McLeod Group guest blog by Andrew Dawson and Liam Swiss, September 16, 2021
Each year, Canada and other donors spend billions of dollars in foreign aid to promote the rule of law. In 2019, Canada disbursed roughly $200 million in aid targeting conflict, security, and legal and judicial reforms. Despite the large sums spent, successes have been few and far between – as reflected by the lack of concrete improvements in the level of security or in the presence of the law in the lives of the average citizen in aid-recipient countries. The time is ripe for donors to shift away from a top-down approach to rule-of-law reforms and focus more on local norms, institutions and state-society relations.
Some scholars suggest the problem with the current approach is an overly narrow focus on legislative reform that often involves the transplantation of a Western liberal legal framework regardless of the specificities of the local culture. Take the European Union’s security sector reform in Guinea-Bissau. As a 2016 study highlights, the EU labelled its security sector reform intervention in Guinea-Bissau a success after the government passed Western-style legislative reforms of the military, police and justice sectors.
Yet, the security situation in Guinea-Bissau had worsened during the project, including a 2010 coup attempt near the end of the EU’s security sector reform mission that resulted in the Armed Forces Chief of Staff being illegally detained. Despite goals of broadly promoting the rule of law, the study shows that, in practice, the project’s objectives were narrowly focused on legislative reform. In other words, the focus became one solely of “law on the books”. This approach proved inadequate in promoting more profound and transformative change in the rule of law throughout Guinea-Bissauan society, including the security situation of citizens on the ground.
We were curious as to whether this security sector reform intervention in Guinea-Bissau was anomalous or representative of foreign aid projects aimed at strengthening the rule of law. To answer this question, we conducted a study of 154 aid-recipient countries between 1995 and 2013 to assess whether aid targeted at the rule of law influences: 1) the adoption of constitutional and legal reforms and 2) the reach of the law throughout society – that is, if it has an effect on the average citizen.
Our findings, published in the British Journal of Sociology, suggest that more aid significantly increases the likelihood of adopting legal and constitutional reforms. While we find that aid also increases legal reach (as measured by various rule-of-law indices and the homicide rate), its effect on the ground is relatively minor. Unfortunately, aid mainly affects “laws on the books”.
This discrepancy points to limitations of the current approach to rule-of-law reforms. It is widely acknowledged that a legal system cannot simply be transferred from one country to another. The rule of law involves far more than getting a particular legal framework in place, depending on political culture and the nature of state-society relations. While rule-of-law reforms often pay lip service to cultural and contextual considerations, the primary focus of these reforms remains legal institutions and the promulgation of certain types of legislation. The spread of anti-terror legislation across countries in the past 20 years is a prime example.
While institutional considerations are important, these efforts are insufficient and have limited success in strengthening the rule of law – particularly, the reach of the law. This approach may therefore paradoxically lead to aid contributing to the “laws on the books” becoming further removed from the reality on the ground. Aid may help diffuse various models of legal reform and legislation among countries, but if it does little to enhance their application, then its impact on the rule of law for everyday people will be minimal.
A “second generation” of rule-of-law assistance seeks to overcome these limitations. These rule-of-law reforms aim to go beyond justice institutions and have a broader focus on state-society relations, local norms and political culture – potentially increasing the effectiveness of aid on rule-of-law outcomes. While these proposals are not new, they are more difficult to implement, which explains the persistence of the narrower, institutional approach of rule of law reforms among donors.
In a 2015 survey, the majority of OECD DAC members indicated that little effort goes into elucidating how their targeted reforms will lead to more profound changes in the rule of law. While Global Affairs Canada recognizes that “changing laws on paper is not enough to improve the lives of poor people”, some of its projects retain a nearly exclusive focus on legal institutions and judicial systems, which is unlikely to be sufficient to effect real change. Canada, along with other aid donors, should reconsider its current approach to rule-of-law development assistance. It is time to acknowledge that the rule of law is much more than getting the institutions right and to reach beyond the “law on the books” approach.
Andrew Dawson is Associate Professor and Chair, Department of Sociology, Glendon Campus, York University. Liam Swiss is Associate Professor and Chair, Department of Sociology, Memorial University. Image: United Nations.