The continuation of a major role for the state in developing economies, and the emergence of forms of intervention not employed in the past, suggests that we may be seeing the emergence of a ‘new developmental state’ that is inspired by a new political economy.

In Resolution 62/70 of 8 January 2008, the UN General Assembly speaks about the rule of law at the international level and the rule of law at the national level. While these two phrases have framed the practical and scholarly debate on the rule of the law over the past years, this bifurcation hampers our understanding of, as well as effective policy formulation for, the rule of law problems that unfold in the 21st century. The rule of law increasingly is implicated at the interaction and interface between international and national law. We do not only speak about the rule of law at international level and the rule of law at domestic level. We also, and increasingly, have to speak of an internationalized rule of law. This is the rule of law as it applies to the overlapping sphere of domestic and international law.

In the last two decades, post-communist states experienced a fascinatingpolitical journey, from using the rule of law concept in the most general way asan early signal of the coming constitutional and political transformation, tospecifically (as EU Member States) addressing the problem of the supremacy of EUlaw and its effect on emerging national democracy and constitutionalsovereignty. In other words, they moved from asking the question‘which rule of law?’ to the question ‘the rule ofwhich law?’

This move itself indicates the capacity of the rule of law, which is discussed inthis article, to operate as a political ideal and a power technique at the sametime. This duality of the rule of law operations will be outlined against thebackground of the process of European integration and its challenges to thetraditional constitutional notions of sovereignty and legal unity. I shall arguethat post-communist states initially had to embrace the substantive concept ofthe rule of law drawing on liberal and democratic values, which became a validticket for ‘The Return to Europe’ journey. However, the veryprocess of European integration involved technical uses of law often challengingthe substantive notion of the democratic rule of law and constitutionalism. Theaccession of post-communist states to the EU thus highlights the Union's moregeneral problem and intrinsic tension between instrumental legitimacy byoutcomes and substantive legitimacy by democratic procedures and values.

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.

Theory on legal transplants makes a distinction between reception in law and reception in society. Both topics generate their own debates: the former are concerned with the question how the deeper lying legal epistemological structures shape the way in which transplanted rules and institutions acquire new meaning, the latter with how such rules work out on the social processes they ought to regulate. Usually the cases chosen for looking at the legal side are from well-developed legal systems, whereas those about developing countries focus on the social effectiveness. This ignores that many such systems in the world — including in Asia — are fragmented, unevenly developed, and unlikely to be capable of effectively appropriating and reconstructing new rules. The present article takes Indonesia as an example to show how structural problems of legal systems in countries adopting legal transplants may prevent legal rules and institutions from being accommodated into them. The article argues that this resistance can be explained only in part from factors such as governmental fragmentation, corruption, malfunctioning of the political system, or a legal plural colonial heritage, and that they are inherent in the state of legal scholarship and jurisprudence. In Indonesia these are incapable of producing the coherent legal theories required for effective reception of foreign law and legal institutions, a situation likely to be found in many countries. Given the structural factors underpinning this state of legal scholarship and jurisprudence, change will be very difficult to effect and the rule of law is an ideal that remains far away.

With a constellation of high profile global thinkers and leaders, the Commission on Legal Empowerment of the Poor promised to reposition law and justice concerns at the centre of thinking on poverty alleviation. The Commission has succeeded in generating greater interest in the nexus between poverty, injustice and legal exclusion and is a welcome addition to the battle of ideas and concomitant battle over resources over how to raise the living standards of the poor and disadvantaged. However, this article, which analyzes the Commission's final report from the perspective of a legal empowerment practitioner, concludes that the Commission is an opportunity missed. The Commission's failure to properly tackle the political economy of reform and to justify its policy agenda with empirical data limits its value to the practitioner and will curtail its impact with policymakers.

There are at least three sorts of difficulties that hamper successful promotion of the rule of law. Each of these would be lessened by integration of materials which RoL promoters commonly avoid. First, the rule of law depends upon many factors beyond what most lawyers know, or know how to know. These include non-state norms, attitudes, beliefs, practices and institutions. Secondly, this is not a peculiarity of societies where the rule of law is weak and in need of promotion, but true of all societies, including those of rule of law promoters. Recognition of this requires reconceptualization of what is required for law to rule. And that, in turn, would benefit from integration of thought from domains and disciplines that RoL promoters have hitherto tended to consider other people's business. Such disciplinary ecumenism might make them more alive to the ends of what they are trying to promote; less aimlessly tied to particular institutional means.

