The rule of law and its promotion abroad: Three problems of scope

Stanford Journal of International Law

Volumn 45, Issue 1, 2009, Pages 51-115

  Magen, Amichai ^a  

^a STANFORD LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 67651036871     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (525)

1. On the history and evolution of the rule of law see FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY (1978);
2. FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM (1944);
3. BRIAN Z. TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY (2004);
4. Rainer Grote, Rule of Law, Rechtsstaat and État de Droit, in CONSTITUTIONALISM, UNIVERSALISM, AND DEMOCRACY - A COMPARATIVE ANALYSIS (Christian Starck ed., 1999).
5. Briefing: Order in the jungle - Economics and the rule of law, ECONOMIST, Mar. 15 2008.
6. On the recent explosion of interest in the rule of law in development economists, see also PAUL COLLIER, THE BOTTOM BILLION: WHY THE POOREST COUNTRIES ARE FAILING AND WHAT CAN BE DONE ABOUT IT (2007);
7. MICHAEL J. TREBILCOCK AND RON DANIELS, RULE OF LAW REFORMS AND DEVELOPMENT: CHARTING THE FRAGILE PATH OF PROGRESS (2008);
8. Francisco Alcala and Antonio Ciccone, Trade and Productivity, 119 QUARTERLY J. OF ECON. 613 (2004);
9. Daniel Kaufmann, Aart Kraay and Massimo Mastruzzi, Governance Matters IV: Governance Estimates for 1996-2004 (World Bank, Policy Research Dep't Working Paper No. 3630, 2005);
10. Roberto Rigobon and Dani Rodrik, Rule of Law, Democracy, Openness and Income: Estimating the Interrelationships (National Bureau of Economic Research, Working Paper No. 10750, 2004);
11. Carlos Santiso, International Co-operation for Democracy and Good Governance: Moving Towards a Second Generation?, 13 EUROPEAN J. OF DEV. RESEARCH 154 (2001).
12. See AVNER GREIF, INSTITUTIONS AND THE PATH TO THE MODERN ECONOMY (2006);
13. Michael Bratton and Eric C. C. Chang, State Building and Democratization in Sub-Saharan Africa: Forwards, Backwards, or Together?, 39 COMP. POL. STUD. 1059 (2006);
14. Avner Greif, Paul Milgrom, and Barry Weingast, Coordination, Commitment and Enforcement: The Case of the Merchant Guild, 102 J. POL. ECON. 745 (1994);
15. Dani Rodrik, Arvind Subramanian, and Francesco Trebbi, Institutions Rule: The Primacy of Institutions Over Geography and Integration in Economic Development, 9 J. ECON. GROWTH 131 (2004).
16. See LARRY DIAMOND, THE SPIRIT OF DEMOCRACY: THE STRUGGLE TO BUILD FREE SOCIETIES THROUGHOUT THE WORLD (2008);
17. ASSESSING THE QUALITY OF DEMOCRACY (Larry Diamond & Leonardo Morlino eds., 2005);
18. INTERNATIONAL ACTORS, DEMOCRATIZATION, AND THE RULE OF LAW (Amichai Magen & Leonardo Morlino eds., 2008).
19. See FORGING A WORLD OF LIBERTY UNDER LAW: U.S. NATIONAL SECURITY IN THE 21st CENTURY, FINAL REPORT OF THE PRINCETON PROJECT ON NATIONAL SECURITY (G. John Ikenbeny & Anne-Marie Slaughter eds., 2006);
20. Susan Rose-Ackerman, Establishing the Rule of Law, in WHEN STATES FAIL: CAUSES AND CONSEQUENCES 182-221 (Robert I. Rotberg ed., 2004);
21. U.S. ARMY/MARINE CORPS COUNTERINSURGENCY FIELD MANUAL: U.S. ARMY FIELD MANUAL NO. 3-24 (2007);
22. U.N. Security Council, The rule of law and transitional justice in conflict and post-conflict societies, S/2004/616 (2004);
23. U.S. Institute of Peace, Establishing the Rule of Law in Iraq, Special Report 104 (2003);
24. U.S. Institute of Peace, Building Civilian Capacity for U.S. Stability Operations: The Rule of Law Component, Special Report 118 (2004);
25. Rachel Kleinfeld, Lawyers as Diplomats, Judges as Missionaries: U.S. and EU Strategies to Build the Rule of Law Abroad, 1990-2006 (2009) (unpublished dissertation, Oxford University) (on file with author).
26. Thomas Carothers, The Rule-of-Law Revival, in PROMOTING THE RULE-OF-LAW ABROAD: IN SEARCH OF KNOWLEDGE 3 (Thomas Carothers ed., 2006).
27. The identification of the attributes of the rule of law has always been a contested issue. Indeed, because the conceptualization of the rule of law is inherently linked with theory of the rule of law (itself an open, evolving concept) there is no point in arguing about "the correct" definition. I therefore follow the sage advice of Gerardo Munck and Jay Verkuilen not to insist that one correct definition of a concept exists, but to avoid the extremes of including too little or too much in a definition relative to our theoretical goals. See Gerardo L. Munck & Jay Verkuilen, Conceptualizing and Measuring Democracy: Evaluating Alternative Indices, 35 COMP. POL. STUD. 5,7-9 (2002).TAMANAHA, supra note 1, at 1. The degree of consensus about the desirability of the rule of law should not be overstated. Historically, Marxist and Fascist regimes rejected the rule of law as an Anglo-Saxon, Capitalist notion.
28. For its part, the radical Islamist ideology of groups like Al-Qaeda reject democracy and the rule of law as heretical Western, modern constructs that abrogate Allah's direct sovereignty on earth. See LAWRENCE WRIGHT, THE LOOMING TOWER: AL-QAEDA AND THE ROAD TO 9/11 (2006).
29. On democracy as a universal value see Carl Gershman, Democracy as a Policy Goal and Universal Value, 6 THE WHITEHEAD J. DIPL. & INT'L Rel. 19 (2005);
30. Michael McFaul, Democracy Promotion as a World Value, 28 WASH. Q. 147 (Winter 2004-05);
31. Amartya Sen, Democracy as a Universal Value, 10 J. DEMOCRACY 3 (1999).
32. Olufemi Taiwo, The Rule of Law: The New Leviathan?, 12 CAN. J.L. & JURIS. 151, 152 (1999).
33. Judith Shklar, Political Theory and the Rule of Law in THE RULE OF LAW: IDEAL OR IDEOLOGY 1-16,1 (Allan Hutchinson & Patrick Monahan eds., 1987).
34. ABRAHAM KAPLAN, THE CONDUCT OF INQUIRY: METHODOLOGY FOR BEHAVIORAL SCIENCE 51-53, 71-78 (1964) (cited in Munck & Verkuilen, supra note 7, at 8).
35. Margaret Jane Radin, Reconsidering the Rule-of-law, 69 B.U. L. REV. 781, 791 (1989) (observing that the rule of law is "deeply ambiguous, a contested concept"). In fact, the term is contested along several axes. Linguistically, the term "rule of law" is often equated with the concepts of l 'etat de droit, in the French legal tradition, Rechtsstaatlichkeit or Rechtsstaat, in the Germanic legal tradition, and estado de derecho, in the Iberian traditions, including in Latin America. However, the concepts are not synonymous. See Rainer Grote, Rule of Law, Rechtsstaat and État de Droit, in CONSTITUTIONALISM, UNIVERSALISM, AND DEMOCRACY - A COMPARATIVE ANALYSIS (Christian Starck ed.,1999). Grote concludes that the term belongs to the category of open-ended concepts which are subject to permanent debate. Substantively too, the concept of the rule of law has been subjected to liberal, feminist, and socialist critiques. See, e.g., Christine Sypnowich, Utopia and the Rule-of-law, in RECRAFTING THE RULE OF LAW: THE LIMITS OF LEGAL Order 178 (David Dyzenhaus ed., 1999);
36. Morton Horwitz, The Rule-of-law: An Unqualified Human Good?, 86 YALE L.J. 561 (1977) (reviewing DOUGLAS Hay, et al., ALBION'S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND (1975) and E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT (1975). The rule of law has also been subjected to claims that it is impossible to achieve. See, e.g., Timothy A. O. Endicott, The Impossibility of the Rule of Law, 19 OXFORD J. LEGAL STUD. 1 (1999);
37. ALAN HUTCHINSON AND PATRICK MONAHAN, THE RULE-OF-LAW: IDEAL AND IDEOLOGY (1987). I do not contend with these various critiques here, mainly because I fundamentally agree with Randall Peerenboom's point that the fact that there is room for debate about the proper interpretation of the term "should not blind us to the broad consensus of its core meaning and basic elements." Randall Peerenboom, Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating the Rule of law in China, 23 MICH. J. INT'L L. 471,472 (2002).
38. See ALBERT VENN DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 179 (7th ed. 1908);
39. also RICHARD A. COSGROVE, THE RULE-OF-LAW: ALBERT VENN DICEY, VICTORIAN JURIST (1980);
40. H. W. Ardnt, The Origins of Dicey's Concept of the "Rule of Law", 31 AUSTL. L.J. 117 (1957).
41. See FRANZ NEUMANN, THE RULE-OF-LAW: POLITICAL THEORY AND THE LEGAL SYSTEM IN MODERN SOCIETY (1986).
42. See HAYEK, THE ROAD TO SERFDOM, supra note 1;
43. ROBERTO UNGAR, LAW IN MODERN SOCIETY (1976) (arguing for a strong affinity between liberal market reforms and the rule of law);
44. LIBERTY AND THE RULE OF LAW (Robert L. Cunningham ed., 1979);
45. Patrick McAuslan, Law, Governance and the Development of the Market: Practical Problems and Possible Solutions, in GOOD GOVERNMENT AND LAW: LEGAL AND INSTITUTIONAL REFORM IN DEVELOPING COUNTRIES 33 (Julio Faundez ed., 1997). But see the social-democratic defense of the rule of law in Bill Scheuerman, The Rule of Law and the Welfare State: Toward a New Synthesis, 22 POL. AND SOC'Y 195 (1994), and Jurgen Habermas's reflexive theory of law advocating that law makers and judges invoke the principles and methods characteristic of either bourgeois formal law (Rechstaat) or welfare-state law (socialrechslaat) depending upon whether a particular case suggests liberty-allowing or equality-encouraging priorities. JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (William Rehg trans., 1996).
