Although the rule-of law movement is over a half-century old, fundamental questions remain as to its effectiveness and even its goals.1 During its inception after World War II, rule of law practitioners aimed to create legal systems that would “displace colonial Page 434 and customary legal regimes.2 Over time, the movement has had various focuses, such as to advocate for human rights and constitutional protections and establish market economies in post-Communist and transitional countries.3 Today’ s movement maintains these earlier characteristics in addition to appropriating a slew of new ones, such as “relieving poverty, sustaining development and conserving social capital.” 4
However, in spite of the rich, variegated history of rule of law work - and possibly because of it - there has been a “widening gap”between theory and practice, with disturbingly scant attention paid to measuring baselines of performance and the interconnectedness of social, economic, political and legal development.5 This gap has left many scholars and practitioners unable to know whether the massive resources being allocated to these projects are being put to their best use, or even any use at all. In the words of Thomas Heller,
What is absent in the rule of law-development theory nexus is a particularized account of either the preexisting roles and structures of legal institutions in the political economies that are the objects of reform, or the dynamics of transition that will affect the prospects of effective change.6
Independent of these abstract questions, we must first answer the baseline question of whether a set rule of law projects actually has their intended effects on the ground. In fact, an account of the preexisting roles of the legal institutions and the expected dynamics of effective change are both topics that arguably should be thoroughly addressed before a development organization invests in the promotion of the rule of law.
As Dani Rodrik has persuasively argued in the context of economic reforms, the greatest successes in institution building have relied upon “a mix of standard and nonstandard policies that are well attuned to the reality on the ground.” 7 In order to engage in the “pragmatic innovation” 8 that Rodrik advocates, however, one needs to be fully cognizant of not only the current state of institutions, but, just as importantly, the Page 435 effects that one’ s programs and policies have had and are continue to have on them. Rodrik points out that the transition path to so-called “best institutions”is a rocky one that requires “incessant changes interacting with initial conditions.” 9 Thus, in order for as any rule of law organization to experiment with transitional legal institutions in attempts to modify and improve them, it must be acutely aware of the effects that its activities are having on the institutions themselves, in addition to all the institutions with which the legal system is connected.
Sadly, the current state of many rule of law organizations leaves much to be desired on this front. Although these organizations may not be vulnerable to Heller’ s critique that they have “a set of clear objectives but leave obscure both the theory underlying those objectives and the methods of reaching them,” 10 they may be guilty of an even more fundamental flaw. These are the organizations that, while clear about their methods of reaching their objectives, lack adequate tools to gauge whether their methods are successful. It is this gap - the gap between rule of law projects and measurable progress - that is the topic of this paper.
Specifically, this paper will examine the extent to which Deutsche Gesellschaft für Technische Zusammenarbeit (“GTZ”) Legal Advisory Service in Beijing is able to measure the impact of its projects on the ground, especially as related to its grander mission of promoting the rule of law in China. GTZ’ s programming in China is of particular importance not just because of the large amount of development funds that pour in from around the globe, but also because of the hopes that many pin to the development of China’ s judicial system. At the very least, companies hope that a greater adherence to the rule of law can help normalize contractual and business relations, reduce investment risks and boost profits. In addition, many hope that if legislation attains a greater importance, government officials will have to respect it more and thus will have less scope for the discretion that often leads to corruption. Lastly - probably the most idealistically - some imagine that stronger legal protections will grant citizens the scope to express and associate themselves freely, thus strengthening civil society and drastically limiting the state’ s power to interfere in the lives of the individual.
This paper will first give an overview of GTZ in general, and its legal advisory service in particular. To follow, it will discuss in detail the manner in which GTZ evaluates its own projects and progress toward its stated goals. Next, the paper will explore the strengths and weaknesses of GTZ’ s measurement tools in the context of China’ s legal system. The paper will close with conclusions.
GTZ is an international non-profit cooperation enterprise that is owned by German government and aims to “promote cooperation which contributes to sustainable development throughout the world.” 11 Similar to the relationship between United States Agency for International Development and the US, GTZ mixes international development efforts with the support for German foreign policy objectives.12 The enterprise was incorporated under private law in 1975 and is headquartered in Eschborn near Frankfurt.
Although the German Federal Ministry for Economic Cooperation and Development (“BMZ”) is its major client, GTZ also receives work from other German ministries, the governments of other countries, and international organizations such as the European Commission, the United Nations and the World Bank.13 GTZ is not a for- profit corporation, and all of its funds are employed in furtherance of its developmental agenda. GTZ works in over 120 countries in Africa, Asia, Latin America, and Eastern Europe. To get a sense of the scale of its operations, in 2007 GTZ’ s business volume was over one billion Euros14 (approximately 1.2 billion US dollars), which was a 15 percent increase from 2006.
For the past 25 years, GTZ has been working in China “to help foster China’ s transition to a society based on the Rule of Law.” 15 GTZ’ s work in China falls into two broad categories: “sustainable economic development”and “environmental policy, protection and sustainable use of natural resources.” 16 Environmental projects include sustainable forest management, wind energy training, management of obsolete pesticides, sustainable agro-biodiversity, energy efficiency, sustainable urban development and environmental protection in the coal and power plan sector.
Beginning in 1986, Germany’ s development cooperation with China expanded beyond purely economic matters into purely legal ones.19 From 1986 to 2000, the cooperation was involved in both constitutional and administrative law, with a strong focus on labor and social security, and in 2000, the “German-Chinese Dialogue on the Rule of Law” significantly expanded the scope of legal cooperation and multiplied its activities, projects and programs.20 This “Dialogue”was agreed upon between Chancellor Gerhard Schroeder and then-Chinese Prime Minister Zhu Rongji on June 30, 2000, and the subsequent document signed by the German and Chinese ministers detailed the following specific areas of cooperation: Administrative Law, Civil and Commercial Law, Labor and Social Security Law, improvement of the implementation of existing laws and regulations, protection of citizens’legal rights, and combating corruption and white collar crime.21 More specifically, the progression of GTZ’ s legal work is as follows: in 1986, GTZ began work with IP Law; in 1994, it moved to Labor and Social Security Law; in 1998, it began with Commercial Laws; in 2000, Administrative Law; in 200l, judicial trainings; in 2004, Public Budgeting and Civil Law (Civil Procedure); and in 2006, IP Law.
At the time, Germany was very interested in this legal dialogue with China because dealing with human rights issues in the PRC had been central to the Social Democrats (“SPD”) or Green Coalition. In fact, their coalition treaty clearly stated that “respect for and implementation of international human rights standards as contained in the Universal Declaration of Human Rights constitutes the central guideline for German foreign policy.” 22 On the Chinese side, WTO negotiations were ongoing, and Premier Zhu was quite receptive to funding and foreign expertise in restructuring China’ s judicial system in areas crucial to WTO accession.23
GTZ’s Legal Advisory Service in China presently engages in the following activities: symposia and workshops, some individual consultations, study tours, training courses, Page 438 publications of advisory and training...