Rule of Law Reform and Development
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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.
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Chapter 10: Rethinking Rule of Law Reform Strategies

Michael J. Trebilcock and Ronald J. Daniels


I. Introduction In this book we have made two parallel and mutually reinforcing claims. First, we have proceeded on the premise that, on a sufficiently parsimonious definition, the rule of law is a universal good tied inextricably to development. In making this claim, we have not supposed any particular form of political organization, economic philosophy, or even legal culture. Rather than engaging in the details of substantive law, we have therefore focused on the institutional structures responsible for administering the rule of law. At the same time, however, we have declined to accept the view that obedience to a given set of rules – the rule of rules or rule by law – is a normatively defensible conception of the rule of law. In order to infuse a normative basis into our institutional approach to the rule of law, we have elaborated a set of procedural values central to any effective, institutional approach to the rule of law. Broadly, these values encompass process values (transparency, predictability, enforceability, stability), institutional values (independence, accountability), and legitimacy values. We have then identified a set of institutions which constitute essential elements of the rule of law. Drawing wherever possible on international consensus we have, in the context of each institution, elaborated a set of structural conditions reflective of these core procedural values, although we freely acknowledge that particular institutional entailments or instantiations of the rule of law will be shaped by normative considerations particular to given social, historical, cultural and legal contexts (as is true also...

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