46. See WORLD BANK, GOVERNANCE: THE WORLD BANK'S EXPERIENCE (1994) [hereinafter THE WORLD BANK'S EXPERIENCE].
47. For a critique of the view that the rule of law is simply and directly essential for economic development, see Nestor Humberto Martinez, Rule of Law and Economic Efficiency, in JUSTICE DELAYED: JUDICIAL REFORM IN LATIN AMERICA 3-13 (Edmundo Jarquin & Fernando Carrillo eds., 1998);
48. Philip von Mehren and Tim Sawers, Revitalizing the Law and Development Movement: A Case Study of Title in Thailand, 33 HARV. INT'L L.J. 67 (1992);
49. McAuslan, supra note 15;
50. Carothers, supra note 6, at 15;
51. A. Cooper Drury et al., Corruption, Democracy, and Economic Growth, 27 INT'L POL. SCI. REV. 121 (2006).
52. Rachel Kleinfeld, Competing Definitions of the Rule of Law, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 31-73 (Thomas Carothers ed., 2006).
53. See also Stephen Holmes, Lineages of the Rule of Law, in DEMOCRACY AND THE RULE OF LAW 19-61 (José María Maravall & Adam Przeworski eds., 2003);
54. TAMANAHA, supra note 1.
55. Kleinfeld, supra note 17, at 32.
56. See J.M. KELLY, A SHORT HISTORY OF WESTERN LEGAL THEORY (1992), TAMANAHA, supra note 1.
57. Kleinfeld, supra note 17, at 33.
58. See REBECCA BILL CHAVEZ, THE RULE OF LAW IN NASCENT DEMOCRACIES: JUDICIAL POLITICS IN ARGENTINA (2004);
59. Larry Diamond & Leonardo Morlino, Introduction, in ASSESSING THE QUALITY OF DEMOCRACY (Larry Diamond & Leonardo Morlino eds., 2005);
60. MARK UNGAR, ELUSIVE REFORM: DEMOCRACY AND THE RULE OF LAW IN LATIN AMERICA (2002);
61. Guillermo O'Donnell, Delegative Democracy, 5 J. DEMOCRACY 55 (1994).
62. Peerenboom, supra note 12, at 473.
63. RONALD DWORKIN, A MATTER OF PRINCIPLE 11-13 (1985);
64. Philip Selznick, Legal Cultures and the Rule of Law, in THE RULE OF LAW AFTER COMMUNISM: PROBLEMS AND PROSPECTS IN EAST-CENTRAL EUROPE 21-38 (Martin Krygier & Adam Czamota eds., 1999);
65. Paul Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, PUB. L. 467 (1997).
66. PHILIPPE NONET AND PHILIP SELZNICK, LAW AND SOCIETY IN TRANSITION: TOWARD RESPONSIVE LAW (1978) (using the term "autonomous law" to denote the idea of law in modern legal culture which is distinguished from "repressive law").
67. DICEY, supra note 13, at 188.
68. HAYEK, THE ROAD TO SERFDOM, supra note 1, at 54.
69. See Craig, supra note 23.
70. Joseph Raz, The Rule of law and Its Virtue, in LIBERTY AND THE RULE OF LAW 3, 4 (Robert L. Cunningham ed., 1979).
71. See generally DICEY, supra note 13;
72. AVNER GREIF, INSTITUTIONS AND THE PATH TO THE MODERN ECONOMY (2006);
73. KELLY, supra note 19.
74. The challenges involved in the establishment and maintenance of even the very basic conditions of law and order in conflict and post-conflict societies, have recently begun to attract close academic and policy attention, after being long neglected. See The Secretary-General, Report of the Secretary-General on the Rule of law and Transitional Justice in Conflict and Post-Conflict Societies, delivered to the Security Council, U.N. Doc. S/2004/616 (Aug. 23 2004);
75. DEPARTMENT FOR INTERNATIONAL DEVELOPMENT (DFID), SAFETY, SECURITY AND ACCESSIBLE JUSTICE: PUTTING POLICY INTO PRACTICE (July 2002), available at http://www.dfid.gov.uk/pubs/files/ safesecureaccjustice.pdf;
76. JANE STROMSETH ET AL., CAN MIGHT MAKE RIGHT? BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTION (2006);
77. World Bank, Guatemala: The Role of Judicial Modernization in Post Conflict Reconstruction and Social Reconstruction, Social Development Notes no. 21 (2005);
78. United States Institute for Peace (USIP), Building Civilian Capacity for U.S. Stability Operations: The Rule of law Component, USIP Special Report 118 (2004);
79. Michael Bratton and Eric Chang, State Building and Democratization in Sub-Saharan Africa, 39 COMP. POL. STUD. 1059 (2006).
80. Selznick, supra note 23, at 25.
81. Julio Faundez, The Rule of law Enterprise: Promoting a Dialogue Between Practitioners and Academics, 12 DEMOCRATIZATION 567, 579 (2005).
82. On the attack on legal formalism see the literature cited by Faundez in notes 41 to 44.
83. See Sypnowich, supra note 12, at 191-92;
84. THE RULE OF LAW: NOMOS XXXVI (Ian Shapiro ed., 1994).
85. Selznick, supra note 23, at 27.
86. DWORKIN, supra note 23, at 11-12.
87. Guillermo O'Donnell, Why the Rule of law Matters, in ASSESSING THE QUALITY OF DEMOCRACY 3-17 (Larry Diamond & Leonardo Morlino, eds., 2005) at 7.
88. Thomas Carothers, supra note 6, at 4-5.
89. For a discussion of this lacunae and some of the reasons for it see Faundez, supra note 32, at 574-582.
90. Notably through the work of Guillermo O'Donnell, Larry Diamond, and Leonardo Morlino. See Guillermo O'Donnell, supra note 36;
91. Guillermo O'Donnell, Polyarchies and the (Un)Rule of law in Latin America: A Partial Conclusion, in JUAN MENDEZ, GUILLERMO O'DONNELL AND PAULO SERGIO PINHEIRO, THE (UN) RULE OF LAW AND THE UNDERPRIVILEGED IN LATIN AMERICA 303-338 (1999).
92. On the relationship between democracy and the rule of law see also the contributions in DEMOCRACY AND THE RULE OF LAW (Jose Maria Maravall & Adam Przeworski eds., 2003) and;
93. Barry Weingast, The Political Foundations of Democracy and the Rule of law, 91 AM. POL. SCI. REV. 245 (1997).
94. While we should not exclude the possibility that developments in jurisprudence have influenced political scientists and even practitioner conceptions of the rule of law (and vice versa) the exploration of such connections, if any, falls outside the scope of this study.
95. See generally literature cited supra note 2.
96. See generally John Williamson, What Washington Means by Policy Reform, in LATIN AMERICAN ADJUSTMENT: HOW MUCH HAS HAPPENED? 5 (John Williamson ed., 1990);
97. Peter Gibbon, The World Bank and the New Politics of Aid, 5 EUR. J. DEV. RES. 35 (1993).
98. See Williamson, supra note 42.
99. See Gibbon, supra note 42.
100. WORLD BANK, SUB-SAHARAN AFRICA: FROM CRISIS TO SUSTAINABLE GROWTH 62 (1989) [hereinafter SUB-SAHARAN AFRICA].
101. See ADJUSTING TO POLICY FAILURE IN AFRICAN ECONOMIES (David Sahn ed., 1994);
102. ANNE KRUEGER, POLITICAL ECONOMY OF POLICY REFORM IN DEVELOPING COUNTRIES (1993);
103. Gibbon, supra note 42;
104. Leila Frischtak, Governance, Capacity and Economic Reform in Developing Countries, World Bank Technical Paper Number 254 (1994).
105. See Elisa Van Waeyenberge, From Washington to Post-Washington Consensus: Illusions of Development, in THE NEW DEVELOPMENT ECONOMICS: AFTER THE WASHINGTON CONSENSUS 21, 30 (Jomo K.S. & Ben Fine eds., 2006).
106. See THE WORLD BANK'S EXPERIENCE, supra note 16;
107. WORLD BANK, THE WORLD BANK AND LEGAL TECHNICAL ASSISTANCE (1995) [hereinafter LEGAL TECHNICAL ASSISTANCE].
108. See generally COLLIER, supra note 2;
109. st CENTURY (2004) [hereinafter FUKUYAMA, STATE-BUILDING].
110. See WORLD BANK, EAST ASIAN MIRACLE: ECONOMIC GROWTH AND PUBLIC POLICY (1993).
111. Mexico in 1994, East Asia in 1997-98, Russia in 1998, Brazil in 1999, Argentina in 2002.
112. In the working documents of the Word Bank, as Faundez shows, preoccupation with the rule of law as a function of governance has mushroomed within the last decade. Faundez, supra note 32, at 569. A survey of the Bank's World Development Report, published annually reveals that between 1997 and 2002-03 alone the number of matters identified as important components of governance has almost tripled from 45 in 1997 to 116 in 2002-03. Id. "Since virtually every aspect of governance has a legal dimension," he asserts, "the expansion of the governance agenda brought about a corresponding expansion of the ["Rule of law Enterprise"] agenda." Id. On the origins and nature of the "Washington Consensus," see JOHN TOYE, DILEMMAS OF DEVELOPMENT (2ND ED, 1993);
113. John Williamson, supra note 42.
114. See JOSEPH STIGLITZ, More Instruments and Broader Goals: Moving towards the Post-Washington Consensus, in JOSEPH STIGLITZ AND THE WORLD BANK: THE REBEL WITHIN 17 (Ha-Joon Chang ed., 2001);
115. JOSEPH STIGLITZ, Towards a New Paradigm for Development-Strategies, Policies, and Processes, in JOSEPH STIGLITZ AND THE WORLD BANK: THE REBEL WITHIN (Ha-Joon Chang ed., 2001).
116. For commentary on the shift from the Washington Consensus to the "New Development Economics" see DEVELOPMENT POLICY IN THE TWENTY- FIRST CENTURY: BEYOND THE POST-WASHINGTON CONSENSUS (Ben Fine, Costas Lapavitsas & Jonathan Pincus eds., 2001);
117. PAUL KRUEGER, THE FALL AND RISE OF DEVELOPMENT ECONOMICS (1999);
118. THE NEW DEVELOPMENT ECONOMICS: AFTER THE WASHINGTON CONSENSUS, supra note 47;
119. REINVENTING THE WORLD BANK (Jonathan Pincus & Jeffrey Winters eds., 2002);
120. HOWARD WHITE & GESKE DIJKSTRA, PROGRAMME AID AND DEVELOPMENT: BEYOND CONDITIONALITY (2003).
121. See WORLD BANK, A PROPOSAL FOR A COMPREHENSIVE DEVELOPMENT FRAMEWORK (1999).
122. Id. (supported by recommendations 1 and 2 of the report).
123. For a detailed discussion of these developments see COLLIER, supra note 2;
124. TREBILCOCK, supra note 2;
125. Kleinfeld, supra note 5.
126. On the "third wave" see SAMUEL HUNTINGTON, THE THIRD WAVE: DEMOCRATIZATION IN THE LATE TWENTIETH CENTURY (1991).
127. FREEDOM HOUSE, FREEDOM IN THE WORLD 2005: THE ANNUAL SURVEY OF POLITICAL AND CIVIL LIBERTIES 15 (2005) available at http://www.freedomhouse.org/template.cfm?page=15&year=2005.
