Rule of Law Reform and Development: Charting the Fragile Path of Progress (review)

Arriving in the midst of a renewed wave of literature on law and development, Rule of Law Reform and Development: Charting the Fragile Path of Progress nonetheless stands out as an important contribution. Michael Trebilcock and Ronald Daniels have produced an ambitious, comprehensive, and persuasive book that will be of interest to both rule of law practitioners and academics.

Taking the near-universally held view of the rule of law as the new development orthodoxy¹ as their starting point, Trebilcock and Daniels immediately address three key questions regarding the relationship between development and the rule of law: What are developing countries? What is development? And, finally, What is the role of the rule of law in development? The latter two questions have been repeatedly taken up by legal scholars and those in related fields, and the authors provide an exemplary, if brief, overview of the central debates, particularly in their identification of two dominant approaches to the place of law and legal institutions in development: institutional (focusing on the existence of legal frameworks and institutions) and deontological (in which the rule of law is held to be of intrinsic value) (p. 5). Even for non-specialists, this is a lucid and, for the most part, accessible introduction to law and development, which nonetheless does not sacrifice analytical sophistication. For example, the authors’ discussion of the rise and significance of the term “governance” positions it both historically and conceptually between dependency theories and the Washington Consensus, ably encapsulating these ideas while providing a cogent analysis.

Similarly, Trebilcock and Daniels introduce their own particular approach to the rule of law with a concise yet rigorous review of key legal and political definitions, both historic and current. Ultimately, they develop and defend a “procedural definition” of a rule of law rooted in “optimal institutional arrangements” (p. 14). Based on Amartya Sen’s capability-building approach to development, theirs is a “thinner” conception of the rule of law—neither thick (substantive, ideal based) nor thin (formalistic, rule based)—a set of ideals and an institutional framework focused on “what is necessary . . . to assure maximum compatibility with the most widely acceptable, minimal goals of development,” including political freedom, economic opportunity, and transparency (pp. 25–27).

Having set out the boundaries of their inquiry, Trebilcock and Daniels devote the remainder of Rule of Law Reform and Development to specifying the characteristics associated with a procedural conception of the rule of law with respect to eight classes of legal institutions: the judiciary, prosecutors, police, penal systems, specialized law-enforcement agencies, legal aid, bar associations, and legal education. In doing so, they rely where possible “on benchmarks reflected in international covenants, codes, agreements and guidelines that have attracted broad consensus amongst both developed and developing countries so as to minimize concerns over ethnocentric or normative imperialism” (p. 41), as well as providing specific examples of law and development efforts in various sectors and locations. While this structure proves useful for engaging with the requirements of evaluating and prescribing the vast arena of rule of law reform efforts, and is clearly an attempt to balance range and depth, the overviews of the reform process in a particular state or region can be frustratingly brief. However, these thematic chapters also provide distinct and valuable glimpses into how three key impediments to the rule of law—resource constraints; social, cultural, and historical values; and political economy—operate across diverse contexts, although, again, breadth and critical nuance often appear to be in conflict.

In the book’s final chapter, these empirical insights are applied to three ideal-type models of developing states ranging from “an environment of broad political support for the rule of law” to “highly corrupt,” with countries marked by “more ambiguous” political structures in the middle. Trebilcock and Daniels’ goal is to gauge law and development options for the “international community”—providing resources (non-coercive), imposing conditionalities (varying degrees of coercion), and imposing...