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Global Failure of Justice Systems - Causes and Consequences

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 Global Failure of Justice Systems – Causes and Consequences
by Frank Emmert1
Introduction
At the beginning of the 21st century, probably for the first time in the history of humankind, we
would have the resources and the know-how to provide reasonably decent, safe, and fair living
conditions for every single human being on the planet. And we would be able to do so in an
environmentally responsible and sustainable way, without eating our children’s lunch today.
Yet, we seem to have more failing states, more atrocious civil wars, more xenophobia and
intolerance, more hatred, and more poverty and desperation around the world than ever before.
While we may be making progress in material terms,2 it does not translate into better lives for the
many, better protection of human rights, minorities, and the natural environment, and generally
better perspectives for the future. Gopnik, for example, writes that
“[e]verywhere we look [...] patriotism is replaced with nationalism, pluralism by
tribalism, impersonal justice by the tyrannical whim of autocrats who think only to
punish their enemies and reward their hitmen. Many of these have gained power by
democratic means, but they have kept power by illiberal ones. The death of liberal
democracy is announced now with the same certainty that its triumph was proclaimed
a mere twenty years before.”3
Unsurprisingly, we have just set a new record in the number of refugees and internally displaced
persons. From 2014 to 2019, we went from more than 50 million to more than 70 million

1
John S. Grimes Professor of Law and Director of the Center for Int’l and Comparative Law at Indiana
University Robert H. McKinney School of Law. Most of my publications, including any referred to in this
article, can be downloaded free of charge from https://www.researchgate.net/profile/Frank_Emmert2.
Comments and questions can be addressed to femmert@iupui.edu.
2
At least on a material scale, we can measure slow but steady improvements in a variety of quality of life
indexes in many countries around the world. Several recent studies are seeking to correct widespread mis-
perceptions. See, in particular, Hans Rosling, Factfulness: Ten Reasons We’re Wrong About the World and
Why Things Are Better Than You Think, Flatiron Books 2018.
Regardless of macroeconomic data, the people in too many of the countries we can nowadays qualify as
“middle income countries” do not appreciate the unquestionable material improvements enough to want to
stay and build up their societies. Too many people in these countries are either on the wrong side of inequality
and have no realistic perspective on improving their station in life. Or they are relatively wealthy right now
but trying ever harder to get their assets and their families out because they feel insecure and afraid of the
future and want to find better long-term prospects elsewhere. When Donald Trump referred to the rest of the
world as largely consisting of “shit hole countries”, there was no universal outcry and no widespread effort at
showing that he is wrong.
Whether you celebrate declining childhood mortality rates or increasing average incomes in many of the
poorest countries, or whether you lament the rise of nationalism and illiberal regimes around the world, this
paper takes the view that success or failure is relative to what we should and could accomplish. Therefore,
what remains true is that given all we know and all the resources we have at our disposal today, we are failing
on an unprecedented scale.
3
Adam Gopnik, A Thousand Small Sanities – The Moral Adventure of Liberalism, Basic Books, New York
2019, at pp. 2-3.
forcibly displaced people worldwide.4 This includes over 40 million internally displaced and over
25 million international refugees.5 TWENTY FIVE MILLION INTERNATIONAL REFUGEES!
These numbers are reminiscent of the worst of times, yet there is no world war to explain them.
By the very definition of refugee law, these people have to flee their home countries because they
are being persecuted “for reasons of race, religion, nationality, political opinion or membership in
a particular social group.”6 In other words, the justice systems of their home countries are failing
them. We are witnessing a human rights disaster of truly epic proportions. Yet the world is barely
taking notice. It is certainly not mounting any kind of concerted and systematic effort at solving
the underlying problems, the reasons why all these people have to flee their homes and throw
themselves at the mercy of ever more ruthless traffickers and ever more reluctant host states.
The field of human rights may be the most egregious but is not the only symptom of something
gone fundamentally wrong. In international business and trade, 97% of transactional lawyers
around the world prefer NOT to rely on transnational litigation for the resolution of commercial
disputes with foreign parties,7 usually since they don’t trust the courts in some 180 out of 200
countries to deliver impartial and enforceable decisions in a timely manner. In other words, the
most experienced and most sought after lawyers who are charged with the protection of their
client’s business and financial interests will do almost anything to avoid having to go to court in
9 out of 10 countries?! What a devastating judgment to pass on judges and courts around the
world!
It is high time that we ask ourselves: What is going wrong? Why do so few national justice
systems provide protection, fairness, impartiality, and predictable and effective procedures?
What are the consequences of this failure of justice systems? And what, if anything, can we do
about it?
I. What Is the Meaning of “Global Failure of Justice Systems”?
Laws and lawyers have been around for millennia (talk about experience!). There are millions of
lawyers around the world, tens of thousands of judges, thousands of law schools. We literally
spend billions every year to create new laws and improve existing ones, and we spend even more
on educating new lawyers in how to apply them.
Yet as a legal practitioner, if I had to advise a person accused of a crime, where they could be
reasonably sure to receive a fair trial, unbiased, with equality of arms between prosecution and
defense, respect for human and procedural rights – in short, where they would receive “justice”
with “due process” and all of that in a reasonable time – I would have to think long and hard if
that person is a foreigner, a member of a religious or ethnic or linguistic minority, a member of
the LGBTQAI+ community, or otherwise different from the mainstream, majority or dominant

4
https://www.unhcr.org/en-us/figures-at-a-glance.html.
5
Ibid.
6
Article 1(A)(2) of the 1951 Geneva Convention Relating to the Status of Refugees, “the Refugee Conven-
tion”, available at https://www.unhcr.org/en-us/3b66c2aa10.
7
See University of London Queen Mary School of International Arbitration, 2018 International Arbitration
Survey: The Evolution of International Arbitration, available at
http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2018-International-Arbitration-Survey-report.pdf.
group in any given country. What happened to the law as protector of the individual and
minorities from tyranny of the majority?8
As a legal practitioner advising companies about commercial transactions around the world, how
many countries could I confidently name as providing fair and efficient remedies in court for
foreign companies with claims against one or more domestic parties?
Countries where fair and efficient procedures in the public courts are a matter of course and not a
matter of luck probably number no more than twenty. Twenty out of two hundred countries = one
in ten! In other words, in 90% of all countries around the world, fair and efficient procedures are
anything but guaranteed. These 90% include many countries that increasingly hold themselves
out as not only following rule of law and constitutional procedures but also maintaining a strong
connection between their laws and their religious values. This is all the more disappointing since
every mainstream religion around the world promises not only fairness and equality but special
protection to the weakest members of society, such as minorities, foreigners, and others who are
vulnerable or oppressed!9
In the 21st century, we have better resources than ever before – just think of the research and
communication opportunities at our fingertips. We have more and better trained lawyers than
ever before. We have turned “law and development”, “promotion of rule of law”, “legislative
drafting”, and related subjects into veritable industries in their own right, with dedicated journals,
learned societies, international study programs, conferences, and so forth. We have governmental
and non-governmental organizations like the World Bank, UNDP, EuropeAid, USAID, the Open
Society Foundations, the ABA Rule of Law Initiative (ROLI), and hundreds of national support
programs and private foundations, literally spending billions every year on institutional and law
reform in less developed nations. Yet we don’t seem to be making much or any progress at all!
Don’t believe me? Well, can you name five countries where rule of law as defined in this article
has made any significant progress in the last five years? Just five countries around the world
where we did not regress or merely tread water? Just five? I will ask this question again at the
end of the article, but now, some illustrations:
First, consider Kyrgyzstan in Central Asia. Some years ago, there was a big scandal when the
public found out that the mayor of Bishkek, the capital, had given building permits to wealthy
people to build veritable mansions in the public parks downtown. So what happened when the
full force of the law came crushing down on this very public corruption scandal? Mayor Isa
Omurkulov had to resign. Period. That was it. What do you think, how many prosecutors, how
many judges, or how many journalists stood up to ask whether it was adequate that a man should
merely lose a job that paid maybe $1,000 per month for having taken tens or hundreds of
thousands of dollars in bribes? And how many prosecutors or judges or journalists would even

8
As early as 1859 John Stuart Mill wrote “‘the tyranny of the majority’ is now generally included among the
evils against which society requires to be on its guard”; see John Stuart Mill, On Liberty, Walter Scott
Publishing 2011, at p. 7.
9
See, for example, Joseph Tham, Alberto Garcia & Gonzalo Miranda (eds), Responses to Vulnerable Groups
from Six Religions, in Tham et al. (eds), Religious Perspectives on Human Vulnerability in Bioethics,
Dordrecht et al. 2014, at pp. 115-214.
dare to ask for the bulldozers to come in? Not to worry. As every fairy tale has a good ending,
they all lived happily ever after, in their mansions.10
Of course, Kyrgyzstan is a poor country that has not benefitted from a lot of Western influence.
Let’s come a bit closer to a country that has received plenty of Western aid. Let’s look at
Armenia. On multiple visits, I have been fascinated how almost every self-respecting prosecutor
and judge in this beautiful country drove a black SUV of recent Western vintage, a Range Rover
or a Porsche Cayenne or something the like, almost an automotive uniform, in spite of rather
modest salaries in the public service. An explanation of sorts was given to me by a young
colleague at the law department of Yerevan State University. She recounted how a student came
to see her and explained that he wanted an “A” despite never having attended class or taken the
exam. He offered $500 in exchange. When she declined, the student explained that he did not
want to go to law school; his mother, who was a judge, wanted him to go; and he really needed
the “A” to become a judge himself one day. Finally, he said that it was better for both him and
the instructor if the matter could be settled to their mutual satisfaction, because if the instructor
failed him, he would have to go to the dean; the dean would overrule the instructor; but Dean
Gagik Ghazinyan would cost $5,000.
The situation at Yerevan State University is by now rather widely known. Consequently, private
employers prefer graduates from the private universities, in particular American University of
Armenia. The majority of graduates from the state university go for jobs in the public sector.
Though poorly paid, they seem to offer ways of making money on the side. And nobody seems to
worry that anyone might ever ask where the money for that Porsche came from...
Just contemplate what this country is doing to itself. If these conditions continue, Armenia will
have a public sector where next to every prosecutor and judge will not only be corrupt but also
incompetent. And tenured for life.11
Next, look at Italy, a country with many fine law schools and lawyers and a long tradition of legal
research, legal writing, and legal argument. In many ways, the modern codifications of law were
born in Italy.12 Yet court procedures are a disaster, and Italy has become a textbook case of

10
Good background reading is provided in Alexander Cooley & John Heathershaw, Dictators Without Borders
– Power and Money in Central Asia, Yale Univ. Press 2017.
11
For further reading see Alexander Kupatadze, Post-Soviet Eurasia: Organized Crime, Variations and
Political Corruption, in Felia Allum & Stan Gilmour (eds), Handbook of Organised Crime and Politics,
Edward Elgar 2019; and the Master thesis by Diana Tadevosyan, The Nature of Corruption in the Republic of
Armenia, Its Impact on Human Behaviour and Human Development, Charles University Faculty of Social
Sciences, Prague 2018, available at
https://dspace.cuni.cz/bitstream/handle/20.500.11956/102804/120311809.pdf?sequence=1.
After the 2018 “Velvet Revolution”, there may be some hope for Armenia. See Miriam Lanskoy & Elspeth
Suthers, Armenia’s Velvet Revolution, Journal of Democracy 2019, Vol. 30, No. 2, pp. 85-99.
12
The foundation of Roman law, the Codex Juris Civilis, initially had little connection to Rome, Italy. It was
compiled under the Eastern Roman Emperor Justinian in Constantinople in the 6th century AD and largely lost
in later centuries. However, four jurists in the Italian city of Bologna rediscovered the Codex in the 12th
century and added extensive annotations or “glosses”. The “Four Doctors of Bologna” or “Glossators” are
honored as the founders of modern codified law, with monuments on all four sides of the Basilica San
Francesco in Piazza Malpighi in Bologna. They came from the school that was not only the first university in
Europe but invented the term “university” itself, and they contributed to the founding of the first law school in
the Western world at the University of Bologna. Cf. https://www.unibo.it/it.
“justice delayed is justice denied”. Every year, thousands of criminal cases from Italy reach the
European Court of Human Rights (ECtHR) because of unduly long procedures before the
national courts.13 Italy loses literally all of them.14 The longest commercial case I have personally
seen in the Italian courts took 27 years for a final decision.15 Instead of making any serious effort
at change, Italy simply pays (moderate) compensation to all those who prevail against it in
Strasbourg. Indeed, Italy even adopted a law that grants compensation to everyone, whose case
takes too long, trying to reduce the flood inundating the ECtHR. As a result, the litigation is now
not so much over the question whether a case took too long but over the question how much
compensation should be paid. Italy is not a dictatorship. Italy is not a failed state. Italy is not
bankrupt. Italy does not deny that it has a problem with the efficiency of its courts. Why does
Italy not even try to fix its broken system?
Last but not least, the United States, in many ways the birthplace and most ardent supporter of
due process, rule of law, democracy and human rights around the world: Recent headlines
trumpet the politicization of judicial appointments, making the entire process undignified and
eroding much of the trust people used to have in the judicial system. Problems in the U.S. legal
system, however, go much further back. Consider just one example: With about 2.3 million
inmates in more than 4,575 facilities, the U.S. has by far the largest prison population in the
world, both in absolute numbers and per capita.16 The U.S. also has by far the highest

