Band 17, Heft 2 - Special Issue: Law and Development Post the Pandemic; Guest Editor: Andrew James Harding

There are three main failures that occurred during Covid-19 which relate to critical aspects of what Jeremy Waldron has referred to as the constellation of political values or ideals constituting the core of our political morality. These include questions of democracy, human rights, and the rule of law. To analyze how these values were affected by Covid-19, this article begins with an overview of what occurred during the Covid-19 crisis. First, I focus on the deliberation and decision-making processes applied during the crisis. Second, I review key aspects of state effectiveness that the experience exposed. Third, I consider the ways government responses affected human rights protections. I then examine these themes through leading theoretical accounts about the critical components of political morality including rule of law, democracy, and human rights. Drawing on those theoretical perspectives, I seek to identify the broad causal story about the developmental process through which rule of law, democracy, and human rights emerge. A critical component of that story is the role of state effectiveness. In the final section, I confront these theoretical and empirical views with key takeaways from governments’ responses to Covid-19 from the standpoint of Waldron’s constellation of values of democracy, human rights, and rule of law. In conclusion I consider the implications of this understanding for the theory and practice of law and development.

The COVID-19 pandemic ensued a challenging period for global health; however, the loss of livelihoods throughout the lockdown also led to a significant economic issue that warranted a reassessment of the existing socio-economic structures. Manufacturing lines were severely impeded, particularly in the Indian textile industry, the second-largest employer and labour-intensive industry. The initial lockdown did not provide manufacturers enough time to prepare for the impending catastrophe, compelling many to shut down their operations. The above circumstances highlighted the lack of resilient social security laws in India. Despite initiatives like the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), the Employees’ Provident Fund (EPF) scheme and other initiatives like grain distribution to families below the poverty line, lack of economic security came to the forefront. There is a need to have a competent social security legal framework in India to ensure economic stability for all that would fall in line with the noble ideas of the framers of the Constitution as enshrined in the Directive Principles of State Policy, the guiding light for all state action in India. India has not ratified the International Labour Organizations Social Security (Minimum Standards) Convention of 1952. The focal area of the current research would be to look into the sufficiency of the legal framework (International and National) to protect the economic interests of the workers. The authors examine the following: 1. Examine the Code on Social Security, 2020 passed by the Indian legislature interpreting it in light of the COVID-19 pandemic and its effect on textile manufacturing in India along with other steps initiated by the government for the textile industry. 2. Carry out a comparative analysis of the social security laws of other Asian countries (Bangladesh, Vietnam, and China) to carve out best practices that can be adopted in India. 3. Analyse and contrast the statistical data of the four predominant textile manufacturing and exporting economies on selected parameters.

This paper explores the economic disparities created and augmented by the Pandemic and implores the state to adopt redistribution schemes based on the philosophy of distributive justice. The pandemic created and augmented gaping class inequalities, by pushing some into unemployment and poverty, while catalysing others’ prosperity. This may or may not have involved a fault element on the part of those that profited from the pandemic, which is to say, while some may have actively exploited the situation to increase their profits at the cost of general interests, others may have simply gained profits while retaining ethical practices in their conduct of business. This Paper argues that, irrespective of the fault element, States must implement a special financial scheme that necessitates companies that gained enormous profits from the pandemic to contribute towards assisting those who were financially crushed by the pandemic. The paper will build this on the philosophy of distributive justice, examining the ‘difference principle’ as well as ‘luck and responsibility egalitarianism’. Simply put, this means that States must enforce a system that neutralizes the ‘luck’ element that the pandemic induced in the society, through a financial scheme best suited for its situation. This may be achieved through levying a special tax for a period of time on particular business entities and/or by requiring companies to include a special corporate social responsibility project in line with the quantum of additional profits owing to the pandemic. Arguably, corporate houses that exploited the pandemic must not be placed at par with those that merely happened to profit from it (say, for instance, a pharmaceutical company that may have manipulated the drug market to increase prices and limit supply of an important drug, as opposed to a food/essentials delivery chain that naturally saw an increase in the number of consumers ordering deliveries online). But the obligation to carve out a part of their profits for social redistribution is not founded on whether they are at fault or not. Any fault may, of course, be used as a basis for levying a higher penalty or other legal measure, apart and distinct from the obligation that this paper builds on. The scheme that is proposed by the Paper is not to penalize but is based on the philosophy of distributive justice and thus does not require that the company was ever in violation of laws, but merely that the pandemic that devastated most people happened to be a profitable enterprise for others in contrast. It is in the State’s interests to negate the widened gap of economic disparities thus created, and this justifies that the Government would require such corporate houses to carve out a fraction of their fortunes for those who suffered severely. The Paper builds primarily on the philosophical foundations of distributive justice, urging its practical implementation in post-pandemic the economy. States must adopt creative measures to restructure patterns of privileges created or amplified by such unprecedented (at least in recent history) circumstances, as the pandemic.

