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TUTORIAL 1 - Theories and Discourses on the Rule of Law 1.

In their seminal article of 1974, Trubek and Galanter formulate a number of critics against the law and development movement: please describe them and explain their origins. Has the situation changed now? Trubek and Galanter claimed that the LDM lacked a theory of law and that it is ethnocentric, imperialistic, atheoretical, and nave. They also claimed that the law and development movement was based on a flawed theory of law and society and a flawed ideal of liberal legalism. Trubek and Galanter identified that the legal liberal model was ethnocentric in two ways. First, the legal liberal model very much contrasted the reality in developing countries by having social stratification instead of political pluralism. Social stratification showed many class differences and authoritarian governments. The state was weak and the majority of the population had not internalized the legal rules. The rules were often set based on the interest of economic elite. Second, Trubek and Galanter argued that it was potentially harmful to export an instrumental view of law. When the state is captured by authoritarian groups, law seen in primarily instrumental terms cannot serve as a restraint. Lacking its own internal values or goals, law will become an instrument of those who control and set the goals of the state. In the LDM, it was assumed that all nations went through similar stages to reach a common end, represented in this kind of thought by the legal, economic, and social structures of the US and Western Europe, resulting in this model being accepted by the Third World, it further legitimizes the United States assistance and discourages consideration of alternative paths to development. Since the dependency analysts see United States aid as a subtle tool of domination, they see development studies as the mask of imperialism in the law and development movement. Trubek and Galanter also claimed that the reform of formal legal institutions had little or no effect on social or economic conditions in developing countries. After the collapse of the law and development movement, the rule of law began to emerge. The rule of law itself faced many critics, according to Trubeks paper on Rule of Law, the rule of law still had implementation issues. It was thought that the rule of law still rely solely upon legal transplantation which points out that there is one single model that is thought to be good for the whole world.

1. Please explain the three globalizations of the law conceptualized by Duncan Kennedy The First Globalization (The Classical Legal Thought) Law was viewed as a system with a strong structure based on the distinction between private and public law, individualism and commitment to legal interpretive formalism. The will theory explains that private law is thought to be a set of rational derivation from the notion that government should protect the rights of legal persons, which includes helping them realize their wills. Natural rights theorist elaborated on the will theory as a set of implications from their normative premises, and their specific legal technique was the direct ancestor of legal formalism that the socially oriented reformers were to attack in its positivized form. German historical school developed a positivist version of normative formalism. Friedrich Carl von Savigny proposed the combination between the single idea of legal science as the elaboration of the system of a universalizing legal formalist will theory with the idea that particular regimes of state law reflects diverse underlying non-legal

societal normative orders. His paradox attacked the notion that all national legal regimes are simple better or worse approaches to a religiously or rationally based transnationalism natural law. The will theory guided the scholarly reconceptualization, reorganization, and reform of private law rules in which was viewed as an apolitical rationalization project. It has provided a solid framework throughout the West in which labor confronted the capital and small businesses confronted the big businesses. The first globalization of law was a combination of influence within the Western nation states, where imperialism was broadly conceived. The German model spread across Europe and also to the United States and Latin America. The globalization of law was spread through these western nations down its colonials. The Second Globalization (The Social) The second globalization began in 1900 and even though it ended by the end of WWII it still gave a strong influence on the thinking of both international and third world economic development strategies through the 1960s. The second globalization was dominated by the social people which believe that the conditions of late nineteenth century life represented a social transformation, consisting of urbanization, industrialization, organizational society, globalization of markets, all summarized in the idea of interdependence. According to the social people, Classic Legal Thought people understood themselves to operate as interpreters (judges, administrators, law professors) according to a system of induction and deduction, premised on the coherence, or internal logical consistency, of the system of enacted legal norms. During the second globalization, the social people had 4 positivie proposals, which are (1) from the social is to the adaptive ought of law, (2) from the deductive to the instrumental approach to the formulation of norms, (3) not also by the legislature but also by the legal scientists and judges and administrative agencies openly acknowledging gaps in the formally valid order, (4) anchored in the normative practices that groups intermediate between the state and the individual were continuously developing in response to the needs of the new interdependent social formation. The Third Globalization (Policy Analysis, Neoformalism, and Adjudication) Policy analysis in the third globalization is the first great innovation of post-War legal thought, it deals with the ongoing management of preexisting legal regimes conceived as compromises between the CLT and the social. The second great innovation is the public law neoformalism, which is a disruptive mode brought to bear on both the institutions that embodied the social and the institutions that embodied CLT. On the third globalization, human rights played the same role in contemporary legal consciousness that private law played in CLT and social rights played in the social. In the third globalization, human rights acted as a form of rule and sometimes a form of policy which in many cases are used to settle legal disputes. The legal ideal has shifted from being social to being a democracy and is based on constitutional law.

