Within ten years after the fall of the Berlin Wall in 1989, some 5,000 American lawyers and judges traveled to newly independent post-communist countries as part of the American Bar Association’s Central and East European Law Initiative (ABA CEELI[1]).[2] Despite their varying degrees of familiarity with the region, all were well endowed with American legal expertise and enthusiasm for the unfolding transition to democracy and the rule of law.
Wojciech Sadurski writes that theories of “transitional constitutionalism” generally fall into one of two main categories: “simplistic” and “fancy.” Simplistic theories hold that post-communist societies in transition are evolving toward a “Western” or “liberal-democratic” constitutionalism, while fancy theories hold that the endpoint cannot be so easily defined and may not mirror a form of constitutionalism that already exists.[3] As Sadurski points out, both varieties are controversial. Many scholars reject simplistic theories, disputing “the idea that the development of postcommunist constitutions follows a knowable and determinate trajectory modeled on the Western experience.” On the other hand, proponents of fancy theories face “a danger of political relativism, or of a patronizing attitude, in treating the postcommunist transition as not aiming at Western-style democratic goals,” thus implying that “CEE societies are as yet not ripe for democracy.”[4]
This framework, when applied to American rule of law assistance efforts abroad, can be imagined as a spectrum. At the simplistic end, emerging post-communist legal systems would be based entirely on tried-and-true, liberal-democratic models, imported from the West with the aid of foreign reformers. At the fancy end, each country would develop its own institutions based solely on its own legal history and cultural realities, allowing no place for assistance from abroad. At one end, American reformers could be accused of engaging in “legal imperialism,” creating new political orders in their own image; at the other, each newly independent country would need to reinvent the proverbial wheel.
The CEELI project was predicated on the assumption that at some point between the two extremes, American legal experts could play a useful role in facilitating post-communist transitions without imposing American models or exploitatively promoting American interests. Discovering this point is a relevant goal today, given the proliferation of rule of law initiatives in recent years and their continuing struggle to identify their purpose and evaluate their impact. What is the appropriate role of American legal reformers abroad, if one exists? Without claiming to answer this question in full, this paper will attempt to contribute to the ongoing debate using evidence from the CEELI experience.
Part One will situate the CEELI initiative against the backdrop of the American rule of law promotion efforts that preceded it, highlighting the principles and practices that CEELI representatives championed and the geopolitical conditions that favored its success. Part Two will inquire further into the obstacles the project faced and the critiques lodged against it, including accusations of “cultural blindness” and even forms of legal imperialism. Ideally, an understanding of CEELI’s successes and shortcomings could be instructive in the assessment of more recent and current legal reform efforts.
While rule of law promotion is closely related to the study of democracy promotion, the development movement, and transitional theory, it also raises particular questions about the role of law in various societies, many of which have longstanding legal—and extra-legal—traditions that differ from those of the United States. Furthermore, the unique ideological principles driving CEELI’s approach to rule of law promotion, and the extent to which they were actually realized, could offer useful lessons for future international legal aid efforts. This study will draw upon CEELI reports from the first few years of its existence, compiled in 1993, to derive the mindset, values and goals of its founders. Additional reflections of CEELI participants, written some years later, will also be included in order to show how the initiative developed and how they evaluated it in retrospect.
The History of American Legal Reform Aid
At a conference in 2009, CEELI’s founders—Sandy D’Alemberte, Homer Moyer and Mark Ellis—stressed that sending American legal specialists abroad was a “radical” notion, and that “there was a great deal of suspicion within the American Bar Association about this kind of extraterritorial adventure.”[5] But the concept was nothing new; the American legal aid movement can be traced all the way back to the 1960s, when a similar wave of volunteers embarked for Asia, Africa and Latin America to facilitate the Third World’s transition to modernity.[6]
At the time, when the optimism of the “law and development movement” combined with Cold War ambitions to bolster American influence abroad, the ABA had no qualms about “extraterritorial adventures.” One ABA president exclaimed: “[T]he legal profession of the United States has a greater opportunity and a graver responsibility than has rested upon the members of any profession in the history of the world.” Another declared: “Because of the strength and position of America, we, the lawyers of America, face an opportunity to take a decisive part in shaping the future of the world.” Justice William O. Douglas observed: “At Moscow and at Prague and now at Havana the Communists have established comprehensive programs for the indoctrination of foreign students in their form of revolution, development and government.”[7] There is a certain irony in the fact that less than thirty years later, American legal experts would travel to Moscow, Prague and eventually Havana to preach their own ideas of the rule of law.
In his classic work Legal Imperialism, James Gardner describes the older movement’s failure: “American legal assistance was inept, culturally unaware, and sociologically uninformed. It was also ethnocentric, perceiving and assisting the Third World in its own self-image.” Some of the Third World beneficiaries accepted advice when it served their interests, while others resisted, even asking the Americans to leave the country. The volunteers returned home “frustrated and chagrined.”[8]
In their book Plunder: When the Rule of Law is Illegal, Ugo Mattei and Laura Nader describe the dark side of rule of law promotion, tracing it from its roots in European colonialism through its expansion as a tool of American imperialism. Americans insisted that the rule of law was indispensible for a civilized society and inseparable from market liberalization. Promoting the rule of law abroad, then, was a “civilizing” gift that also opened foreign economies to American exploitation. Even today, the American legal worldview is characterized by a “theory of lack” that erases indigenous legal traditions and serves as justification for intervention and legal transfer. Due to the complex and multi-tiered nature of the American legal system, “American attorneys already enjoy a legal culture and discourse that is broader than jurisdictional limits”:
In this scenario, the theoretical or practical “annexing” of one more jurisdiction, whether located in Afghanistan, Eastern Europe, or Iraq, does not particularly change the US lawyer’s strongly functionalist way of reasoning. This is why American lawyers, under World Bank, International Monetary Fund (IMF), or American Bar Association (ABA) sponsorship, can frame a constitution or a bankruptcy code during a week-long stay in some remote corner of the world, with no expertise whatsoever in the local legal system, which simply gets erased.[9]
The CEELI lawyers may have benefitted from this American ability to conceptualize general, broadly applicable legal issues, but they aimed to create an initiative quite different from those described by Gardner, Mattei and Nader.
