International development, legal culture, and expected value theory.

• Author: Keeping, Janet
• Position: Special Report on International Organizations of Justice

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It is understood now that a properly functioning legal system may be necessary to the achievement of other, more obvious development goals, such as the alleviation of poverty. In a paper written for the Canadian International Development Agency (CIDA), McGill University law professor Stephen Toope puts the matter this way, "How does legal and judicial reform fit within the mandate of CIDA ...? The brief answer is that stable, equitable and just legal systems support CIDA's mandate to promote security and prosperity, if security is broadly defined to include the protection and enhancement of the quality of life of citizens, and prosperity is seen to be rooted in part in institutions and processes that favour investment, private sector initiative and economic growth."

It is not only legal academics who see this connection. One of the world's best known development economists, Hernando de Soto, from Peru, makes exactly parallel arguments. In a recent public lecture in Calgary, de Soto told his audience that progressive innovation in development could be found in the rule of law. According to de Soto, developing countries will not be able to close the gap with developed countries without embracing the rule of law and, especially, what he calls "facilitative law". What de Soto has in mind is not punitive (such as criminal) or regulatory law, so much as law which allows for the creation of entities such as corporations, and protects legal ownership to property. But a serious legal system is also necessary to human rights protection, which in turn contributes to traditional development goals such as poverty reduction. Think here, for example, of the well-documented importance of women's rights to development progress.

The connection between development and a sound legal system may be pretty obvious upon reflection. But even for "believers", the design and execution of programs aimed at assisting other countries to reform their legal and judicial systems is a very tricky business. For one thing, serious reform of this kind entails a lengthy process. Again, Stephen Toope puts it well, "It is acknowledged with absolute unanimity that justice reform is a long-term process. This is not an area where quick fixes can work, nor is it likely that programming can be effective unless there is consistent engagement over a number of years ..."

So the experts are in agreement on this point. But why is legal reform such a time-consuming...