13
From 1959 to 2018, 45,977 complaints from Italy where assigned to a judicial formation at the ECtHR in
Strasbourg. Out of 47 Member States, only Ukraine, Turkey and Russia have seen more complaints resulting
in a judgment of the Court. See https://www.echr.coe.int/Documents/Overview_19592018_ENG.pdf. For
additional analysis see, inter alia, Frank Emmert & Chandler Piché Carney, The European Union Charter of
Fundamental Rights vs. the Council of Europe Convention on Human Rights and Fundamental Freedoms – a
Comparison, Fordham Int’l L.J. 2017, Vol. 40, No. 4, pp. 1047-1174, with hundreds of further references.
14
For discussion see, for example, Martin Kuijer, The Right to a Fair Trial and the Council of Europe's Efforts
to Ensure Effective Remedies on a Domestic Level for Excessively Lengthy Proceedings, Human Rights Law
Review 2013, Vol. 13, No. 4, pp. 777-794.
15
The unreasonable length of civil proceedings in Italy is discussed, inter alia, by Remo Caponi, The
Performance of the Italian Civil Justice System: An Empirical Assessment, The Italian Law Journal 2016,
Vol. 2, No. 1, pp. 15-31.
16
Michael Waldman, President of the Brennan Center for Justice at New York University School of Law,
recently wrote “our nation grossly over-incarcerates its people. The United States has less than five percent of
the world’s population and nearly one-quarter of its prisoners. Astonishingly, if the 2.3 million incarcerated
Americans were a state, it would be more populous than 16 other states. All told, one in three people in the
United States has some type of criminal record. No other industrialized country comes close”; see Michael
Waldman, Foreword, in Inimai Chettiar & Priya Raghavan (eds.), Ending Mass Incarceration: Ideas from
Today’s Leaders, Brennan Center for Justice 2019, at p. vii.
One of the reasons, as outline by Emily Bazelon, is the fact that many prosecutors in the US are elected and
voters prefer those who are ‘tough on crime’. For the consequences and some recent efforts to counter them
see Emily Bazelton, Charged – The New Movement to Transform American Prosecution and End Mass
Incarceration, Random House, 2019. Indeed many prosecutors who stood out as toughest on crime were able
to parlay their record into formidable political careers. Jed Shugerman, a professor at Fordham University
School of Law, writes that “the emergence of the prosecutor’s office as a stepping stone for higher office [is] a
relatively recent/20th century phenomenon with dramatic consequences in American criminal law and mass
incarceration” (Shugarman, “The Rise of the Prosecutor Politicians”: Database of Prosecutorial Experience
for Justices, Circuit Judges, Governors, AGs, and Senators, 1880-2017, available at https://shuger-
blog.com/2017/07/07/the-rise-of-the-prosecutor-politicians-database-of-prosecutorial-experience-for-justices-
circuit-judges-governors-ags-and-senators-1880-2017/).
incarceration rate for minors among any developed countries, and in some U.S. states, children as
young as twelve years of age can be tried as adults for serious crimes.17 The classification
depends primarily on the crime and not the maturity of the offender, something that lawyers in
(other) civilized countries would find unusual, to say the least.18 Moreover, many of the prisons
are run by private companies as for-profit enterprises, incentivizing corrupt sheriffs and judges to
take money for increasing the body count.19 Furthermore, living conditions in many of the prisons
are below even the lowest standards of human dignity,20 breeding one of the highest recidivism
rates in the world.21 Why is there no public outcry, no serious and sustained high level movement

17
In 2010, Paul Gingerich and Colt Lundy shot and killed Lundy’s stepfather Phil Danner. Paul was 12 and Colt
was 15. Both were tried as adults and sentenced to 25 years in prison for conspiracy to commit murder. Paul
was released in 2017, having served 7 years of his term. Colt is still in jail and cannot be released before
2012. See Robert King in Indianapolis Star, 31 July 2017, available at
https://www.indystar.com/story/news/2017/07/31/paul-henry-gingerich-sent-prison-his-crime-12-year-old-now
-free/519617001/.
18
Neuroscientists around the world largely agree that the human brain is not fully developed until the early or
mid-twenties. Thus, it is at least problematic to hold adolescents to the same standards of responsibility as
adults. Instead of many see Adriana Galván, The Neuroscience of Adolescence, Cambridge Univ. Press 2017.
19
In 2009, Judges Mark A. Ciavarella Jr. and Michael T. Conahan pleaded guilty to taking more than 2.6
million US$ in kickbacks for sending teenagers to several privately run juvenile detention centers. See Ian
Urbina and Sean D. Hamill in the New York Times, 12 February 2009, available at
https://www.nytimes.com/2009/02/13/us/13judge.html.
20
There are too many reports to count but even in a landscape of widespread abuse, some States stand out.
Operators like Sheriff Todd Entrekin of Etowah County in Alabama have been found to steal hundreds of
thousands of dollars from the food budget for their prisons. See
https://www.al.com/news/2018/12/heres-how-federal-inmates-made-an-alabama-sheriff-15-million.html.
Other cases involve systematic torture, rape, and other forms abuse; see, for example ‘No One Feels Safe
Here’: Life in Alabama’s Prisons (New York Times, 29 April 2019, referring to a report by the Department of
Justice including “graphic accounts of prisoners who were tortured, burned, raped, sodomized, stabbed and
murdered” as well as “hundreds of reports of sexual abuse ... [where] investigators did not find a single
instance of a guard intervening”). The Department of Justice concluded “that Alabama routinely violates the
constitutional rights of prisoners housed in the Alabama's prisons by failing to protect them from
prisoner-on-prisoner violence and prisoner-on-prisoner sexual abuse, and by failing to provide safe con-
ditions. The violations are exacerbated by serious deficiencies in staffing and supervision and overcrowding.”
(United States Department of Justice Civil Rights Division, Investigation of Alabama’s State Prisons for Men,
2 April 2019, available at https://www.justice.gov/opa/press-release/file/1150276/download) The latest
example stems from a Broward County jail in Florida, where an African American woman was kept in an
isolation cell trying unsuccessfully – for more than seven hours – to get help in delivering her baby (New
York Times, 8 May 2019, p. A. 22).
If these cases were reported from failing states like Afghanistan, Somalia, or Yemen, the world would be
appalled and moved to donate support. However, these cases are part of the daily news in the United States,
where nearly everyone seems to have become tone deaf to them. Obviously, the most Christian nation on earth
does not seem to worry that God will one day render judgment as recommended by Fyodor Dostoyevsky: “A
society should be judged not by how it treats its outstanding citizens but by how it treats its criminals.”
21
See Seena Fazel & Achim Wolf, A Systematic Review of Criminal Recidivism Rates Worldwide: Current
Difficulties and Recommendations for Best Practice, PLoS ONE 2015, Vol. 10, No. 6, available at
https://doi.org/10.1371/journal.pone.0130390. See also Emily A. Whitney, Correctional Rehabilitation
Programs and the Adoption of International Standards: How the United States Can Reduce Recidivism and
Promote the National Interest, Transnat'l L. & Contemp. Probs. 2009, Vol. 18, pp. 777 et seq.
for reform?22 One of the reasons is simple: a large part of the inmate population is and always has
been disenfranchised, without a voice! In many U.S. states former felons, even after having done
their time, cannot vote for years to come; some cannot ever vote again.23 More than 6 million US
citizens do not have the right to vote because of a felony conviction.24
Last but not least, American justice has never been color blind. African Americans commit only
26% of the crimes, but they constitute 38% of the prison population.25 The consequence is that 1
in 13 African Americans cannot vote as current or former felons.26 The disenfranchisement of
felons was the most likely cause of Al Gore losing the 2000 presidential election to George W.
Bush.27 Today, more African American males are in prison than in college.28 The Obama

22
This is not to say that there are no individual voices by academics, NGO activists, and even the occasional
politician. For example, Cory Booker, US Senator from New Jersey and Democratic presidential candidate for
2020, recently wrote the following: “For too long our broken criminal justice system has been a cancer on the
soul of this country, a cancer that has preyed on our most vulnerable citizens. The system as it currently stands
is an affront to our most fundamental values of freedom, equality, and liberty.” See Cory Booker, Pass the
Next Step Act, in Inimai Chettiar & Priya Raghavan (eds.), Ending Mass Incarceration: Ideas from Today’s
Leaders, Brennan Center for Justice 2019, pp. 1-3, at p. 3.
23
In two states, felons retain their voting rights even while in prison: Maine, Vermont.
These jurisdictions automatically restore voting rights upon release: Washington DC, Hawaii, Illinois,
Indiana, Maryland, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon,
Pennsylvania, Rhode Island, and Utah.
In these states, voting rights are restored only after release and probation: Alaska, Arizona, Arkansas, Florida,
Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North
Carolina, South Carolina, South Dakota, Texas, Washington, West Virgina, and Wisconsin.
In these states, voting rights are never restored, unless the individual is successful with a petition: Alabama,
Delaware, Iowa, Kentucky, Mississippi, Nevada, Tennessee, and Wyoming.
Source: https://www.nonprofitvote.org/voting-in-your-state/special-circumstances/voting-as-an-ex-offender/.
24
Christopher Uggen et al., 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement,
SENTENCING PROJECT, 6 October 2016, https://www.sentencingproject.org/publica-
tions/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/.
For the broader picture see Carol Anderson, One Person, No Vote: How Voter Suppression Is Destroying Our
Democracy, Bloomsbury 2018; as well as Ari Berman, Give Us the Ballot: The Modern Struggle for Voting
Rights in America, Picador 2016.
25
As a consequence, many African Americans have lost faith in the American justice system. See James L.
Gibson, Black and Blue: How African Americans Judge the U.S. Legal System, Oxford Univ. Press 2018.
26
Systematic efforts at suppressing the vote of African Americans have been described many times. For the
most recent report see National Urban League, State of Black America 2019: Getting Equal: United, Not
Divided, available at http://soba.iamempowered.com/2019-report.
The estimate of 1 in 13 is from Joe Davidson, 6 Million Citizens, Including 1 in 13 African Americans, Are
Blocked from Voting Because of Felonies, WASH. POST, 7 October 2016, https://www.washington-
post.com/news/powerpost/wp/2016/10/07/6-million-citizens-including-1-in-13-african-americans-are-blocked
-from-voting-because-of-felonies/?utm_term=.0bd9c9bf0c9b.
27
See Sharon Austin & Taisha Saintil, Examination of Voting Rights Restoration in the State of Florida, 16
November 2018, available at SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3285586.
See also Frank Emmert, Christopher Page & Antony Page, Trouble Counting Votes? Comparing Voting
Mechanisms in the United States and Selected Other Countries, Creighton Law Rev. 2007, Vol. 41, No. 1, pp.
3-35.
28
On this subject see, inter alia, Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of
Colorblindness, New Press 2010; Demico Boothe, Why Are So Many Black Men in Prison? A Comprehensive
Account of How and Why the Prison Industry Has Become a Predatory Entity in the Lives of
African-American Men, Full Surface Publishing 2007; Marc Mauer & Ryan S. King, Uneven Justice: State
administration launched an effort at ending for-profit prisons and tackling endemic problems in
federal and state facilities, but Trump has quietly shut down the effort and is actively expanding
the use of private for-profit prisons.29
What do these examples have in common? They are not incidents of individual incompetence or
corruption. They are not examples of individual failure. They are not cases of “a few bad apples.”
Rather, these examples – and many more could be cited – demonstrate the systemic failure of
justice systems, widely known and analyzed, with names and data available online for the world
to see. Yet little or nothing is being done about them.
II. What Are the Consequences of this Global Failure of Justice Systems?
When justice systems fail, “Rule of Law” does not exist and law as an autopoietic systems does
not work.30 When justice systems fail, laws and lawyers become instruments of injustice and
oppression rather than swords and shields fighting for justice and equality. When justice systems
fail, laws and lawyers are degraded to the status of fig leaves, hiding the nakedness of the
emperor. They become the tools that keep bad people in power and put good people in jail. When
justice systems fail, the very elements of the justice system become obstacles to justice. Instead
of being the cure, laws and lawyers become part of the disease.
The consequences of the failure of justice systems are dire. In developed countries like Italy, the
failure of the justice system affects individuals by denying them effective remedies for the
enforcement of contractual and other private claims and for defending themselves against
criminal charges. On the macroeconomic level, the failure of the justice system works like a
massive tax on free enterprise and encourages inefficiency and corruption in the public sector.31

