‘Rechtsstaat’: Just What is Being Exported by Swedish Development Assistance Organisations?
Faculty of Law
University of Stockholm
This is a refereed article published on: 14 December 2001
Citation: Zamboni M, “Rechtsstaat’: Just What is Being Exported by Swedish Development Organisations?’, 2001 (2) Law, Social Justice & Global Development Journal (LGD).
This paper evaluates, from a policy of law perspective, how Swedish development assistance organisations try to ‘export,’ specifically to developing countries, the legal model of ‘Rechtsstaat’. Several are the meaning(s) and accompanying values encompassed in the use of the Western concept of ‘Rechtsstaat’, in particular widely used is the typology distinguishing between a ‘formal’ idea of Rechtsstaat and a ‘material’ one. Looking at the policy documents produced by several Swedish development assistance organisations, it can be noticed both how such theoretical distinction is the product of wider ideological and political underpinnings and how it can give an explanation of failures in ‘exporting’ Western legal concepts and categories in developing countries. Keywords: Rechtstaat, Development Assistance, Development Organisations, Policy, Law, Sweden
This paper evaluates, from a policy of law perspective, how Swedish development assistance organisations try to ‘export,’ specifically to developing countries, the legal model of ‘Rechtsstaat’1. The focus here in particular is the use by such organisations of the concept of ‘Rechtsstaat’ in their policy documents.
The choice of the Rechtsstaat model is a result of the fact that this legal and political concept can be seen as constituting one of the most ‘Westernised’ legal models2. By referring to the ‘Westernisation’ of a concept, I wish to emphasise the fact that legal ideas always tend to be, to a greater or lesser extent, carriers of the values and ethics of a society or community in which the concepts have been developed. In the case of the concept of the Rechtsstaat, it can be viewed as the most ‘Westernised’ for two reasons: the first based on legal-geographical grounds, and the second, on a legal-historical basis. From a legal-geographical perspective, it can be noted that the idea of Rechtsstaat is so widely spread and deeply rooted in Western legal systems and legal ideologies that it is often cited as one of the features distinguishing ‘our’ legal systems from ‘others.’ From an historical perspective, the Rechtsstaat identifies features common to all contemporary Western legal systems (with the exceptions of the United States and the United Kingdom) as they developed during the 19th century.
Western countries are often identified as belonging to the ‘Western’ legal hemisphere by their very fulfilment of that which is considered the criteria needed in order to speak of the Rechtsstaat’s legal model. Therefore, when the attempt is made to export and ‘transplant’ this legal model into ‘other’ legal cultures, it is natural to pose questions concerning both the concrete possibilities and the ‘rightness’ of such a legal transplant3. This paper shall attempt to address the issues of whether it is actually possible and/or ‘right’ to export our legal concepts and legal models to other legal communities.
The first step necessary to answer these questions is to determine the meaning(s) and accompanying values encompassed in the use of the Western concept of Rechtsstaat. The first section maps out the most common distinctions of the different types of Rechtsstaat, namely between a ‘formal’ Rechtsstaat and a ‘material’ Rechtsstaat. We shall then explore the types of legal ideologies, or values, inherent in a choice of one model over the other. This distinction is based on Max Weber’s ‘ideal-types’ model in that such legal models do not tend to correspond to the concrete application of the ideas of Rechtsstaat but, nevertheless, they play an important role in establishing the fundamental features of a ‘Rechtsstaat in reality’ phenomenon4.
The second part of the paper will investigate the concrete effects of such a ‘duplication’ of ideologies as found in the concept of Rechtsstaat incorporated in the policy documents of Swedish development assistance organisations. In particular, the organisations have been chosen trying to respect the cultural, social and political positions represented in the wide spectrum of Swedish development assistance organisations. Moreover, the focus here will be on policy documents which primarily deal with legal issues, either on ‘building’ up a legal model in the country assisted or in providing it with ‘legal assistance’5.
The third, and final, section of the paper will discuss the problems arising with the intent to ‘export’ this duality in the Rechtsstaat model from Sweden to developing countries.
