CIAO DATE: 12/02

Mythmaking in the Rule of Law Orthodoxy

Summary

In this paper I discuss critically the current attempts by various institutions of the developed world, ranging from the World Bank to the U.S. Congress, to encourage and sometimes compel developing countries to create the "rule of law." Proponents of the introduction of formalist rule of law–that is, regimes defined by their absolute adherence to established legal rules and completely free of the corrupting influences of politics–contend that such reforms are essential to establishing stability and norms that encourage investment and sustainable economic growth in the developing world. In evaluating this new rule of law orthodoxy, I question the assumptions that provide the intellectual underpinnings of the attempts to introduce the rule of law into the developing world. I begin with Mrs. Sanderson's story because it illustrates several points I want to make. First, it complicates the simple image of the rule of law that dominates current rhetoric in the law and development movement. Most participants in this movement assume that economic development demands the preservation of property rights in the face of social or political pressures. Mrs. Sanderson's story illustrates the occasional necessity of destroying clear property rights and individuals' legitimate investment expectations in the name of greater economic development. Second, it illustrates that even in the United States, the home of rule of law rhetoric, the courts do not always enforce the law, at least when defined narrowly as the faithful application of rules. Third, it brings out the deeply political nature of law and legal institutions. Much of the rhetoric from the new rule of law orthodoxy emphasizes the goal of a judiciary that is free from political influence, a goal that I argue has not been attained anywhere in the developed world and that is not necessarily desirable even if it were possible. These and other truths are often overlooked by rule of law advocates in their earnest haste to create regimes in developing countries that will supply the transparency, accountability, and stability that they are certain hold the keys to economic growth.

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