Rates of Incarceration by Race and Ethnicity, The Sentencing Project, July 2007, available at
https://www.prisonlegalnews.org/media/publications/rd_stateratesofincbyraceandethnicity.pdf.
29
The Brennan Center for Justice reports that “[t]he Trump administration has been a godsend for the private
prison industry (https://www.brennancenter.org/blog/trump%E2%80%99s-first-year-has-been-pri-
vate-prison-industry-best), and Trump’s executive order subjecting entire families of illegal immigrants to
incarceration while their asylum claims are being heard is a direct reward to important campaign donors
(https://www.americanprogress.org/issues/immigration/news/2018/06/28/452912/trumps-executive-order-rew
ards-private-prison-campaign-donors/).
For additional analysis see Michael A. Hallett, Private Prisons in America – a Critical Race Perspective,
Univ. of Illinois Press 2006.
30
An autopoietic system, strictly speaking, is merely a self-sustaining system, see Niklas Luhmann, The
Autopoiesis of Social Systems, Sage 1986. However, the interpretation applied by me in the context of legal
systems is not focused on self-perpetuation but on self-correction, i.e. the ability of legal systems to fix their
own weaknesses as they materialize. For example, in the day and age of cyber crime, certain traditional
definitions in criminal law might not capture certain new types of online criminal activity. However, once
apparent, these shortcomings can be addressed by changes to the definitions, either in the form of a statutory
change or in the form of a new judicial interpretation. The law becomes not only self-sustaining but self-
correcting. The seminal works on law as a self-correcting system are, of course, by Gunther Teubner. See, in
particular, Law as an Autopoietic System, Blackwell Publishers 1993, a translation from the German original
Recht als autopoietisches System, Suhrkamp 1989.
31
The importance of “state capture” is still underestimated in many countries. While Trump was elected partly
on the basis of his claims that he would “drain the swamp” of political cronyism in Washington DC, we know
by now that the influence of private interests over political decision-making via non-transparent payments to
the political decision-makers has only become worse in recent years. An inside story is provided by
In middle income countries like Russia or Mexico, the failure of the justice system results in the
denial of human and economic rights of average citizens and promotes the ascent of oligarchs
and warlords who are relying on the proceeds of crime and naked violence to put themselves
above the law. On the macroeconomic level, unprecedented levels of inequality endanger
fledgling democratic institutions. Political and economic instability, in turn, discourages
legitimate businesses, investment and entrepreneurship, and promotes capital flight into off-shore
tax- and safe heavens.32
In poorer and less developed countries in Africa, Central America, and South Asia, even the most
fundamental human rights will frequently be denied on the personal level, while actual develop-
ment of the country remains illusory at the macroeconomic level, in spite of ever greater wealth
being accumulated by a tiny minority of political and economic leaders.33 Even without special
crisis like wars and natural disasters, these countries are hemorrhaging people, as real or
economic refugees.
When justice systems fail, the weakest members of society, the minorities, the vulnerable, are the
first to suffer the consequences. And where human rights are trampled on, the protection of the
natural environment usually fares even worse. Furthermore, there is undeniable evidence that

Congressman Ken Buck from Colorado in Ken Buck, Drain the Swamp – How Washington Corruption Is
Worse Than You Think, Regnery Publishing 2017. See also Joel S. Hellman, Geraint Jones & Daniel
Kaufmann, “Seize the State, Seize the Day” – State Capture, Corruption and Influence in Transition, World
Bank Policy Research Working Paper 2444, 2000;
32
There are too many good works to list. Without claiming that they are the best or most relevant, I have found
the following sources useful and reliable: On Russia and the CIS see, for example, Evgeny Yakovlev &
Ekaterina Zhuravskaya, State Capture: from Yeltsin to Putin, Centre for Economic and Financial Research at
New Economic School, Working Paper #94, 2006; Stanislaw M. Menshikov, The Anatomy of Russian Capi-
talism, EIR New Service 2007; Ichiro Iwasaki & Taku Suzuki, Transition Strategy, Corporate Exploitation,
and State Capture: an Empirical Analysis of the Former Soviet States, Communist and Post-Communist
Studies 2007, Vol. 40, pp. 393-422; David E. Hoffman, The Oligarchs – Wealth and Power in the New
Russia, PublicAffairs, 2nd ed. 2011; Andrew Wilson, Belarus – The Last European Dictatorship, Yale Univ.
Press 2011; Abby Innes, The Political Economy of State Capture in Central Europe, Journal of Common
Market Studies 2013, Vol. 52, No. 1, pp. 88-104; Karen Dawisha, Putin’s Kleptocracy – Who Owns Russia?,
Simon & Schuster 2014; as well as Anders Åslund, Russia’s Crony Capitalism – The Path from Market
Economy to Kleptocracy, Yale Univ. Press 2019.
On Mexico see, for example, Francis Huerta, La corrupcion de la justicia in Mexico, Selector 1996;
Manuel Alejandro Guerrero, Broadcasting and Democracy in Mexico: From Corporatist Subordina-
tion to State Capture, Policy and Society 2010, Vol. 29, pp. 23-35; Luis Jorge Garay-Salamanca & E.
Salcedo-Albarán, Drug Trafficking, Corruption and States: How Illicit Networks Shaped Institutions in
Colombia, Guatemala and Mexico, iUniverse 2015; Stephen D. Morris, Political Corruption in Mexico
– The Impact of Democratization, Lynne Rienner Publ. 2009; Niels Uildriks, Mexico’s Unrule of Law,
Lexington Books 2010. See also below, note 50.
33
See, for example, Jake Bernstein, Secrecy World – Inside the Panama Papers, Illicit Money Networks, and
the Global Elite, Picador 2017; Oliver Bullough, Moneyland – The Inside Story of the Crooks and
Kleptorcrats Who Rule the World, St. Martin’s Press 2019; Tom Burgis, The Looting Machine – Warlords,
Oligarchs, Corporations, Smugglers, and the Theft of Africa’s Wealth, Public Affairs 2015; Robert I.
Rotberg, Corruption in Latin America: How Politicians and Corporations Steal from Citizens, Springer 2019;
Nicholas Shaxson, Treasure Islands – Uncovering the Damage of Offshore Banking and Tax Havens, St.
Martin’s Griffin 2011;
societies characterized by inequality and injustice are inherently unstable.34 The Arab Spring and
the failed uprisings in Egypt, Libya, and Syria, and the reactionary rise of Islamic fundamenta-
lism are further examples of the consequences of the failure of justice systems.35
The most troublesome issue is not even that so many countries have failing justice systems. The
most troublesome is the fact that in the last 30 years or so, we have made little or no progress in
this regard. Quite possibly, on a global scale, we may actually be doing worse now when it comes
to the failure of justice systems than we did during the Cold War! Although there were no
functioning procedures of any kind to protect human rights in the Soviet Union or in Communist
China during the Cold War, if truth be told, there are no real functioning procedures for the poor
and powerless in these countries today either. At least back then, the difference between the
workers and the bosses were relatively small, whereas today, the workers are not much better off,
while they have to watch every day how a small elite is not only enriching itself shamelessly but
getting away with virtually any violations of laws and ethics one can think of. Similarly, in the
developing countries of Africa and South Asia, mostly everyone was desperately poor in the
1960s and 70s. Today, by contrast, the large majority is still desperately poor and without any
effective human or property rights. But a small elite has become fabulously wealthy and is using
all the tools of the trade, from falsified elections to mercenary armies, to stay in power and on the
gravy train. And where do we stand in the developed West with regard to failure of justice
systems? In response to ever greater inequality,36 we didn’t get Bernie Sanders, we got Donald

34
See, inter alia, Sarah Chayes, Thieves of State: Why Corruption Threatens Global Security, Norton 2015;
James K. Galbraith, Inequality and Instability – A Study of the World Economy Just Before the Great Crisis,
Oxford Univ. Press 2012; as well as Mark J. Roe & Jordan Siegel, Political Instability: Effects on Financial
Development, Roots in the Severity of Economic Inequality, 39 J. Comp. Econ. 279 (2011).
35
The literature on the Arab Spring and, even more so, on Islamic Fundamentalism, is enormous. Some of the
better works are Elliott Abrams, Realism and Democracy – American Foreign Policy after the Arab Spring,
Cambridge Univ. Press 2017; Ishac Diwan & Adeel Malik (eds), Crony Capitalism in the Middle East –
Business and Politics from Liberalization to the Arab Spring, Oxford Univ. Press 2019; John L. Esposito,
Tamara Sonn & John O. Voll, Islam and Democracy after the Arab Spring, Oxford Univ. Press 2015; Robert
Fisk & Patrick Cockburn, Arab Spring Then and Now: From Hope to Despair, Independent Print 2016; Lloyd
C. Gardner, The Road to Tahrir Square – Egypt and the United States from the Rise of Nasser to the Fall of
Mubarak, New Press 2011; Marc Lynch, The Arab Uprising – The Unfinished Revolutions of the Middle
East, Public Affairs 2012; Tariq Ramadan, Islam and the Arab Awakening, Oxford Univ. Press 2012; Olivier
Roy, The Politics of Chaos in the Middle East, Columbia Univ. Press 2008; Bassam Tibi, The Challenge of
Fundamentalism – Political Islam and the New World Disorder, Univ. of California Press 1998; Robert F.
Worth, A Rage for Order: The Middle East in Turmoil, from Tahrir Square to ISIS, Farrar, Straus and Giroux
2016. The magisterial work on the recent history of the Middle East is Robert Fisk, The Great War for
Civilisation: The Conquest of the Middle East, Knopf 2005.
36
There are many good books on rising inequality and its consequences. Some of the better ones include
Anthony B. Atkinson, Inequality – What Can Be Done?, Harvard Univ. Press 2015; François Bourguignon,
The Globalization of Inequality, Princeton Univ. Press 2015; David Cay Johnston, Divided – The Perils of
Our Growing Inequality, New Press 2014; Jason Hickel, The Divide – A Brief Guide to Global Inequality and
its Solutions, Windmill Books 2017; Branko Milanovic, Global Inequality – a New Approach for the Age of
Globalization, Harvard Univ. Press 2016; Keith Payne, The Broken Ladder – How Inequality Affects the Way
We Think, Live, and Die, Viking 2017; Simon Reid-Henry, The Political Origins of Inequality – Why a More
Equal World Is Better for Us All, Univ. of Chicago Press 2015; Bo Rothstein, The Quality of Government –
Corruption, Social Trust, and Inequality in International Perspective, Univ. of Chicago Press 2011; Mitchell
A. Seligson & John T. Passé-Smith, Development and Underdevelopment – The Political Economy of Global
Inequality, Lynne Rienner 2003; Thomas M. Shapiro, The Hidden Cost of Being African American – How
Trump and his Republican lickspittles who keep him in power in spite of a daily deluge of
incompetence, and an unprecedented level of contempt for the rule of law and basic human
decency.
The support by the Republicans in Congress for Donald Trump and everything he stands for,
however, seems so incompatible with their long-professed value system that it begs the question
“why”? Why would conservative Republicans with a lifetime of claiming the higher moral
ground on family values stand with a self-professed sex offender? Why would dyed in the wool
deficit hawks suddenly close both eyes to trillion dollar deficits? Why are constitutional
originalists suddenly indifferent to foundational assaults on the American system of checks-and-
balances? And in other parts of the world, why is nobody seriously standing up for rule of law
and against the failure of the justice systems? Honi soit qui mal y pense but maybe the very
failure of justice systems is the very success of something else?
If I am right that the failure of justice systems is actually proliferating largely unchecked, it must
work for someone. To find out who is benefitting the most from the failure of justice systems, we
just have to ask who would benefit the most from functioning justice systems, from actual rule of
law, from the autopoiesis of law.
To find out who benefits when administrative law does not work, we have to examine the
purpose of administrative law. To find out who benefits when civil and commercial law does not
work, we have to investigate who needs to enforce contracts and property rights via the courts
and who does not. To find out who benefits when criminal law does not work, we have to
analyze who needs functioning criminal laws and who does not. What kind of accused will go to
jail, although they are innocent? What kind of accused will go free, although they are guilty?
What kind of people lose the protection of the law when the law loses its deterrent effect? And
for whom does it make little or no difference?
The function and purpose of administrative law is to hold government accountable. Human rights
and fundamental freedoms set the standards but it is in administrative laws and procedures where
the rubber hits the road when these rights and freedoms come under attack by an overreaching or
underperforming government. While criminal law and procedure is initially the place where
human rights and fundamental freedoms are protected against individual violations, adminis-
trative law and procedure is the place where human rights and fundamental freedoms have to be
protected against larger and systematic violations in the name of the public and the state.
Because of their traumatic experiences with dictatorial regimes, European legal systems have
developed strong administrative law systems and cultures. The legal systems of both Germany
and France, the archetypes of continental European legal systems, have elaborate administrative
law codifications, as well as separate pyramids of courts for their interpretation and application,

