TRANSFORMATION AND SOCIAL CHANGE: LEGAL REFORM IN THE MODERNIZATION PROCESS

Ermal Frasheri, Harvard Law School

Abstract

TRANSFORMATION AND SOCIAL CHANGE: LEGAL REFORM IN THE MODERNIZATION PROCESS

Abstract

The development therapy for Central and Eastern European countries after the regime transformations of the 1990s relied on the legal reform as the means of transformation, or modernization. Washington consensus policies and the rule of law as a development strategy espoused comparative law to provide the fertile ground upon which to insert legal reform programs and thus modernize the socialist societies. The co-existence of parallel processes in the modernization project, transformation with deliberation, formalism and informalism contain tensions and blind spots. This drive towards reforming and modernizing legislation sits uneasy on the dichotomy of legitimacy and legality of the law making process.

The goal of this paper is to examine the nature of the transition process as it is reflected in legal reforms programs and law making practices, or legisprudence, and their relation to the efforts of modernizing transitioning societies. The paper analyzes and exposes two different and contradictory patterns that are inherent in lawmaking processes in transitional countries. On one hand moving towards a rule of law society requires clear, transparent, predictable rules, a certain formalism in the societal inter-relations, and on the other, the fluid nature of transition demands solutions outside the legal framework. Juxtaposing transformation with participation this paper sheds light in the dichotomy of legality v. legitimacy.