128. st Century, 6 WHITEHEAD J. DIPL. & INT'L REL. 13 (2005).
129. Id. at 25.
130. "Free" states are ones that score 2.5 or better on the Freedom House scale. FREEDOM HOUSE, supra note 57, at 292.
131. PAUL BROOKER, NON-DEMOCRATIC REGIMES: THEORY, GOVERNMENT & POLITICS 2 (2000) (describing the phenomenon in terms of "semi-dictatorship" and "disguised dictatorship");
132. Larry Diamond, Juan Linz & Martin Lipset, Introduction: What Makes for Democracy?, in POLITICS IN DEVELOPING COUNTRIES: COMPARING EXPERIENCES WITH DEMOCRACY 1, 8 (Larry Diamond, Juan Linz & Martin Lipset eds., 1995) (discussing the concept of "pseudodemocracies");
133. MARINA OTTAWAY, DEMOCRACY CHALLENGED: THE RISE of SEMI-AUTHORITARIANISM (2003);
134. Andreas Schedler, The Logic of Electoral Authoritarianism, in ELECTORAL AUTHORITARIANISM: THE DYNAMICS OF UNFREE COMPETITION 1, 4 (Andreas Schedler ed., 2006);
135. PETER H. SMITH, DEMOCRACY IN LATIN AMERICA: POLITICAL CHANGE IN COMPARATIVE PERSPECTIVE 10-11, 23 (2005) (using the term "semi-democracy" to characterize electoral, defective democracies in Latin America);
136. Thomas Carothers, The End of the Transition Paradigm, 13 J. DEMOCRACY 5, 9 (2002) (identifying a "gray zone" in which many "transitional" countries became stuck rather than progressing towards democratic consolidation);
137. David Collier & Steven Levitsky, Democracy with Adjectives: Conceptual Innovation in Comparative Research, 49 WORLD POL. 430, 437 (1997) (discussing "diminished subtypes" of democracy and "democracies with adjectives");
138. Richard Joseph, Is Ethiopia Democratic? Oldspeak vs. Newspeak, 9 DEMOCRACY 55, 56 (1998) (speaking in terms of "democracy as deception");
139. Richard Joseph, Is Ethiopia Democratic? Oldspeak vs. Newspeak, 9 DEMOCRACY 55, 56 (1998) (speaking in terms of "democracy as deception");
140. Terry Karl, The Hybrid Regimes of Central America, 6 J. DEMOCRACY 72, 74 (1995);
141. Herbert Kitschelt, LINKAGES BETWEEN CITIZENS AND POLITICIANS IN DEMOCRATIC POLITIES, 33 COMP. POL. STUD. 845, 846 (2000) (discussing "clientelist" democracies that are weak on programmatic party politics);
142. Steven Levitsky & Lucan Way, Elections Without Democracy: The Rise of Competitive Authoritarianism, 13 J. DEMOCRACY 51 (2002);
143. O'Donnell, supra note 21;
144. Fareed Zakaria, The Rise of Illiberal Democracy, 76 FOREIGN AFF. 22 (1997).
145. Aurel Croissant & Wolfgang Merkel, Introduction: Democratization in the Early Twenty-First Century, 11 DEMOCRATIZATION 1, 1 (2004).
146. Diamond & Morlino, supra note 21 at xv. The other seven dimensions of democracy identified by Diamond and Morlino are: participation, competition, vertical accountability, horizontal accountability (these, along with the rule of law, are categorized as "procedural" dimensions), freedom, equality (substantive dimensions), and responsiveness (results dimension).
147. See generally CHAVEZ, supra note 21;
148. MENDEZ, O'DONNELL & PINHEIRO, supra note 39;
149. UNGAR, supra note 21. In contrast, the following studies examine judicial reform promotion and dynamics in Latin America but not from a democratic quality perspective: LINN A. HAMMERGREN, THE POLITICS OF JUSTICE AND JUSTICE REFORM IN LATIN AMERICA: THE PERUVIAN CASE IN COMPARATIVE PERSPECTIVE (1998);
150. JUSTICE DELAYED: JUDICIAL REFORM IN LATIN AMERICA (Edmundo Jaquin & Fernando Carrillo eds., 1998);
151. RULE OF LAW IN LATIN AMERICA: THE INTERNATIONAL PROMOTION OF JUDICIAL REFORM (Domingo Pilar & Rachel Sieder eds., 2001);
152. Jose Alvarez, Promoting the "Rule of Law" in Latin America: Problems and Prospects, 25 GEO. WASH. J. INT'L L. & ECON. 281 (1991-92). Javier Ciurlizza, Judicial Reform and International Legal Technical Assistance in Latin America, 7:2 DEMOCRATIZATION 211 (2000);
153. Maria Dakolias, A Strategy for Judicial Reform: The Experience of Latin America, 36 VA. J. INT'L L. 167(1995-96).
154. On post-Communist Russia and Europe, see generally RETHINKING THE RULE OF LAW AFTER COMMUNISM (Adam Czarnota, Martin Krygier & Wojciech Sadurski eds., 2005);
155. SPREADING DEMOCRACY AND THE RULE OF LAW?: THE IMPACT OF EU ENLARGEMENT ON THE RULE-OF-LAW, DEMOCRACY AND CONSTITUTIONALISM IN POST-COMMUNIST LEGAL ORDERS (Adam Czarnota, Martin Krygier & Wojciech Sadurski eds., 2006).
156. On conditions in post-Soviet Russia and Eastern Europe, see also MARK DIETRICH, LEGAL AND JUDICIAL REFORM IN CENTRAL EUROPE AND THE FORMER SOVIET UNION: VOICES FROM FIVE COUNTRIES (The International Bank for Reconstruction and Development/The World Bank 2000);
157. POONAM GUPTA, RACHEL KLEINFELD, & GONZALO SALINAS, LEGAL AND JUDICIAL REFORM IN EUROPE AND CENTRAL ASIA (The World Bank Operations Evaluation Department 2002);
158. THE RULE OF LAW AFTER COMMUNISM: PROBLEMS AND PROSPECTS IN EAST-CENTRAL EUROPE (Mwartin Krygier & Adam Czarnota eds., 1999);
159. THE RULE OF LAW IN CENTRAL EUROPE: THE RECONSTRUCTION OF LEGALITY, CONSTITUTIONALISM AND CIVIL SOCIETY IN THE POST- COMMUNIST COUNTRIES (Jiri Priban & James Young eds., 1999);
160. HERMAN SCHWARTZ, THE STRUGGLE FOR CONSTITUTIONAL JUSTICE IN POST-COMMUNIST EUROPE (2000);
161. Cynthia Alkon, The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, 2 J. DISP. RESOL. 327 (2002);
162. Matthew Spence, The Complexity of Success in Russia, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 217 (Thomas Carothers ed., 2006), supra note 6. In general, relatively little academic attention has been dedicated to the topic of the rule of law in the Balkans, Asia, Africa, or the Middle East, as evident from the extensive bibliography on rule of law reforms compiled in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE (Thomas Carothers ed., 2006), supra note 6, at 339-48. Some research on China and India can be found in several of the contributions in BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW (Erik G. Jensen & Thomas C. Heller eds., 2003).
163. O'Donnell, supra note 36, at 10-12.
164. See generally FUKUYAMA, STATE-BUILDING, supra note 48;
165. MOISES NAIM, ILLICIT: HOW SMUGGLERS, TRAFFICKERS AND COPYCATS ARE HIJACKING THE GLOBAL ECONOMY (2005).
166. See generally Bratton & Chang, supra note 30.
167. Carothers, supra note 6, at 3.
168. Diamond, supra note 58, at 14.
169. See also Larry Diamond, Is Pakistan the (Reverse) Wave of the Future?, 11 J. DEMOCRACY 91 (2000);
170. Carl Gershman, Surviving the Democracy Backlash, WASH. POST, June 8, 2007, at A19. The scope of the hybrid-regime phenomenon is extensive. Diamond estimates that today "at least 45 and perhaps as many as 60 [countries] are electoral authoritarian - roughly between a quarter and a third of all states." Diamond, supra note 59, at 27. Indeed, if one examines the entire spectrum of regime types that now exist between authoritarian regimes, on one side of the regime spectrum, and reasonably high quality liberal democracies, on its other side, at the beginning of the 21st century out of the world's total of 193 independent states, roughly one hundred, a majority, can be categorized as, at best, "diminished subtypes" of democracy.
171. In the scope available only a rudimentary discussion of political development is possible. For a detailed discussion, see AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999);
172. FRANCIS FUKUYAMA, supra note 48;
173. DAMIEN KINGSBURY, POLITICAL DEVELOPMENT (2007).
174. Martin Krygier, Institutional Optimism, Cultural Pessimism and the Rule of Law, in THE RULE OF LAW AFTER COMMUNISM: PROBLEMS AND PROSPECTS IN EAST-CENTRAL EUROPE 77, 84 (Martin Krygier & Adam Czarnota eds., 1999).
175. See generally SIMON CHESTERMAN, YOU, THE PEOPLE: THE UNITED NATIONS, TRANSITIONAL ADMINISTRATION, AND STATE-BUILDING (2004);
176. Simon Chesterman, Building democracy through benevolent autocracy: Consultation and accountability in UN transitional administrations, in THE UN ROLE IN PROMOTING DEMOCRACY: BETWEEN IDEALS AND REALITY 86 (Edward Newmann & Roland Rich eds., 2004);
177. Ylber Hysa, Kosovo: A permanent international protectorate?, in THE UN ROLE IN PROMOTING DEMOCRACY: BETWEEN IDEALS AND REALITY 282 (Edward Newmann & Roland Rich eds., 2004);
178. James Fearon and David Laitin, Neotrusteeship and the Problem of Weak States, 28 INT'L SECURITY 5 (2004);
179. Stefano Recchia, Beyond international trusteeship: EU peacekeeping in Bosnia and Herzegovina, Occasional Paper Number 66, European Union Institute for Security Studies (2007);
180. Rose-Ackerman, supra note 5.
181. Guillermo O'Donnell & Philippe C. Schmitter, Tentative Conclusions About Uncertain Democracies, in TRANSITIONS FROM AUTHORITARIAN RULE: PROSPECTS FOR DEMOCRACY 7 (1986).
