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Unpublished Paper
Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies
ExpressO (2009)
  • Brent T. White
Abstract
Since the mid-1990’s, international donor agencies and development banks have invested millions to reform post-communist judiciaries in Central Asia and Europe. This investment has been driven by the belief that economic growth and democracy depend upon the “rule of law.” “Rule of law” in turn depends on a well-functioning and independent judiciary. After over a decade of rule of law reform, however, Central Asia is characterized by growing authoritarianism and judiciaries across both Central Asia and Eastern Europe are afflicted by rampant corruption. Both the rule of law and democracy have been elusive. Rule-of-law reform projects throughout the post-Soviet space have followed a similar “institution building” approach. Judicial reform, for example, has generally centered on improving judicial resources, training and education, and promoting judicial independence. This approach has been justified on the assumption that strengthening judicial institutions will have the corollary effect of reducing corruption and implanting the rule of law. Regrettably, such has not been the case. Scholars have recently theorized that institutional reform has failed because it has been stymied by a legacy of disrespect for the law inherited from the Soviet Union. These scholars argue that ingrained practices of nepotism, influence-peddling, and corruption have overshadowed formal institutions and left little room for the rule of law to grow. Thus, scholars have argued, successful rule of law reform depends as much upon changing the beliefs that people have about the law as it does upon reforming legal institutions. This argument has resonated with rule-of-law aid practitioners and, as a result, civic education programs designed to “foster a rule of law culture” have become a prominent part of rule-of-law reform. Using Mongolia as a primary case study, this article contests the assumptions underlying this new civic education approach to rule-of-law reform. It also argues that given the socio-political realities of many countries in which rule-of-law education programs have been implemented, they are not only doomed to fail, but to lead to disillusionment, cynicism, and further disrespect for the law. In some cases, they also risks legitimating unjust laws and authoritarian regimes. This article then proposes an alternative to the rule-of-law project: Juries. Rule-of-law reformers have largely rejected jury systems on the ground that juries often disregard or cannot understand the law. Reformers have also feared that juries would discourage foreign investment by introducing just the type of uncertainty that “rule of law” is meant to prevent. This article responds that in emerging democracies certainty is less important than contextualized justice that reflects community values. It also argues that the deliberative process of jury decision-making promotes civic engagement and allows broader democratic participation in the law-making project. Equally as important, juries may effectively check judicial corruption and thereby help restore faith in judicial institutions and, paradoxically, lead emerging democracies closer to the rule of law ideal.
Keywords
  • rule of law,
  • jury,
  • democracy and development,
  • judicial reform,
  • legal culture,
  • corruption,
  • Mongolia,
  • comparative law
Disciplines
Publication Date
March 9, 2009
Citation Information
Brent T. White. "Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies" ExpressO (2009)
Available at: http://works.bepress.com/brent_white/1/