A Case for Legal Due Diligence in Humanitarian Engagements

Jeffrey Erickson, Clinical Professor, The Pennsylvania State University

Many developing countries have “aspirational” laws, either carry-overs from years of European colonial rule or modeled after European laws (for example, British common law in Anglophone Africa). Rather than having developed over time and in context, the laws often emulate those of more developed countries without “frontiers”. While laws on the books may technically apply throughout the land, practically, they may only be enforced in the urban centers. It would be paradoxical to tax and impose urbane regulatory schemes on those in subsistence economies. On the frontier, written laws may give way to traditional law or custom, for example in making agreements and resolving disputes. This distinction between written law and actual practice is particularly troublesome for attorneys. On the one hand, we have an ethical obligation to inform our clients of the law; on the other, we share in our client’s desire to improve lives through development and we do not want to erect senseless barriers to their work when the applicability of laws is dubious. Therefore, it’s up to the engineers, health workers, and entrepreneurs to determine whether to abide by the letter of the law or practicalities in the field.