by Christopher P.M. Waters (ed). Hampshire; Palgrave Macmillan 2005. 240pp. Hardcover. £58.00/$79.95. ISBN: 1403936560.
Reviewed by Sudhir Krishnaswamy, National Law School Of India University, Bangalore, India. Email: krishnaswamysudhir [at] gmail.com.
The Rule of Law discourse has come to dominate the legal reform agenda in developing and transitional countries since the early 1990s. This discourse has been employed by international development agencies to promote a variant of the ‘law and development’ agenda, as well as international financial institutions which have developed complex quantitative measures of the rule of law and governance to chart their policy interventions in developing or post-revolutionary states. Christopher Waters has edited a collection of articles which makes an important contribution to this blossoming field of literature by examining the ‘state of law’ in the three South Caucasian countries: Armenia, Azerbaijan and Georgia. The use of the phrase ‘state of law’ in the title is misleading in so far as the organizing idea for this collection of articles is the definition of the ‘rule of law’ by Thomas Carothers, a central issue to which we shall return later in this review.
The book seeks to address three important questions: first, why is the rule of law so important to these countries? Secondly, why is it so difficult to establish the rule of law in these countries, and thirdly, to identify an agenda for action to promote the rule of law in the South Caucasus. The responses to this ambitious research agenda are organized into four parts: the Role of the State, Lawyering, Regulation and Vulnerable Groups and the Law. Though it is difficult for a book of this length to attempt a comprehensive response to the questions set out above, the absence of a section on dispute resolution processes both in and out of formal courts stands out. The introduction astutely maps out the terrain to be explored and briefly introduces the individual contributions and their relationship to the broader themes explored in the book. The writing style adopted by the contributors is clear and consistent, and this well referenced compilation has been suitably edited to make for an eminently readable and useful book.
However, at the outset two methodological concerns deserve special attention. First, the articles adopt heterogeneous disciplinary approaches to investigate the state of law in the region. Maria Guledani’s account of the ‘The Legal Basis for Business in Georgia’ and to a lesser extent Karen Andreasyan’s ‘Regulation and Reform in the Telecommunications’ are doctrinal in approach and focus on ‘law in the books.’ By contrast, Christoph H Stefes’ chapter on ‘Clash of Institutions: Clientelism and Corruption vs Rule of Law’ ignores doctrinal law and uses political theory and an understanding of political history of the region to analyze the impact of systemic corruption on rule of law in these states. Editor Christopher [*209] Waters’ contribution to this collection presents a sophisticated and nuanced account of the ‘Rule of Law in Secessionist States’ relying extensively on interviews with local actors, including lawyers, judges, law-makers and citizens in South Ossetia and Karabakh. Fortunately this disciplinary heterogeneity makes for a richer and more nuanced account of the legal developments in this part of the world, though a reader may choose to focus only on those disciplinary approaches she finds compelling.
The second methodological concern is the uneven comparative approach adopted by the contributors. A few authors are concerned with all three countries, while most authors have chosen to focus on only one or two countries. Notably, the articles which engage with all three countries develop the most rigorous analytical framework and offer lessons in legal reform useful to the general reader who is not concerned only with law in the South Caucasus. Claude Zullo’s incisive analysis of the contribution of the legal profession to the transition process in these countries is the best illustration of the potential of the comparative method. The presentation in this Chapter is organized not around individual jurisdictions but rather four analytical categories: namely, an overview of the legal profession, the status of the legal profession, legal aid and professional standards. By organizing the discussion in this fashion, Zullo is able to illustrate the common problems faced by these countries as a result of their shared legal and political histories, as well as mark out the decisively different trajectories that these countries have taken in the transition phase.
Karen Andreasyan’s comparative analysis of telecom deregulation in the region displays similar qualities. The political economy analysis of the legal regimes and processes of privatization and regulation in the three countries suggests that successful legal reform is not achieved by importing the right mix of substantive laws and institutional designs. While the author unpacks the state institutional environment and economic structure of the market, he surprisingly pays little to attention to the role of international development and financial institutions, like the World Bank and International Monetary Fund, who have pushed a monolithic telecom reform model in other parts of the world. It is unclear if these institutions or any others were central to the reform trajectories in these countries. In any event, despite this gap in the institutional analysis of telecom reform, the chapter persuades the reader to the conclusion that unless ‘rule of law’ advocates pay attention to the social, economic and political environments in which legal reform programmes are initiated, their reform prescriptions will be inadequate and likely to fail. Unfortunately many of the other contributors to this book have focused on specific jurisdictions which prevent them from exploiting the analytical potential of the comparative method.
We conclude this review by returning to the central organizing idea for this collection – Thomas Carothers’ definition of the ‘rule of law.’ Christopher Waters’ excellent [*210] introduction to this book engages the debate on the contending versions of the ‘rule of law’ paying attention to lawyers’ and political scientists’ version and concludes that Carothers’ functional definition is best suited to the purposes at hand. Carothers’ definition proposes a legal and institutional framework which possesses certain qualities of effectiveness and fairness to be the essential ingredients of the ‘rule of law.’ Many of the contributing authors reference and respond to Carothers’ characterization of the ‘rule of law,’ thereby turning it into the central motif of this book.
The reliance on Carothers’ characterization of the ‘rule of law’ in this book results in two significant inadequacies. First, it ignores the relationship between legal and non-legal features in a society. It suggests that legal reform proceeds autonomously and that reform projects need to focus on laws, judges, lawyers and law-makers. The best contributions to this book persuade the reader to look for explanations for legal reform that go beyond the legal realm and take culture and society seriously. Sara Anjargolian’s chapter on ‘Armenia’s Women in Transition’ ignores the cultural and religious context in which debates about legal reform to empower women take place. The lack of attention to these non-legal factors keeps her from developing useful explanations for the uneven process of legal change in this area. By adopting a perspective on the ‘rule of law’ which explores the relationship between the legal and non-legal realms more comprehensively, this book would have generated further interest.
Secondly, the book does not seriously question the political and cultural specificities of the conceptual discourse of the ‘rule of law’ and treats it as a universal given. ‘Rule of law’ discourse is challenged in some Asian jurisdictions as a cultural imposition which is not consistent with the local cultural milieu, and in other jurisdictions as a Western ideological prop in aid of global capital. It is unclear whether these resistances and counter-strategies to the ‘rule of law’ discourse resonate with the political rhetoric and practice in the South Caucasus, and it is unlikely that these concerns will be investigated seriously unless we abandon Carothers’ perspective on the ‘rule of law’ as a central motif for the book.
The methodological and theoretical problems considered above do not detract in any way from what is an informative and well written book. When one considers that this is the first book in English on this topic, we become acutely aware that, in order to develop a theoretical engagement with rule of law discourse in the South Caucasus, we must first map its general contours. This is a task successfully accomplished by THE STATE OF THE LAW IN THE SOUTH CAUCASUS, and it would be essential reading for anyone interested in rule of law discourse in general or the legal reform in post-revolutionary societies in particular. [*211]
Carothers, Thomas. 2006. PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE. New York: Carnegie.
© Copyright 2007 by the author, Sudhir Krishnaswamy.