1. Is international law Imperialist? International law was viewed to be constructed in the Europe, emerging out from the European history and extended to the non-European world. The treaty of Westphalia of 1648 produced a classical concept of sovereignty in which the non-European world did

not possess, the development of international law was viewed to be part of the Expansion of the International Society. This process is when the Westphalia sovereignty was extended to include the societies of the non-European world, which took place during the decolonization period. In the 19th century, John Austin questioned how legal order is to be established among equal and sovereign states. Which then led to the idea that international law is structured from different phases of the history of the discipline and characterized by different styles of jurisprudence, which are naturalism, positivism and pragmatism. Naturalism points to the fact that international law is to be found in nature, for example religious beliefs. Positivism prescribes that a state can only be bound by rules to which it has consented. Pragmatism points to the emergence of institutions that provided the international system a new set of technologies to address international problems. The points above suggests that the non-European world construct their law based on the international law constructed from the European history, this happens after decolonization occurs. Anghie points out that the non-European societies which failed to establish the conditions in which the Europeans could live and trade could then be replaced by European governance, which is thought to be able to give stability and protection to the natives. By the end of 19th century, European international law has been established globally which was applied to all societies, making the European international law the universal law. This supports the idea that international law is indeed imperialist.

1. How would you describe the World Banks initiatives on the Rule of Law? Are they unique? The World Bank believes that the Rule of Law helps promote economic development, they believe that by providing funds on the establishment of the rule of law, can help scare corruption away from the government officials of the recipient country. Many critiques have been addressed to World Banks initiatives in conditioning financial assistance in the establishment of the rule of law, stating that it has not considered many other aspects aside from economic development. It is also mentioned in Alvaro Santos paper on The World Banks Uses of the Rule of Law Promise that the Bank has successfully misinterpreted the definition of the rule of law itself, creating it to falsely create an approach that many theorist think can result to ineffectiveness. Alvaro Santos also mentioned that the Bank is justifying its involvement in a countrys economic development by using the reason help establishing the rule of law as its tool. The Bank forgets to consider the fact that the rule of law is a social and political ideal, it will eventually have to face a condition related to political will, which can then result to a bias establishment of the rule of law and shifts the goal far off from economic development. 1) * Components of the model of liberal legalism - The state exercises control over the individuals through legislation that serves the interests of society as a whole and equally applies for all citizens - This legal order is applied, interpreted, enforced and changed via courts * Development of legal institutions seen as way of curbing arbitrary government action and improve government legitimacy and accountability - Assumptions: # Law is central to the development process and can be used to reform society

