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Journal of Civil Law Studies

Ermal Frasheri

Abstract

Modernization relies on law as the means of transformation. Democratization and development strategies of the last 20 years, such as the Washington consensus and its successor: good governance and institution building, have embraced the instrumentalization of law in order to create democratic societies and market economies. In these great processes of transformation, from regime changes in Eastern Europe to state building across Central Asia, the process of lawmaking rests upon premises that have a tendency to perpetuate transition without transforming the relationship of the individual to power. This alienizing feature of transition is reflected in lawmaking practices. In this paper, I argue that a wider participation in the lawmaking process enhances the legitimacy of the democratic regime, and it helps to fill the gap between the law in the book and the law in action. I rest my thesis on the premise that the reformation of laws, and therefore the system, is characterized by a dichotomy between the legality and the legitimacy of the lawmaking process. I analyze and expose two different and contradictory patterns that are inherent in lawmaking processes in countries in transition. On the one hand, a rule of law society presupposes clear, transparent and predictable rules, a certain formalism associated with modern states and societies. On the other hand, the flexible nature of transition demands solutions outside the legal framework. I use dichotomies such as legality and legitimacy, expertise and wider participation to analyze the contents of lawmaking practices as well as the role of international actors and elites in the democratization and development process. Juxtaposing transformation with participation, this paper elucidates the practices of modern lawmaking in societies in transition.

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