182. See Carsten Q. Schneider & Philippe C. Schmitter, Liberalization, Transition and Consolidation: Measuring the Components of Democratization, 11 DEMOCRATIZATION 59, 60-61 (2004) (noting the controversy over whether the right to private property is necessary for liberalization).
183. See, e.g., THE NATIONAL ENDOWMENT FOR DEMOCRACY, STRATEGY DOCUMENT 3 (2007), available at http://www.ned.org/publications/documents/strategy2007.pdf (citing the opening of political space in authoritarian countries as one of the NED's five strategic priorities);
184. also RICHARD YOUNGS, INTERNATIONAL DEMOCRACY AND THE WEST: THE ROLE OF GOVERNMENTS, CIVIL SOCIETY, AND M ULTINATIONAL BUSINESS (2004).
185. On so-called "competitive authoritarian" regimes, see ELECTORAL AUTHORITARIANISM: THE DYNAMICS OF UNFREE COMPETITION (Andreas Schedler ed., 2006);
186. Steven Levitsky & Lucan Way, supra note 61.
187. For a discussion of minimal (thin) versus substantive (thick) conceptions of democracy, see LARRY DIAMOND, THE SPIRIT OF DEMOCRACY, supra note 4, at 20-26.
188. See Barbara Geddes, What Do We Know About Democratization After Twenty Years?, 2 ANNU. REV. OF POLIT. SCI. 115 (1999);
189. Axel Hadenius and Jan Teorell, Pathways From Authoritarianism, 18 J. DEMOCRACY 143 (2007).
190. On the origins and evolution of international elections monitoring, see Hrair Balian, Ten years of international elections assistance and observation, 12 HELSINKI MONITOR 197 (2001);
191. Thomas Carothers, The Observers Observed: The Rise of Election Monitoring, 8.3 J. DEMOCRACY 17 (1997);
192. Arturo Santa-Cruz, Constitutional Structures, Sovereignty, and the Emergence of Norms: The Case of International Election Monitoring, 59 INT'L ORG. 663 (2005).
193. DIAMOND, supra note 4, at 291-292.
194. Erik Jensen, The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional Patterns and Reformers' Responses, in BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW, supra note 65, at 345-48.
195. For an example of Lipset's writing, see Seymour Martin Lipset, Some Social Requisites of Democracy: Economic Development and Political Legitimacy, 53 AM. POL. SCI. REV. 69 (1959).
196. See generally DAVID APTER, THE POLITICS OF MODERNIZATION (1965);
197. DANIEL LERNER, THE PASSING OF TRADITIONAL SOCIETY (1958);
198. EVERETT ROGERS, DIFFUSION OF INNOVATIONS (1983);
199. WALT ROSTOW, THE STAGES OF ECONOMIC GROWTH: a NON-COMMUNIST MANIFESTO (1960).
200. For commentary on modernization theory see MICHAEL E. IATHAM, MODERNIZATION AS IDEOLOGY: AMERICAN SOCIAL SCIENCE AND "NATION BUILDING" IN THE KENNEDY ERA (2000);
201. STAGING GROWTH: MODERNIZATION, DEVELOPMENT, AND THE GLOBAL COLD WAR (David Engerman et al. eds., 2003);
202. TONY SPYBEY, SOCIAL CHANGE, DEVELOPMENT, AND DEPENDENCY: MODERNITY, COLONIALISM AND THE DEVELOPMENT OF THE WEST (1992).
203. See Jensen, supra note 82;
204. Brian Z. Tamanaha, The Lessons of Law-and-Development Studies, 89 AM. J. INT'L L. 470 (1995) (reviewing 2 LAW AND DEVELOPMENT (Anthony Carty ed. 1992);
205. LAW AND CRISIS IN THE THIRD WORLD (Sammy Adelman & Abdul Paliwala eds., 1993)). In reality, the rule of law was a rather peripheral sub-category for modernization theorists, most of who focused on three main themes: economic development, literacy and cultural change, and mass media and national identity development.
206. See generally DENIS MCQUAIL, MCQUAIL'S MASS COMMUNICATION THEORY 84 (4TH ED. 2000).
207. See Jagdish N. Bhagwati, Democracy and Development: Cruel Dilemma or Symbiotic Relationship?, 6.2 REV. DEV. ECON. 151, 151 (2002);
208. Jagdish N. Bhagwati, The New Thinking on Development, 6.4 J. DEMOCRACY 50 (1995).
209. This point is drawn from Kemal Dervis, Governance and Development, 17.4 J. DEMOCRACY 153, 154 (2006).
210. See JAMES A. GARDNER, LEGAL IMPERIALISM: AMERICAN LAWYERS AND FOREIGN AID IN LATIN AMERICA (1980);
211. David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 1974 WIS. L. REV. 1062 (1974);
212. John Henry Merryman, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 AM. J. COMP. L. 457 (1977);
213. Tamanaha, supra note 84.
214. GARDNER, supra note 86, at 6.
215. Trubek & Galanter, supra note 86, at 1087.
216. Jensen, supra note 82, at 346.
217. GARDNER, supra note 86, at 4 (cited in Carol V. Rose, The "New" Law and Development Movement in the Post-Cold War Era: A Vietnam Case Study, 32 L. & SOC'Y REV. 93, 122 (1998)).
218. Carol V. Rose, The "New " Law and Development Movement in the Post-Cold War Era: A Vietnam Case Study, 32 L. & SOC'Y REV. 93,122 (1998).
219. See: John Merryman, Supra note 77 at 479-80;
220. JAMES A. GARDNER, supra note 77.
221. Cf. GARDNER, supra note 86, at 218.
222. For a contemporary discussion from the perspective of democracy theory see JASON BROWNLEE, AUTHORITARIANISM IN AN AGE OF DEMOCRATIZATION (2007).
223. Dependency Theory developed in the late 1950s under the guidance of the Director of the United Nations Economic Commission for Latin America, Raul Prebisch. As director of the Economic Commission for Latin America (ECLA or CEPAL) in 1950 he released The Economic Development of Latin America and its Principal Problems, a study that argued that peripheral countries would witness progressive weakening and poverty as the result of the structure of the world economy.
224. See also ANDRE GUNTER FRANK, CAPITALISM & UNDERDEVELOPMENT IN LATIN AMERICA (1967). Former Brazilian President Fernando Henrique Cardoso also wrote extensively on dependency theory while in political exile.
225. For a critique of the LDM informed by Dependency Theory see David Greenberg, Law and Development in Light of Dependency Theory, 3 RES. L. & SOC. 129 (1980).
226. Merryman, supra note 86, at 480 (emphasis in the original).
227. Trubek & Galanter, supra note 86, at 1087-88.
228. Thomas Carothers, The Many Agendas of Rule of Law Reform in Latin America, in THE RULE OF LAW IN LATIN AMERICA: THE INTERNATIONAL PROMOTION OF JUDICIAL REFORM 4, 5 (Pilar Domingo & Rachel Sieder eds., 2001).
229. Id. at 6.
230. See generally Alvarez, supra note 64, at 287-332.
231. Jensen, supra note 82, at 347.
232. See generally MARTHA K. HUGGINS, POLITICAL POLICING: THE UNITED STATES AND LATIN AMERICA (1998);
233. TONY SMITH, AMERICA'S MISSION: THE UNITED STATES AND THE WORLDWIDE STRUGGLE FOR DEMOCRACY IN THE TWENTIETH CENTURY 266-307 (1994) (discussing Reagan's foreign policy "democratic revolution").
234. Thomas Carothers, supra note 97, at 6.
235. See generally Alvarez supra note 64;
236. LINN A. HAMMERGREN, supra note 64.
237. See generally TONY JUDT, POSTWAR: A HISTORY OF EUROPE SINCE 1945 (2005).
238. Per Sevastik, The Rule of Law and Swedish Development Assistance, in LEGAL ASSISTANCE TO DEVELOPING COUNTRIES: SWEDISH PERSPECTIVES ON THE RULE OF LAW 18 (Per Sevastik ed., 1997).
239. Carothers, supra note 16.
240. Jensen, supra, note 82, at 347.
241. See David Trubek, Law and Development: Then and Now, 90 AM. SOC'Y INT'L L. PROC. 223 (1996).
242. Faundez, supra note 32.
243. Jensen, supra note 82, at 347.
244. Francis Fukuyama, The End of History?, NAT'L INT., Summer 1989, at 3, 4.
245. See generally Gershman, supra note 8;
246. McFaul, supra note 8;
247. Sen, supra note 8.
248. Martin Krygier, The Rule of law: An Abuser's Guide 7 (2006, draft chapter, on file with author).
249. Randall Peerenboom, Human Rights and the Rule of Law: What's the Relationship?, 36 GEO. J.INT'L L .809(2005).
250. Martin Krygier & Adam Czarnota, The Rule of law After Communism: An Introduction, in THE RULE OF LAW AFTER COMMUNISM: PROBLEMS AND PROSPECTS IN EAST-CENTRAL EUROPE, supra note 23, at 1,2.
251. See generally DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE (1990);
252. THE NEW INSTITUTIONALISM IN ORGANIZATIONAL ANALYSIS (Walter Powell & Paul DiMaggio eds., 1991) (on recall);
253. Avner Greif, Historical and Comparative Institutional Analysis, 88 AM. ECON. REV. 80 (May 1998);
254. Avner Greif & Eugene Kandel, Contract Enforcement Institutions: Historical Perspective and Current Status in Russia, in ECONOMIC TRANSITIONS IN EASTERN EUROPE AND RUSSIA: REALITIES OF REFORM 291 (Edward Lazear ed., 1995);
255. Peter J. Katzensteinet al., International Organization and the Study of World Politics, 52 INT'L ORG. 645 (1998).
256. For a discussion of these factors see David M. Trubek et al., Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas, 44 CASE W. RES. L. REV. 407 (1994);
257. Trubek, supra note 107, at 5-6 (didn't find these ages in this source).
258. For a discussion about the relationship between democracy and the rule of law and FDI see INDRA DE SOYSA, FOREIGN DIRECT INVESTMENT, DEMOCRACY, AND DEVELOPMENT: ASSESSING CONTOURS, CORRELATES, AND CONCOMITANTS OF GLOBALIZATION (2003);
259. Matthias Busse, Democracy and FDI, (HWWA, Hamburg Institute of International Economics, Discussion Paper No. 220, 2003), available at http://ssrn.com/abstract=384480.
260. See Carothers, supra note 16.
261. See Frank Upham, Mythmaking in the Rule of law Orthodoxy, in PROMOTING THE RULE OF LAW ABROAD : IN SEARCH OF KNOWLEDGE 75 (Thomas Carothers ed., 2006);
262. Stephen Golub, A House Without Foundations, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 105, 105 (Thomas Carothers ed., 2006). Upham coined the phrase "the Rule of law Orthodoxy" but Golub uses it more usefully to describe the dominant paradigm for integrating law and economic and political development. Julio Faundez discusses the same phenomenon, naming it the "Rule of law Enterprise." Faundez, supra note 32.