# Initiation of legal development would in turn foster a system of governance by universal rules representing societal interest: change of law changes behavior * Yet, internal situation of the Third World not taken into account: one size fits all strategy Model assumes social and political pluralism, while in the Third World social stratification, class cleavage, and authoritarianism is often the norm * Crisis because: 1) Improvement of empirical knowledge about the legal reality in the Third World 2) Loss of faith that the liberal legalist model accurately reflects the role of law in US 3) Growing doubt that US society can be a valid model for the Third World 4) Realization that American and Third World policy makers may not be committed to the basic values which the liberal legalists believed they were fostering * Substantial programs of legal reform have failed: they yielded little change in either legal performance or social relations => Result: self-estrangement, law and development scholars criticize assistance programs thereby condemning something they created themselves * Shift from L&D to Rule of Law * Two forces: 1) Project of democracy: democracy and HR protection must be pursued as independent goal 2) Project of markets: create institutions of market economy and remove restrictions, state must only interfere in economy to create foundation needed for the functioning of the market and foster good governance * Rule of law was a common goal: essential step toward the objectives of both forces - Independent judiciary that would serve as a shield against arbitrary state action - Certain faith in (adapted form of) formalism: need to make legal systems more effective and promote instrumental thought and greater sensitivity to policy concerns * Wide-ranging reform agenda covering all aspects of the legal system Yet, still strong belief in legal transplantation: top-down, one size fits all reform * (Official) voices questioning formalism: - Recognizing failures of transplants and top-down reform, stressing the need for context-specific project development - Acknowledgement that there are different legitimate paths to growth * This change of view led to changes in the reform agenda and the nature of projects Yet, despite expansion of reform agenda and refinement of methods, ROL projects remain tied to an (idealized) Western model in which the core of the ROL is thought to be the independent judiciary applying neutral rules in an objective manner and to the belief that the creation of such institution will accomplish a wide range of goals - The approach is still grounded on strong assumptions about the ideal model; however contextualized - No recognition of alternative development strategies and different legal paths that can be followed on the road to economic growth and political freedom 2) * First globalization, 1850-1914: classical legal thought Law is a system having strong internal structural coherence The will theory: private law rules of the advanced Western nation states were well understood as a set of rational derivations from the notion that government should help individuals realize their wills, restrained only as necessary to permit others to do the same - Rules follow from consensus in favor of the goal of individual self-realization

- Specific, will-based interpretation of the interrelationship of the relatively concrete norms of the existing national legal orders - By adopting slightly modified national versions, the legislation of a country reflected the spirit of the people of that country within the structure of international law * Second globalization, 1900-1968: socially oriented legal thought Move away from individualism ignoring interdependence - Emerging interdependent society that was developing new rules to fit the new social needs (welfare, reproductions, labor rights, etc.) - Legal rule as a means to accomplish social purposes Plurality of institutions and groups representative of society below and above the level of the state that preach the public interest and coordinate their activities in order to maximize social welfare => A legislative process that emerged from individual voting is unlikely to perform rationally the function of overseeing the self-regulating activities of institutions * Third globalization, 1945-2000: neo-formalism Deals with the ongoing management of preexisting legal regimes conceived as compromises between individualist and social needs Relationship between law and politics: the judge simultaneously represents law against legislative politics domestically and sovereign politics internationally, and must answer the charge that (s)he is a usurper doing politics by other means 3) * International law can be seen as an attempt to establish a universal system of order among entities characterized as belonging to different cultural systems 15th-16th century Naturalism: international law is to be found in nature and is binding on all states * Order was apparent in non-European countries, but this order was seen as deficient because it failed to meet the universal criteria established by law - Idealized European view of the world was established as universal natural law, and whoever violated this law (all non-Europeans) should / could be civilized # Universal order becomes basis for sanctioning and transforming uncivilized 19th century imperial expansion Positivism: state is exclusive creator of law and only bound by rules to which it has consented * Racial and cultural criteria to declare European states civilized and therefore sovereign and non-European states uncivilized and non-sovereign * Again: Western standards declared as universal and failure to adhere indicated lack of civilization and legitimized conquest and exploitation => End 19th century: European expansion had ensured that European international law had been established globally as the universal system that applied to all societies Postcolonial state Pragmatism: new set of technologies with which to address international problems * League of Nations: task of creating sovereignty and promoting self-government * Sovereignty and self-government of non-Europeans were prepared with a view of continuing to serve Western interests: continuing (economical) dependence on West * Newly sovereign Third World countries increased in number and sought to articulate their own views of international law (esp. within UN system) * Internal problems: e.g. poor and minorities subject to brutalities - Could seek protection through international HR law - Yet, legitimized intrusion of international law in internal affairs of a state

