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Texts and Reports - The
Law, Legal Certainty and Empowerment - Preface
The Law, Legal Certainty and Empowerment
Legal questions play a prominent role in German development policy with the rule of law being seen as a key element in Good Governance. Many German development projects support legal system reforms and help establish effective public institutions. The German government has lent substantial support to efforts to formulate progressive international legal conventions, whether in Beijing, Copenhagen or Cairo, with the clear objective of thus contributing to the empowerment of previously disadvantaged groups. In many cases, though, reality shows that the ambitious legal norms set at international or national level are far removed from the everyday life of ordinary citizens in many developing countries: arbitrariness of decisions, legal uncertainty and lack of independent justice are common - and sufficient legal protection is not yet in sight. This contrast gains particular weight in any attempt to analyse the factors contributing to a growing estrangement between -at least some - countries of the North and the South and the increasingly "anti-Western" stance found in the internal political debate within some developing countries. Or to put it more directly: How far does the everyday experience of exclusion, powerlessness and discrimination contribute to a greater willingness to provide support, at least tacitly, for actions that entail the use of violence? Clearly, those responsible for development policy have to be called on to answer the most pertinent question of what can and should be done to counter these developments. This is a very complex question but as has been indicated above, legal questions are by no means new to development co-operation. Any practical field work commonly leads to the insight that the lack of vertical coherence results from state set law frequently neglecting rural and traditional norms and the values of the people at the grass roots level, if national laws are known at all by the general population, they are only seen as marginally relevant. When one adds the general failure - due to a multitude of factors - to implement existing legislation, the consequence is a marked distrust of any state institution in general. In recent years, in addition to the practical experience gained, a considerable amount of theoretical research has been carried out. Ethnologists specialising in legal questions have coined the concept of "legal pluralism" to describe the co-existence of national law and law based in local customs, traditions or religion. A further dimension in co-existence - and one of increasing importance in a globalised world - is the parallel association of national and international or transnational law. Of course, this approach to legal questions calls for the openness to acknowledge that "law" itself is an item of political debate, going beyond a set of state rules and regulations to comprise those norms and regulations, institutions and procedures established by society. Suggestions made in ongoing debates indicate an adequate reaction to wide spread feelings of disenchantment and distrust might be found in modified approaches to the formulation and implementation of law. Against this background, it seems appropriate to initiate discussion on various aspects of law and development in an intercultural setting with the objective of trying to identify preliminary approaches for future development activities in the field. The Development Policy Forum is therefore happy to call an international policy dialogue that will debate the following key issues: How can formulation and implementation of laws contribute to the political empowerment of disadvantaged groups? How can the certainty of law for the individual citizen be improved? How can obstacles to law enforcement be overcome? And finally: Would pluralistic legal systems ensure improvements in the rule of law? The Development Policy Forum of the German Foundation for International Development (DSE) has initiated this international policy dialogue to bring together leading political figures, academic experts on law and development and civil society representatives from Asia and Africa with German specialists from the relevant fields to engage in a dialogue based on the conviction that cultural diversity is indispensable for development. This conference is a follow up activity to an International Policy Dialogue on "Development of Cultures - Cultures of Development" that took place in March 2002.
Dr. Grudrun Kochendörfer-Lucius Director
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