2. The Double Dimensions of Rechtsstaat as a Legal Model
In Western legal history, the concept of ‘Rechtsstaat’ has probably had the broadest definition attributed to a legal concept, broader than that given to concepts such as ‘democracy’ or ‘liberty’. Even the most ‘extreme’ legal cultures developed in the Western world, namely those of the Nazis and Communists, have occasionally proclaimed their adherence to an idea of State based on the principles of Rechtsstaat. Both have stated that their forms of government and their uses of the laws were in order to realise a ‘true’ Rechtsstaat6.
Born in 19th Century Germany, the idea of ‘Rechtsstaat’ has been scrutinised by most contemporary major legal thinkers7. Its centrality to contemporary legal thought is evidenced by the fact that the Rechtsstaat’s legal model attempts to solve the often problematic relationship between two fundamental and constitutive element of modern legal life: the State (‘Staat’) and the law (‘Recht’)8. This legal model has been discussed from many perspectives and points of view: legal, political, economic, ethical, historical, etc. Here the focus will be on one of the most common typology for the definition of Rechtsstaat, the distinction between a ‘formal’ and a ‘material’ concept of Rechtsstaat.
In both approaches, it is well established that the principle ‘Rechtsstaat’ indicates a legal model in which the public authorities have to respect the ‘Recht’. That which is controversial begins with the determination of the definition of the word ‘Recht.’ ‘Recht’ can be viewed as entailing the positive law, in other words, the law which the State has itself enacted or has authorised to operate inside its borders (for example, by signing a treaty or ‘tolerating’ certain commercial usage). In such a case, the Rechtsstaat primarily defines a relatively9 value-free form of legal organisation, as there is no limit to the values that the State can implement through statutes or the positive law in general. Consequently, the limit of the power of the State is simply in the form (legal or otherwise) in which its decisions have been taken. This kind of Rechtsstaat is known as a ‘formal’ Rechtsstaat10.
This formal view of Rechtsstaat was the result of a defence of the ‘status quo’ of the conservative German legal system in the first half of 19Century against both the bourgeois and working classes. During the first half of the 20th th Century, this approach has been widely embraced by ruling bourgeois classes in order to maintain the ‘law and order’ ideology against rising socialist, communist and nazi legal ideologies, all of which, more or less, embraced a ‘material’ idea of Rechtsstaat11.
‘Recht’ can also indicate a complex of ‘rights,’ that is, a complex of legal positions (to which certain legal qualities are attached), pertaining to individuals or groups of individuals simply because they are human and exist in the space-time dimension. This type of legal position does not have to be ‘created’ by the State; it must simply be ‘recognised’ as already existing and ‘translated’ into the legal world12. In this process of translation, public authorities can (and, to some extent, must) disregard both the forms through which and whether such rights have been recognised in the state system (for example how and whether they exist at the constitutional level). The public authorities simply ‘find’ the limit of their legal activities, which can be both of an executive and legislative nature, in the areas such rights are intended to protect (for example, property or life). This interpretation of the word ‘Recht’ implies a value-charged idea of Rechtsstaat, as it is based upon the ‘independent’ existence of certain values (for example, the concept of ‘property’) that only the State can implement, but whose existence or ‘goodness’ is not discussed13. This is known as a ‘material’ Rechtsstaat as the limits of the activities of the public authorities are not prescribed by the form of certain legal positions (statute or simple usage) but by the material content of such positions14.
Until World War II, the tendency in Western legal systems has been to give space to the value-free interpretation of Rechtsstaat15, for example as seen in the works of Jellinek (1914, pp.613-615) or Weber (1954)16. After the defeat of the nazi ideology, and under the strong influence of the American ‘natural rights’ orientation, Western ideology has shifted strongly towards a material concept of Rechtsstaat as found in the works of Habermas (1998, pp.132-193) and Hayek (1972, pp.72-87). The State, in order to be called a Rechtsstaat and then be ‘admitted’ to the symposium of Western democracies, cannot simply respect the law through application and enforcement. It must also not violate certain legal arenas, that is, spheres of activity (for example, freedom of association) and/or possession (for example, life or property) considered ‘per se’ relevant to the legal order, regardless of any formal (in the sense of through a specific ‘form’) recognition made by the public authorities (both at the legislative and executive levels).