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 Commission on Legal Empowerment of the Poor has made a considerable contribution to the international development community by focusing attention on concrete legal needs of impoverished populations. As such, it constitutes a fine start for international, regional and domestic efforts to pull together a legal empowerment agenda that will directly benefit such groups. Nevertheless, the Commission's report falls short in key respects. It displays an inordinate faith in employing rational persuasion to grapple with a widespread problem it highlights – how to get self-interested politicians and other elites to forfeit their own advantage for the well-being of society. It is similarly stumbles in addressing how to best implement ambitious legal reforms, so that they have actual impact and do not simply exist on paper. And it does not reconcile the Commission's fundamentally top-down approach with an area of development that is bottom-up in nature. Going forward, it is important to build on the Commission's good start, but depart from its false and even counterproductive steps; the international community should instead draw on successful country-specific legal empowerment experience from diverse contexts. This features increased investment in civil society efforts to make the rule of law a reality, since such initiatives have a better track record than government-centered programs that mainly rely on elite good will. It more specifically involves enhanced long-term funding for domestic and international NGO efforts, both in the form of legal services for the disadvantaged and by integrating such services into broader socioeconomic development programs. The international community should also support impact-oriented applied research and move toward establishing a Millennium Development Goal for legal empowerment

Frequent agreement on the rule of law in theory is possible in large part because of divergent views on what it means in practice. This essay briefly addresses the content of the rule of law at the international level before discussing the challenge to this idea presently posed by the United Nations Security Council – the one international body with the power to enforce the law, but which is nevertheless loath to submit to it.

A major challenge for China is the frequency of so-called ‘mass incidents’ or protests that have been on the rise in recent years. Many such incidents are the result of forced expropriation of farmland by local government authorities for a wide variety of purposes, including the goal of industrialization of the economy. This article examines the challenges faced by rural citizens to access formal systems of justice while seeking a legal remedy. Why are formal systems of justice not effective in settling disputes on land expropriation in China? What are the obstacles faced by landless farmers in accessing justice, and how can such obstacles be overcome? We examine existing regulations for settling compensation disputes in China and discuss several concrete examples from the field in order to identify numerous institutional challenges. These include a very demanding applicant requirement, ambiguous provisions such as no time limit for compulsory mediation, and the inability of the petitions system to address land dispute cases. We argue that the adjudication system itself is an obstacle for farmers who wish to seek an administrative or legal remedy. The political, administrative and judicial authorities in China prefer the maintenance of strict and specific norms rather than facilitating more adaptable and feasible alternatives. Without a major overhaul of current dispute settlement mechanisms, the number and frequency of severe social conflicts between farmers and local governments will continue to increase. Major reforms are required to better protect the rights of landless farmers and other citizens whose properties have been expropriated.

The link between efficient and well-functioning institutions and the economic development of a country has become the core of the good governance effort. The focus on transparency and accountability as a means of improving those processes stems from a belief that well-designed underlying institutional arrangements for particular governance systems, i.e., rules of the game, along with a strengthening of organizational capacity to achieve mandates, can lead to better governance outcomes. This is particularly true in combination with regular monitoring of performance and publication of findings, so that citizens and policymakers can be in a position to make informed judgments about how these systems are functioning. This paper will begin with a discussion of aggregate indicators of governance, outlining both advantages and drawbacks to broad measurement approaches. It will then introduce a complementary approach to governance measurement that shifts the focus from broad concepts to actual governance mechanisms, but will also caution against simplistic divisions among types of indicators. Following that will be a discussion on the nature of actionability and its relationship to reform efforts, and an explanation of how actionable governance indicators (AGIs) can provide detailed information on the design, capacities, performance, and immediate impacts of governance systems. Finally, the paper will present scenarios in which actionable governance indicators were developed to capture information on: 1) the legal frameworks of income and asset disclosure, and 2) the implementation of disclosure systems. Data from both initiatives will be presented, along with the indicators.

This paper examines the efforts of the European Union to advance Security Sector Reform and to bridge the gap with the Judiciary Sector Reform and the rule of law in the Occupies Palestinian Territories. Since the 1993 Oslo Accords, the EU engaged actively in the state-building project in the Occupied Palestinian Territories by taking a number of initiatives in situ. Security has been a key issue in all Israeli-Palestinian agreements concluded during the post-1993 Oslo interim period up to 1999 and then, with the resumption of the Palestinian intifada in 2000, security became primordial to all internationally-sponsored diplomatic initiatives and peace plans. The article analyses the EU initiatives undertaken to help the Palestinian Authority reform its security and judiciary sectors, and argues that while the European Union has, in theory, supported the rule of law perspective in Palestinian Security Sector Reform, in reality it has not paid much attention to improving democratic civilian oversight and accountability.

Efforts to measure the rule of law trigger a process of clarifying how the rule of law impacts people's lives. Accountability emerges as a key element of the rule of law. Nowadays, accountability is created through courts and by countless other forums, including the court of public opinion. Legal pluralism is common: the standards for accountability can be norms from local, national and international levels, set by public or private organizations, formal as well as informal. Measuring the status and progress in the field of rule of law would then require investigating what these accountability mechanisms jointly produce, working together and competing with each other. But how can this be established?Inspired by developments in the health care sector, this paper suggests focusing on specific problems and the way they are resolved. Legal needs studies and crime surveys suggest a classification of problems for which accountability is frequently sought. This can be extended to other areas of governance. These studies also gather data about the incidence of problems and which forums are actually addressed for accountability. Sophisticated client satisfaction surveys now monitor whether this leads to fair and acceptable results. Evidence based treatments for some legal problems are also developing. The rule of law in a country may eventually be measured as the capacity to prevent and resolve the most urgent problems. Interventions can focus on specific, urgent problems, opt for the best available ‘treatments’ and measure progress systematically.

