The Missing Middle: Reconfiguring Rule of Law Reform as if Politics and Process Mattered

Abstract

We embed a critique of the respective strengths and weaknesses of policy initiatives to ‘build the rule of law’ within the broader literature on political settlements and developmental states, thereby creating a foundation for an alternative framework that takes politics and the legitimacy of change processes seriously. Thus far the dominant terms of debate have been between those advocating or resisting the replication of legal ‘forms’ (i.e., what modern legal institutions, statutes and procedures ‘look like’, such as constitutions) via large, rapid, imported technocratic interventions, and those pushing instead for a focus on enhancing a prevailing legal system's ‘functionality’ (what the existing system actually ‘does’) via a series of local level legal empowerment programs or attempts to redefine state-society relations by adjusting legal configurations. We argue for the inclusion of a third dimension, namely one encompassing procedural legitimacy and equitable contestation as part of the change process.