CEELI Methods and Principles
With a “liaison” in each country to coordinate its efforts, CEELI sponsored technical assistance workshops, provided legal specialists, assessed draft laws, compiled concept papers, and established law school exchange programs. Beyond these initiatives, several specific priority issues were identified in each country. These often included judicial reform, criminal law and justice reform, the creation or reform of bar associations, local government restructuring, and constitutional reform. Many of the organization’s methods in achieving these goals turned upon securing judicial independence and the standardization of legal ethics.
As CEELI’s founders expressed at the 2009 symposium, the initiative prided itself on a set of core principles that guided all its activities in Europe. Each of these will now be examined in turn.
i. Responsiveness
Most importantly, the project was meant to be “responsive,” providing assistance based solely on request. There proved to be no shortage of requests; Mark Ellis recalls being “overnight inundated with requests from eight, nine, ten countries that were asking CEELI for assistance.”[10] Specifically, they were asking for advice on their new constitutions. CEELI required them to draft their constitutions before sending copies to American experts for comment, and when CEELI’s experts traveled to a host country to meet with the drafting committee, they served only as a “sounding board.” CEELI experts provided other forms of assistance, such as commentary on draft laws, in a similar fashion: after consulting with government leaders and legal associations, or upon their request. The 1993 reports show that demand for legal specialists and other services regularly surpassed the organization’s financial ability to supply them.
ii. Policy Neutrality
By remaining “policy neutral,” CEELI founders hoped to limit the role of the initiative’s participants to that of technical consultants rather than advocates of any particular policy. As Homer Moyer put it:
We could make available people who had wonderful experience and expertise in different areas of the law and make them available as resources. But to do that, not by way of handing a recipe or a plan to any of these countries, but to facilitate the process of their making their own decisions about how they wanted to structure their own governments, legal systems and laws.[11]
“Policy neutrality” and CEELI’s implementation of it, along with “responsiveness,” will be evaluated further in Part Two.
iii. Pro Bono
The organization also developed “fairly draconian conflict of interest rules” for its own participants to ensure that American lawyers participated in the program on a strictly pro bono basis and not in pursuit of any business interests of their own.[12] In addition to sending experts abroad for short-term visits to consult in particular fields of law, CEELI came to rely on its “liaisons”—volunteers who would live in the host countries and coordinate CEELI activities, generally for six months or a year at a time. These liaisons, often highly idealistic and enthusiastic to take part in a “legal Peace Corps,” would become a hallmark of the organization’s approach. Because they often served terms in more than one country, they brought with them a wide variety of experiences as they grappled with issues common throughout the region.
Though the volunteers served pro bono, it should be noted that the program relied on funding from the United States Agency for International Development (USAID). Some time after CEELI’s establishment, USAID support began to tip in the favor of paid specialists and for-profit firms, a strategy Homer Moyer described as giving USAID “more control” over their activities abroad. Mark Ellis said the shift “diminished the unique part of service that lawyers bring to these types of legal assistance programs,” adding that “today’s approach simply does not have the magic that it did when we were calling on lawyers to serve pro bono.”[13]
One CEELI participant who spent time in Ukraine recalled that USAID also tended to focus on economic development; as a result, rule of law projects were “constantly getting cut, reinstated, cut, programs get dropped, you plan things, you can’t do them.” At one point the USAID director for Ukraine expressed his intention to phase out the rule of law projects altogether in favor of economic programs—though he was eventually persuaded that this would cause the kind of economic lawlessness that had recently broken out in Russia.[14]
Rule of law initiatives faced similar funding challenges in Serbia. According to Milica Golubovic, who worked in CEELI’s Belgrade office for several summers, CEELI worked on a human trafficking project with the Magistrates’ Association of Serbia for two years—until “USAID changed its focus and looked to fund more projects aiming at economic development.”[15] Ultimately, whether or not CEELI was truly “policy neutral” was in large part the decision of USAID.
iv. Comparative Approach
CEELI’s final core principle was that the United States should not be the only model for the post-communist states. Mark Ellis commented:
[W]e knew the CEELI “voice” needed to be a voice that included non-U.S. expertise. And so we did an extraordinary thing, at least at that time. We went out and brought in Europeans as part of the CEELI team. This was extraordinary because we were being funded at that time by the U.S. government.[16]
The main sources of exposure CEELI offered to other legal systems were its technical assistance workshops. Four to six lawyers or judges, “usually including one from a civil law country,”[17] participated in each workshop. Presenters frequently discussed Western European legal systems in addition to that of the United States; CEELI’s reports indicate that Western European experts were sometimes present to offer their perspectives. More often, the Americans presented their own knowledge of various legal systems or provided their host countries with literature on foreign law. At other times the meetings focused on comparing American systems with their equivalents in the host country. In addition, CEELI sponsored some workshops jointly with foreign and international foundations and legal organizations.
