracy Abroad: The Learning Curve
Thomas Carothers
Democracy Challenged: The Rise of Semi-Authoritarianism
Marina Ottaway
Open Networks, Closed Regimes: The Impact of the Internet
on Authoritarian Rule
Shanthi Kalathil and Taylor C. Boas
Funding Virtue: Civil Society Aid and Democracy Promotion
Marina Ottaway and Thomas Carothers, Editors
The Third Force: The Rise of Transnational Civil Society
Ann M. Florini, Editor
Assessing Democracy Assistance: The Case of Romania
Thomas Carothers
To read excerpts and to find more information on these and other
publications from the Carnegie Endowment, visit
www.CarnegieEndowment.org/pubs.
Promoting the
Rule of Law Abroad
In Search of Knowledge
Thomas Carothers
CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE
Washington, D.C.
© 2006 Carnegie Endowment for International Peace. All rights reserved.
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Library of Congress Cataloging-in-Publication data
Promoting the rule of law abroad : in search of knowledge / Thomas Carothers,
editor.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-87003-219-6 (pbk.)
ISBN-10: 0-87003-219-4 (pbk.)
ISBN 13: 978-0-87003-220-2 (cloth)
ISBN-10: 0-87003-220-8 (cloth)
1. Rule of law. 2. Justice, Administration of. I. Carothers, Thomas, 1956– II. Title
K3171.P78 2006
340'.11—dc22 2005030472
11 10 09 08 07 06 1 2 3 4 5 1st Printing 2006
Contents
Foreword by Jessica T. Mathews. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Preface. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv
Part I. Framing the Challenge
1. The Rule-of-Law Revival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Thomas Carothers
2. The Problem of Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Thomas Carothers
Part II. Questioning the Orthodoxy
3. Competing Definitions of the Rule of Law. . . . . . . . . . . . . . . . . . 31
Rachel Kleinfeld
4. Mythmaking in the Rule-of-Law Orthodoxy. . . . . . . . . . . . . . . . 75
Frank Upham
5. A House without a Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Stephen Golub
6. Lessons Not Learned about Legal Reform. . . . . . . . . . . . . . . . . 137
Wade Channell
7. The Legal Empowerment Alternative. . . . . . . . . . . . . . . . . . . . . 161
Stephen Golub
v
vi contents
Part III. Regional Experiences
8. A Trojan Horse in China? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Matthew Stephenson
9. The Complexity of Success in Russia . . . . . . . . . . . . . . . . . . . . . 217
Matthew Spence
10. Middle East Dilemmas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
David Mednicoff
11. Time to Learn, Time to Act in Africa. . . . . . . . . . . . . . . . . . . . . . 275
Laure-Hélène Piron
12. Measuring the Impact of Criminal Justice Reform
in Latin America. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
Lisa Bhansali and Christina Biebesheimer
Part IV. Conclusions
13. Steps toward Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
Thomas Carothers
Bibliography. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
Carnegie Endowment for International Peace . . . . . . . . . . . . . . . . . . 365
Foreword
as thomas carothers observes in the opening chapter of this book,
the rule of law is often held out these days as the solution to almost
every international policy problem, from consolidating shaky democratic
transitions, establishing sustainable economic development, and stabi-
lizing post-conflict societies, to fostering new global norms. A concept
that one rarely heard much about in foreign policy circles during the
Cold War is enjoying a heady run on the international policy stage.
With the rise of the ideal of the rule of law has come a mushrooming
world of rule of law promotion. Almost every type of development or-
ganization, from the multilateral development banks and bilateral aid
agencies to private foundations and international activist groups, has
created programs to help revitalize laws and legal institutions through-
out the developing world and the postcommunist countries. These pro-
grams often shine with promise but profound questions exist about how
much they really accomplish and whether this new rule of law commu-
nity has rushed ahead with actions far in advance of any real under-
standing of the true nature of the problems to be solved.
In this book, Thomas Carothers, who has done so much in the past
fifteen years to take the measure of democracy promotion, turns his sights
on the burgeoning domain of rule of law assistance. In two magisterial
opening essays he charts the rise of rule of law promotion then provoca-
tively asks whether despite all their activity and self-confidence, rule of
vii
viii foreword
law promoters really know what they are doing. There follows an ab-
sorbing series of commissioned essays by a group of unusually insight-
ful rule of law practitioners and scholars who take up his challenge of
searching for solid knowledge in this critical domain. The first set of
essays present penetrating critiques of different elements of what one
author identifies as the “rule of law orthodoxy” prevailing in the inter-
national development community. The second set critically assesses the
experience of rule of law promotion in different regions, ranging from
the successful efforts by the United States to promote criminal proce-
dure reform in Russia to the expanding world of programs to help China
achieve the rule of law.
The result is a substantial step forward in the search for understand-
ing of rule of law promotion. As with other books by Carothers and his
colleagues in Carnegie’s remarkably successful Democracy and Rule of
Law Project, I have no doubt that this work will quickly be accepted as a
standard reference in the field, one that establishes an incisive analytic
framework for this new area of endeavor and establishes a foundation
of knowledge that others will spend years building upon.
Jessica T. Mathews
President, Carnegie Endowment for International Peace
Preface
thomas carothers
the first trip i ever took for democracy promotion work was to
Haiti in 1986 to assess that country’s judicial system in the wake of the
ouster from power of Jean-Claude Duvalier (“Baby Doc”) several months
before, and to come up with recommendations for a judicial assistance
program. I was just out of law school and was serving on an assignment
from the State Department’s Legal Advisor’s office in the newly estab-
lished Office for Administration of Justice and Democratic Development
in the Latin America bureau of the U.S. Agency for International Devel-
opment (USAID). This was the first democracy promotion office in
USAID since the end of the wave of political development programs of
the 1960s and one of the starting points for what would soon become a
large-scale expansion of U.S. democracy-related assistance.
As I interviewed judges, lawyers, ministry of justice officials, pros-
ecutors, law professors, legal activists, and others in Haiti’s justice sec-
tor, I was overwhelmed not just by the ruinous disorder and decay in
the system but by the realization that the shortcomings of the system
could not be reduced to a well-defined set of specific symptoms or fac-
tors, such as slow processing of cases, high levels of pretrial detention,
inadequate judicial training, and so forth. Rather I saw that what was
formally called a judicial system had only a nominal relationship to what
I and my colleagues meant by the term. The system was an integral part
of a predatory state that had long lived off the Haitian people for its own
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