Wealth Perpetuates Inequality, Oxford Univ. Press 2004; Thomas M. Shapiro, Toxic Inequality – How
America’s Wealth Gap Destroys Mobility, Deepens Racial Divide, & Threatens Our Future, Basic Books
2017; Joseph E. Stiglitz, The Price of Inequality – How Today’s Divided Society Endangers Our Future,
Norton 2012; Joseph E. Stiglitz, The Great Divide – Unequal Societies and What We Can Do About Them,
Norton 2015.
For comparative data see, inter alia, Facundo Alvarado et al. (eds), World Inequality Report 2018, Harvard
Univ. Press 2018.
in the name of keeping government in check. By contrast, the United States, with its different
historical experience, has an underdeveloped system of administrative law and has always relied
primarily on political checks-and-balances. The lack of institutional safeguards, in turn, has made
it easy for Donald Trump and his facilitators, like Mitch McConnell, to brush aside decades of
political consensus and circumvent the established system of checks-and-balances. Trump,
thereby, provides the answer to the initial question: the failure of administrative justice systems
benefits those who would not want to be constrained by checks-and-balances, who would rather
set themselves above the law, and who do not care about the fundamental rights and freedoms of
their citizens.
Unsurprisingly, there is not one dictatorship in the world, not one country in the champion’s
league of Transparency International,37 not one country with an aspiring autocrat like Erdogan or
El Sisi or Bolsonaro, that could pride itself in having a strong system of administrative law and
procedure. Along the same vein, it has become customary for dictators-in-training, like Orbán in
Hungary or Kaczyñski and Morawiecki in Poland, to begin their tenure with attacks on the courts
and any other institutions that could provide administrative oversight or otherwise force the
government to adhere to the fundamental rights and principles enshrined in the constitution.38
Conveniently, attacks on the courts also pave the way of abuse of the criminal justice system
against investigative journalists and other critics standing in the way of autocrats and kleptocrats.
By contrast, justice systems in the areas of civil and commercial law are focused on individual
justice. On the micro-level, if a justice system is functioning, it will provide enforceability of
contracts, compensation after private torts, fairness in family matters, punishment for crime, etc.
However, not everyone needs to enforce their private and commercial rights via the courts. Some
have friends in high places. Some are willing and able to pay for special treatment. Some simply
resort to violence. The methods used by organized crime have never included systematic resort to
the courts. The choice of “plata o plomo” or “silver or lead” was not invented by Pablo Escobar,

37
Transparency International (TI) publishes the annual Corruption Perceptions Index. Based on input from
thousands of organizations and individuals from around the world, the Index is considered the most authori-
tative source for the levels of corruption to be found in the countries surveyed. The Corruption Perceptions
Index 2018 ranks 180 countries on a scale from zero (highly corrupt) to 100 (very clean), see
https://www.transparency.org/cpi2018. Although not every country above the 50 mark will be a good place to
live and work, we may safely assume that every country below the 50 mark will be a place where honest work
and business cannot easily thrive.
38
The European Commission for Democracy through Law (Venice Commission) of the Council of Europe is
monitoring legal and institutional reforms that may adversely affect democracy, human rights, and rule of law,
around the world. It has issued dozens of opinions about problems in Hungary, including the reforms imposed
on the administrative court system (https://www.venice.coe.int/webforms/documents/?country=17&year=all),
Poland, including the attempt to force the early retirement of a majority of Supreme Court judges and reforms
imposed on the country’s prosecutors (https://www.venice.coe.int/webforms/documents/?country=
23&year=all), and several other countries nowadays often referred to as “illiberal democracies” (see, inter
alia, Fareed Zakaria, The Rise of Illiberal Democracy, Foreign Affairs 1997, Vol. 76, No. 6, pp. 22-43).
Poland’s attack on its Supreme Court also triggered an injunction from the European Court of Justice, the
highest court of the European Union, ordering the country to suspend the forced retirement of the judges. See
the Order of the President of 15 November 2018 in Case C-619/18, European Commission v. Republic of
Poland, ECLI:EU:C:2018:910; as well as the Opinion of 11 April 2019 of Advocate General Tanchev in the
case, ECLI:EU:C:2019:325. As a result, Poland abandoned the plan.
although he became famous for it. I was recently reminded of the notion, when Attorney General
William Barr, a man who spent 68 years of his life building a sterling reputation, started
prostituting himself in front of Donald Trump. Well, Bill, did the Russians offer plata o plomo or
have you gone senile in your old age?
In many countries, there is a saying that you don’t need to know the law. You need to know the
judge. In these countries, whether in the enforcement of civil and commercial rights, or in the
prosecution of crime, there can never be equality before the law because some will know the
judge and some won’t. And for those who know the judge, there is really not much of an
incentive to change the system, is there?
From a point of view of society, if justice is delayed to the point of being unavailable, or if
justice is for sale to the highest bidder, or if those in power or with the right connections become
untouchable, the failure of justice systems becomes like a cancer, like rot in the foundations of
society. However, this cancer does not affect everyone equally. At least at first, it will look as if
those who know the judge, those who are in power, those who have the money and the ruthless-
ness to use it for special treatment outside or above the law, can win, while everyone else is
losing. Sooner or later, however, these societies not only become unstable. They become
unsuccessful. They destroy the very base of their own prosperity. Eventually, the day will come
when even the richest and most powerful will find out that you can’t eat guns or money.39
III. What Can We Do About the Global Failure of Justice Systems?
1. The Connection Between Democracy, Market Economy, and Rule of Law
“[F]irst, [...] let’s kill all the lawyers” said Dick the Butcher in Shakespeare's Henry VI.
Chairman Mao pretty much did exactly that when he shut down legal education in China for
decades40 and sent his intelligentsia to re-education camps. The country is still working on
recovering from that.41
However, as we have seen, it is entirely unnecessary to kill all the lawyers or even to shut down
the law schools, as long as the lawyers can be corrupted, controlled, or constrained by futile and
inefficient procedures and codes.

39
Trump is not only sabotaging the constitutional fabric of checks-and-balances in the US, he is also setting the
country back by decades in the fight against global warming. I have been saying since the early 1990s that
every penny we do not spend on climate change mitigation today will cost us a dollar later. 25 years later, I
am convinced that this statement remains true, like Moore’s Law. As we are about to enter the third decade of
the new millennium, the bills are coming due (see, for example, the recent report in the New York Times, UN
Chief Says ‘Total Disaster’ if Warming Not Stopped, 8 May 2019).
For the wider context, recommended reads include Amy Chua, Day of Empire – How Hyperpowers Rise to
Global Dominance and Why They Fall, Doubleday 2007.
40
After some unsatisfactory experiments with Soviet Union-inspired socialist law, most Chinese law schools
were closed in 1957 and legislative activity ground to a halt. Any remaining legal education programs were
shut down during the cultural revolution between 1966 and 1976. The construction of a modern legal system
began only after Mao’s death. Renmin University (the “People’s University”) School of Law was re-
established as the first modern law school in China in 1978.
41
Or, to be more precise, it was working on that before Xi Jinping suspended the quest for rule of law in favor
of rule by law. For an excellent analysis see Elizabeth C. Economy, The Third Revolution – Xi Jinping and
the New Chinese State, Oxford Univ. Press 2019.
This raises the question whether the global failure of justice systems could be and should be
addressed by targeting the corruption, co-option, and constraints imposed on the laws and the
lawyers. By and large, this has been done in rather indirect ways only, namely be promoting
“Rule of Law” across the globe. We will look in a moment who has been promoting rule of law
and how and to what extent it has been successful. For now, however, we will step back and take
a look at a more fundamental goal, namely the promotion of “Democracy” around the world by
Western governments, international governmental organizations, and NGOs.
All we need is democracy, and the rest will take care of itself, could be the slogan at the
foundation of much of Western policy and institutional aid for the developing and transition
countries in Eastern Europe, Africa, Asia, and Central and Latin America.42 The underlying
assumption is that the people in these countries will act in their own best interest and, if given a
chance to select those who govern them, will vote for the good guys and cast out the bad guys.43
On a more scientific level, data used to suggest that “democracies tend to have better economic
growth and stronger protection of human rights, and are less likely to go to war with one
another.”44
Few will disagree that democracy is a good idea, even though Winston Churchill famously called
it “the worst form of government...”. He was, of course, immediately adding “... except for all
those other forms that have been tried from time to time.”45 The problem with democracy is not
so much that it is not a good idea. The problem is that we have not bothered defining it clearly
enough.
If democracy is defined as a system of government where “the supreme power is vested in the
people and exercised by them directly or indirectly through a system of representation usually
involving periodically held free elections” (Webster’s Universal Encyclopedic Dictionary), then I
want to challenge the proposition that democracy is the most desirable system of government for

42
The U.S. Government alone spends over $2 billion per year on democracy promotion abroad. See
Congressional Research Service, Democracy Promotion: An Objective of U.S. Foreign Assistance, 4 January
2019, available at https://fas.org/sgp/crs/row/R44858.pdf.
The European Parliament regularly reports on the activities of the EU. See, for example, European
Parliament, Promotion of Democracy and Peace in the World, July 2016 Briefing, available at
http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/586586/EPRS_BRI(2016)586586_EN.pdf.
See also Richard Youngs (ed), The European Union and Democracy Promotion – a Critical Global
Assessment, Johns Hopkings Univ. Press 2010; and most recently Marek Neuman (ed), Democracy Promotion
and the Normative Power Europe Framework – The European Union in South Eastern Europe, Eastern
Europe, and Central Asia, Springer 2019.
43
The idea is generally referred to as rational choice theory. For analysis see, for example, André Blais, To Vote
or Not to Vote – The Merits and Limits of Rational Choice Theory, Univ. of Pittsburgh Press 2000;
44
See Marian L. Lawson & Susan B. Epstein, Democracy Promotion: An Objective of U.S. Foreign Assistance,
Congressional Research Service (CRS) Report Prepared for Members and Committees of Congress, R44858,
4 January 2019; as well as G. John Ikenberry, Why Export Democracy?, The Wilson Quarterly 1999, pp. 56-
65;
See also Edward D. Mansfield & Jack Snyder, Democratization and War, Foreign Affairs 1995, Vol. 74,
No. 3, pp. 79-97; however, see also the more recent analysis by the same authors, Edward D. Mansfield &
Jack Snyder, Electing to Fight: Why Emerging Democracies Go to War, MIT Press 2007.
45
House of Commons, London, 11 November 1947. See
https://richardlangworth.com/worst-form-of-government.
countries everywhere, in particular in the developing world. My claim would be that
“democracy” in this common understanding DOES NOT WORK in much of the second and third
world and that for many countries it is NOT the best way of promoting good governance, justice,
and development.
The focus of the international donor community has been on democracy defined by reasonably
free and fair elections every four or five years. We send money, computers, and armies of
observers for a few days, and then we tick off the country for a few years until we repeat the
exercise in the next election cycle. However, has anybody noted that in spite of doing this for
decades for many countries, nothing much has changed?
In Africa, until the 1990s, the “normal” way a party in power was replaced by the opposition was
a (military) coup. Since then, however, change by election has become widespread, even normal.
Reasonably fair and free democratic elections are taking place in more countries around the
world today than ever before.46 So why do we still not see more development, good governance,
improvements in human rights protection, and real progress in the battle against corruption?
Indeed, we have to conclude that in many Asian countries, most Arab and North African
countries, most sub-Saharan countries, and much of Central and Latin America, the presence or
absence of democratic elections and democratic changes of government have had little or no
influence on the factors that determine the quality of life of the large majority of people.47 Indeed,
as the rise of democratically elected autocrats like Orban in Hungary, Erdogan in Turkey, and
Trump in the U.S. shows, people will not actually vote for what is in their best interest, unless
some additional safeguards are in place.48
I would go further and argue that our other priorities have similarly failed. The three-pronged
approach of Western aid has focused for decades not only on democracy, but also on market
economy, as well as rule of law. Like motherhood and friendship, these are lofty goals that few
can and will disagree with. Indeed, it is hard to argue that democracy, market economy, and rule
of law can possibly be bad for a country’s development. That is precisely why we have been
promoting these goals with policy proposals, institutional reform support, and financial aid, in
manifold and massive ways for many years. Yet, if we measure “the common good”, defined as