263. For explicit expressions of this frustration, see Frank Upham, The Illusory Promise of the Rale of Law, in HUMAN RIGHTS WITH MODESTY: THE PROBLEM OF UNIVERSALISM, 279, 281 (Andreas Sajo ed., 2004);
264. Frank Upham, supra note 118, at 75-77.
265. The assumption that the judiciary is central to a society's rule of law conditions is one of the key characteristics of the orthodoxy. See Faundez, supra note 32;
266. Golub supra note 118, at 117 -119;
267. Erik Jensen &Thomas Heller, Introduction, in BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW, supra note 65, atl.
268. Golub, supra note 118, at 127-28.
269. Golub, supra note 118, at 128-31;
270. Jensen, supra note 82, at 350-53.
271. For a review of radical critiques of the rule of law, see John V. Orth, Exporting the Rule of Law, 24 N.C.J. INT'L L. & COM. REG. 71 (1998), as well as the range of critiques cited supra note 12.
272. See Carothers, supra note 6, at 7-8. This shortcoming is not confined to the rule of law field. As Carothers points out, "[i]n the broader field of democracy assistance, the pattern has been for democracy promoters to translate the overarching idea of democracy into an institutional checklist or template that they can pursue through a series of specific aid initiatives. Similarly, rule of law promoters tend to translate the rule of law into an institutional checklist, with primary emphasis on the judiciary." Carothers, supra note 16, at 20.
273. On the checklist problem in democracy promotion, see also THOMAS CAROTHERS, AIDING DEMOCRACY ABROAD: THE LEARNING CURVE 85-90 (1999);
274. Tanja Borzel & Thomas Risse, EU Policies for the Promotion of Human Rights, Democracy and the Rule of Law (October 4-5, 2004) (unpublished draft prepared for workshop on Democracy Promotion, on file with Stanford University Center of Development, Democracy, and the Rule of Law), available at http://iis-db.stanford.edu/pubs/20747/Risse-Borzel-stanford-final.pdf.
275. Upham, supra note 118, at 101.
276. See Martin Krygier, False Dichotomies, True Perplexities, and the Rule of Law 1-23, at 5 (University of California Berkeley Center for the Study of Law and Society, Paper No. 6, 2003), available at htrp://repositories.cdlib.org/cgi/viewcontent.cgi?article=1027&context=csls.
277. On this critique see also Upham, supra note 118, at 86.
278. Jensen & Heller, supra note 120, at 1-2 (emphasis in the original).
279. Id. at 4. The "ecology approach" to rule of law reform and ideas regarding what it might entail are developed by Thomas Heller in Thomas Heller, An Immodest Postscript, in BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW, supra note 65 at 382.
280. See Stephen Golub, Beyond the Rule of Law Orthodoxy: The Legal Empowerment Alternative (Carnegie Endowment for International Peace Rule of Law Series, Working Paper No. 41, 2003) at 10 (criticizing the notion that adoption of Western laws and legal instutions will help countries develop);
281. see generally Vivek Maru, Between Law and Society: Paralegals and the Provision of Justice Services in Sierra Leone and Worldwide, 31 YALE J. INT'L L. 427 (2006);
282. Ana Palacio, Legal Empowerment for the Poor: An Action Agenda for the World Bank (March 2006) (draft, on file with Wolrd Bank), available at http://rru.worldbank.org/Documents/PSDForum/2006/background/legal- empowerment-of-poor. pdf. A High Level Commission for Legal Empowerment of the Poor (HLCLEP) was convened under the auspices of the UN in January 2006.
283. Maru, supra note 130, at 428.
284. The problem of knowledge, theoretical, but especially empirical, has been called to attention, notably by Thomas Carothers, John Hewko, Erik Jensen and Thomas Heller, Rick Messick, Frank Upham and Julio Faundez. See generally BEYOND COMMON KNOWLEDGE: EMPIRICAL APPROACHES TO THE RULE OF LAW, supra note 65;
285. Carothers, supra note 16;
286. Faundez, supra note 32;
287. Upham, supra note 118 at 34;
288. Messick, Judicial Reform and Economic Development: A Survey of the Issues, 14 WORLD BANK RESEARCH OBSERVER 117 (1999);
289. Hewko, Foreign Direct Investment: Does the Rule of law Matter? (Carnegie Endowment for International Peace Rule of Law Series, Working Paper No. 26, 2002).
290. See generally Carothers, supra note 16, at 8;
291. Martinez, supra note 16, at 8;
292. Patrick McAuslan, Law, Governance, and the Development of the Market: Practical Problems and Possible Solutions, in GOOD GOVERNMENT AND THE LAW: LEGAL AND INSTITUTIONAL REFORM IN DEVELOPING COUNTRIES 25 (Julio Faundez ed., 1997);
293. Rick Messick, supra note 132, at 38;
294. Richard Posner, Creating a Legal Framework for Economic Development, 13 WORLD BANK RESEARCH OBSERVER (1998);
295. John Hewko, supra note 132, at 38.
296. Carothers, supra note 16, at 18.
297. Id. at 21.
298. This point is well illustrated by Kleinfeld, supra note 17.
299. See also Linn Hammergren, Do Judicial Councils Further Legal Reform? Lessons from Latin America, (Carnegie Endowment for International Peace Rule of Law Series, Working Paper No. 28, 2002).
300. Jensen & Heller, supra note 120, at 3;
301. Krygier, supra note 114, at 33.
302. Golub, supra note 121, at 131.
303. See generally Carothers, supra note 16;
304. Wade Channell, Lessons Not Learned about Legal Reform, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 137 (Thomas Carothers ed., 2006). Carothers observes, for example, "Although some practitioners harbor no doubts and promote the rule of law abroad with a great sense of confidence, most persons working in the field openly recognize and lament the fact that little really has been learned about rule of law assistance relative to the extensive amount of on-the-ground activity." Carothers, supra note 16.
305. CHAVEZ, supra note21.
306. Faundez, supra note 32.
307. st 2007.
308. See Jensen, supra note 82, at 348 (positing that this development may herald the launch of a "fifth wave" of rule of law development).
309. On this branch and its call for a revision of the mainstream rule of law orthodoxy to take into account more sociological perspective, see Golub, supra note 130;
310. Mara, supra note 130;
311. VOICES OF THE POOR FROM MANY LWANDS (Deepa Narayan & Patti Petesch eds., 2002).
312. Interview with Dr. Sue Unsworth, Member of DFID Development Committee Secretariat, in London (May 14, 2004).
313. See also Mick Moore and Sue Unsworth, Britain's New White paper: Making Governance Work for the Poor, 24 DEV. POL'Y REV. 707 (2006) (discussing DFID's role in addressing governance issues);
314. UNITED KINGDOM DEPARTMENT FOR INTERNATIONAL DEVELOPMENT (DFID), DFID POLICY STATEMENT ON SWAFETY, SECURITY AND ACCESSIBLE JUSTICE (2003).
315. For the United States, see NATIONAL SECURITY STRATEGY OF THE UNITED STATES (2006), available at http://www.whitehouse.gov/nsc/nss/2006;
316. NATIONAL SECURITY STRATEGY OF THE UNITED STATES (2002), available at http://www. whitehouse.gov/nsc/nss/2002/index.html.
317. For Europe, see Javier Solana, A SECURE EUROPE IN A BETTER WORLD: EUROPEAN SECURITY STRATEGY (Dec. 12, 2003), available at http://ue.eu.int/ueDocs/ cms-Data/docs/pressdata/en/reports/76255.pdf.
318. For a critical comparison, see Simon Duke, The European Security Strategy in a Comparative Framework: Does it Make for a Secure Alliance in a Better World?, 9 EUR. FOREIGN AFF. REV. 459 (2004).
319. EUROPEAN COMMISSION, COMMUNICATION ON GOVERNANCE AND DEVELOPMENT, COM (2003) 615 final, para. 3. Under the banner of "integrated missions" the UN has also begun systematically integrating legal framework, law enforcement, anti-corruption, and institution building work into its peace-keeping missions. See UNITED NATIONS DEPARTMENT OF PEACEKEEPING OPERATIONS, HANDBOOK ON UN MULTIDIMENSIONAL PEACEKEEPING OPERATIONS (2003);
320. Espen Barth Eide et al., Report on Integrated Missions: Practical Perspectives and Recommendations (May 2005), available at http://ochaonline.un.org/GetBin.asp?DocID=3352.
321. On the historical and, to some extent lingering, separation between International Law (IL) and International Relations (IR) theory, and efforts to bridge the gap between them, see Kenneth Abbott, International Relations Theory, International Law and the Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INT'L L. 361 (1999);
322. Kenneth Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 YALE J. INT'L L. 335 (1989);
323. Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 Am. J. INT'L L. 205 (1993);
324. Harold Koh, Why Do Nations Obey? 106 YALE L.J. 2599 (1997);
325. Kal Raustiala and Anne-Marie Slaughter, International law, International Relations and Compliance, in HANDBOOK OF INTERNATIONAL RELATIONS 538-558 (Walter Carlsnaes, Thomas Risse & Beth Simmons eds., 2002);
326. Anne-Marie Slaughter et al., International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 Am. J. INT'L L. 367 (1998).
327. See ROSTOW, supra note 83;
328. Lipset, supra note 83.
329. See Croissant & Merkel, supra note 62.
330. For an analysis of the interaction between domestic regimes and the international system, see in particular Gabriel Almond, The International-National Connection, 19 BRIT. J. POL. SCI. 237 (1989);
331. Jeffrey Checkel, International Institutions and Socialization in Europe, 59 INT'L ORG. 801 (2005);
332. Peter Gurevich, The Second Image Reversed: The International Sources of Domestic Politics, 32 INT'L ORG. 881 (1978);
333. John Owen, The Foreign Imposition of Domestic Institutions, 56 INT'L ORG. 375 (2002);
334. Jon Pevehouse, Democracy from the Outside-In? International Organizations and Democratization, 56 INT'L ORG. 515 (2002);
335. Thomas Risse, International Norms and Domestic Change: Arguing and Communicative Behavior in the Human Rights Area, 27 POL. & SOC'Y 529 (1999).
336. See SUB-SAHARAN AFRICA, supra note 45;
337. THE WORLD BANK'S EXPERIENCE, supra note 16;
338. LEGAL TECHNICAL ASSISTANCE, supra note 48.
339. For commentary, see INSTITUTIONS AND ECONOMIC DEVELOPMENT (Christopher Clague ed., 1997);
340. Gibbon, supra note 11;
341. Robert Summers, Some Basic Ways Good Law, Good Legal Institutions, Good Legal Traditions, and the Principles of The Rule of Law Can Augment Markets (University of Maryland Center for Institutional Reform and the Informal Sector (IRIS) Working Paper No. 227, Mar. 1999) (on file with author).