Alternative legal models were also addressed in concept papers meant to provide “comparative analysis of leading world models with supporting materials, without judging which model would be best for the host country.”[18] One concept paper, still in progress in 1993, “analyze[d] and compare[d] the treatment of judicial ethics in the United States, Austria, Hungary, Germany, and Italy.”[19]
Finally, CEELI drew from the legal communities of multiple countries to form working groups to address specific issues. In Estonia, CEELI brought together American professors with comparative law experience and Canadian professors to comment on Estonia’s new Civil Code; they sought to bring in “other foreign experts … as the need arises.”[20] As of 1993, the organization also sought to create a Latvian Constitutional Working Group from “U.S. and Western European constitutional law experts.”[21]
CEELI’s 1993 report acknowledged that it was up to the individual countries to decide which models to use, and that many of them were looking at others besides the United States. In Albania, for example, some prosecutors believed they should be placed under the Ministry of Justice, “as in some European countries,” while others displayed a “strong interest in the American model, under which the prosecutor is an independent public official.” Albania’s Penal Code Revision Committee, at the time of the CEELI report, was examining the Italian Penal Code as a potential model to compete with the American approach.[22] And Albania’s constitutional drafting committee was “considering inclusion of some aspects of Western European law.”[23]
In the Czech Republic, the Ministry of Justice was considering moving toward the adversarial system and was reviewing Italy’s similar move in 1988. Meanwhile, the Czech Criminal Procedure Drafting Group was looking toward Hungary for inspiration.[24] Hungary’s Constitutional Court was also noted as “widely respected by Hungarians generally and looked to as a model for emulation by other Eastern European countries.”[25]
By using European rather than American models, many of the newly independent states could also draw upon centuries of historical connections on the continent. The report on Estonia, for example, acknowledged that “European tradition” and especially “the German code also [was] regarded as a model for the draft Estonian Criminal Procedure Code due to the historical relationship between Germany and Estonia.”[26]
As these examples make plain, post-communist countries were not simply blank slates waiting for Western donors to point them in the right direction. They came to the table with reform agendas based on past experiences and visions for the future. Across the region, the new nations sought to distance themselves from past conflicts and achieve a state of “normalcy” equivalent to “the (real or imagined) state of affairs in Western Europe or North America.”[27] Mark Ellis relates how, despite possessing a “very solid legislative grounding in the former Yugoslavia,” Bosnia, Croatia, Slovenia and Macedonia “did not want to adopt any of the federal laws from the former Yugoslavia. They wanted to create their own base of law because they simply wanted a clean break from their Yugoslavian history.” And according to Scott Boylan, CEELI’s country director in the Czech Republic, “[m]oving away from the inquisitorial system is a means by which the Czechs have attempted to distance themselves and their legal system from Soviet/Russian domination.”[28]
Meanwhile, many post-communist countries aspired to join the European Union, and they accordingly set about incorporating EU law into their national legal infrastructures. Romania, for instance, included the European Convention on Human Rights as its own bill of rights in its constitution. Sandy D’Alemberte believed “this play of European judicial power … helped move the [rule of law reform] process quite nicely.”[29] Mark Ellis, on the other hand, recalled:
There came a point where their focus was solely on joining the EU. That’s what was on their minds. And actually it became a challenge for CEELI because the countries we were assisting were interested in simply adopting EU legislation as required by the EU. Our concern was whether they had a basic understanding about what they were adopting.[30]
It could perhaps be argued that the requirements for EU accession themselves were part of a broader scheme of coercion, offering all the benefits of membership in exchange for enhanced economic access to the new member states and the loss of their legal individuality. But so far as CEELI was concerned, the countries of Central and Eastern Europe controlled their own decisions respecting EU accession. It was in the realm of more specific legal reforms that CEELI’s expertise was requested—and in which it carried potential policy implications.
Responsiveness in Practice
While the CEELI reports show great enthusiasm in Central and Eastern Europe about the potential of American assistance, there are a number of examples to the contrary. The report on the Czech Republic conceded that, “due to several factors, foreign legal assistance is not as eagerly solicited as it is in other countries in the region.”[31] Another report read: “Providing assistance in Poland can be particularly difficult due to the official Polish bias against ‘outside’ assistance.”[32] In Latvia, “concern [was] expressed in the Ministry of Justice on the relevance of the American system to the Latvian system,” though the new minister of justice seemed more receptive.[33] And the Hungarians were found to be “generally reluctant to share information,” a fact attributed to “their communist legacy.”[34] It is worth noting that while such sentiments may have represented general trends, they did not stop reform-minded individuals within these countries from eagerly seeking advice on certain issues.