46
https://www.pewresearch.org/fact-tank/2019/05/14/more-than-half-of-countries-are-democratic/.
47
In an earlier contribution, I have written as follows: “On the most basic level, it is simply naive to believe that
much or anything can be gained from helping developing countries with the organization and administration
of elections, and from flying in hundreds of election observers who can then testify whether or not these
elections were reasonably free and fair. [In reality], it is not difficult for the tiny political and business elite
that owns pretty much everything worth owning in a typical developing country, to shape the political process
and the public opinion in the four or five years between elections in such a way that the elections cannot but
generate the result desired by that elite. Stuffing of ballot boxes and other forms of electoral fraud will rarely
be necessary...” See Frank Emmert, Market Economy, Democracy, or Rule of Law? What Should Be
Prioritized to Promote Development?, in Epiney/Haag/Heinemann (eds), Challenging Boundaries - Essays in
Honor of Roland Bieber, Nomos, Baden-Baden 2007, pp. 104-116, at p. 109. The contribution can be
downloaded free of charge at https://www.researchgate.net/publication/259672405_Market_Economy_Demo-
cracy_or_Rule_of_Law_What_Should_Be_Prioritized_to_Promote_Development_in_EpineyHaagHeinemann
_eds_Challenging_Boundaries_-_Essays_in_Honor_of_Roland_Bieber_Nomos_Baden-Baden_2007_pp.
48
For further analysis see Bryan Caplan, The Myth of the Rational Voter: Why Democracies Choose Bad
Policies, Princeton Univ. Press 2008; Isabel Hardman, Why We Get the Wrong Politicians, Atlantic Books
2019;
“the greatest possible quality of life for the largest possible share of the population over the
longest possible time”,49 it is equally hard to argue that all our efforts have really made a
difference. By and large, if the quality of life has improved for some people somewhere, it
declined for others. And the greater the improvement was for some, the greater was the decline
for others and/or the negative impact of unsustainable policies on the opportunities and lives of
future generations and the natural environment.
What are we doing wrong? Why do we see again and again that a democratic change of
government in a developing country does not bring about lasting improvements for the majority
of the population, the society and country as a whole? We have seen many cases where corrupt
regimes got finally voted out of office and replaced by new leaders who were better qualified,
and at least initially motivated and well intended to put an end to endemic corruption and the
daily inefficiency of government services.50 But if we did see any real improvements at all, they
were usually temporary. Why does everyone seem to do a dance that we could call one step
forward, two steps back?
Similar to the myopic focus of democracy promotion on elections, international aid organizations
have wasted decades with a narrow-minded focus on the promotion of a particular kind of market
economy in developing nations. This approach is doubly irritating. First, we may well argue that
the capitalist version of market economy has not exactly worked so well even in the developed
nations. The economist Ha-Joon Chang has commented on our standard approach or definition of
market economy as follows:
“The focus on the market has made most economists neglect vast areas of our econo-
mic life, with significant negative consequences for our well-being. The neglect of
production at the expense of exchange has made policy-makers in some countries
overly complacent about the decline of their manufacturing industries. The view of
individuals as consumers, rather than producers, has led to the neglect of issues such

49
Frank Emmert, Gobal Failure of Justice Systems – Causes and Consequences, Workshop at Tulane
University, 22nd International Legislative Drafting Institute, 25 June 2016, available at https://www.research-
gate.net/publication/307882136_Global_Failure_of_Justice_Systems_-_Causes_and_Consequen-
ces_-_Workshop_at_Tulane_University_22nd_International_Legislative_Drafting_Institute_25_June_2016.
See also Frank Emmert, The Common Good Under Fire – Is Globalization Delivering the Ultimate Victory to
Manchester Capitalism?, European Journal of Law Reform, 2006, Vol. VI, No. 3/4, pp. 427-459, available at
https://www.researchgate.net/publication/259672833_The_Common_Good_Under_Fire_-_Is_Globaliza-
tion_Delivering_the_Ultimate_Victory_to_Manchester_Capitalism.
50
For example, the former Mexican President Enrique Peña Nieto made the fight against corruption one of his
signature policy goals. He created the National Anti-Corruption System (NAS) and the National Anti-
Corruption Commission and supported new legislation like the federal law against corruption in public
contracting, and the citizen’s initiative #Ley3de3 (for more information see, e.g. Mathieu Tromme & Miguel
Angel Lara Otaola, Enrique Peña Nieto’s National Anti-Corruption Commission and the Challenges of
Waging War Against Corruption in Mexico, Mexican Studies/Estudios Mexicanos, Vol. 30 No. 2, Summer
2014, pp. 557-588; as well as Allie Showalter Robinson, Developments in Anti-Corruption Law in Mexico:
Ley Federal Anticorrupción en Contrataciones Públicas, 19 Law & Bus. Rev. Am. 2013, Vol. 19, pp. 81-91).
Yet when Peña Nieto was voted out, he was widely considered among the most corrupt Mexican politicians,
and the country had slid to #138 on the 180 country scale of Transparency International, making it one of the
four most corrupt countries in Central- and Latin America (see, inter alia, Oliver Armas, Luis Enrique Graham
& Thomas N. Pieper (eds), The Anti-Bribery and Anti-Corruption Review, Mexico, 7th ed. 2018).
 as the quality of work (e.g., how interesting it is, how safe it is, how stressful it is and
even how oppressive it is) and work-life balance. The disregard of these aspects of
economic life partly explains why most people in the rich countries don’t feel more
fulfilled despite consuming the greatest ever quantities of material goods and services.
The economy is much bigger than the market. We will not be able to build a good
economy – or a good society – unless we look at the vast expanse beyond the
market.”51
Secondly, the exportation of our narrowly focused “market” economy has caused even more
problems in the developing countries. The so-called “Washington Consensus” evolved in the
1980s and was for the first time conceptualized by John Williamson of the Institute for
International Economics.52 It spells out ten policy reforms considered essential for successful
development. Based on the Brady Plan53 and other initiatives, these reforms were often imposed
on developing nations before the IMF and the World Bank would provide further loans:
1) Fiscal discipline, essentially a requirement imposed on developing country
governments to balance the books;
2) Reordering public expenditure priorities away from “non-merit subsidies [for]
basic health and education and infrastructure”54 and into growth-oriented policies like
attracting foreign investment;
3) Tax reform toward a broad-based tax system with lower marginal tax rates;
4) Liberalizing interest rates, i.e. removal of public oversight of and caps on interest
rates;
5) Competitive, i.e. freely fluctuating exchange rates;
6) Trade liberalization, i.e. elimination of prohibitive import duty rates and onerous
non-tariff barriers;
7) Liberalization of inbound foreign direct investment, including elimination of
restrictions on repatriation of profits and other capital controls;
8) Privatization of government owned industries, including public utilities;
9) Deregulation, in particular via elimination of barriers to entry and exit, and other
growth-inhibiting red tape;

51
Ha-Joon Chang, Economics: The User’s Guide, Bloomsbury 2014, at p. 330.
52
See John Williamson, A Short History of the Washington Consensus, Law and Business Review of the
Americas 2009, Vol. 15, No. 1, pp. 7-23. See also John Williamson, What Washington Means by Policy
Reform, in John Williamson (ed.), Latin American Adjustment: How Much Has Happened?, Washington,
D.C.: Institute for International Economics 1990.
53
U.S. Treasury Secretary Nicholas Brady proposed this plan in 1989 as a guideline for lending by the IMF, the
World Bank, as well as the OECD and other creditor governments. The goal was to rein-in indebtedness by
developing countries. In exchange for belt-tightening by the debtor countries, the creditors were supposed to
accept some levels of debt reduction and debt forgiveness. For additional information see, for example,
Jeffrey Sachs, Making the Brady Plan Work, Foreign Affairs 1989, Vol. 68, No. 3.
54
Williamson, A Short History..., above note 52, at p. 9.
 10) Strengthening of private property rights.
While it seems pretty clear that these goals make a lot of sense as the foundation of a market
economy, their imposition on poor and underdeveloped countries, often without much of a
transition period, frequently triggered a collapse of local economic structures and inflicted great
hardship on the poorest and most vulnerable in these societies. Nobel Prize winner Joseph
Stiglitz served as chief economist and senior vice president of the World Bank from 1997 to
2000 and had a front-row seat to observe the impact of these policies. In his famous book
Globalization and Its Discontents he concluded “that globalization [...] can be a force for good
and that it has the potential to enrich everyone in the world, particularly the poor. But [...] if this
is to be the case, the way globalization has been managed, including [...] the policies that have
been imposed on developing countries [...] need to be radically rethought.”55
One does not need a Nobel Prize in economics to understand that the IMF and World Bank
requirements favor entrepreneurs, investors, and capital owners over the rest of the population. I
guess, the rising tide was then supposed to lift all the boats. However, as we have seen time and
again, in reality, the rising tide is lifting mostly the yachts.
Finally, in addition to a narrow and misguided definition of democracy and market economy, we
have also relied on a definition of rule of law in our development aid that has not worked. For
one, pretty much every study of the rule of law defines it differently. Matthew Stephenson writes
that “[t]he ‘rule of law’ means whatever one wants it to mean. It’s an empty vessel that everyone
can fill up with their own vision.”56 Brian Tamanaha gives a few examples:
Some believe that the rule of law includes protection of individual rights. Some
believe that democracy is part of the rule of law. Some believe that the rule of law is
purely formal in nature, requiring only that laws be set out in advance in general, clear
terms, and be applied equally to all. Others assert that the rule of law encompasses the
“social, economic, educational, and cultural conditions under which man’s legitimate
aspirations and dignity may be realized.” [...] One theorist remarked that “there are
almost as many conceptions of the rule of law as there are people defending it.” [...] In
view of this rampant divergence of understandings, the rule of law is analogous to the
notion of the “good,” in the sense that everyone is for it, but have contrasting
convictions about what it is.57
Lord Bingham’s definition may be the broadest and most comprehensive of them all. However, it
also remains on a very abstract level:

55
Joseph E. Stiglitz, Globalization and Its Discontents, Penguin 2002, pp. ix-x. He goes into more detail on pp.
11-22 and subsequent chapters.
56
Matthew C. Stephenson, A Trojan Horse in China?, in Thomas Carothers (ed.), Promoting the Rule of Law
Abroad: in Search of Knowledge, Carnegie Endowment for Int’l Peace 2006, pp. 191-216, at 196.
May and Winchester write that “it is not uncommon to find both sides of a dispute claiming the rule of law
supports their actions/positions while at the same time arguing the other side is violating the norm.” See
Christopher May & Adam Winchester, Introduction, in Christopher May & Adam Winchester (eds),
Handbook on the Rule of Law, Edward Elgar 2018, at p. 2.
57
Brian Z. Tamanaha, On the Rule of Law – History, Politics, Theory, Cambridge Univ. Press 2004, p. 3,
internal references omitted.
 “(1) The law must be accessible and so far as possible intelligible, clear and
predictable.
(2) Questions of legal right and liability should ordinarily be resolved by application
of the law and not the exercise of discretion.
(3) The laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation.
(4) Ministers and public officers at all levels must exercise the powers conferred on
them in good faith, fairly, for the purpose for which the powers were conferred,
without exceeding the limits of such powers and not unreasonably.
(5) The law must afford adequate protection of fundamental human rights.
(6) Means must be provided for resolving, without prohibitive cost or inordinate
delay, bona fide civil disputes which the parties themselves are unable to resolve.
(7) Adjudicative procedures provided by the state should be fair.
(8) The rule of law requires compliance by the state with its obligations in
international law as in national law.”58
Instead of trying to promote one vision of rule of law over all the others, the World Justice
Project, the largest and most widely supported NGO network conducting research and
developing resources for the promotion of rule of law, brings all or at least many of them
together, albeit on an equally abstract level. It has drawn up “Four Universal Principles”, namely
“The rule of law is a durable system of laws, institutions, and community
commitment that delivers four universal principles:
Accountability: The government as well as private actors are accountable under the
law.
Just Laws: The laws are clear, publicized, and stable; are applied evenly; and protect
fundamental rights, including the security of persons and contract, property, and
human rights.
Open Government: The processes by which the laws are enacted, administered, and
enforced are accessible, fair, and efficient.
Accessible & Impartial Dispute Resolution: Justice is delivered timely by competent,
ethical, and independent representatives and neutrals who are accessible, have
adequate resources, and reflect the makeup of the communities they serve.”59

