Theories of Law and Development: Asian Trajectories and the Salience of Judicial Reform in Myanmar

Abstract

This article examines critically the phenomenon of judicial reform in the context of law and development and with special reference to Myanmar1 as a current example of a locus for judicial reform efforts. Judicial and court reforms are seen almost universally as a cornerstone of law and development (LAD) (Newton 2008: 40ff). The argument is regularly voiced that, if we wish to give the rule of law pride of place in development and to assist the reform process in those states that try to develop their institutions along those lines, then judicial reform is an essential underpinning for that project. This view is very widely held amongst LAD writers and practitioners, and is subscribed to by numerous government and development agencies (Bergling 2006: 88; contra Humphreys 2010: 202). This article claims to the contrary that judicial reform is not a given, but rather that its salience will be contingent upon the history and present situation of law and its numerous institutions in a given society. Myanmar is referred to here in order to illustrate the problems involved and to argue a case for emphasising other areas of LAD. In a previous publication I have referred to LAD’s ‘Burmese moment’ (Harding 2014), indicating that after more than half a century of the LAD movement, we should be in a position to say what we have learned and how to apply it. Unhappily we are not in such a position and continue to make elementary mistakes. Emphasising judicial reform, I argue here, is potentially one of those mistakes.

Keywords: Law and Development, Legal Technical Assistance, Judicial Reform, Courts, Myanmar