There are also examples of specific CEELI efforts that met with particular resistance. For instance, as new law schools appeared in Bulgaria and CEELI set about recruiting them for its Sister Law School project, “neither the Ministry of Education nor Sofia University (until 1991 the only Bulgarian law school) were inclined to assist the new law schools in contacting a Western group such as CEELI.”[35] Also in Bulgaria, “resistance within parts of the Bar to a code of professional responsibility [was] widespread.”[36] And in Romania, it was noted: “President Iliescu and his party (which has a plurality in Parliament) do not seem fully committed to reform. Their interest in a truly independent judiciary is minimal.”[37]
Despite CEELI’s attempt to legitimize its efforts by acting only on request, any given request was unlikely to meet with unanimous approval within the host country. Where disagreement existed, whose request was sufficient to legitimize CEELI’s involvement? The problem was particularly contentious in countries where the new balance of powers was rapidly tipping toward presidentialism. The case of Romania’s President Iliescu illustrates the potential result when political power is concentrated in the hands of legal reform’s opponents. Using Romania as an example, Thomas Carothers and Paula Newberg have written that the lack of decentralization of power in the post-Soviet states has limited the effectiveness of American assistance: “American efforts to support greater independence of the Romanian judiciary, which have consisted primarily of support for improved judicial training, have been neutralized by the unavoidable fact that the Romanian government has little interest in ceding its political influence on, or even control of, the judiciary at certain levels.”[38] Though CEELI did play a role in constitutional drafting processes—including Romania’s—the drafting committees of the host countries ultimately had the final say. Mark Ellis recounted:
Actually, I recall instances where I thought the ultimate decision by the drafters would cause problems in the future for the particular country. I remember that very well in Romania. They had failed to engage civil society in the drafting process. They didn’t have a referendum on the Constitution, which I thought caused real concerns because citizens were not able to truly say that the Constitution was theirs. And sure enough they did have problems.[39]
In keeping with its policy to act only as a “sounding board,” CEELI respected the decisions of the authorities who had requested its assistance—in this case, Romania’s constitutional drafting committee. Indeed, CEELI’s core tenet of “responsiveness” is apparent throughout the organization’s records. The 1993 reports are careful to specifically mention that legal specialists and other services were provided “upon request,” and they frequently name the individual or government agency that requested them. But in the case of Bulgaria, the 1993 report seems less committed to the need for local consent, and in fact describes obtaining it rather forcefully. For instance, “CEELI succeeded in convincing the Bulgarian Bar of the necessity of adopting a code of professional responsibility” only “[a]fter months of persistent lobbying” and in spite of the fact that “resistance within parts of the Bar … [was] widespread.”[40]
In summary, CEELI generally acted only on request, but the forms of assistance requested were not necessarily condoned among the country’s political leadership, throughout its legal community, or even in public opinion. This observation, combined with CEELI’s actions in Bulgaria, raises questions about another of its key tenets: that assistance should be “policy neutral.”
Neutrality in Practice: The Problem of Ethics
A crucial characteristic of the CEELI project was that it was supposed to be “policy neutral”—in other words, that it would provide purely technical expertise without interfering in substantial policy decisions. Instead of offering ready-made blueprints based on American models and ideals, CEELI experts and liaisons were to help post-communist countries be the architects of their own legal systems. This principle relied, however, on the notion that “technical” expertise could be free of cultural assumptions and inherent policy recommendations.
Ethics is one of the categories that most challenges this perception, as CEELI’s experience in Bulgaria makes abundantly clear. The 1993 report openly states: “Given the ideals to which the ABA subscribes, the ABA has an obligation to promote a professional, independent bar in Bulgaria. For this reason, the CEELI has taken a more aggressive role in promoting change in the Bulgarian Bar than in other areas of its work.”[41] The establishment of a judicial code of ethics was identified as a priority in 1993, but it would take more than a decade for Bulgaria’s Union of Judges to approve it. A 2004 CEELI report offers some insight as to why:
Over the years, Bulgarian judges have equated ethics with morality. Since they know the difference between right and wrong, they believed a code of ethics was unnecessary. However, they finally overcame their resistance and recognized that a code is useful in addressing ethical challenges that arise in the daily work of every judge.[42]
The same report states that “[t]he perception of corruption in the courts is as insidious as corruption itself, for both have the effect of undermining the public’s trust in the justice system.” It also remarks, rather paradoxically, that “[t]here is no fundamental belief in Bulgaria that ethical behavior matters.”[43] Clearly there are a variety of perceptions at play here about ethics, morality, and the role they play in society and in law. In these areas, CEELI’s reform efforts may have clashed with local culture and legal traditions. This section will address societal impediments to legal reform generally in post-Soviet countries, suggesting that in places like Bulgaria, the issue was not that ethical behavior didn’t matter, but that ideas about ethical behavior were informed by different factors and manifested differently—sometimes contradicting CEELI’s ideals. This inconsistency suggests that CEELI’s expertise on legal ethics did, in fact, come attached to a “plan” or “recipe” for standardization and reform.
Virtually every author who has written about rule of law aid has emphasized the need to adapt to local cultures, histories and traditions. At the same time, certain characteristics of these very cultures, histories and traditions can undermine the establishment of the rule of law as foreign reformers conceive of it. In his analysis of the impact of various cultural practices on the rule of law, David Pimentel captures this exactly: While “culture, and more specifically the legal tradition, of any society is a major ingredient in the elixir that will, hopefully, produce the Rule of Law there,” it is also true that “[s]ome cultures have components that are inherently destructive of the Rule of Law, such as a longstanding tradition of public corruption.”[44]
The post-Soviet space is a particularly interesting one in which to examine corruption and its influence on the rule of law. In the Soviet Union, practices that American observers would call corrupt were quite routine in both the judiciary and in the public at large. For instance, the courts, like every other department of the government, were under the supervision of the Communist Party, and Party leaders would frequently telephone judges and instruct them on how to rule. While this “telephone justice” may seem authoritarian and oppressive, it is important to remember that it was the Party that set the ideological standards by which Soviet society was supposed to live. In fact, it was far more highly regarded than the courts themselves. This was the reverse of the American system, in which the courts keep the government in check based on ideological principles enshrined in law. In James Diehm’s words: “This was, in the purest sense, the rule of the state rather than the rule of law.”[45] This is not to say that the “rule of the state” was absolute, however, and the cultural legacy of citizens’ distrust of or even resistance to the Soviet legal system held significant consequences for attempted reform. In 1993, CEELI reports inevitably complained that in each former Soviet republic or satellite state, the judiciary had always been held in low regard as nothing more than an extension of the prosecutorial arm of the state.