342. Faundez, supra note 32, at 570;
343. Jensen & Heller, supra note 65, at 2.
344. Faundez, supra note 32, at 570.
345. Intellectually, this drive was strongly influenced by scholarship on the role of informal practices in economic success, developed in the works of Oliver Williamson and Hernando de Soto, as well as the New Institutional Economics pioneered by Douglas North, which has convincingly demonstrated the centrality of systems of governance, including its formal and informal institutions, for the country's long term economic growth and social development. See DEMOCRACY, GOVERNANCE AND GROWTH (Stephen Knack ed., 2003);
346. NORTH, supra note 115;;
347. MANCUR OLSON, POWER AND PROSPERITY (2000);
348. HERNANDO DE SOTO, THE OTHER PATH: THE INVISIBLE REVOLUTION IN THE THIRD WORLD (1989);
349. OLIVER WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM: FIRMS, MARKETS, RELATIONAL CONTRACTING (1985).
350. See also Robert Barro, Economic Growth in a Cross Section of Countries, 106 Q.J. ECON. 407 (1991);
351. Daniel Kaumann and Aart Kraay, Governance and Growth: Causality Which Way?, available at http://www.worldbank.org/wbi/governance/pdf/growthgov- synth.pdf.
352. From hesitant, modest use in the early 1990s, the term has spread to permeate the policy-speak of all the main donor organizations. Whereas in 1997, the World Development Report (WDR) identified 45 reform items as relevant to good governance, for example, in the 2002-3 report the number had increased to 116. The change in rhetoric has also correlated with shifts in the Bank's funding priorities: while its lending to promote economic reforms fell by 14% annually between 2000 and 2004, lending under the banner of " governance" reform rose by 11% annually during the same period, and by 2004,25% of its lending was committed to law and public administration reforms in borrowing countries. WORLD BANK, WORLD BANK ANNUAL REPORT 2004.
353. For commentary on this development see CHRISTIANE ARNDT & CHARLES OMAN, USES AND ABUSES OF GOVERNANCE INDICATORS, OECD Development Center (August 2006) (explaining the explosion of interest in the quality of governance in developing countries as emanating from a combination of reasons: i) the spectacular increase in international investment in developing countries; ii) the end of the Cold War; iii) failed development policy reforms in the 1980s and 1990s; and iv) a new awareness of the importance of politics in economic development and policy reform).
354. The World Bank's Articles of Agreement explicitly bar decisions based on political considerations or political systems, as well as interference in domestic political affairs of its members. Article IV, Section 10 provides: "Political Activity Prohibited: The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I." Similarly, Article III, Section 5 (b) restricts political considerations in Bank financing: "The Bank shall make arrangements to ensure that the proceeds of any loan are used only for the purposes for which the loan was granted, with due attention to considerations of economy and efficiency and without regard to political or other non-economic influences or considerations."
355. Ibrahim Shihata, Political Activity Prohibited, in WORLD BANK LEGAL PAPERS 222 (2000);
356. Robert Effros, The World Bank in a Changing World: The Role of Legal Construction, 35 INT'L L. 1341(2001).
357. Upham, supra note 118, at 77-78. This conception of the term "governance" is different and more tightly contextualized than the more general and widely accepted conception of the term which covers practices of governing that are not performed by state actors. See Markus Jachtenfuchs, Theoretical Perspectives on European Governance, 1 EUR. L.J. 115 (1995).
358. In terms of allocation of human and financial resources as well, the rule of law orthodoxy is largely pursued via an economics prism, rather than a more overtly comprehensive political view of sociopolitical development. As Rose observes, for example: "Most present-day legal assistance projects are designed to assist developing countries cope with this seemingly inevitable process of global economic integration in the post-Cold War era." Rose, supra note 91, at 94. Similarly, Golub comments that: "The programs and goals that donors pursue in the rule of law orthodoxy are not confined to the economic sphere, although that is often the main focus of the multilateral financial institutions that are among the largest sources of assistance funds for rule of law work." Golub, supra note 118, at 107.
359. President James Wolfensohn, Address at Annual Meeting of the World Bank and IMF (Oct. 1, 1996), available at http://web.worldbank.orgAVBSITE/ EXTERNAL/EXTABOUTUS/ORGANIZATION/EXTPRE SIDENT2007/EXTPASTPRESIDENTS/ PRESIDENTEXTERNAL/0"contentMDK:20025269∼ menuPK:232083∼pagePK: 159837∼piPK:159808∼theSitePK:227585,00.html (stating that the international community had to deal with "the cancer of corruption").
360. WORLD BANK, WORLD DEVELOPMENT REPORT 10 (2006).
361. Faundez, supra note 32, at 573.
362. Id. at 574.
363. CHAVEZ, supra note 21;
364. RETHINKING THE RULE OF LAW AFTER COMMUNISM: CONSTITUTIONALISM, DEALING WITH THE PAST, AND THE RULE OF LAW, supra note 65;
365. THE RULE OF LAW AFTER COMMUNISM: PROBLEMS AND PROSPECTS IN EAST-CENTRAL EUROPE, supra note 23;
366. SPREADING DEMOCRACY AND THE RULE OF LAW? THE IMPACT OF EU ENLARGEMENT ON THE RULE OF LAW, DEMOCRACY AND CONSTITUTIONALISM IN POST-COMMUNIST LEGAL ORDERS, supra note 65;
367. Juliet Johnson, "Past" Dependence or Path Contingency? Institutional Design in Post Communist Financial Systems, in CAPITALISM AND DEMOCRACY IN CENTRAL AND EASTERN EUROPE: ASSESSING THE LEGACY OF COMMUNIST RULE 289 (Grzegorz Ekiert & Stephen Hanson eds., 2003);
368. O'Donnell, supra note 21;
369. O'Donnell, supra note 36.
370. Guillermo O'Donnell, Democracy, Law, and Comparative Politics 4 (The Kellogg Institute, University of Notre Dame, Working Paper No. 274, 2000).
371. O'Donnell, supra note 36.
372. O'Donnell, supra note 164.
373. Grzegorz Ekiert and Stephen Hanson, Introduction, in CAPITALISM AND DEMOCRACY IN CENTRAL AND EASTERN EUROPE: ASSESSING THE LEGACY OF COMMUNIST RULE, supra note 163, at 3.
374. A welcome exception is Matthew Spence's work on the U.S.'s efforts to promote rule of law reforms in Russia. See Spence, supra note 65.
375. A good example illustrating the phenomenon is found in Thomas Carothers's broad brush survey of the field, The Rule of law Revival, in which Carothers conceptualizes rule of law promotion as a branch of international development aid, writing: "Most governments attempting rule of law reform are not doing so on their own. Assistance in this field has mushroomed in recent years, becoming a major category of international aid. With a mix of altruism and self-interest, many Western countries have rushed to help governments in Eastern Europe and the former Soviet Union carry out legal and institutional reforms. Russia's legal and judicial reforms, for example, have been supported by a variety of U.S. assistance projects, extensive German aid, a $58 million World Bank loan, and numerous smaller World Bank and European Bank for Reconstruction and Development initiatives, as well as many efforts sponsored by Great Britain, the Netherlands, Denmark, and the European Union. Asia and Latin America are also major recipients of rule of law aid, with a focus on commercial law in Asia and on criminal and commercial law in Latin America. Africa and the Middle East have received less attention.... A host of U.S. agencies underwrite such aid .... The rapid expansion of U.S. rule of law aid exemplifies the only partially successful U.S. response to the challenges of the post-Cold War era.... Almost every major bilateral donor, a wide range of multilateral organizations - especially development banks - and countless foundations, universities, and human rights groups are getting in on the act. In most countries, U.S. rule of law assistance is a small part of the aid pool, although Americans frequently assume it is of paramount importance .... Enormous amounts of aid are granted for writing or rewriting laws, especially commercial laws .... Aid providers are expanding their rule of law efforts to reach parliaments, executive branch agencies, and local governments. Assistance also extends to civil groups." Carothers, supra note 16, at 10-11.
376. See also PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE, supra, note 16 (listing an extensive bibliography on the rule of law). A welcome, partial exception to this reality is found in SPREADING DEMOCRACY AND THE RULE OF LAW? THE IMPACT OF EU ENLARGEMENT ON THE RULE OF LAW, DEMOCRACY AND CONSTITUTIONALISM IN POST-COMMUNIST LEGAL ORDERS, supra note 65 (examining the impact of the EU's enlargement process to Central and Eastern Europe on the constitutional discourse, principles of judicial independence and minority rights in acceding countries).
377. On the emergence of academic commentary on the international dimensions of democratization see THOMAS CAROTHERS, CRITICAL MISSION: ESSAYS ON DEMOCRACY PROMOTION (2005);
378. GEOFFREY PRIDHAM, DESIGNING DEMOCRACY: EU ENLARGEMENT AND REGIME CHANGE IN POST-COMMUNIST EUROPE (2005);
379. YOUNGS, supra note 76;
380. Laurence Whitehead, Democratization With the Benefit of Hindsight: The Changing International Components, in THE UN ROLE IN PROMOTING DEMOCRACY: BETWEEN IDEALS AND REALITY 135-166 (Edward Newmann & Roland Rich eds., 2004);
381. Peter Burnell and Peter Calvert, Promoting Democracy Abroad, 12 DEMOCRATIZATION 433 (2005).
382. WORLD BANK, WORLD BANK DEVELOPMENT REPORT (2004) (cited in Peter Burnell, Political Strategies of External Support for Democratization, 1 FOREIGN POLICY ANALYSIS 361 (2005)).
383. Kemal Dervis, Governance and Development, 17 J. DEMOCRACY 153 (2006)
384. Steven Finkel, Anibal Perez-Linan and Mitchell Seligson, The Effects of U.S. Foreign Assistance on Democracy Building, 1990-2003, 59 WORLD POLITICS 404 (2007)
385. Peter Burnell, Political Strategies of External Support for Democratization, 1 FOREIGN POLICY ANALYSIS 361, 361 (2005).
386. National Retail Federation, News Release, (Sept. 20, 2006), available at http://www.nrf.com/content/default.asp?folder=press/release2006&file= halloween06.htm.