Law and development has a very long history. The export of legal reforms based on Western legal models to enable trade and commerce thrived in the colonial period. During the 1960s and 1970s the USA led a then ‘new’ law and development movement exporting American law, ostensibly to foster liberalism and democratic institutions, and forestall the spread of communism. Although the Cold War was essentially a contest between two economic systems and this first moment in law and development was highly ideological, it was arguably not immediately ‘concerned with any specifically economic functions of law. It reflected a broader, more socially than economically inflected, conception of the importance of law in modernization processes.’ After its robust critique, as a failed political experiment, and after the end of the Cold War, law and development was reclaimed and openly acknowledged as a strategy critical to the development of markets. By the 1990s law and development was ‘explicitly’ linked to market-led development, and later social ambitions were introduced. Concurrently, many donors adopted the rule of law as the focus of their projects, aiming to see legal systems reformed to include independent courts capable of protecting businesses and citizens from discretionary use of power.

The adoption of public accountability institutions has become a crucial aspect of rule of law projects worldwide. This article focuses on National Human Rights Institutions (NHRIs) in order to explore the process by which such legal models and ideas are adopted and borrowed from global actors, and the reliance on regional and sub-regional networks. Through case studies of Indonesia and Myanmar, it examines several possible meanings and sources of ‘Asian legal transplants’, particularly the role of regional networks as sources of legitimacy. It argues that the sub-regional NHRI network in Southeast Asia has evolved as an alternative site of legitimacy, and that the extent to which a NHRI in Southeast Asia may rely on it depends not only on the regime it operates under, but also on the relative position of the NHRI within the regional network.

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.

In the last decade bottom-up approaches to legal development cooperation have become increasingly popular. Examples are reform ideas and programmes using concepts such as ‘access to justice’ and ‘legal empowerment.’ These approaches share a common concern that legal interventions should benefit the poor, and that their needs and preferences should form the basis for legal reforms. Proponents argue that these approaches are important alternatives to ineffective pre-existing legal reform practices which were based on ‘the rule of law orthodoxy.’ This paper critically discusses the content, context and merits of such bottom-up approaches. It concludes that while these approaches offer advantages, they should not substitute but complement pre-existing legal development cooperation practices and the rule of law paradigm on which they are based. The emergence of these new approaches shows how much legal development cooperation is a field of trends, where doubts about their effectiveness force legal reformers to regularly shift from one paradigm to the next, enthusiastically applauding the seemingly new, while sacrificing the caricaturized old.

In this article we discuss the integration of international security assistance and rule of law promotion within larger state-building projects. Going beyond the widespread claim that both approaches should be closely linked within overarching security sector reform (SSR) efforts, this article inquires more systematically into their relationship both at a conceptual level and at the level of state-building practices. It argues that the creation of effective security institutions cannot be easily reconciled with programmes that promote mechanisms of legitimate political control as one dimension of the rule of law. Rationales behind security and rule of law support diverge: the former aims to strengthen a state's enforcement capacities, while the latter seeks to restrict them. The case of security and rule of law support to the Palestinian National Authority in the West Bank illustrates the tensions that can result. The article shows that in the Palestinian case, selectivity, fragmentation and timing issues have impeded the coherence of international assistance.

The rule of law field has come a long way in the last several decades. Yet, given the diversity of competing definitions and conceptions of rule of law, there remain serious doubts about whether there is such a thing as ‘a rule of law field’. Moreover, despite a growing empirical literature, there remain serious doubts about the relationship, and often the causal direction, between rule of law and the ever-increasing list of goodies with which it associated, including economic growth, poverty reduction, democratization, legal empowerment and human rights. In considering where the rule of law field is headed, and the possible contribution of a dedicated journal such as this to the development of the field, I focus on four areas that respond to the preceding concerns (though neither the list of concerns nor the responses are in any way meant to be exhaustive). The first area is conceptual or theoretical, and highlights the need to move beyond attempts to generate a consensus definition, in favor of adopting a more pragmatic perspective that accepts multiple perspectives and conceptions, and takes advantage of the diversity of definitions and measures to test the relationship between rule of law and the increasing list of other social goods. The second is methodological, and highlights the need to switch from increasingly insistent prescriptions based on increasingly comprehensive and specific Euro-American institutions, rules, practices and norms toward a more process oriented approach that recognizes a greater role and responsibility for target countries and is more open-ended and tolerant of institutional innovations and differences in norms, practices and outcomes.The third is empirical, and highlights the need to move beyond the currentbroad empirical studies of rule of law to a more focused study of particular institutions, rules and practices in achieving various desired outcomes, as well as more focus on what works at what level of development and under what socio-political conditions.The fourth is disciplinary, and highlights the need for greater interdisciplinary work given the integral relation of legal reforms to other reforms, as well as the need to bridge the gap between academics and rule of law practitioners so as to provide policy-makers more effective guidance.