When American lawyers working on CEELI projects encountered difficulties in their programs, they may at times have been unable to detect the underlying cultural nuances. The 2004 report on Bulgaria stated: “The failure of parties, their attorney and witnesses to appear in court is a long-standing problem within Bulgaria’s justice system,” resulting in “considerable case delays, which are one of the major factors the public cites as evidence of judicial corruption.” Judges, for their part, had failed to use their powers to create consequences for such behavior: “The delays in enforcing judgments, often intentional, render many judicial decisions meaningless” and “give rise to the public’s disrespect for the judicial system.”[46]
According to Wade Channell, reform efforts seeking to address these problems in the Balkans often overlook their cultural significance. The “culture of delay” in these countries “arose, to some extent, during period in which judges and attorneys for private sector litigants attempted to mitigate authoritarian rule by hobbling the state’s ability to prosecute claims through the courts. Judges and lawyers won respect by protecting individuals, not by efficiently enforcing unpopular policies.” To illustrate the cultural salience of this concept, Channell cites a Bulgarian short story from 1950 about a farmer called Andreshko. While driving his horse cart one day, he picks up a stranger on the road, only to learn that the man is an enforcement judge on his way to Andreshko’s own village to seize a neighbor’s assets. Rather than turn his friend over to the law, the farmer drives into a swamp and rides off, leaving the cart—and the judge—behind. According to Channell, Andreshko remains a popular character, and “[o]vercoming his legacy will not be met simply through better written laws.”[47] In fact, in addition to “fines and other sanctions,” CEELI did advocate new laws that would reduce delays “if vigorously enforced.”[48]
Adreshko’s story demonstrates distinctly negative attitudes toward the law. More specifically, however, it shows a system of ethics that places higher value on personal relationships than on codified rules. As Janine Wedel has put it: “In a system in which nearly everyone engaged in ‘dirty togetherness,’ people developed ethical systems in which legality was seen to diverge greatly from morality. Their experiences of law and morality did not stem from fixed notions of justice and its universal applications.”[49] The phrase “dirty togetherness,” borrowed from Polish sociologist Adam Podgorecki, refers to “cliquishness and close-knit networks in the context of scarcity and distrust of the state.”[50]
In Russia, this phenomenon was known as blat; Alena Ledeneva, perhaps the foremost expert on the subject, has defined it as “the use of personal networks and informal contacts to obtain goods and services in short supply and to find a way around formal procedures.”[51] Though condemned as corruption in official state discourse, it was rarely prosecuted, and for most people it seemed perfectly natural, even necessary for survival. Blat was practiced throughout the Soviet Union, under a variety of names—not only in Russia, Bulgaria and Poland, but farther east as well.[52] In Mongolia, a Soviet satellite state, it overlapped with the older cultural tradition of tanil tal, a system of “reciprocity and obligation” among relatives, friends and acquaintances that involves the reciprocal giving of goods and services. In his revealing study, Brent White notes that tanil tal networks may influence judicial proceedings. For example, if a judge’s family member is ill and an official at the Ministry of Health helps procure treatment, the judge will be obligated to rule favorably for him in court, as it would be “more dishonorable for a judge to ignore the [needs] of a family member than [not] to abide strictly by the law.” This alternative to a Western-style rule of law also has implications for judicial independence and the separation of powers:
Additionally, most judges secure their positions in the first place through tanil tal and have reciprocal obligations to those who put them there—including notably the President. Because repaying reciprocal obligations is such a deeply internalized social norm, when the individual to whom the judge is beholden suggests either directly or indirectly that the judge render a particular decision, the tendency is to comply. In such circumstances, formal guarantees of judicial authority and life tenure may have minimal appreciable impact on judicial independence.[53]
While White does not mention CEELI specifically, his article is a relevant illustration of the existence of cultural alternatives to imported legal ethics. He also points out that corruption in post-communist societies cannot automatically be ascribed to communism itself; rather, as in Russia, much of today’s corruption originated in the economic upheaval of the transition period. When international donors arrived on the Mongolian scene in the early 2000s, corruption had already taken root, especially among the new elites. But foreign reformers assumed the rampant bribery was left over from the Soviet era, masking the possibility that the transition to democracy had actually created new hurdles for the rule of law.[54] According to Ivan Krastev, “the monetarization of blat relations and replacement of blat by bribe”—that is monetary bribery not justified by personal relations, as blat had been—was the driving force behind the widespread public perception in the post-Soviet sphere that the post-communist period is, in fact, more corrupt than the communist period.[55] The judiciary is not spared from this lack of faith, undermining the rule of law in society generally.[56]
These examples highlight some key factors that may have affected American rule of law efforts in the 1990s, including the historically different role of the judiciary in the Soviet Union; culturally ingrained negative attitudes toward the legal system; and alternative codes for ethical behavior like blat and tanil tal, which may conflict with written law. Against this backdrop, it is difficult to argue that CEELI’s campaign to standardize legal ethics did not constitute a pre-written “recipe” for success, especially given the significant policy implications of judicial independence. It entailed a great deal of change in legal culture—even in the role of the law itself—and the problems CEELI still faced in Bulgaria in 2004 suggest that its approach may have benefitted from greater allowance for local variation. The next section will further illustrate the consequences of following a reform agenda without adapting it sufficiently to local context.
Neutrality in Practice: “Cookie Cutter Syndrome”
The previous section detailed specific cultural phenomena that may have clashed with CEELI’s conception of legal ethics and the rule of law, impeding its efforts at reform. This supports the common mantra that reform programs need to be tailored to their local environments—a task rendered more difficult when the reformer is following an inflexible agenda. As this section will show, CEELI has received mixed reviews in this respect.