387. See material cited supra note 140;
388. THOMAS RISSE ET AL., THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (1999);
389. BRUCE RUSSETT & JOHN ONEAL, TRIANGULATING PWEACE: DEMOCRACY, INTERDEPENDENCE, AND INTERNATIONAL ORGANIZATIONS (2001);
390. JUDITH KELLEY, ETHNIC POLITICS IN EUROPE: THE POWER OF NORMS AND INCENTIVES (2004);
391. PAUL KUBICEK, THE EUROPEAN UNION AND DEMOCRATIZATION (2003);
392. THE INTERNATIONAL DIMENSIONS OF DEMOCRATIZATION: EUROPE AND THE AMERICAS (Laurence Whitehead ed., 1996);
393. Martha Finnemore & Kathryn Sikkink, INTERNATIONAL NORM DYNAMICS AND POLITICAL CHANGE, 52 INT'L OAG. 887 (1998);
394. Kristian S. Gleditsch & Michael Ward, Diffusion and the International Context of Democratization, 60 INT'L ORG. 911 (2006);
395. Jeffrey Kopstein & David Reilly, Geographic Diffusion and the Transformation of the Post-Communist World, 53 WORLD POLITICS 1 (2000);
396. Margaret Keck & Kathryn Sikkink, Transnational Advocacy Networks in International and Regional Politics, 51 INT'L SOC. SCI. J. 89 (1999);
397. John G. Ikenberry & Charles Kupchan, Socialization and Hegemonic Power, 44 INT'L ORG. 283 (1990);
398. Brett Leeds, Domestic Political Institutions, Credible Commitment, and International Cooperation, 43 AM. J. POL. SCI. 979 (1999);
399. Steven Levitsky & Lucan Way, International Linkage and Democratization, 16 J. DEMOCRACY 20 (2005);
400. Jon C. Pevehouse, Democracy from the Outside-In? International Organizations and Democratization, 56 INT'L ORG. 515 (2002);
401. Jon Pevehouse, With a Little Help From My Friends? Regional Organizations and the Consolidation of Democracy, 46 AM. J. POL. SCI. 611 (2002);
402. Thomas Risse, 'Lets Argue!': Communicative Action in World Politics, 54 INT'L ORG. 1 (2000);
403. Harvey Starr, DEMOCRATIC DOMINOS: DIFFUSION APPROACHES AND THE SPREAD OF DEMOCRACY IN THE INTERNATIONAL SYSTEM, 35 J. CONFLICT RESOLUTION 356 (1991). Of course discussion of international actors' roles in domestic institutional, legal and normative change did not begin as late as the end of the Cold War. Earlier pioneers in the filed include: Gurevich, supra note 149;
404. THE FORMATION OF NATIONAL STATES IN WWESTERN EUROPE (Charles Tilly ed., 1975).
405. Peter Schraeder, The State of the Art in International Democracy Promotion: Results of a Joint European-North American Research Network, 10 DEMOCRATIZATION 21,26 (2003).
406. Military intervention itself ranges from full military occupation to more limited paramilitary intervention, support for one side to an internal conflict, or various types of covert involvement. See SIMON CHESTERMAN, JUST WAR OR JUST PEACE? HUMANITARIAN INTERVENTION AND INTERNATIONAL LAW (2001);
407. MARK PECENY, DEMOCRACY AT THE POINT OF BAYONETS (1999);
408. SMITH, supra note 100;
409. Peter Schraeder, Paramilitary Intervention, in INTERVENTION INTO THE 1990s: U.S. FOREIGN POLICY IN THE THIRD WORLD 131 (Peter Schraeder ed., 1992);
410. David Forsythe, Democracy, War and Covert Action, 29 J. PEACE RES. 385 (1992);
411. David Hendrickson, The Democratist Crusade: Intervention, Economic Sanctions, and Engagement, 11 WORLD POL'Y J. 18(1994-95).
412. David Wippman, Pro-Democratic Intervention by Invitation, in DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW 293 (Gregory Fox & Brad Roth eds., 2000).
413. See Michael Reisman, Humanitarian Intervention and Fledgling Democracies, 18 FORDHAM INT'L L.J. 794 (1995) (supporting military intervention in certain circumstances);
414. Brad Roth, The Illegality of "Pro-Democratic" Invasion Pacts, in DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW 328 (Gregory Fox & Brad Roth eds., 2000) (arguing against the legality of such interventions).
415. Whitehead, supra note 170, at 137.
416. On the factors weakening non-intervention norms and strengthening external intervention to promote democracy see W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, in DEMOCRATIC GOVERNANCE AND INT'L L. 239 (Gregory Fox & Brad Roth eds., 2000);
417. literature cited supra note 2.
418. See literature cited supra note 68.
419. John Ikenberry, Socialization and Hegemonic Power, in LIBERAL ORDER AND IMPERIAL AMBITION 51, 58 (2006).
420. John Owen, IV, The Foreign Imposition of Domestic Institutions, 56 INT'L ORG. 375 (2002).
421. As part of international efforts to successfully implement the 1995 Dayton Peace Agreement, an international High Representative has effectively ruled Bosnia-Herzegovina since 1997, with NATO, EU, OSCE and UN involvement. The High Representative's mandate was significantly strengthened at the Peace Implementation Council (PIC) meeting in Bonn in late 1997. Since 2002 the High Representative has "double hatted" as the EU's Special Representative (EUSR), reflecting a shift in strategy in which the EU has assumed greater responsibility to managing the trusteeship and intending to steer Bosnia-Herzegovina into eventual EU membership. See Stefano Recchia, Beyond International Trusteeship: EU Peacebuilding in Bosnia Herzegovina, OCCASIONAL PAPERS (Institute for Security Studies), No. 66, Feb.2007, available at http://www.iss.europa.eu/uploads/media/occ66.pdf.
422. On veto players and their role in domestic legal, economic and political reform see GEORGE TSEBELIS, VETO PLAYERS: HOW POLITICAL INSTITUTIONS WORK (2002).
423. See Robert Hart, Democracy and the Successful Use of Economic Sanctions, 53 POL. RES. Q. 267 (2000).
424. On the history and use of sanctions before the end of the Cold War see GARY HUFBAUER ET AL., ECONOMIC SANCTIONS RECONSIDERED: HISTORY AND CURRENT POLICY (1990);
425. Alistair Smith, The Success and Use of Economic Sanctions, 21 INT'L INTERACTIONS 229 (1995).
426. The general thrust of relevant literature maintains that sanctions are rarely effective in promoting domestic reforms. See Karin von Hippel, Democracy by Force: A Renewed Commitment to Nation-Building. 23 WASH. Q. 95 (2000);
427. Smith, supra note 187;
428. GARY HUFBAUER ET AL., supra note 187.
429. However, several recent studies assert that the effectiveness of sanctions has been underestimated, partly because of a problem of selection bias, since the bulk of successful coercion episodes end with sanctions threatened but not actually imposed. See Daniel Drezner, The Hidden Hand of Economic Coercion, 57 INT'L ORG. 643 (2003);
430. Charles Blake & Noah Klemm, Reconsidering the Effectiveness of International Economic Sanctions: An Examination of Selection Bias, 43 INT'L POL. 133 (2006).
431. On choices in the design of sanctions regimes, particularly the use of "smart sanctions," see Ella Shagabutdinova & Jeffrey Berejikian, Deploying Sanctions while Protecting Human Rights: Are Humanitarian "Smart" Sanctions Effective?, 6 J. HUM. R.TS 59 (2007).
432. Nikolay Marinov, Do Sanctions Help Democracy? The US and the EU's Record 1977-2004, at 2 (Stanford Center on Democracy, Development, and the Rule of LawWorking Paper No. 28, 2004), available at http://iis-db. stanford.edu/pubs/2075 l/marinov-EUUSRecord.pdf.
433. Id. at 7. While all regions (with the exception of the Middle East) have experienced a marked rise in the risk that autocracy will be sanctioned, substantial regional variation in the likelihood of sanctioning exists. A Latin American country which experienced a lapse in democracy in 2000, Marinov writes, had a greater than 80% risk of being sanctioned by outsiders.
434. See Ngaire Woods, The Shifting Politics of Foreign Aid, 81 INT'L AFF. 394 (2005);
435. Antoaneta Dimitrova & Geoffrey Pridham, International Actors and Democracy Promotion in Central and Eastern Europe, 11 D EMOCRATIZATION 91 (2004);
436. Judith Kelley, International Actors on the Domestic Scene: Membership Conditionality and Socialization by International Institutions, 58 INT'L ORG. 425 (2004).
437. Kelley, supra note 191, at 425-26.
438. See also Jakob Svensson, When Is Foreign Aid Policy Credible? Aid Dependence and Conditionality, 61 J. DEV. ECON. 61 (2000) (showing that the voluminous literature on foreign aid and development has generally not dealt with incentive problems in the donor-recipient relationship, and credibility and institutional design issues in foreign aid policy in particular).
439. On conditionality in structural adjustment, see POLICY DEVELOPMENT AND REVIEW DEPARTMENT, INTERNATIONAL MONETARY FUND, CONDITIONALITY IN FUND-SUPPORTED PROGRAMS - OVERVIEW (2001), available at http://www.imf.org/external/np/pdr/cond/2001/eng/ overview/index.htm;
440. Morris Goldstein, IMF Structural Conditionality: How Much is Too Much? (Oct. 19, 2000) (unpublished manuscript, available at http://www.iie.com/ publications/wp/01-4.pdf);
441. Jacques Polak, The Changing Nature of IMF Conditionality, ESSAYS IN INTERNATIONAL FINANCE No. 184 (Sept. 1991).
442. See Sean Murphy, Democratic Legitimacy and the Recognition of States and Governments, 48 INT'L &COMP. L.Q. 545(1999).
443. See Theodore Piccone, International Mechanisms for Protecting
444. See also Der-Chin Horng, The Human Rights Clause in the European Union's External Trade and Development Agreements, 9 EUR. L.J. 677 (2003);
445. Morton Halperin & Kristen Lomasney, Guaranteeing Democracy: A Review of the Record, 9 J. DEMOCRACY 134 (1998).
446. See Paul Mosley, John Hudson & Arjan Verschoor, Aid, Poverty Reduction sssssand the "New Conditionally", 114 ECON. J. 217 (2004);
447. Woods, supra note 191;
448. Jakob Svensson, supra note 192.
449. Paul Collier, The Failure of Conditionally, in PERSPECTIVES ON AID AND DEVELOPMENT 51 (Catherine Gwin & Joan Nelson eds., 1997).
450. On the effects of donor aid conditionality see Paul Collier & David Dollar, Development Effectiveness: What Have We Learnt?, 114 ECON. J. 244 (2004);
451. Craig Burnside & David Dollar, AID, POLICIES AND GROWTH, 90 AM. ECON. REV. 847 (2000).
452. On "selectivity" see Mosley et al., supra note 195. The notion of "reinforcement by reward" is articulated by Frank Schimmelfennig, Stefan Engert & Heiko Knobel, Costs, Commitment and Compliance, 41 J. OF COMMON MARKET STUD. 495,496 (2003).
