Band 12, Heft 2 - Special Issue (2019): Law and Development: Theory and Practice, Guest Editor: Philipp Dann

Throughout its history, law and development has been so confined to or dominated by the economic, that a clear break with the past may be needed. The “three moments” analysis that Trubek and Santos presented in 2006 shows that, whereas law and development theory moved from law as an instrument for state power (first moment) to law as an instrument of the market (second moment), and in a third moment was conceived of as regulating the market, it never lost its primary focus on economic development and on economic law. And more fundamentally, it may never have moved beyond a market-friendly approach. Just like institutional dimensions (including law, legal institutions) were for a long time marginal in development theories, justice concerns have not taken center stage in law and development studies, although the rule of law has had some traction. This begs the question whether those studying the role of law in bringing about justice and transformative social change should claim the law and development field as their field of study too, or rather create a countervailing field. This paper examines pros and cons for claiming a fourth moment in law and development studies by those who study whether and how law (including human rights law) disciplines and tames the state, the market and other powerful actors.

This paper aims to review and assess the contributions and limitations of law and development (L&D) as a field of legal scholarship in relation to the constitution of the international economy and global economic governance. It seeks to reflect on the theoretical and methodological contributions of L&D theory and practice on the development of international legal scholarship, particularly in the rapidly evolving field of international economic law. The intersections of economic theory, jurisprudence and legal theory and the institutional practice of development agencies and international economic organizations which are the focus of L&D scholarship provide a useful interdisciplinary prism through which developments in the regulatory framework of the global economy can be studied. Mapping the ways in which what Trubek and Santos call the three overlapping spheres of L&D – economic theory, legal theory and institutional practices – enables us to chart, understand and, where necessary, contest, the shifts in development theory and policy and institutional practice that influence and shape legal reform and scholarship.

This paper proposes that there are three essential elements or phases of development: (i) systemic capacity; (ii) individual capability, and (iii) social citizenship. Significantly, the role of government within each element of development is decidedly different. Systemic capacity refers to the development of the economic means, or wealth creation, needed to provide society with services and public goods. Capability building refers to providing individuals with the basic conditions required to live a long and fulfilling life, such as health and education. Social citizenship recognizes that values held by individuals and groups will often conflict, and there is rarely a singular social end that can determine life in a free society. Fostering citizenship reflects the importance of belonging, and the obligations, responsibilities, and restraint that individuals owe to others, society, and the environment. This third element is a notable departure from many traditional approaches to development, which tend to concentrate on development as largely a process of feeding individual needs. The proposed approach is labelled “freedom from development,” for it is premised on the recognition that while society often benefits from the pursuit of traditional development, it does not do so exclusively nor without qualification. So while there are many instances in which development is a desirable social end, as when people derive greater capabilities from economic growth, there are also situations when the end of development must be displaced in favour of other social priorities. For example, there are times when markets yield freedom, and times when the freedom people crave will be found in rejecting the market altogether. Freedom from development suggests that values represented under the third element of citizenship will often have come at the expense of those of the first two elements, meaning that development in a traditional manner is superseded in a given context. In order to determine when freedom from development is socially desirable, it is suggested that a form of cost-benefit analysis is implicitly conducted, comparing the economic and individual gains available under the first two elements with the potential social gains from belonging under the third element of citizenship.

The 2019 Law and Development Review Special Issue features two articles that apply the general theory of law and development to explain the development process of Botswana and South Africa. This paper provides a condensed overview of the general theory for the convenience of readers who wish to grasp the essential elements of the theoretical frameworks under which the two articles examine the development cases.

The ascension of the African National Congress into formal politics through its electoral victory in 1994 resulted in South Africa adopting one of the world’s most heralded social justice and human rights-based documents, the 1996 Constitution. Yet, two-decades of ANC governance this paper argues has not led to the types of economic development needed to advance the formerly oppressed African majority, Colored and Indian populations. This lackluster economic development is even more troubling when one considers the giant economic development steps Asian developmental states have made, without a human rights and social justice approach. It is the contention of this paper that the newly presented General Theory of Law and Development allows for a new type of analysis exploring the reasons why South Africa’s economic development trajectory has been so lackluster, when so many authorities praise the South African legal framework. In making this argument using the General Theory South Africa’s local governments sphere and local economic development will be the subject of analysis.

