After decades of disappointing progress in building the rule of law in societies that suffer from poorly functioning legal systems, the development community has turned its attention to legal pluralism. Legal pluralism is a prominent feature in many development contexts, with both negative and positive implications for the rule of law. The negative questions revolve around whether or to what extent the presence of multiple coexisting legal forms hampers or detracts from efforts to build the rule of law. The positive questions revolve around whether alternative legal forms in situations of legal pluralism might satisfy rule of law functions that failing state legal systems are unable to provide. This essay explores these questions.

In the early years of this century most of the legal and judicial reform work of International Development Agencies (hereafter IDAs) focused mainly on state institutions. Today, things have changed. After the disappointing outcomes of many years of legal and judicial reform and in view of the enormous challenges posed by state building in numerous fragile and failed states, IDAs are beginning to accept that governance and justice mechanisms that operate either outside the framework of the state or in the fringes between state and society — non-state justice systems (hereafter NSJS) — are indispensable components of reform processes aimed at improving the overall performance of legal and judicial institutions. The materials discussed in this paper, drawn from Latin America and Africa, suggest that any successful engagement with NSJS requires a deep understanding of both local state structures and political processes. It also requires an in-depth understanding of the state and community within which NSJS operate. Indeed, as this paper shows, successful engagement should be seen as part of a continuing process of state building. Unless IDAs are willing to take a wider and more political approach to their involvement with NSJS, they will not achieve meaningful progress in rule of law and governance projects.

The field of law and development has been a recognizable one for approximately a half-century. However, evaluations of the success of the law and development endeavor appear overwhelmingly negative. Failure of previous efforts of law and development do not appear to be due to a lack of either talent or money. Some of the world's best legal talent has been brought to bear on the problems, and very large sums of money have been spent. The failure appears rather to have been conceptual, as suggested by the need for an alternative theory. So some critical consideration appears necessary of the main underlying concepts which have driven law and development projects. Subsequent attention will be given to an alternative theory, that of sustainable diversity in law. The rule of law has historically been a useful concept in some parts of the world; it could well be replaced by the rule of laws.

Historical research represents our richest vein of information about the workings of legal pluralism. Before the long nineteenth century, all legal orders featured jurisdictional tensions without strong claims of legal hegemony by states. In a world in which plural legal orders were the norm, multicentric jurisdictional orders created continuities across diverse regions and polities. What can we learn from the history of legal pluralism in considering its relation to economic development today? To begin, legal history can provide an analytic guide to grasping the complexities of current legal patterns and behavior. A particularly helpful rubric emerges out of studies of the legal history of empires. A second relevant finding confirmed by historical studies of plural legal orders, including and especially empires, consists in the observation that legal actors – again, at all levels – tended to show a preference over time for adjudication in forums that seemed to provide a greater possibility of enforcement of rulings. This paper examines these phenomena in early modern societies in order to lay the groundwork for analyzing legal pluralism in the nineteenth and twentieth centuries. By keeping in view the jurisdictional jockeying of imperial legal orders, we gain new perspective on the role of legal pluralism at major turning points in the development of international law. In particular, it becomes possible to understand nineteenth century prohibition regimes as forming through jurisdictional restructuring within and across global empires – a view that contrasts with traditional narratives of the rise of international law. Similarly, understanding the pervasiveness and persistence of strategies of appealing to imperial legal authority allows us to appreciate the effects on legal behavior of robust claims to the dominance of state law over subordinate jurisdictions in the twentieth century.

The central question to be addressed in this article is: what does this empirical evidence tell us about the nature and effectiveness of judicial reform in Asia?

This case study of the judicial reform program of the Asian Development Bank (ADB) experience 1990-2007 is framed within the global context of substantial growth, underwhelming results, and continuing evolution of approach in an ongoing search for success.

The case study marshals and evaluates a substantial body of new evidence from Asia which has been remarkably under-studied in the academic discourse. This body of experience contributes timely evidence of practice which is significant in supporting a number of key propositions. First, it reveals the still evolving nature of the judicial reform enterprise. Second, it demonstrates that ADB has created some ‘results’. Third, it remains difficult to find any evidence of ‘success’ owing to the continuing conceptual fuzziness in the purpose and goals of endeavor, and the continuing lack of systematic monitoring and evaluation. Fourth, there are some tentative indications of an emerging capacity to demonstrate developmental effectiveness. While this evidence generally conforms to the global literature, the recency of endeavor in this region reveals a dynamic process of evolution, and highlights the incubation of a potentially paradigmatic shift in reform approach.

Billions of dollars are spent on legal development every year, but its effectiveness continues to be questioned. Many donors have responded to this internal and external critique by developing monitoring and evaluating systems. This article problematizes the tendency of conventional modes of evaluation to assume a link between the outcomes of individual projects (the ‘truth’ of rule of law) and the fulfillment of overarching program goals (the ‘consequences’). We argue that examining this assumed link is of particular importance as rule of law projects take place within a host of simultaneous political and social changes; are time consuming and unpredictable and have multiple and sometimes conflicting objectives. Our analysis of four recent rule of law projects from Asia, Africa and Latin America exposes the inability of conventional evaluations to accommodate such complexities. We demonstrate how, by contrast, robust empirical research reveals important truths about the disparity between the actual, intended and unintended consequences of legal development projects.

The ‘rule of law’ remains an elusive commodity in Afghanistan. Securing a stable Afghanistan underpinned by the rule of law has proven exceedingly difficult despite widespread consensus in the international community regarding its fundamental importance. There is broad recognition that structural flaws in the Afghan justice system and legal profession undermine access to justice and democratic governance. Lawyers are indispensible to consolidating the rule of law; they draft laws, administer justice, shape government policy, and inculcate respect for individual rights. Yet, nobody, including the Afghan government, knows how lawyers practice in Afghanistan. Even less has been written about the process of educating Afghan lawyers even though a country's system of legal education has an undeniable impact on its legal system. Lawyers' education, especially in developing or transitional countries like Afghanistan, impacts how they ‘practice their profession, both in private and government roles.’ Legal education also promotes scholarship and practical expertise among a diverse range of government officials. Legal education is, thus, essential to the rule of law. This article provides an overview of the Afghan legal education by weaving together the scant existing literature and complementing it with several interviews with Afghan law professors to illuminate important historical and recent trends. It also begins to gather the baseline information urgently needed to better inform international efforts to promote the rule of law through assistance to the Afghan legal education system.

Whilst the books reviewed here explicitly acknowledge that our understanding of the meaning and function of the rule of law remains limited, they certainly constitute progress in scholarship on the idea. In policy-making, as Heckman and Nelson put it ‘we continue to see value in pursuing a rule of law framework’ (p 13 Global Perspectives on the Rule of Law). By providing a range of critical insights into the rule of law in these two volumes, the editors both give us access to key debates in the field in accessible form and also ensure that the ideas explored by the authors will shape future research on the rule of law