The “New” Law and Development Movement in the Post–Cold War Era: A Vietnam Case Study

Abstract

This article explores the reemergence of the Law and Development Movement in the post-Cold War era, with special reference to the impact of foreign legal assistance programs on legal and political reforms in Vietnam. Relying on extensive interviews conducted in Vietnam, as well as traditional academic research, the article focuses on changes in Vietnam's legal culture in the first decade of political renovation. It then describes foreign legal assistance to Vietnam. Finally, it applies the critiques that emerged from the law and development debate to present-day legal assistance efforts in Vietnam, in an effort to determine the validity of those critiques in the post-Cold War era of foreign legal assistance. After a hiatus of nearly two decades, governments, international organizations, private foundations, and law firms once again are investing millions of dollars in international legal assistance projects around the world. This resurgent interest in foreign legal assistance has renewed debate over the role of law in promoting economic and political progress. It also has reignited discussions that began with the Law and Development Movement (LDM) of the 1960s and 1970s, in which U.S. legal advisers working abroad were criticized for being ethnocentric, naive, and imperialistic. A convergence of factors has led to the resurrection of the socalled rule of law project: the collapse of the former Soviet Union, the hegemony of neo-liberal market concepts of economic relations, the rise of multinational corporations and, to a lesser extent, the emergence of the international movement (Trubek et al. 1994:409; Lawrence 1994:672; Miller 1996:1). Influence over the legal systems of developing countries is now viewed as an avenue for access to the markets and natural resources of the developing world (Trubek et al. 1994:475). Leaders in developing countries, meanwhile, often regard legal reform as a means by which they can attract private foreign capital, build their nation, and assert equal status in the international economic and political system. Most present-day legal assistance projects are designed to assist developing countries cope with this seemingly inevitable process of global economic integration in the post-Cold War era. There is a thin line, however, between the role of law in helping a country cope with the reality of economic competition and law's role in closing off alternative roads to development and solidifying a country's position of inequality within the global marketplace. In the particular context of countries making the transition from Communist command economies to market-based capitalism, both providers and recipients of legal assistance face unique challenges in determining the most effective methods of legal exchange and transfer. Is it possible or desirable to borrow only statutory laws, texts, and regulations without also adopting an entire way of thinking about law and lawyering? The Socialist Republic of Vietnam provides a useful case study of the tension created by the possibility that legal assistance can both promote economic and political change and exacerbate social and economic disparities.1 Vietnam's experience with Western legal assistance illustrates the distinct issues of legal borrowing and reform raised when a recipient country shifts from a command economy to a market-based economic and legal system, without also changing its basic political framework. In 1986, Vietnam adopted a policy of renovation (doi moi) in an effort to turn the country toward a market economy.2 Legal reform has been a key component of this renovation policy, and the Vietnamese government has welcomed international legal cooperation, particularly in the areas of trade and investment law. Yet, Vietnam generally does not welcome foreign legal assistance in human rights or other areas of direct legal-political reform. Because Vietnam's legal system is expected to serve a dual function-promoting economic liberalization while maintaining the one-party political structure (Sidel 1993:221 )-Vietnam's officials temper their enthusiasm for foreign legal assistance with concern that outside actors, particularly the United. …