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Rule of law

On the state of the state

by Henning Melber

In depth

“State agencies must safeguard the security of workers.” Improvised scaffolding in Delhi, Indi.

“State agencies must safeguard the security of workers.” Improvised scaffolding in Delhi, Indi.

To a large extent, social development depends on resources, including human potential and capacity. But political will and governance matter too. The state must do more than allow markets to operate. By Henning Melber

The colonial state was a brutal instrument of foreign rule. Even though it dispossessed the colonised people, the colonial powers liked to use the catchword of the “developmental state”. It fits the propaganda of a “civilising mission” and the “road to modernity”. Typically, such rhetoric went along with authoritar­ian rule and only a rather vague sense of rule of law: members of the colonial elite were hardly ever found guilty of crimes they committed against “native” people.

The term “developmental state” survived colonialism, but its use remained dubious. In many cases it was just a populist slogan that served to legitimise authoritarian rule. Leaders suggested that they would deliver development, and that democracy, human rights and social justice would follow at some later point in time. In truth, the elites were exploiting newly independent countries, with hardly any signs of democracy, human rights or broad-based welfare.

Only a few post-colonial societies experienced sustained economic growth, rising living standards and, eventually, a democratic political system. South Korea and Taiwan are probably the most compelling examples of successful developmental regimes that indeed started off as dictatorships but in response to people’s movements, became relatively prosperous democracies in the course of development. China and Vietnam could move into such direction too, though they still have a long way to go. In any case, the history of the Asian tigers shows that democracy, human rights and social justice are things people have to fight for.

The democratic movements sweeping large parts of Africa in the 1980s and 1990s were a response to the autocratic ‘(non-)developmental’ state. To some extent African democratisation also re­sulted from geostrategic developments, most prominently the collapse of the Soviet Union. The dictatorial state has since then not vanished, but became less common.

The demise of Moscow-sponsored socialism, however, went along with an­other problematic trend, the temporary triumph of the Washington Consensus. According to this doctrine, market-led growth was supposed to solve all developmental problems. It failed and caused massive suffering.

The World Bank and the International Monetary Fund led the donor community in imposing structural adjustment programmes on poor developing countries, and in the overwhelming majority of cases, the countries concerned only became poorer. While state institutions became anorexic, market-led growth never took off. Today, it is exasperating to see similar policies imposed on EU member Greece, where sovereign debt has kept growing in spite of two years of EU and IMF imposed austerity.

In the 1990s, the World Bank itself backed away from free-market radicalism. Its new paradigm “good governance” was prominently spelled out in the World Development Report of 1997 with the title: “The state in a changing world”. Core issues included building institutions for a capable public sector, controlling corruption, restraining arbitrary government action and making state agencies more accountable to the public. The report stated: “In successful countries, policymaking has been embedded in consultative processes which provide civil society, labour unions and private firms opportunities for input and oversight.”

To what extent the World Bank modified its policies in practice remains a matter of debate. It could have done more to implement the principle of good gover­nance. However, it would be wrong to say the new paradigm was meaningless. It has certainly left its mark on donor policies in the past 15 years, as became evident in debt relief programmes in the late 1990s and the aid-effectiveness agenda with its emphasis on the policy ownership of developing countries in the past decade.

Government duties

In the west, the state historically emerged as a centralised institution with a bureaucracy staffed by civil/public servants when the spheres of politics and business became separate. Its main feature was that it was neither owned by individuals nor groups, even though it was never really neutral and often acted in a partisan way. Nonetheless, its legitimacy was based on the claim to mediate between conflicting interests. Today, state authorities cultivate the image of reconciling interests, integrating diverse social classes and groups into society and pursuing the public interest.

Policymaking is, by its very nature, a controversial matter. A state apparatus with a strong bureaucracy is an instrument for social engineering. It designs, implements and controls socio-economic policy within a certain territory.

The United Nations is based on the idea that the people of a sovereignly governed territory have a state, which represents the country both in domestic and international affairs. Often, however, governments exercise power and influence without representing the majority of their people. Even democratically elected governments normally only represent a small majority of their electorate – otherwise, they’d be unlikely to ever lose elections. It cannot be taken for granted that an elected government always acts in the national interest. In reality, states are only mirror images of a current constellation of interests.

The state is not a monolithic entity but a strategic arena. Even though it is an instrument of power and can never become an unbiased arbitrator, it needs to reconcile antagonistic forces to some extent and create a shared idea of identity. For such purposes, the legitimacy of the state
hinges on the rule of law – which must be more than the law of those who rule.
– Laws must be passed according to a constitutional order,
– people must enjoy fundamental freedoms, and
– laws must be enforced in a sense of fairness and equality.

It is true that fast growth and rising standards of living can provide the state with a sense of legitimacy – as has become evident in China in past decades. It is equally true that powerful economic interests will always have a bearing on state action. Nonetheless, it is obvious that rule of law is a powerful means for governmental legitimacy because it can create trust – both at the domestic and international levels.

A responsible state

The UN is aware of these matters. In 1997, the UN secretariat published a forceful report it called “Rethinking the state for social development”. A core statement was: “The goals and functioning of social management cannot be equated with business logic. Much more needs to be done to ensure such essential aspects as access, equity, sustainability and efficiency.”

In emerging markets and developing countries, it is becoming ever more evident that economic growth, in itself, is not enough. Cases of land grabbing have put at risk rural livelihoods. They would ­require the categorical intervention of a responsible state to protect the victims. Instead, too many governments have become complicit in destructive and illegal land deals that disrespect the rights of traditional owners. State agencies, moreover, must put a check on polluting industries, safeguard the security of workers and collect the taxes they need to provide basic services including safe drinking water, education and health care for all.

A responsible state must ensure the welfare of all people, especially of the marginalised. It is essential that foreign investors and powerful economic forces are not allowed to capture the state and abuse its powers for maximising their own profits.

Good governance depends on bal­ancing powers. Not only must separate branches of government keep one another in check. Civil society must be in a position to monitor and challenge state action, and government agencies must limit the influence of big business. Improving governance must remain high on the national and international agendas. It is therefore a good thing that the UN General Assembly in September is going to discuss the Rule of Law.