Policing Neo-Liberal Reforms: The Rule of Law as an Enabling and Restrictive Discourse
Joel M. Ngugi
University of Washington - School of Law
University of Pennsylvania Journal of International Economic Law, Forthcoming
This article argues that the Rule of Law Projects supported by International Development Agencies (IDAs) impermissibly conflate the two conceptions of the rule of law (i.e. the formal and the substantive conceptions). The result of this conflation is that the rule of law discourse by IDAs uses the institution of the rule of law to generate a language of open-ended and participatory politics while simultaneously foreclosing the possibility of multiple and competitive politics. While expressing its objectives in this open-ended vocabulary, this discourse forecloses political debate and subverts democracy by selling and entrenching particular policies and political projects that are dissolved into the idea of rule of law. The result is that the actual reforms that IDAs support end up simply mirroring the political and ideological objectives of IDAs rather than producing genuine democratic participation by the polities of developing countries. The overall impact of the conflation of the conceptions of the rule of law is therefore to cushion some fundamental political questions from political debate while simultaneously enacting some politically-agreed procedural rules. I use three examples to show how the rule of law in the context of Rule of Law Projects by IDAs emerges as a device for subverting (rather than enhancing) democracy in developing countries.
Keywords: Rule of law, market-oriented reforms, international development, world bank, international organizations
JEL Classification: K33, O19, P21
Date posted: May 23, 2005
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