JURIST Article on Law and Society in Iraq WITH FIXED LINK (I hope)
THANKS TO THOSE WHO LET ME KNOW OF THE BROKEN LINK BELOW. I THINK I REPLACED IT BELOW IN A WAY THAT WORKS. I HOPE THIS ONE WORKS. THE ARTICLE IS IN ANY EVENT ON THE FRONT PAGE (FOR NOW) OF THE INTERNATIONAL VERSION OF JURIST AND JURIST IS AT WWW.JURIST.LAW.PITT.EDU. THANKS AGAIN
No new entry today, but I do want to refer my loyal readers to my latest piece, released today, on the operation of law in Iraq, on the legal news website jurist. I don't review it as a jurisprudential piece (the jurisprudence--that the mere enactment of law does not ensure social compliance--is obvious almost to the point of being banal). Rather, I intended it as a criticism of the policies and practices of various legal aid approaches (governmental and nongovernmental) in developing world nations, which seems to assume that social compliance MUST follow legal enactment, or there is something wrong with the "rule of law."
As my thinking and my experience in Iraq evolves, I am starting to join some of my academic colleagues in growing ever more suspicious of the term "rule of law" as anything other than some form of justification for Western hegemony. I have in Baghdad sat in any number of meetings dedicated to bringing the "rule of law" to Iraq, and I still haven't figured how to define the term other than "something we have that other countries don't have but which they need". I'm not saying other definitions aren't possible, only that they don't seem to be part of the currency, at least here.
Anyway, enjoy:
http://www.jurist.law.pitt.edu/index.php?edition=world
No new entry today, but I do want to refer my loyal readers to my latest piece, released today, on the operation of law in Iraq, on the legal news website jurist. I don't review it as a jurisprudential piece (the jurisprudence--that the mere enactment of law does not ensure social compliance--is obvious almost to the point of being banal). Rather, I intended it as a criticism of the policies and practices of various legal aid approaches (governmental and nongovernmental) in developing world nations, which seems to assume that social compliance MUST follow legal enactment, or there is something wrong with the "rule of law."
As my thinking and my experience in Iraq evolves, I am starting to join some of my academic colleagues in growing ever more suspicious of the term "rule of law" as anything other than some form of justification for Western hegemony. I have in Baghdad sat in any number of meetings dedicated to bringing the "rule of law" to Iraq, and I still haven't figured how to define the term other than "something we have that other countries don't have but which they need". I'm not saying other definitions aren't possible, only that they don't seem to be part of the currency, at least here.
Anyway, enjoy:
http://www.jurist.law.pitt.edu/index.php?edition=world
The working paper by Ioannis Glinavos on SSRN titled Rule of Law Promotion and Development: A Search for Meaning, is well worth reading on this point.
Not only is Rule of Law used to mean something that "we" have that "you" don't, it is also mostly limited to protecting "our" financial interests. Rule of Law means contract law, and perhaps expanded to 'law and order'.
I'm also frustrated by how often 'development' means capitalist commercial development in its most unregulated form. Granted, alleviating poverty and its side effects are foundational to development -- but just instituting western style capital systems in no way assures reduction of poverty. Neoliberal captialism does not equal development.
There ARE other definitions both of rule of law and of development -- they just don't seem to be funded by Western governmental AID organizations.
I begin to wonder if such organizations are even structurally capable of using other definitions.
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There is a great deal of truth to that. It's been rather sad how "rule of law" has been made synonomous with "friendly to foreign investment" when in fact any reasonable definition of "rule of law" wouldn't have anything to do with that you would think even if you were the most avid supporter of foreign investment out there.
Yet the two are absolutely linked in modern discourse among aid organizations and in policymaking circles. As if a democratically elected legislature hostile to foreign investment and passing laws indicating such, and a judiciary enforcing those laws as an independen state force without pressure is somehow less "rule of law" than if some dictatorial executive ignored the legislation and forced his judiciary to do the same to make the place safer for foreign investment. Ridiculous
Of course, friendliness to foreign investment is something "we" have that "they" don't, but your comment helps to add an important dimension. Thanks.
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Perhaps you're aware of this, but the link brings one to a registration wall of some sort (of course I accessed the essay easily enough by going directly to JURIST).
I wonder if some of the problem here may be related to a kind of obtuseness about or ignorance of social norms, which of course are intimately related to both social practices and the rule of law. Cass Sunstein and Brian Tamanaha, among others, have written separately about this and there's a nice volume on same edited by John N. Drobak: Norms and the Law (Cambridge, UK: Cambridge University Press, 2006).
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