James Diehm, who was sent by the CEELI to work with the Ukrainian and Russian governments for three months, commended the initiative’s “invaluable contribution” and its ground-up approach to legal reform:
During this time I was continually impressed by the sensitivity of those involved in the project to the history, culture, and legal traditions of the countries of the former Soviet Union and their knowledge and understanding of the inquisitorial system of criminal justice.[57]
But James Moliterno, who was affiliated with CEELI as a legal education consultant in Georgia and Armenia, expresses a very different perspective. Writing in 2010, after CEELI had been absorbed into the ABA’s Rule of Law Initiative, he alleges that despite ABA ROLI’s many successes, “in one respect, the work of these and other such projects is sometimes tinged with cultural imperialism.” Specifically, exported ethics codes paid “too little attention” to “local culture” and had “no real relationship with lawyer culture outside the United States.”[58] According to Moliterno, American lawyers abroad were embarrassingly ignorant of justice systems outside their own, especially civil law systems, which have predominated in Europe for centuries. This ignorance, he suggests, manifested in the policies of the post-communist states the ABA purported to help. In Armenia, for example, Moliterno learned that “the main court [was] now about to begin operating as a common law court. But no one, including the lawyer for the government in the constitutional court, could seem to explain why.”[59]
Homer Moyer recalled in 2009 that when it came to the differences between civil and common law systems, “most of the issues we dealt with really didn’t create a problem in that respect.”[60] And yet, Moliterno is not the only scholar who has expressed concern about the effect of these differences on reformers’ activities abroad. Philip Genty, for example, has addressed the disconnect and potential solutions within the realm of legal education. American clinical teachers, he argues, “do not typically have a sufficiently deep and nuanced understanding of the civil law systems with which we work … In attempting to ‘transplant’ models of clinical legal education developed in the United States into these civilian educational settings, we often overlook the ways in which these models may be inappropriate to the receiving societies.”[61] While general “interactive teaching methods” like those introduced by CEELI have been beneficial,[62] American-style clinical teaching—based on reasoning skills and collaborative participation—was less relevant to legal practitioners in civil law countries, who were more interested in doctrine, substantive law, and lecture-based learning. The first step in “overcoming cultural blindness,” Genty writes, is to “educate ourselves about what clinical models are currently in place in the civil law countries.”[63] Only then might clinical training be successfully adapted to serve the needs of Central and Eastern European students.
Milica Golubovic has gone even further in her critique of CEELI: “In ABA/CEELI’s RIBA (Regional Institution Building Advisors) project, the training seminars more often than not presented solutions that would work better for American civil society organizations than Serbian professional associations.” Just as a shallow understanding of local conditions could have a negative impact on its educational endeavors, it had a similar “copy and paste” effect on civil society. In Golubovic’s view, CEELI was limited by its liaisons’ lack of local expertise: “Each individual post is not enough for them to learn about the particular circumstances and the climate in which programs are implemented, and they inevitably draw on US and other regional experiences when cooperating with local partners.”[64]
In her article “The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs,” Cynthia Alkon describes what is perhaps the most common criticism of Western legal reform initiatives. In short, the donors’ approach “fails to look at the individual differences of the specific countries receiving rule of law development assistance,” instead imposing ready-made Western models.[65] She credits CEELI with “taking the lead” in the development of the Judicial Reform Index (JRI) and CEDAW Assessment Tool, which “both represent a good step towards increasing understanding of the current environment in particular countries,” thus “changing one of the fundamental flaws of the Cookie Cutter System: a failure to fully assess the situation in a particular country.”[66] Highly critical of typical, litigation-based approaches to legal reform, Alkon also argues that integrating Alternative Dispute Resolution (ADR) “can help effect change in legal cultures, and, within the context of legal development programs, could move post-communist legal cultures further on the road towards rule of law.”[67] She notes that CEELI took steps to implement two ADR methods—negotiation and facilitation—into its programs.
But Mattei and Nader warn that one must be cautious in advocating ADR as a method for increasing cultural sensitivity:
The Western mainstream still largely perceives non-Western legal systems as a caricature-like image of the Qadi (Islamic judge) dispensing (expediency-based) justice sitting under a tree, made famous by Max Weber and once used even by US Supreme Court Justice Felix Frankfurter. Thus ADR, with its emphasis on informality and case-specific justice, is deemed congenial to local needs, because it is closer to what is stereotyped as “oriental” mentality.[68]
According to the authors, “legal reforms worldwide increasingly standardize and ritualize ADRs … to fit global power strategies in a manner that erases differences caused by uneven power or diverse or competing cultural styles.”[69] This analysis recalls the fundamental tension that exists within any attempt to “localize” legal reform efforts, and which was presented at the beginning of this study using “simplistic” and “fancy” theories of transition: An American legal reform policy that recreates foreign legal systems in its own image, ignoring or stamping out local differences, would certainly smack of imperialism; but exaggerating or assuming the dominance of local customs in legal settings risks patronizing and stereotyping them.
In conclusion, CEELI was commendable and generally successful in its attempts to be responsive to host countries’ needs by operating solely upon request. But with new national leaders and legal communities frequently at odds, the Americans apparently collaborated with anyone who was willing. Additionally, despite their goal of “policy neutrality,” there is evidence that they sometimes followed a reform agenda based on their own values, especially where ethics were concerned. CEELI likely viewed strict ethical codes a necessary step in the elimination of arbitrariness from the legal system, inherent in and inseparable from its understanding of the rule of law. Nevertheless, some critics accused the initiative of practicing a “cookie cutter” approach without sufficient regard for local cultural and legal traditions.