58
Tom Bingham, The Rule of Law, Penguin 2010, pp. 37-110. There is a brief chapter for each of the principles.
59
See https://worldjusticeproject.org/about-us/overview/what-rule-law.
While I won’t disagree with any of these lofty concepts, I do want to ask why we don’t seem to
be particularly successful in the dissemination of rule of law around the world, in spite of such
comprehensive definitions? Or is it because of them?60
Here is my argument: If we really want to make a difference, we should begin with a couple of
indisputable facts:
• Real democracy is not primarily about reasonably free and fair elections every four or five
years.
• Real market economy cannot be imposed via the Washington consensus or other simplistic
tools.
• Real rule of law is not an abstract concept but requires specific, tangible, and interrelated
conditions and procedures.
Let’s look at each one in turn.
2. What Is Real Democracy?
Instead of the myopic focus on reasonably free and fair elections, IDEA, the International
Institute for Democracy and Electoral Participation, measures five “attributes of democracy” in
the 158 countries covered by its reports:
“1. Representative Government covers the extent to which access to political power is
free and equal as demonstrated by competitive, inclusive and regular elections. It
includes four subattributes: Clean Elections, Inclusive Suffrage, Free Political Parties
and Elected Government.
2. Fundamental Rights captures the degree to which civil liberties are respected, and
whether people have access to basic resources that enable their active participation in
the political process. [...] It includes three subattributes: Access to Justice, Civil
Liberties, and Social Rights and Equality. It also includes the following
subcomponents: Freedom of Expression, Freedom of Association and Assembly,
Freedom of Religion, Freedom of Movement, Personal Integrity and Security, Basic
Welfare, Social Group Equality, and Gender Equality.
3. Checks on Government measures effective control of executive power. It includes
three subattributes: Effective Parliament, Judicial Independence and Media Integrity.
4. Impartial Administration concerns how fairly and predictably political decisions
are implemented, and thus reflects key aspects of the rule of law. It includes two
subattributes: Absence of Corruption and Predictable Enforcement.
5. Participatory Engagement measures instruments of, and for the realization of,
people’s participation and societal engagement at different levels. [S]ubattributes of

60
Since we don’t even really know what is and what is not part of rule of law, we also can’t meaningfully
measure it. For discussion see Svend-Erik Skaaning, Measuring the Rule of Law, Political Research Quarterly
2009, Vol. 63, No. 2, pp. 449-460.
 this aspect [are] Civil Society Participation, Electoral Participation, Direct Democracy
and Local Democracy [...]”.61
Unfortunately, this holistic approach makes things a lot more complicated than the simple
question whether a country is holding reasonably free and fair elections in regular intervals.
However, it is very clear that democracy cannot deliver good governance and good government if
the media are controlled by a small minority, if people cannot express their opinion or join with
others in social and political organizations critical of the rich and powerful, or if people have to
fear for their lives if they do not vote for the constitutional power grab or lifetime tenure of the
president.62 The very foundation of democracy is the idea that people will reward good
governance and support politicians who genuinely pursue the common good, i.e. the greatest
possible quality of life for the largest possible share of the population over the longest possible
time. And that they will throw out the corrupt, the incompetent, and the ineffective. How are they
supposed to do that if they don’t have access to a diversity of investigative media and don’t know
or don’t understand who is responsible for the perpetuation of poverty and misery? How are they
supposed to participate in the political process, if they cannot organize themselves in NGOs and
political parties to get information, voice their opinions, and organize their dissent? How are they
supposed to exercise their right to vote if they have to fear for the safety of their families if they
disagree with the rich and powerful?
Can we please stop counting countries as “democracies” just because they are organizing
reasonably free and fair elections every couple of years? It takes so much more than that!
3. What Is a Real Market Economy?
The next dogma to be slaughtered is the idea that the best market economy is the economy with
the least amount of regulatory constraints and state intervention. The goal is not to have a free
market. The goal is to have the market work for the people. Consequently, the true measure of
economic success is not whether the market is “free”. The true measure of economic success is
whether the market delivers the best possible quality of life to the greatest possible number of
people. If the Heritage Foundation in its annual Index of Economic Freedom tells us differently,63
we need to ask ourselves, who are these people and whose interests are they promoting?
Interestingly, many of the countries ranked highest in market freedom are also ranked among the
highest in the Gini Index of Economic Inequality, for example Hong Kong, Singapore, and the
United Arab Emirates.64 While it would be going too far to say that market freedom is always
directly correlated to economic inequality, the least we can say is that market freedom in and of

61
See IDEA (ed), The Global State of Democracy Indices: An Overview, October 2018, p.3, available at
https://www.idea.int/sites/default/files/publications/global-state-democracy-indices-overview.pdf (emphasis
added). The data populating the IDEA Indices is obtained from a multitude of datasets compiled by
organizations including the UN, UNESCO, the FAO, as well as numerous respected NGOs and academics.
62
See Frank Emmert, Market Economy, Democracy, or Rule of Law? What Should Be Prioritized to Promote
Development?, above, note 47.
See also Paul Collier, Wars, Guns, and Votes – Democracy in Dangerous Places, HarperCollins 2009;
David Gillies, Elections in Dangerous Places: Democracy and the Paradoxes of Peacebuilding, Mc-Gill-
Queen’s Univ. Press 2011.
63
See https://www.heritage.org/index/.
64
http://www3.weforum.org/docs/WEF_Forum_IncGrwth_2018.pdf.
itself is no guarantee of economic success, unless of course we focus on the economic success of
the average citizen rather than the median. The reason is that the “average” is distorted by the
ultra rich in a society. To illustrate the point, let’s assume that we have 99 out of 100 people
earning 100,000$/year and 1 person earning 100 million $/year. The average income in such a
society would be just short of 1.1 million $/year. One single ultra rich person is distorting the
picture to the point of ridicule.65 By contrast, the median income in the country would be exactly
100,000$/year, a much more realistic number.66 According to Forbes, there are 30 billionaires
living in Dubai, more than in any other city in the Middle East. The Money Report for 2018
found 88,700 people with assets in excess of 1 million USD in the UAE.67 No doubt, by almost
every measure, the economy is doing great in the Emirates. However, the extreme accumulation
of wealth is also extremely unevenly distributed. This literally adds insult to injury for the
countless immigrant workers in the service industries, who not only have to content themselves
with very modest incomes and very high price levels but also witness the extreme wealth of their
clients and employers all the time, without ever having any chances of catching up, no matter
how long and fast and hard they are willing to work.68 The numbers in the U.S. are not
fundamentally different. CNBC reports that the ratio of income of the average CEO compared to
the average worker in the US increased from 30 times to 300 times between 1978 and 2018.69
While the average worker has seen a salary increase of 11.2% over these 40 years – adjusted for
inflation – the average CEO salary went up by 937%.70
During the same time, social mobility in the U.S. declined dramatically. While the U.S. used to
be one of the countries with the lowest barriers to social mobility, i.e. the ability of “anyone in
America who is willing and able to ‘pull themselves up by their bootstraps’ [to] achieve
significant upward mobility”71 and end their lives in a higher social stratum than where they
began, the U.S. is now one of the countries with the highest barriers.72 In fact, the World

65
David Pilling uses an even more drastic example: “[I]f the entire economic pie of a wealthy country went to
one individual and nothing went to anyone else, then the average person would be doing very nicely, thank
you. But the typical person would have starved to death.” See David Pilling, The Growth Delusion – Wealth,
Poverty, and the Well-Being of Nations, Tim Duggan Books 2018, at p. 7.
66
The median is obtained by dividing the population into two equal halves and the person in the middle, who
has half of the country earning less and half of the country earning more than herself.
67
https://lovindubai.com/news/uae-wealth-report.
68
A secretary or a teacher is still relatively well-paid at about 2,500-3,000$/month. However, the average
housekeeper or maid makes less than 5,000$ per year in spite of long hours six days a week! See
https://www.payscale.com/research/AE/Job=Maid_or_Housekeeping_Cleaner/Salary/a90fefd6/Dubai.
For a discussion of good and less good methods of measuring inequality see Ulrik Beck, Measuring Real
Inequality Using Survey Data from Developing Countries, in Channing Arndt & Finn Tarp (eds), Measuring
Poverty & Wellbeing in Developing Countries, Oxford Univ. Press 2017, pp. 274-296, with many useful
further references.
69
https://www.cnbc.com/2018/01/22/heres-how-much-ceo-pay-has-increased-compared-to-yours-over-the-years.
html.
70
Ibid. For analysis see Thomas Piketty, Capital in the Twenty-First Century, Harvard Univ. Press 2014, pp.
291-303.
71
Elise Gould, U.S. Lags Behind Peer Countries in Mobility, Economic Policy Institute 2012, available at
https://www.epi.org/publication/usa-lags-peer-countries-mobility/.
72
See Professor Raj Chetty’s Equality of Opportunity Project, now Opportunity Insights at Harvard University,
The American Dream is Fading – Only Half of Children Today Grow Up to Earn More Than Their Parents,
available at https://opportunityinsights.org/national_trends/. The number for the U.S. used to be over 90%.
Economic Forum reported that “outcomes in social mobility and education are significantly
worse in rich countries with more inequality, that is, with populations that show larger gaps
between the wealthy and the poor. For example, the United States and United Kingdom have
close associations between fathers’ and sons’ incomes, compared to countries such as Denmark,
Finland, Sweden and Norway.”73 In other words, in the US and the UK, young people are much
more likely to do well in life if their parents were already doing well. And conversely, young
people are much more likely to be stuck on the lower rungs of the social ladder if their parents
were already stuck there. Against this background, I play a game with my students every year. I
tell them that they are about to die. However, they will be reborn promptly. And they can choose
the country where they will come back. Almost every good and patriotic American will then
dutifully declare his or her firm intention of being born – again – as a citizen of the great United
States of America. Until I tell them that while they can choose the country, they cannot choose
the family and the social stratum. After a bit more discussion, a very clear majority of the
students is then considering places like Sweden or Norway. This was also the reason for
Professor Richard Wilkinson to postulate that “if Americans want to live the American dream,
they should go to Denmark”,74 which is a country often demonized by American politicians as
“socialist”.75
Unsurprisingly, on the World Happiness Index, none of the champions of the Heritage
Foundation Index of Economic Freedom rank very highly either.76
We could very well call this phenomenon the failure of the free market economy because “free”
in this context simply means unregulated and largely untaxed, which promotes an economic
model of catch-as-catch can or survival of the fittest. Unfortunately, in the absence of sensible
market regulations, the most ruthless, the most aggressive, and the least risk-averse will always
have the edge because they will enrich themselves at the expense of their fellow citizens and
society as a whole. If we do not want a system of survival of the most ruthless, rather than the
fittest, we need sensible market regulations in areas such as competition or anti-trust law,77

73
https://www.weforum.org/agenda/2018/11/education-does-not-always-equal-social-mobility/.
74
Richard Wilkinson, How Economic Inequality Harms Societies, TEDGlobal July 2011, available at
https://www.ted.com/talks/richard_wilkinson?language=en. See also Richard Wilkinson & Kate Pickett, The
Spirit Level – Why Greater Equality Makes Societies Stronger, Bloomsbury 2009; as well as Richard
Wilkinson & Kate Pickett, The Inner Level: How More Equal Societies Reduce Stress, Restore Sanity and
Improve Everyone’s Well-Being, Penguin Press 2019.
75
See White House Council of Economic Advisers, The Opportunity Cost of Socialism, October 2018, pp. 27 et
seq., available at https://www.whitehouse.gov/wp-content/uploads/2018/10/The-Opportunity-Costs-of-Socia-
lism.pdf.
76
https://worldhappiness.report/ed/2019/#read.
77
See Frank Emmert, The Argument for Robust Competition Supervision in Developing and Transition
Countries, Journal of Governance and Regulation 2016, Vol. 5, No. 3, pp. 67-89; available on ResearchGate
at https://www.researchgate.net/publication/308092582_The_argument_for_robust_competition_super-
vision_in_developing_and_transition_countries.
The claim that “the Chicago School” stands for a simplistic formula along the lines of “let the market take
care of itself” has never been entirely true. Milton Freedman himself said that the biggest enemy of the free
market system is the business community itself (http://www.aei.org/publication/milton-friedman-iden-
tifies-the-biggest-enemy-of-the-free-market-system-the-business-community/) and was a well-known
champion of sensible antitrust laws. See also the recent convocation speech at the University of Chicago by
Prof. Luigi Zingales (https://www.nytimes.com/2019/09/15/technology/university-of-chicago-tech-
consumer protection, environmental protection, health and safety regulations in labor relations as
well as food and drug law, but also fairness and transparency of taxation. Furthermore, we need
sensible laws and regulations to shore up these goals, for example to prevent corruption of those
in politics and public office and providing for financial transparency with regard to the amount
and origin of their assets. In the absence of such rules, we will just continue on the slippery slope
into the abyss where the most ruthless manage to privatize the profits and socialize the losses of
the entire society.
If anything, the situation is worse in less developed nations because the safeguards are generally
weaker. Without reasonably free media and a high level of investigative journalism, the misdeeds
of the rich an powerful can be concealed to the point that it does not even matter that the courts
will not step up against them when a rare case is brought by an opposition politician, an NGO, or
a courageous individual.
This has not stopped us from promoting and even pushing the Washington Consensus on the
developing countries, however. For decades, we have been peddling goods that increasingly fail
in our own developed systems and that have never really worked in the developing world. We
can certainly say today that the Washington Consensus – market opening with the crowbar – has
been an abject failure and that even the modifications we have made in decades of promoting
democracy, market economy and rule of law around the world have not yielded the results we
want and need. It has become more and more widely accepted that our goals have been too
narrow in some areas, too broad in others, and that reforms were imposed too quickly here and
too slowly there. As a result, we literally stand in front of a pile of broken promises and broken
strategies and, if truth be told, we don’t even have a plan how we can do better in the future. This
does not stop those in the business of promoting development and rule of law from doubling
down with putting new wine in old wine skins. After all, thousands of well-paying jobs in
government, intergovernmental and non-governmental organizations, and academic centers,
depend on the continuation of these efforts, whether they actually work or not.78
4. What Is Effective or Real Rule of Law?
As we have seen, if rule of law is everything to everyone, it really becomes nothing of use to
anyone, except maybe those in the aid business who administer and distribute ODA and/or
private funds. What we need, instead, is a definition that is practical and limited and allows
specific measures to be taken and their impact to be assessed.

