The Women's Freedom Network Newsletter Sept./Oct. and Nov./Dec., 1999, Vol. 6, Nos. 5 & 6. NATIONAL CONFERENCE ON SEXUAL TRAFFICKING Law Enforcement and Legislation Guest Speaker: David Fagelson, Professor School of Public Affairs, American University David Fagelson

M y question is, how do you get other countries who say that they're willing to enforce these rules against trafficking and to protect various sorts of rights within their country, to enforce such rules in practice. For the longest time, they didn't think that the rule of law was a relevant issue for these countries. This has been a problem which the development community is only coming to think of as a relevant issue, not necessarily in connection with what we would call human rights, but in connection to legal rights regulating commercial laws.

Now that the Berlin Wall has fallen, places like the World Bank and AID have come to see that the rule-of-law is important. You cannot develop sophisticated commercial practices if you don't have rules of the road to coordinate things. Consequently, they've set about with various rule-of-law reforms. Unfortunately most of these have limited success, at best and some have been an enormous failure.

Part of the reason for this is because the Western agencies, the donor agencies who want to help implement these programs, want to have immaculate conception. They want these countries to become rule-governed on their own. To accept it, to see the wisdom of it, and to implement it for them.

However, it misses one basic issue, which is, what is law in the first place? Law is about the constraint of power, and very few people in the history of the world have submitted to this voluntarily. It doesn't get at the basic problem, which is countries that don't have law, don't want it. They may pass the laws because they're being told that they have to by various development agencies, but they don't have much of an intention to do anything about it.

Something that I think has to be unlearned is the idea that laws operate in the same way as the physical laws of nature--the notion that the rule of law is the same thing as the second law of thermodynamics, and that it applies everywhere, regardless of where you are.

There was a law firm that was hired in London to help Poland develop a secured transaction code, or a "collateral" law. They took out the British version, and did a universal search and replace on his computer to put in 'Poland', and came over and said, well, this works pretty well where we're from. Why don't you give it a shot? Apart from being unpopular, it's ineffective. It doesn't work that way. You just can't put the law down there and have it take root that way.