Despite CEELI’s attempt to avoid the kind of “legal imperialism” that characterized the “law and development” movement of the 1960s, there were many similarities between the two. The “transfer of legal concepts and models” occurred “indirectly”—to borrow Gardner’s term—through “legal values or ideas, jurisprudential or professional models,” as opposed to the “direct transfer of specific legal institutions and instruments.” The two movements both used arguably “ethnocentric” methods, including the promotion of American-style legal education, “the distribution of untranslated American legal texts,” and bringing local lawyers to law schools in the United States.[70] Some CEELI liaisons actually thought of themselves as missionaries. Jim St. Clair, who spent a year as CEELI’s liaison in Bosnia and taught in Ukraine, Kazakhstan and Kyrgyzstan, said he was motivated by “[a]dventure, love of travel, a desire to help other lawyers, a willingness to endure loneliness and hardships—the same motives that drive all missionaries. I love being a legal missionary.”[71]
But the CEELI project has two significant defenses against accusations of legal imperialism. First was the uniquely conducive historical moment at which it took place. Numerous post-communist countries were undergoing extensive restructuring simultaneously, and they faced a real and urgent need to consider various options for reform. Eager to transition away from communism, reformers often looked toward Western systems as functional democracies that could serve as models for their own countries. In some areas of law, there truly had been a “lack” under the previous regime; for example, Americans were often asked for advice on how to best approach privatization. Unfortunately, this was not to last: CEELI’s leaders recognized in 2009 that worldwide “high regard” for American leadership simply no longer exists as it did in the 1990s; nor does the “unsullied concept of rule of law” that prevailed at the time.[72] Since then, other American rule of law efforts around the world have drawn more charges of “legal imperialism” than CEELI ever did.
The second major factor of CEELI’s success, however, offers a more lasting lesson for the future: the need to adapt to the newly globalized nature of rule of law reform. The proliferation of international legal aid from many quarters, after all, has been well documented. As Thomas Carothers noted in the late 1990s, Russia alone had received funds from the United States, Germany, Great Britain, the Netherlands, Denmark, and the European Union, as well as international organizations like the World Bank, and each donor believed itself to be uniquely suited to the task: “Transitional countries are bombarded with fervent but contradictory advice on judicial and legal reform.”[73] In Central and Eastern Europe, as countries responded to this multiplicity of models and motivations for reform, it is difficult to claim that any one decision was the product of any one Western power’s imperial project; recall, for instance, that the Czech Republic adopted elements of an adversarial system in part to distance itself from its communist past.
Time and time again, CEELI acknowledged that the American model was only one of many that post-communist countries could choose to follow—even if its members tended not to thoroughly understand these other models, such as civil law systems. Given its federal funding, it is perhaps understandable that CEELI could only bring in a few Western European experts to participate in technical workshops, and that its advice tended to be U.S.-centric. But these problems, should they arise again in future legal reform assistance projects abroad, may not be without solutions. It would be highly beneficial, for example, to engage experts with comparative training and knowledge of a wide variety of legal systems, including that of the host country, Western European nations, and non-Western countries that CEELI neglected entirely. As Genty suggests, the first step in educating others is to better educate ourselves.
This is especially important given the ABA’s expansion of its rule of law programs into other regions of the world, where they are sure to encounter new challenges to the universality of the American idea of the rule of law. At the 2009 symposium, CEELI’s founders, with China in mind, pondered whether democracy and free markets need always accompany the rule of law. And Mark Ellis questioned “whether or not Islamic countries would see the rule of law, at least the way we define it, as universal.”[74]
In addition to allowing reformers to formulate more relevant and individualized ways to present American legal practices to foreign audiences, greater focus on thorough understanding would allow American lawyers to be exposed to foreign alternatives. Moyer recalled of the CEELI initiative: “It caused you to think differently about your own country, ask questions about issues you had taken for granted, whether there’s a different or a better way to do what we do.”[75] A collaborative and interactive approach to legal reform, by fostering a heightened awareness of other legal systems as well as cultural practices that might inform the rule of law, could provide all participants with an opportunity to learn and improve.
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Footnotes
[1] CEELI would later be renamed the “Central European and Eurasian Law Initiative,” and in 2006 would be amalgamated into the ABA’s Rule of Law Initiative (ROLI) along with four other regional rule of law programs worldwide.
[2] James R. Silkenat, “The American Bar Association and the Rule of Law,” SMU Law Review 67, no. 4 (2014): 753, doi:10.1163/187633309X421157.
[3] Wojciech Sadurski, “Transitional Constitutionalism: Simplistic and Fancy Theories,” in Rethinking the Rule of Law after Communism, ed. Adam Czarnota, Martin Krygier, and Wojciech Sadurski (Budapest: Central European University Press, 2005), 9.
[4] Ibid., 11-12.
[5] “Rule of Law Symposium: The History of CEELI, the ABA’s Rule of Law Initiative, and the Rule of Law Movement Going Forward,” Minnesota Journal of International Law 18, no. 2 (2009): 308.
[6] James A. Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America (Madison, WI: University of Wisconsin Press, 1980), 8.
[7] Ibid., 36-37.
[8] Ibid., 9-11.
[9] Ugo Mattei and Laura Nader, Plunder: When the Rule of Law is Illegal (Blackwell Publishing: Malden, MA, 2008), 145.
[10] “Rule of Law Symposium,” 307-8.
[11] Ibid., 309.
[12] Ibid., 308-10.
[13] Ibid., 325-26.
[14] Ibid., 321.
[15] Milica Golubovic, “Judicial Professional Associations: Fostering Judicial Reform Through Civil Society Development,” Southeastern Europe 33, no. 1 (2009): 60, doi:10.1163/187633309×421157.
[16] “Rule of Law Symposium,” 310.