nology-antitrust.html?searchResultPosition=35).
78
For discussion see, inter alia, Christopher Coyne, Doing Bad by Doing Good – Why Humanitarian Action
Fails, Stanford Univ. Press 2013; Arjan de Haan, How the Aid Industry Works – an Introduction to
International Development, Kumarian Press 2009; Graham Hancock, Lords of Poverty – The Power, Prestige,
and Corruption of the International Aid Business, Atlantic Monthly Press 1989; David Lake, The
Statebuilder’s Dilemma – On the Limits of Foreign Intervention, Cornell Univ. Press 2016; Michael Maren,
The Road to Hell - The Ravaging Effects of Foreign Aid and International Charity, The Free Press 1997;
Dambisa Moyo, Dead Aid – Why Aid Is Not Working and How There Is a Better Way for Africa, Farrar,
Straus & Giroux 2009; Linda Polman, The Crisis Caravan – What’s Wrong with Humanitarian Aid?, Picador
2010; and Roger C. Riddell, Does Foreign Aid Really Work?, Oxford Univ. Press 2007.
In 2007, I published an article in the Festschrift for Roland Bieber entitled “Market Economy,
Democracy, or Rule of Law? What Should Be Prioritized to Promote Development?”79 In many
respects, this contribution set the stage for the present text. It demonstrates how democracy and
market economy do not work, cannot work, and will not work without the prior construction of a
solid foundation of real rule of law. The 2007 article was followed up by another on “Rule of
Law in Central and Eastern Europe” published in the Fordham International Law Journal in
2008.80 In that contribution, I refined the definitions of Rule of Law as follows:
First, we need to recall the important distinction between horizontal relations of
private individuals or entities among each other, and vertical relations of private
individuals or entities with the public administration or state authorities. “Rule of
law” is really about the latter, protecting the individual in her relations with the
authorities and demanding that all levels of government always respect the law. More
than anything, “rule of law” is therefore about administrative law...81
The article then shows how the administrative law traditions of France and Germany rest on three
pillars:82
[F]irst, any level of public administration, from the head of state and government,
legislature, and constitutional or supreme court, to the lowest level of civil servant,
requires a legal basis for any decision, decree, ruling, or action that actually or
potentially affects the interests of any party outside of the public administration and/or
uses public resources (“Vorbehalt des Gesetzes,” liberally translated as “requirement
of legal basis”).
Second, every decision, decree, ruling, or action, as well as every legal basis, has to be
in conformity with every higher norm in the respective legal system (“Vorrang des
Gesetzes,” liberally translated as “requirement of legality”).
Third, every decision, decree, or action of the executive that directly affects the
interests of any party outside of the public administration must be reviewable by an
independent judiciary for conformity with the first and second principles in a pro-
cedure that follows minimum standards of due process and results in a reasoned and
published decision (“Rechtsschutzprinzip,” liberally translated as “requirement of
judicial review” or “access to justice”).83
Each of the requirements is then explained:

79
Frank Emmert, Market Economy, Democracy, or Rule of Law? What Should Be Prioritized to Promote
Development?, see above, note 46.
80
Frank Emmert, Rule of Law in Central and Eastern Europe, Fordham Int’l Law Journal 2008, Vol. 32, No. 2,
pp. 551-586, available at https://www.researchgate.net/publica-
tion/254597727_Rule_of_Law_in_Central_and_Eastern_Europe.
81
Ibid., at p. 562.
82
Groundbreaking work in this regard was done as early as 1925 to 1934 by Hans Kelsen in his books
“Allgemeine Staatslehre” (transl. as General Theory of Law and State, Harvard Univ. Press 1945) and “Reine
Rechtslehre” (transl. as Pure Theory of Law, 1967 and 1992).
83
Frank Emmert, Rule of Law in Central and Eastern Europe, above, note 80, at pp. 564-565. Footnotes
omitted.
The “requirement of legal basis” rests on the assumption that all power inherently
belongs to the people and any authority in a state or society draws its powers from the
people. This means that by default, all powers are with the people, the governed,
unless they have been explicitly transferred by the people to their government. In
addition to the basic transfer of powers to the government as laid down by the people
in their constitutions, in modern states such a transfer is usually done in the formal
ways of representative democracy, i.e., the people vote for their elected representa-
tives and the parliament then adopts the respective legal bases for administrative and
other acts. Without such a transfer, however, there is no power of the government and
any binding decision, decree, ruling, or action of the government that does not rest on
a direct or indirect transfer of power from the people in the form of a legal basis is
ultra vires. If the legal basis of an act is an administrative decision or circular or any
other delegated authority below the level of a law of parliament, this legal basis itself
has to be traceable to its own legal basis and ultimately to a legislative basis. This
means that not every legal basis has to be a legislative basis but every legal basis
ultimately bas to be grounded or based on a legislative basis, which in turn rests on a
constitutional basis.
The “requirement of legality” is simply the “idea that the administration must be
compelled to observe the law” where “the law” means any norm that is binding and
applicable in a given case. This introduces the concept of the hierarchy of norms. In
this hierarchy, the individual and specific administrative act or decision has the lowest
rank. On the next higher level is the organizational or institutional rule on which the
individual administrative act was based. For example, the police officer demanding
entry into a private residence for purposes of search and seizure (an individual and
specific administrative act) performs her duties pursuant to an order given by a
commanding officer or prosecutor. The commanding order is usually based on a
ruling by an independent judge or a court order, which in turn is given in imple-
mentation of a more general legislative act that permits forcible entry for purposes of
search and seizure in a number of strictly defined cases. The legislative act itself has
to be in conformity with the constitution, however, and in particular the provisions on
privacy and the protection of private property and family life that will be found more
or less clearly defined in the respective bill of rights. Finally, the constitutional
guarantees, as worded in general and interpreted in specific cases, must conform to
whatever norms of international law are applicable to the situation at hand, whether
by nature of ratification by the respective state of an international agreement such as
the European Convention on Human Rights and Fundamental Freedoms, or because
that state is bound by other norms of international law, in particular those derived
from customary international law. The hierarchy of norms and the “strictly legal
pedigree”, i.e., the unbroken chain of legality, leads to two specific obligations: first,
the administrative officer has to actually apply the specific laws applicable to a case at
hand; second, she is prohibited from breaching the specific law or any of the applic-
able higher laws or norms.
The “requirement of judicial review” by an independent judiciary is an emanation of
the separation of powers and the idea of checks and balances. [...] Several conditions
 have to be fulfilled in order to make this judicial review effective. It is widely under-
stood that judicial review cannot function unless certain minimum standards of due
process and transparency are guaranteed. However, I am arguing that the traditional
standards like independence of the judiciary, competent and impartial judges, and
equality of arms before the courts are not as central as commonly presented. The
primary function of the courts in administrative law is the enforcement of the first and
second pillars of “rule of law.” First, the administration has to provide and the courts
have to review the legal basis of the act in order to verify that the administration was
empowered to act in a given case. If the administration does not or cannot provide a
legal basis, the act is null and void according to the requirement of legal basis. The
same is true if there is a legal basis but it does not support the act in question. Second,
the courts must verify whether the contested act is in conformity not only with its
legal basis but with all applicable rules of law. Unless there is an unbroken chain of
legality, all the way up to constitutional and international guarantees of human rights
and fundamental freedoms, the act is illegal and has to be undone or compensated. To
enforce the requirement of legal basis and the requirement of legality, the courts
merely have to properly subsume the facts of the case under all applicable rules of
law. And this in turn can be secured via two formal conditions: access to the courts
has to be guaranteed to any individual with a prima facie claim; and any decision of
the courts has to be fully reasoned and published for review by the parties, any
appellate level jurisdiction, and the interested public, in particular the media as well
as any academic commentators. Last but not least, a corollary of the “principle of
judicial review” is the principle of administrative liability, i.e., the obligation of the
administration to end a violation of individual rights or interests found by a court in a
judgment that becomes res judicata and to make good any damages unlawfully
inflicted.84
My claim is, ultimately, that these relatively straightforward and technical conditions will
achieve what much more lofty and broader goals will not. The reason is that countries rarely want
to put into law what is rather obviously illegal and that judges who have to explain themselves
will rarely want to adjudicate in ways that are rather obviously unjust. Thus, if countries can be
motivated to anchor these three principles in their constitutions – and ODA, FDI, or admission to
an international organization like the WTO or the EU, can be used to provide such motivation if
it is otherwise lacking – they will have laid the foundation for their legal systems to become
autopoietic or self-regulating systems. Rather than looking for foolproof systems, as it may well
be the goal of the World Justice Project, such a system would acknowledge its imperfections, in
particular the occasional biased or corrupted judge, and provide mechanisms for the correction of
these faults. In my earlier contribution, I conclude as follows:
Constitutions are usually beautiful documents that promulgate respect for human
rights, justice, and equality even in otherwise quite undeveloped countries. And even
where they have gaps or ambiguities, international law can often supplement the
necessary guidance. Therefore, if the public administration cannot act without a
constitutional legal basis and all acts must be strictly legal in light of the constitution

84
Ibid., pp. 565-569. Footnotes omitted.
 and any applicable norms of international law, gr85adual evolution of “rule of law”
depends only on effective legal remedies. And if the courts have to grant access and
have to explain what they are doing to enforce the “rule of law,” national and
international public opinion will over time lead to better and better decisions. This
process may be slow and it may not protect every injured party but even the bad
examples will still serve a purpose.
5. How and Why Will Real and Effective Rule of Law Promote Real Democracy, Real
Market Economy, and Ultimately Overcome the Failure of Justice Systems?
Rule of law combining the requirements of legal basis, legality, and judicial review, as outlined
above, provides transparency of the legal system. The same idea is underlying the Government in
the Sunshine Act,86 and the Freedom of Information Act in the United States,87 as well as the EU
Regulation 1049/2001 Regarding Public Access to European Parliament, Council and Com-
mission Documents,88 namely that government for the people by the people should be accessible
and transparent to the people. Just as informed citizens need to know who does what in the
political system, informed citizens – including NGOs and investigative journalists – need to be
able to verify what the law says, how it can be reconciled with constitutional and international
requirements, and how it is applied in practice by the three branches of the government, in
particular the courts.
Transparency provides a level of public accountability, which in turn should motivate every
decision-maker, including the judges at all levels of the court hierarchy, who do not want to be
seen as incompetent or corrupt, to make an effort at aligning their decisions with all applicable
laws. Decisions that seem out of sync with the law will require elaborate explanations and if such
explanations are not rendered in a persuasive way, the judge will still look like a crook.
The goal is to set the entire legal system on an upward trajectory where every well-reasoned and
“just” decision will set another precedent how things ought to be done. The opposite is
happening when countries treat ever larger parts of their political, administrative and judicial
proceedings as “confidential” in order to hide the fact that their laws and administrative acts
cannot be reconciled with the lofty goals of the constitution and any international obligations the
country may have committed to, and to shield individual decision-makers from being connected
to blatant injustices and perversions of the law.
Once a country gets onto the upward trajectory, the atmosphere will gradually change. Those
who previously relied on power or privilege will find it harder to prevail while those who were
previously treated with contempt will increasingly become empowered. This will first affect the