Used to justify further intervention by West: international institutions increasingly intrusive role in Third World and attempted to use their powers to reform the political and social structures of these states in the name of good governance (drawing on HR law) => i.e. only through colonialism international law became universal; yet, the civilizing mission continues into the present since colonialism is merely replaced by neocolonialism Barbaric, uncivilized behavior justifies attempts to reconstruct international law to fit the situation and further Western interests * World Bank: ROL is an indispensable part of good governance and a democratic regime - No precise definition - Enforcing the legal rules and ensuring that wrongful acts will not go unpunished ROL protects fundamental human rights, enhance adherence to civil rights, resolves conflicts, ensures safety and security, etc. - Necessary for achieving economic and social development and poverty reduction *World Bank has no official strategy for promoting ROL; yet, initiatives mostly entail reform of institutions such as the justice and legal system and capacity-building - Institutional strengthening of the Ministry of Justice # Improve institutional capacity # Increase independence of judiciary from executive: stop political interference # Integrity # Curb corruption # Enhance accountability - Increased contract enforcement - Ensure universal, timely and equal access to justice system for all Via: * Improve quality of legal system: capacity-building / conferring resources (material, financial, human) / transferring knowledge / arm personnel against corruption and bribery * Increase transparency: make documents and judgments accessible to public / periodic monitoring / analyzing data on performance / develop effective system of checks and balances * Increase enforcement Question 1. Law and Development (L&D) movement started in the 1960s (industrialization period) and continued into the 1970s. Was led by a small band of liberal lawyers working in development agencies, foundations and universities in the USA and Europe. They sought to interest development agencies in the importance of legal reform. (L&D) was built around Western development paradigm of the time which gave priority to the role of the state in the economy and the development of internal markets. Liberal lawyers focused on the economic role of law and highlighted the importance of law as an instrument through which state actors could shape the economy. Also emphasized the training of business lawyers. They hoped for spillover from economic growth to democracy, to justice and protection for civil rights.

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The primary goal of these programs was to transform legal culture and institutions through educational reform and selected transplant of modern institutions. The most important thing to do was to create a new, more instrumental legal culture. (L&D) movement found itself working to a significant degree with law schools and with the legal elites that exercised substantial influence over major law schools in the developing world. Less attention was paid to the legislature, judiciary or practicing bar. Because assumed that the legal education was the most effective way to bring changes. It was also recognized that there was a need to create modern rules and legal institutions. But the leaders really had no well developed theories to explain their choice of programs and projects. It was all ad hoc and pragmatic. By the middle of the 1970s there was disillusion in the academy, foundation interest declined and the official aid agencies showed no interest in moving. Because 4 pillars of the movement - cultural reform and transplantation strategy; ad hoc approach to reform based on simplistic theoretical assumptions; faith in spillovers from economic to democracy; development strategy that stressed state-led import substitution - were crumbled. (L&D) actors saw flaws in the approach of transplant Western legal institutions & educational strategy. Some of the new laws remained on the books but were ignored in action. The law schools proved more resistant to change that had imagined. In others laws were captured by local elites and put to uses different from those the reformers intended. Spillover to democracy and protection of human rights did not occur. The reformers found that their efforts to improve economic law and lawyering could strengthen authoritarian rule. The effort to develop a theory of law and development weakened. The theorybuilding project revealed flaws in the original approach without offering a robust alternative that could orient action & guide project development. By the end of decade the context had changed, the failures of the reform were beginning to become apparent. F.e. Anti-Vietnam protests, the events of 1968 in Europe. It had changed the political context & radicalized students in many of the universities. At the same time, the initial reform efforts had brought scholars and activists from the developing countries into the efforts and they offered perspective very different than those of the initial reform groups. Very different ideas about both law and development began to emerge. Many project designers had employed a linear model of development, despite of no explicit, well-developed theories. Nave and ethnocentric neo-evolutionist thinking made it easy for (L&D) planners to believe that modern law, found in their own national legal institutions, was the end toward which all legal systems were moving. They could imagine that legal development followed evolutionary stages linked to stages of economic growth that Western law was the higher evolutionary stage. (L&D) movement never, as such, recovered from these blows. Foundations lost interest in the area. Academics became disillusioned. The study in the academy declined.