[17] Mark Ellis, comp., Country Strategies for the Rule of Law Program for Albania, Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Macedonia, Poland, Romania, and Slovakia, report (Washington: American Bar Association Central and East European Law Initiative, 1993): 16, http://pdf.usaid.gov/pdf_docs/PNABZ142.pdf.
[18] Ibid., 19.
[19] Ibid., 35.
[20] Ibid., 73.
[21] Ibid., 92.
[22] Ibid., 7-8.
[23] Ibid., 10.
[24] Ibid., 54.
[25] Ibid., 80.
[26] Ibid., 69.
[27] Sadurski, 9.
[28] Scott P. Boylan, “The Status of Judicial Reform in Russia,” American University International Law Review 13, no. 5 (1998): 1331, http://digitalcommons.wcl.american.edu/auilr.
[29] “Rule of Law Symposium,” 323.
[30] Ibid., 339.
[31] Ellis, Country Strategies for the Rule of Law Program, 49.
[32] Ibid., 135.
[33] Ibid., 93.
[34] Ibid., 78.
[35] Ibid., 22.
[36] Ibid., 22.
[37] Ibid., 144.
[38] Thomas Carothers and Paula R. Newberg, “Aiding—and Defining: Democracy,” World Policy Journal 13, no. 1 (1996): 103, http://www.jstor.org/stable/40209465.
[39] “Rule of Law Symposium,” 321-22.
[40] Ellis, Country Strategies for the Rule of Law Program, 22.
[41] Ibid., 21.
[42] Mary Noel Pepys, comp., Judicial Reform Index for Bulgaria, report, vol. 2 (Washington: American Bar Association and Central European and Eurasian Law Initiative, 2004), 32. http://www.americanbar.org/content/dam/aba/directories/roli/bulgaria/bulgaria-jri-2004.authcheckdam.pdf.
[43] Ibid., 31-32.
[44] David Pimentel, “Culture and the Rule of Law: Cautions for Constitution-making,” Fordham International Law Journal Online 37 (2013): 117, http://works.bepress.com/david_pimentel/13/.
[45] James W. Diehm, “The Introduction of Jury Trials and Adversarial Elements into the Former Soviet Union and Other Inquisitorial Countries,” Journal of Transnational Law and Policy 1 (2001): 25-26.
[46] Pepys, Judicial Reform Index for Bulgaria, 16.
[47] Wade Channell, “Lessons Not Learned about Legal Reform,” in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers, (Washington: Carnegie Endowment for International Peace, 2006), 137-59, 147-48.
[48] Pepys, Judicial Reform Index for Bulgaria, 16.
[49] Jane R. Wedel, “Corruption and Organized Crime in Post-communist States: New Ways of Manifesting Old Patterns,” Trends in Organized Crime 7, no. 1 (2001): 12.
[50] Ibid., 10.
[51] Alena Ledeneva, Russia’s Economy of Favours: Blat, Networking, and Informal Exchange (Cambridge: Cambridge University Press, 1998), 1.
[52] Ivan Krastev, “Corruption, Anti-Corruption Sentiments, and the Rule of Law,” in Rethinking the Rule of Law after Communism, ed. Adam Czarnota, Martin Krygier, and Wojciech Sadurski, (Budapest: Central European University Press, 2005), 323-39, 332-33.
[53] Brent T. White, “Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies,” Arizona Legal Studies (March 2009) 26-28, doi:10.2139/ssrn.1359338.
[54] Ibid., 13.
[55] Krastev, “Corruption, Anti-Corruption Sentiments, and the Rule of Law,” 332-33.
[56] Ibid., 337.
[57] Diehm, “The Introduction of Jury Trials,” 2.
[58] James E. Moliterno, “Exporting American Legal Ethics,” Akron Law Review 43 (2010): 767-68.
[59] Ibid., 768.
[60] “Rule of Law Symposium,” 338.
[61] Philip M. Genty, “Overcoming Cultural Blindness in International Clinical Collaboration: The Divide Between Civil and Common Law Cultures and Its Implications for Clinical Education,” Clinical Law Review 15 (October 30, 2008): 155, server05productnNNYC15-1NYC101.txt.
[62] Ibid., 148.
[63] Ibid., 155.
[64] Golubovic, “Judicial Professional Associations,” 59.
[65] For an interesting parallel critique of EU-specific reform efforts, see Tanja A. Börzel and Thomas Risse, “One Size Fits All! EU Policies for the Promotion of Human Rights, Democracy and the Rule of Law,” Proceedings of Workshop on Democracy Promotion, Oct. 4-5, 2004, Stanford University, https://www.researchgate.net/publication/228768742.
[66] Cynthia Alkon, “The Cookie Cutter Syndrome: Legal Reform Assistance under Post-Communist Democratization Programs,” Journal of Dispute Resolution 2002, no. 2 (2002): 361, http://scholarship.law.missouri.edu/jdr/vol2002/iss2/2.
[67] Ibid., 329.
[68] Mattei and Nader, Plunder, 78.
[69] Ibid.
[70] Gardner, Legal Imperialism, 245.
[71] George Harvey Cain, Turning Points: new Paths & Second Careers for Lawyers (Chicago: ABA Publishing, 2009), 38-39.
[72] “Rule of Law Symposium,” 330.
[73] Thomas Carothers, “The Rule of Law Revival,” in Promoting Democracy Abroad: In Search of Knowledge, 3-13 (Washington: Carnegie Endowment for International Peace, 2006): 11, first published in Foreign Affairs 77, no. 2 (1998): 95.
[74] “Rule of Law Symposium,” 340.
[75] Ibid., 325.