85
Ibid., p. 569. Footnotes omitted.
86
The GSA provides that meetings of federal agencies have to be open to public observation unless they fall
under one of ten fairly narrowly defined exemptions. For more information see
https://definitions.uslegal.com/g/government-in-the-sunshine-act/.
87
The FOIA provides a procedure for citizens to request and obtain any piece of information held by any branch
or agency of the federal government unless it falls under one of nine fairly narrowly defined exemptions. It is
a vital tool, inter alia, for investigative journalists. For more information see https://www.foia.gov/.
88
OJ 2001 L 145, p. 43. For detailed analysis see Leonor Rossi & Patricia Vinagre e Silva, Public Access to
Documents in the EU, Hart Publishing 2017.
middle class, however small it may be at the outset. The upper class and the lower class of a
society, in particular in countries in the second and third world, will not be the ones to fight for
and uphold a functioning democracy, good governance, fair market, and rule of law. The rich and
powerful are better off without it and the poor are preoccupied with their primary needs, the daily
battles for food and shelter. By contrast, in the middle, people can climb up the social ladder if
the country is doing well but they can also fall down that ladder if the country is doing badly.
Empowering the middle class by giving them rights, protecting their property and physical
integrity, securing their businesses against unjustified interference and unreasonable taxes, and
exposing the cases where the rights are violated, will give them hope and reason to stay and to
fight for more advanced human needs, including the need for self-actualization and participation
in government.89
The most beautiful part of the model is the fact that it is actually very cheap, certainly when
compared to most of the aid projects that have been undertaken in the last half century with
limited or no success. In fact, any further aid, whether ODA or private aid from foundations and
NGOs, should be conditioned on the implementation of the three fundamental principles of rule
of law at the level of the constitution, as well as ratification of key international treaties for the
protection of human rights and fundamental freedoms. In a similar way, FDI should be actively
discouraged as long as this has not happened. As will be seen, the model is not only cheap, it will
also result in homegrown reforms rather than white elephant projects that are air-lifted in from
wealthy countries and either just line the pockets of the politicians and business elite in the
destination countries or otherwise do not connect with and benefit the broad population.
Once the constitutional anchoring has been accomplished, international support should be
focused on measures in support of the three fundamental principles. Some things need to be done
earlier than others, for example measures in support of national and international organizations of
legislative drafters,90 i.e. the people on the front lines of the quest for legislative quality who have
been pretty consistently ignored by the aid industry so far.91
As soon as the foundations for the development of better laws are in place, a number of
legislative reforms should be made, in particular the adoption of legislation securing judicial
independence with accountability,92 a-political procedures for the appointment of judges,

89
The hierarchy of human needs was originally developed by Abraham Maslow in 1943. See Abraham H.
Maslow, A Theory of Human Motivation, Psychological Review 1943, Vol. 50, No. 4, pp. 370-396. For
discussion see, inter alia, Mahmoud A. Wahba & Lawrence G. Bridwell, Maslow Reconsidered: A Review of
Research on the Need Hierarchy Theory, Organizational Behavior and Human Performance 1976, Vol. 15,
No. 2, pp. 212-240.
90
Examples include the International Association of Legislation, the Commonwealth Association of Legislative
Counsel (CALC), the Africa Parliamentary Knowledge Network, and the Africa Colloquium of Legal Counsel
to Parliaments. In this context, the important training programs offered by the Institute of Advanced Legal
Studies in London, including an LL.M. in Drafting Legislation, Regulation, and Policy, as well as the
International Legislative Drafting Institute of Tulane University, need to be mentioned.
91
Useful analysis is provided, inter alia, by Victoria E. Aitken, An Exposition of Legislative Quality and Its
Relevance for Effective Development, 2013, available at https://www.luc.edu/media/lucedu/prolaw/docu-
ments/AITKEN%20FINAL%20ARTICLE.pdf, with many useful references.
92
For the argument that there should never be judicial independence without clearly delimited accountability see
Frank Emmert, Stare Decisis: A Universally Misunderstood Idea, Legisprudence 2012, Vol. 6, No. 2, pp.
207-227. The journal has since been renamed The Theory and Practice of Legislation. The article is available
safeguards against removal of judges for political reasons, budgetary safeguards for the courts,93
as well as salary safeguards for the judges,94 as flanking measures to secure their independence.
Once the courts are taken care of, they may need a bit of time to (re-)build their legitimacy and
credibility. During this time, high profile cases against powerful politicians and business interests
should be avoided because they will beg for attacks on the courts, their competence and their
neutrality. However, legislative measures in a number of areas can at least be prepared. This
includes laws to rein in public corruption, along the lines of the Mexican Ley 3 de 3.95
Importantly, such laws have to be clear and unambiguous in their requirements for disclosure of
assets and income of all kinds by the office holder herself, as well as any close family members.
Disclosure needs to extend to any assets where the office holder is not in any formal or visible
way connected but remains in the position of ultimate beneficial owner. Any ownership interests
or even lavish lifestyle spending need to be explained and payment of all applicable taxes on the
alleged income has to be demonstrated. Finally, these kind of anti-corruption laws have to come
with real sanctions. Naming and shaming or even removal from office are inadequate in this
regard and only provide incentives for even more brazen graft so that the perpetrators make sure
that they get rich before they are kicked off the gravy train. The only effective sanctions in this
regard are the forfeiture of all assets potentially acquired with undeclared or untaxed money
AND extended prison terms.96
As soon as a minimum standard of integrity and professionalism in government has been
achieved, it is time to reform the media and the educational system. In the same vein as all
measures suggested here, this should be done not by throwing money at the institutions, let alone

free of charge on ResearchGate: https://www.researchgate.net/publica-

tion/256018485_Stare_Decisis_A_Universally_Misunderstood_Idea.
93
The law or even the constitution should provide that the budgets of courts have to be adequate and have to
increase as case loads increase. “Adequate” needs to include continuous education for the judges and their
administrative assistance, as well as continuous improvements in the computerization of the courts.
94
One way to approach the issue is to link the salaries of judges to the salaries of parliamentarians and ministers.
In this way, the highest judges would be on par and the lower court judges receive a percentage of the salaries
of the politicians. More importantly, the judges salaries would increase whenever the parliamentarians give
themselves higher salaries.
95
The citizen initiative “3 out of 3" was adopted into law in 2015 and requires every public official in the
country to disclose their assets, financial interests and tax filings before, during and after holding public
office. For further information see https://www.3de3.mx/. See also above, note 50.
96
It is beyond the scope of the present paper to even attempt a comprehensive list of useful or necessary anti-
corruption remedies. One of the more intricate problems is the interconnectedness between the political and
the business sector, with savvy businessmen and -women putting family members of leading politicians on
their boards to secure public contracts or at least protection against government interference with their
businesses, including the enforcement of all kinds of health and safety and environmental regulations.
For further analysis see, inter alia, Sarah Chayes, Thieves of State – Why Corruption Threatens Global
Security, Norton & Co. 2016; Ray Fisman & Miriam Golden, Corruption – What Everybody Needs to Know,
Oxford Univ. Press 2017; John Hatchard, Combating Corruption – Legal Approaches to Supporting Good
Governance and Integrity in Africa, Edward Elgar Publ. 2014; Alina Mungin-Pippidi, The Quest for Good
Governance – How Societies Develop Control of Corruption, Cambridge Univ. Press 2015; Susan Rose-
Ackerman & Bonnie Palifka, Corruption and Government – Causes, Consequences, and Reform, Cambridge
Univ. Press 2nd ed. 2016; Robert Rotberg, The Corruption Cure: How Citizens and Leaders Can Combat
Graft, Princeton Univ. Press 2019; as well as Bo Rothstein & Alysha Varraich, Making Sense of Corruption,
Cambridge Univ. Press 2017.
by doing so from abroad. Foreign aid done wrong will inevitably create foreign entities that are
rejected just like a body rejects a transplant it was not prepared to accept. Instead, the countries
should be supported in reforming their own laws and institutions. Integration into international
associations at the level of technocrats, sharing of best-practice standards, as well as other forms
of gentle nudging are often better suited, more respectful of local traditions and perceptions, and
in the end more successful than ready-made foreign-imposed solutions.97 To give but one
example, Lithuania, with its Centre for Quality Assessment in Higher Education,98 has
demonstrated that one does not have to be rich to promote excellence in higher education, but
one has to be smart and bring in the experts as needed.
An ever more important challenge is the development and strengthening of independent
investigative journalism and media institutions. This should include active support for education
in journalism and electronic media, prevention of ownership concentration, and requirements for
pluralism in dominant news outlets. It may not be widely known but the current situation in the
United States, where Fox News on the one side and CNN and MSNBC on the other seem to be
reporting in and about different countries, is a gift brought to us by Ronald Reagan. During his
tenure, the Federal Communications Commission (FCC) gave up the Fairness Doctrine, no
longer requiring major news outlets to report in a balanced way, showing multiple sides of a
story. Attempts by the Democrats in Congress in 1987 to re-instate the Fairness Doctrine by law
were vetoed by Reagan.
In parallel to the cleaning-up of the public sector, the private market needs to be carefully
regulated. First and foremost, this requires the establishment and/or strengthening of several
important government agencies, namely the competition authority, a kind of food and drug
administration, an environmental protection agency, and a consumer protection agency. In a
nutshell, countries need to take care of “the commons”, i.e. the public goods that don’t have
obvious or powerful advocates of their own. Like the courts, these agencies and their leaders
need to be protected against political and other pressure with budgetary and personal safeguards.
Their mandates have to be clearly defined and their investigative and enforcement powers have
to be effective.
The competition authority, in particular, is important in smaller and less developed countries
where markets are often controlled by monopolies or oligopolies, resulting in high prices for
inferior quality goods and services.99 Along the same lines, regulations for transparent bidding in
public procurement, as well as transparency in the awards of subsidies and other forms of state
aid are also necessary. Opening of markets via free trade agreements and customs unions, or even
the development of more comprehensive economic unions with other countries, can bring further
benefits in this regard because it opens small domestic markets to international competition.

97
The one area where legislative and institutional reform without significant (international) financial support
may not achieve very much is the area of health care. However, even here it is crucially important to develop
local capacity instead of building white elephants in the middle of nowhere.
98
See https://www.skvc.lt/default/en/.
99
For more detailed analysis see Frank Emmert, The Argument for Robust Competition Supervision in
Developing and Transition Countries, Journal of Governance and Regulation 2016, Vol. 5, No. 3, pp. 67-89.
Like most of my publications and presentations, this article is also available free of charge from my page on
ResearchGate.
 However, the typical free trade areas formed in the 2nd and 3rd world have failed to deliver on the
promise of economic growth and prosperity because they do not have effective supervisory
mechanisms to root out, in particular, non-tariff barriers to trade.
More advanced measures include impact assessment requirements for draft legislation, clear and
fair standards what national and international NGOs can and cannot do (and why), measures
providing for price transparency in the market place, as well as fair and effective tax legislation.
Many other ideas have been circulated and should be considered, including laws and regulations
that make it easier to start businesses, obtain commercial loans, transfer real estate, etc.
The list is far from complete and may already seem quite daunting. However, countries who are
serious about reform can easily call on international support. I will not repeat at this point all the
options of engaging with international organizations and associations, drawing on model laws
and other help with legislative drafting, institutional partnerships for administrative and court
reform, asking for help from NGOs and private foundations in the development or reform of
independent agencies, structured grants for small business development and micro finance,
strategic partnerships between educational institutions, etc. Instead, I will close with just one
thought: The OECD has 34 member countries. Each one could be asked to mentor a particular
sector in a developing country or one of its provinces.
IV. Conclusions
At the beginning of this contribution, I asked whether the reader could name five countries – just
five of about 200 countries around the world – where meaningful overall progress has been made
in recent years with regard to the quality of the justice system and the rule of law. Of course,
most countries will have seen some improvements in some specific cases, some rays of sunshine
that may give rise to hope, but can we speak of overall improvements? Or do we have to admit
that we are still doing the dance that involves one step forward, two steps back?
Progress or not, it seems clear that given the informational resources at our fingertips and the
financial and human capital that has been and continues to be expended every year, we should be
able to provide reasonably decent, safe, and fair living conditions for every single human being
on the planet. That, however, is surely not being done so far.
In this contribution, I have argued that our approach to the promotion of democracy and
development has been fundamentally wrong and has largely failed the developing countries. I am
presenting an alternative model that relies on very specific and initially quite limited law reform
instead. The proposals are cheap, in comparison on what has been spent in the past. They are also
relatively straightforward and do not require resources, data, or expertise that would be in short
supply. What remains to be seen is whether we can change the course of history and actually try
something new at least in a few countries at a time or whether a mix of donor fatigue, inertia, and
people clinging to their jobs and positions will doom the world to another half century of global
failure of justice systems.

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