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BEYOND RULE OF LAW ORTHODOXY:The Legal Empowerment Alternative

 EXECUTIVE SUMMARY

 
The international aid field of law and development focuses too much on law, lawyers, and state institutions, and too little on development, the poor, and civil society. In fact, it is doubtful whether “rule of law orthodoxy,” the dominant paradigm pursued by many international agencies, should be the central means for integrating law and development. As most prominently practiced by multilateral development banks, this “top-down,” state-centered approach concentrates on law reform and government institutions, particularly judiciaries, to build business-friendly legal systems that presumably spur poverty alleviation. Other development organizations use the rule of law (ROL) orthodoxy’s state-centered approach to promote such additional goals as good governance and public safety. 
 
The problems with the paradigm are not these economic and political goals, per se, but rather its questionable assumptions, unproven impact, and insufficient attention to the legal needs of the disadvantaged. An alternative, more balanced approach often is preferable: legal empowerment—the use of legal services and related development activities to increase disadvantaged populations’ control over their lives. 
 
This alternative paradigm, a manifestation of community-driven and rights-based development, is grounded in grassroots needs and activities but can translate community-level work into impact on national laws and institutions. It prioritizes civil society support because it is typically the best route to strengthening the legal capacities and power of the poor. But legal empowerment engages government wherever possible and does not preclude important roles for dedicated officials and ministries. It also addresses a central reality that ROL orthodoxy overlooks: In many developing countries, laws benefiting the poor exist on paper but not in practice unless the poor or their allies push for the laws’ enforcement.
 
Legal empowerment is more than an alternative to the dominant paradigm; it should be integrated into many mainstream socioeconomic development efforts that generally do not address ROL or the legal needs of the poor. Though still exceptions to the rule, there are increasing instances of this “mainstreaming” taking place in ways that benefit human rights, development, and project performance. Examples include initiatives addressing natural resources management in Ecuador, public health in South Africa, land reform in the Philippines, women’s literacy and livelihood in Nepal, reproductive health in Senegal, and gender equity in Bangladesh.
 
This alternative approach puts community-driven and rights-based development into effect by offering concrete mechanisms, involving but not limited to legal services, that alleviate poverty, advance the rights of the disadvantaged, and make the rule of law more of a reality for them. So far, however, legal empowerment efforts mainly consist of diverse civil society initiatives rather than deliberate donor programs. As a result, it is underappreciated and underused.
 
The upshot for ROL development practitioners is that they need to think less like lawyers and more like agents of social change. Conversely, development practitioners in other fields could benefit from thinking a bit more like lawyers and human rights advocates. The dual changes in perspective will open up vistas for using law to make a greater contribution to development, breaching the programmatic isolation represented by ROL orthodoxy.
 
Both groups also should stop assuming that assistance to state institutions yields greater impact and more sustainable outcomes than does support for civil society. In key respects, the opposite is the case.
 
Legal empowerment differs from ROL orthodoxy in at least four additional ways: (1) attorneys support the poor as partners, instead of dominating them as proprietors of expertise; (2) the disadvantaged play a role in setting priorities, rather than government officials and donor personnel dictating the agenda; (3) addressing these priorities frequently involves nonjudicial strategies that transcend narrow notions of legal systems, justice sectors, and institution building; (4) even more broadly, the use of law is often just part of integrated strategies that include other development activities.
 
Numerous studies by academics and development organizations highlight the importance of building the capacities, organization, or political influence of civil society—all of which legal empowerment contributes to—in improving the lives of the disadvantaged. A growing array of qualitative and quantitative research more specifically suggests that legal empowerment has helped advance poverty alleviation, good governance, and other development goals. It accordingly merits substantially increased financial and political support. Such assistance can be provided: (1) as aid specifically directed at legal empowerment; (2) in conjunction with ROL promotion; or (3) as part of mainstream socioeconomic development work.
 
Despite its drawbacks, I do not claim that ROL orthodoxy is the wrong path to take under all circumstances; nor is legal empowerment a panacea. Nor are the two mutually exclusive. Those of us concerned with law and development do not know enough to be so absolutist about these matters.
 
But we do know enough to raise questions—and that is precisely one point of this paper: ROL orthodoxy’s many problematic features make the prevalent devotion to it a remarkable state of affairs. In numerous countries, law-oriented development aid goes mainly to a narrow range of state institutions, whereas the legal priorities of the poor often lie elsewhere. The international community needs a paradigm shift in how it integrates law and development.
 
作者:Stephen Golub, 在柏克利加州大学法学院教授国际发展与法律,曾为开放社会正义项目、英国国际发展署、福特基金会、世界银行、国际人权政策理事会等组织提供咨询。
 
全文下载:carnegieendowment.org/files/wp41.pdf
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