This article discusses the constituent elements of law and development, discusses its history, introduces relevant theories, and explores how law and development approaches may contribute to development efforts throughout the world. In the course of addressing these issues, we emphasize those aspects of the subject that bring into focus the traditional concerns of comparative law. We also introduce a General Theory of Law and Development that seeks to capture the different aspects of a subject that has, in general, lacked theoretical articulation. This Theory attempts to define the conceptual parameters of “law” and “development” and sets forth the mechanisms by which law affects development. We also examine the discipline’s relationship with comparative law and explore the path forward.

During the COVID-19 pandemic, global cooperation arrived at an impasse, illustrated by the resistance of industrialized States to allow vaccines-related knowledge transfer to their economically less advantaged partners. One pertinent example is the EU, withholding its waiver of the TRIPS Agreement for vaccines and related medicines and thereby impeding knowledge transfer to States in need – an act that has also been referred to as ‘vaccine apartheid’. In the meantime, a new legal instrument intending to address in broader terms the faltering international cooperation emerged on the horizon: the Draft International Covenant on the Right to Development (DICRTD). Concerning health, the DICRTD’s preamble already recalls Arts. 1 (3), 55, and 56 UN Charter to take joint and separate action in cooperation with the UN to promote solutions of, inter alia, health problems. Reflecting on lessons learned from the COVID-19 pandemic, the preamble also points out health emergencies and health crises as serious obstacles to the realization of the right to development. This contribution seeks to critically assess the potential of the future DICRTD to address global health crises through cooperation. Against this backdrop, it analyses the current legal status of the duty to cooperate, the potential transformative impact of the DICRTD on this legal status, and the effectiveness of the DICRTD’s implementation mechanism.

The COVID-19 pandemic has exposed several chinks in the armour of public health infrastructure across the world. However, the impact of the pandemic has been assessed primarily from the perspective of the ‘privileged’ members of society. The experiences of the ‘other’ world inhabited by the marginalised communities, who have had their livelihoods crushed under the weight of the pandemic, have been scarcely documented. As thousands of migrant workers were more scared of death caused by hunger rather than the disease itself, the various steps taken by different countries to curb community transmission have unveiled the ugly side of these measures. For example, as several states such as the US, the UK, Singapore, Hong Kong, and India/Bharat imposed lockdowns, border closures, quarantines, inter alia, the most vulnerable section of the human population has been the migrant workers, especially those individuals who were employed in the unorganised sector. Thus, the global health crisis has unravelled deep-rooted deficiencies, racial biases, and an overall lack of concern and empathy for the lesser privileged, apart from the growing socio-economic divide between the rich and the poor. This research paper aims to explore the impact of the COVID-19 pandemic on migrant workers in the informal sector by exploring the measures imposed by the US, the UK, Singapore, Hong Kong, and India/Bharat and analyse how their fundamental rights, including the right to development, were compromised. Through this paper, the author provides a five-point strategic framework that can be adopted globally to prevent such instances in the future.

Public finances have been extensively affected by the effects of the COVID-19 pandemic and the measures enacted to mitigate them. In South America, have these effects been permanent, or were fiscal rules solid enough to allow for flexibility and a later return to normality? The hypothesis in this paper is that Covid had a significant impact on the fiscal institutions of countries with previous difficulties in using norms as stabilization tools for public finance, but had only temporary effects for countries with a stronger tradition of implementing fiscal rules more effectively. The text is structured as follows: in the first part, a general panorama of the creation of fiscal rules in South America is presented to offer comparison patterns with their post-pandemic evolution. Secondly, a description of the possible structures of fiscal rules is analyzed, and these categories will be applied to the South American case. In the third and last part, the types of fiscal rules are classified according to each country, as well as the transformations observed after the COVID-19 pandemic. As a result, the paper will offer a consolidated approach to changes in fiscal rules in the region.

China has set off a wave of legal and institutional approaches to meet the need of access to justice and rule of law in cyberspace. Online trials and Internet courts as the approaches have not been developed so rapidly until the outbreak of COVID-19. This article will divide the development of online trials in China into three stages and discuss their functions and orientations during different times of the pandemic.

This paper argues that the COVID-19 pandemic can and should be understood as a form of creative destruction (Schumpeter’s gale), at a hyper level owing to its biological/medical dimension. Therefore, the critical response to such a hyper force is to rethink how institutions administer Public Policy in South Africa (Path Dependency), most importantly economic development planning institutions and Covid-19 responses, in the form of ‘The Economic Reconstruction and Recovery Plan’. It’s the contention of this paper that the reason why Covid-19 continues to impact the South African government’s economic planning ethos is anchored in its developmental orientation, particularly how constitutional legalism has impaired economic development planning. This could impart be due to the unaddressed influences of the initial waves of Law and Development post-1994. The South African experience with the initial waves of Law and Development were muted owing to the problematic nature of the 1994 transition which sought peace at all costs without necessary addressing substantive economic development reform considerations. Therefore, using the policy experiences of Covid-19 and Lee’s, General Theory of Law and Development, particularly the aspects of Development and State Capacity and Political Will, a revision of the South African Constitution will be called on, principally chapter’s 2 and 6 (Bill of Rights) and (Province).