The Rule of Law (ROL) era emerged during the latest wave of globalization and the post-Cold war era. In advanced countries of Europe and the US this was the era of embedded liberalism. Embedded liberalism was an international regime that operated to facilitate domestic politics and shield domestic systems of economic regulation and social protection in advanced capitalist countries from global shocks. It allowed individual nations leeway to regulate the economy, promote employment, insure against economic risks, and redistribute income. It supported democratic politics at the national level, ensuring that when governments exercised the powers safeguarded to them by the international regime they would act in the best interests of their citizens. This system combined efficiency with legitimacy. The contemporary ROL enterprise took shape in a different conjuncture. By the 1990s when ROL really became big business, major changes had occurred in the world economy and world politics. International trade had grown substantially. There was a shift from state to market, from internal to export-led growth, from official capital flows to private investment. These shifts create multiple pressures for the internationalization of legal fields. legal changes to attract foreign investment. emergence of new actors in legal scene: internationally oriented corporate law firms . Discovering the ROL : a) The project of democracy and came out of the human rights movement of the 1970s and 1980s. Human rights had to be pursued as an independent goal. The most important move was the recognition that the purely international approaches to human rights protection were insufficient without strong counterparts in domestic law (creation of constitutional guarantees , judicial review, judicial independence and access to justice). b) The project of markets and the discovery of institutions. This approach stressed export-led growth, free markets, privatization, and foreign investment as the keys to growth. The role of law( encouraged the good governance) : property rights, enforcement of contract, protection against arbitrary use of government power and excessive regulation. c) The ROL as a common goal. While above mentioned projects seem very different, they both identified the ROL as an essential step toward their objectives. ROL Stage 2. a) Changes in development policy. b) Official ideas about the ROL become complexified. c) Expansion of the reform agenda and refinement of methods. d) Questioning the knowledge base Question 2. The 3 globalizations refer to two overlapping periods of legal institutional and conceptual change in the West: to the rise of Classical Legal Thought between 18501914, and of socially oriented legal thought between 1900-1968, and the transformation of the characteristic traits of the two periods in two distinct processes of diffusion across the world of colonies and recently independent nation states. The briefer third part sketches a similar institutional and legal theoretical development a third globalizationfor the period 1945-2000. Between 1850-1914 what globalized was Classical Legal Thought (CLT), it had no essence. But among its important traits were that it was a way of thinking about law as a system of spheres of autonomy for private and public actors, with the

boundaries of spheres defined by legal reasoning understood as a scientific practice. The mechanisms of globalization were direct Western imposition in the colonized world, forced opening of non-Western regimes that remained independent, and the prestige of German legal science . Between 1900-1968 what globalized was The Social, again a way of thinking without essence, but with, as an important trait, preoccupation with rethinking law as a purposive activity, as a regulatory mechanism that could and should facilitate the evolution of social life in accordance with ever greater perceived social interdependence at every level, from the family to the world of nations. Between 1945-2000, one trend was to think about legal technique, in the aftermath of the critiques of CLT and the social, as the pragmatic balancing of conflicting considerations in administering the system created by the social jurists. At the same time, there was a seemingly contrary trend to envisage law as the guarantor of human and property rights and of intergovernmental order through the gradual extension of the rule of law, understood as judicial supremacy. Question 3. According to Antony Anghie colonialism had shaped not only those doctrines of international law explicitly devised for the very purpose of suppressing the Third World, but also had profoundly shaped the very foundations of international law, including the ostensibly neutral doctrine of sovereignty.

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