ABSTRACT

This chapter addresses an issue that has become increasingly salient in the context of regime transition but which remains largely under-researched. It focuses on the compatibility between legal institutions and underlying legal norms. There are some countries around the world where for historical reasons such compatibility is high. There are others where the main feature is disjuncture rather than compatibility between institutions and underlying norms. The latter is particularly true in developing countries and transitional societies such as those undergoing change from a communist to a liberal-democratic order. As Fukuyama (1995) has noted: unlike formal institutions, culture is a slow-moving variable. The probability, therefore, that institutions are out of tune with cultural norms is very high in societies attempting a regime transition. The purpose of this chapter is not to explore the full consequences of this type of disjuncture, but to lay the foundation for future research by examining the correlations that exist between development, law and democracy with special reference to ‘pure’ and ‘mixed’ systems of law. Legal systems are in this context seen as the outcome of historical choices at the constitutional level (Kiser and Ostrom 1982). We pursue this type of analysis with a view to developing hypotheses about the role that the legal system plays as a factor in democratisation and development.