Rule of Law Reform and Development

Rule of Law Reform and Development

Charting the Fragile Path of Progress

Michael J. Trebilcock and Ronald J. Daniels

This important book addresses a number of key issues regarding the relationship between the rule of law and development. It presents a deep and insightful inquiry into the current orthodoxy that the rule of law is the panacea for the world’s problems. The authors chart the precarious progress of law reforms both in overall terms and in specific policy areas such as the judiciary, the police, tax administration and access to justice, among others. They accept that the rule of law is necessarily tied to the success of development, although they propose a set of procedural values to enlighten this institutional approach. The authors also recognize that states face difficulties in implementing this institutional structures and identify the probable impediments, before proposing a rethink of law reform strategies and offering some conclusions about the role of the international community in the rule of law reform.

Chapter 2: The Judiciary

Michael J. Trebilcock and Ronald J. Daniels

Subjects: development studies, development economics, law and development, economics and finance, development economics, law and economics, law - academic, law and development, law and economics

Extract

I. Normative Benchmarks A. Introduction Any attempt to elaborate an institutional approach to reform specific to the judiciary faces a tension between the importance of reform on the one hand, and the plurality of approaches to judging on the other. That judicial reform is a necessary part of the rule of law reform has been emphasized by leading development theorists and is reflected prominently in international consensus. However, it remains difficult, if not impossible, to identify an accepted gold standard of the judiciary. A multitude of theories conceptualizing the judicial function has led to an “eclectic” approach to the judicial role that belies any attempt to identify one dominant and all-encompassing theory of the judiciary. In the face of claims about the “judicialization of politics,” it is difficult even to demarcate the boundaries of the judiciary in relation to the politicians that it is in part intended to monitor. Therefore, while we stress the importance of judi Amartya Sen, “What is the Role of Legal and Judicial Reform in the Development Process?” (World Bank Legal Conference, Washington, DC, June 5, 2000) at 22. United Nations Basic Principles on the Independence of the Judiciary were adopted by the 7th Congress on the Prevention of Crime and Torture in Milan, Italy in September 1985 and were endorsed by the General Assembly later that year. See G.A. Res. 40/32, U.N. GAOR, 40th Sess., U.N. Doc. A/RES/40/32 (1985). As Waldron points out, “one of the most important circumstances of politics in general is that...

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