453. Karen Smith, Western Actors and the Promotion of Democracy, in 2 DEMOCRATIC CONSOLIDATION IN EASTERN EUROPE: INTERNATIONAL AND TRANSNATIONAL FACTORS 31. 43 (Jan Zielonka & Alex Pravda eds., 2001).
454. Frank Schimmelfennig, Strategic Calculation and International Socialization, 59 INT'L ORG. 827, 832-33 (2005).
455. See WORLD BANK, WORLD DEVELOPMENT REPORT 2000/2001 at 193-96(2001).
456. Mosley et al., supra note 195, at 220.
457. For the Millennium Challenge Corporation selection criteria see http://www.mcc.gov/selection/index.php.
458. For commentary on the MCC see the series of papers published by the Center for Global Development: http://www.cgdev.org/nv/features-MCA.html.
459. See also Susanne Soederberg, American empire and "excluded states": the Millennium Challenge Account and the shift to pre-emptive development, 25 THIRD WORLD Q. 279 (2004);
460. Steve Radelet, Will the Millennium Challenge Account Be Different?, 26 WASH. Q. 171 (2003).
461. James G. March & Johan P. Olsen, THE INTERNATIONAL DYNAMICS OF INTERNATIONAL POLITICAL ORDERS, 52 INT'L ORG. 943,949 (1998).
462. For an excellent summary of the literature on external incentives see Frank Schimmelfennig & Ulrich Sedelmeier, Introduction: Conceptualizing the Europeanization of Central and Eastern Europe, in THE EUROPEANIZATION OF CENTRAL AND EASTERN EUROPE 1 (Frank Schimmelfennig & Ulrich Sedelmeier eds., 2005).
463. Marinov, supra note 189.
464. The international socialization literature is a nascent development in international relations and European integration studies, and only a handful of studies focus on induction into democratic norms and practices. See Edward Mansfield & Jon Pevehouse, Democratization and International Organizations, 60 INT'L ORG. 137 (2006);
465. Checkel, supra note 149;
466. KELLEY, supra note 176;
467. Iain A. Johnston, Treating International Institutions as Social Environments, 45 INT'L STUD. Q. 487 (2001).
468. On epistemic communities see Peter Haas, Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control, 43 INT'L ORG. 377 (1989);
469. Peter Haas, Epistemic Communities and International Policy Coordination 46 INT'L ORG. 1 (1992).
470. Levitsky & Way, supra note 166, at 22-23.
471. See also YOUNGS, supra note 76.
472. See ANNE-MARIE SLAUGHTER, A NEW WWORLD ORDER (2004).
473. Id. at 135-144.
474. See GILI S. DRORI ET AL., SCIENCE IN THE MODERN WORLD POLITY: INSTITUTIONALIZATION AND GLOBALIZATION (2003);
475. John W. Meyer et al., World Society and the Nation-State, 103 AM. J. SOC. 144 (1997) [hereinafter Meyer, World Society];
476. Gili S. Drori, et al., Sources of Rationalized Governance: Cross-National Longitudinal Analyses, 1985-2002 (Center on Democracy, Development and the Rule of Law, Stanford University, Working Paper No. 16, 2004);
477. John W. Meyer et al., The Structuring of a World Environmental Regime, 1870-1990, 51 INT'L ORG. 623 (1997) [hereinafter Meyer, Structuring].
478. See Finnemore & Sikkink, supra note 176;
479. MARTHA FINNEMORE, NATIONAL INTERESTS AND INTERNATIONAL SOCIETY (1996);
480. Martha Finnemore, Norms, Culture, and World Politics: Insights from Sociology's Institutionalism, 50 INT'L ORG. 325 (1996);
481. RLSSE ET AL., supra note 176.
482. See Alexandra Grigorescu, International Organizations and Government Transparency: Linking the International and Domestic Realms, 47 INT'L STUD. Q. 643 (2003).
483. See Andrew Michta, NATO Standards and Military Reform in Poland: A Revolution from Without, in NORMS AND NANNIES: THE IMPACT OF INTERNATIONAL ORGANIZATION ON THE CENTRAL AND EAST EUROPEAN STATES 165-178 (Ronald Linden ed., 2002);
484. Heinz Vetschera, Security Policy and Democratic Control, in CIVIL-MILITARY RELATIONS IN POST- COMMUNIST STATES 15-21 (Anton Bebler ed., 1997). In the 1980s, as Geoffrey Pridham observes, NATO played an important (though less structured) role in acting as an external guarantor for the nascent Spanish democracy and in persuading senior officers to back the democratic regime, and not attempt to overthrow it.
485. See Geoffrey Pridham, The Politics of the European Community: Transnational Networks and Democratic Transition Southern Europe, in ENCOURAGING DEMOCRACY: THE INTERNATIONAL CONTEXT OF REGIME TRANSITION IN SOUTHERN EUROPE 212-45 (Geoffrey Pridham ed., 1991).
486. Both the Council of Europe and the OSCE are formally committed to protecting and encouraging democracy, human rights and the rule of law among their members. The Council of Europe is Europe's oldest democracy and human rights monitoring organization. The Parliamentary Assembly of the Council of Europe is responsible for monitoring compliance with their commitments as members of the organization. The OSCE (formerly the CSCE) maintains a number of mechanisms - under its "Human Dimension" pillar of security - designed to socialize members into democratic procedures, protection of human rights and observance of rule of law principles. On the Council of Europe see: Council of Europe, An Overview, http://www.coe.int. The OSCE Human Dimension activities are managed by the Office for Democratic Institutions and Human Rights (ODIHR), http://www.osce.org/odihr.
487. See also Gregory Flynn & Henry Farrell, Piecing Together the Democratic Peace: The CSCE Norms and the "Construction " of Security in Post-Cold War Europe, 53 INT'L ORG. 505 (1999);
488. Piccone, supra note 194;
489. Mcintosh Sundstrom, Carrots and Sticks for Democracy in the OAS: Comparison with the East European Experience, 10 CANADIAN FOREIGN POL'Y 49 (2003).
490. Org. of Am. States [OAS], Unit for Democratic Development, at 110, AG/RES 1063(XX-0/90) (June 8, 1990).
491. OAS, Inter-American Democratic Charter, http://www.oas.org/ OASpage/eng/Documents/Democractic-Charter.htm.
492. See also the annual reports of the Inter-American Juridical Committee, http://www.oas.org/cji/eng/reports-iajc.htm.
493. African Union [AU], Constitutive Act of the African Union, preamble, http://www.au2002.gov.za/docs/key-oau/au-act.htm (July 11, 2000). Article 4(m) of the Constitutive Act also provides that the African Union shall act in accordance with the principle of "Respect for democratic principles, human rights, the rule of law and good governance."
494. Daniel W. Drezner, The New New World Order, 86 FOREIGN AFFAIRS 34 (2007).
495. Schraeder, supra note 177, at 26.
496. See Arruro Valenzuela, PARAGUAY: THE COUP THAT DIDN 'T HAPPEN, 8 J. DEMOCRACY 48 (1997).
497. See Arturo Santa-Cruz, Constitutional Structures, Sovereignty, and the Emergence of Norms: The Case of International Election Monitoring, 59 INT'L ORG. 663 (2005);
498. Thomas Carothers, The Observers Observed: The Rise of Election Monitoring, 8 JOURNAL OF DEMOCRACY 17 (1997);
499. YVES BEIGBEDER, INTERNATIONAL MWONITORING OF PLEBISCITES, REFERENDA AND NATIONAL ELECTIONS: SELF-DETERMINATION AND TRANSITION TO DEMOCRACY (1994).
500. These activities are coordinated by the Directorate General of Legal Affairs of the Parliamentary Assembly of the Council of Europe. See Council of Europe, Legal Affairs, http://www.coe.int/t/dgl/default-en.asp.
501. See also FLORENCE BENOIT-ROHMER AND HEINRICH KLEBES, COUNCIL OF EUROPE LAW: TOWARDS A PAN-EUROPEAN LEGAL AREA (2005).
502. For a summary of existing indicators and the reasons for their rapid emergence in the last decade, see THE WORLD BANK: A DECADE OF MEASURING THE QUALITY OF GOVERNANCE: GOVERNANCE MATTERS 2006, http://siteresources.worldbank.org/INTWBIGOVANTCOR/Resources/ 1740479-1150402582357/2661829-1158008871017/booklet-decade-of-measuring- governance.pdf;
503. ARNDT & OMAN, supra note 154;
504. Munck & Verkuilen, supra note 7.
505. International Country Risk Guide, http://www.prsgroup.com/IRG.aspx. The ICRG is compiled by the PRS Group.
506. ARDNT & OMAN, supra note 154, at 25.
507. See Ikenberry & Kupchan, supra note 176;
508. Checkel, supra note 149;
509. KELLEY, supra note 176;
510. Johnston, supra note 206.
511. On the "logic of appropriateness" as a basis for human action see March & Olsen, supra note 203, at 951.
512. Johnston, supra note 206, at 488.
513. Jeffrey Checkel calls these two types of socializations, "Type I" and "Type II" respectively. Checkel, supra note 140, at 804.
514. On "bounded rationality," see Bryan Jones, Bounded Rationality, 2 ANN. REV. POL. SCI. 297 (1999).
515. See also WADE JACOBY, THE ENLARGEMENT OF THE EUROPEAN UNION AND NATO: ORDERING FROM THE MENU IN CENTRAL EUROPE (2004).
516. See Heather Haveman, Follow the Leader: Mimetic Isomorphism and Entry into New Markets, 384 ADMIN. SCI. Q. 593 (1993).
517. On diffusion see Starr, supra note 166;
518. Kopstein & Reilly, supra note 176;
519. Gleditsch & Ward, Supra note 176;
520. Beth Simmons et al., Introduction: The International Diffusion of Liberalism, 60 INT'L ORG. 781 (2006);
521. Tomila V. Lankina & Lullit Getachew, A Geographic Incremental Theory of Democratization: Territory, Aid, and Democracy in Postcommunist Regions, 58 WORLD POL. 536 (2006).
522. See RICHARD ROSE, LESSON-DRAWING IN PUBLIC POLICY: A GUIDE TO LEARNING ACROSS TIME AND SPACE (1993);
523. Richard Rose, What is Lesson-Drawing? 11 J. PUB. POL'Y 3 (1991);
524. David Dolowitz and David Marsh, Learning From Abroad: The Role of Policy Transfer in Contemporary Policy-Making, 13 GOVERNANCE 5 (2000).
525. See Meyer et al., World Society and the Nation-State, supra note 201 and the literature cited supra note 201.