The importance of law and institutions to development is now widely recognized. Significant amounts of development assistance now target legal and institutional reform. These efforts have generally viewed legal and institutional reform as technical matters. Designing laws and institutions appropriate to local circumstances has been seen as primarily requiring the application of competent expertise. Yet practitioners in this field may gain a different perspective. Reforms that on paper seem wise may not get implemented, and those that are implemented may not achieve their intended aims. In this Article, the Author contends that one reason for this outcome is the failure of those involved to account for the political dimension of the work. Once it is recognized that legal and institutional reform in the development context is just as political as in any other context, the need to come to terms with the political dimension of the work becomes clear. To reconcile the objectives of legal and institutional reform for development with the need for some degree of political legitimacy associated with the activity, a political-theoretical account is needed. As a first attempt at articulating that view, the Author relies on the ideals associated with the discursive theory of law developed by Jurgen Habermas. This view is in turn given more practical grounding by reference to contemporary accounts of empowered participatory governance, which seek to involve citizens directly in defining state policy and practice. Three examples of what this strongly participatory account of legal and institutional reform might look like in practice follow.
Thomas F. McInerney,
Law and Development as Democratic Practice,
38 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol38/iss1/3