Botswana has achieved significant socio-economic development despite its low-income status in 1966 when colonial rule ended, earning it the status of an “African success story” and “African miracle”. Botswana’s development was achieved in great part to its abundance of natural resources (diamonds), in contrast to other African countries that displayed conditions affiliated with the “resource curse”: corruption, rent-seeking behaviour by the ruling class, Dutch disease, declining terms of trade, the absence of economic diversification, and even civil conflict. Despite its extensive coverage in political economy and development studies literature, Botswana’s socio-economic development has yet to be interrogated through a law and development lens. Yong-Shik Lee offers a theoretical framework to conduct such an analysis in his article, General Theory of Law and Development, which proposes that law directly impacts development through three categorical Regulatory Impact Mechanisms: regulatory design; regulatory compliance; and quality of implementation. This article applies Lee’s theory to Botswana, making it one of the first applications of Lee’s theory to an African case study.

We relate the rules versus standards debate to legal norms of taking law in developing countries and argue in favour of more precise legal norms regulating takings in low-income countries. Clear, specific and exact legal norms should be socially preferred whenever a regulatory law cuts into fundamental rights as this improves the possibilities of supreme courts to check the constitutionality of such norms. This holds equally for rich and poor countries. But in poor countries, precise norms have additional advantages over standards, whose adjudication requires highly qualified and loyal judges and administrators, is information intensive and increases procedural costs for the parties. We argue that in the course of economic development, courts and administrations should be granted more flexibility and rigid rules should gradually be replaced by more adjustable legal standards which are more flexible and can adjust better to the merits of a single case.

In the last decades, several countries have undertaken institutional reforms in their national housing finance systems (SFH). At the end of the 1990s, the Brazilian government followed this global trend and reformed its national SFH. In 1997, Congress enacted Law no. 9.514, instituting the Real Estate Financial System (SFI) that should gradually replace the former SFH. The new SFI sought a different model of financing based on the creation of a mortgage market, which consisted of securitizing debts and fundraising via the capital market. In contrast, the former SFH was a state-led arrangement that relied on direct credit policies, public subsidies and the performance of state-owned banks. This paper aims to assess the Brazilian housing reform outcomes. Regarding legal security, the data collected pointed to the satisfactory success of these measures. However, concerning the extent to which the market relation expanded over the state domains, the achievement is different. The most apparent effect of the reform is a repositioning of state agents in the new institutional frameworks, most notably the state-owned bank in the housing market.

The sustainable development goals (SDGs) present a real opportunity to direct India towards a path of equality and equity. This article posits that India’s plans to achieve the millennium development goals by the end of their term in 2015 faltered because reforms designed to alleviate poverty and achieve equitable growth did not adequately address weaknesses in institutions of accountability, which undermined the reform agenda. These institutions, which include Parliament and the judiciary, exist in part to ensure that actions taken by public officials are subject to oversight so that government initiatives meet their stated objectives. As India shifts its attention to Agenda 2030, its renewed commitment to institutional reforms represents an occasion for the state to address the inequalities in income and the resulting human development concerns. For the government to achieve the SDGs, this article suggests that India must integrate what we refer to as a baseline conception of distributive justice within its plans, which can account for structural barriers to its development arising from ineffective institutions of accountability and provide the poor with a route towards individual empowerment.

This paper argues that the intersection of international institutional law and “law-and-development” studies provides a rich field of themes that help to understand inequality and agency in the global order. It sketches a first overview of how this field could be understood and analysed, describing characteristics, principles and scholarly approaches to the field, some structural features (institutions and finances) as well as central mechanisms and instruments. Dealing with the distribution of power, finance and knowledge, it is an obvious object for a variety of scholarly approaches, in particular critical legal and public law scholarship.

The legislative system that provides for the socio-economic development of mining communities in South Africa has been under significant scrutiny in recent times. Various instances of conflict between mining communities and mining companies, of which the Marikana Massacre of 2012 is certainly the most noteworthy, show that mining communities expect mining companies to contribute more to the improvement of their living conditions. The relationship between mining communities and mining companies are exposed to the various socio-economic challenges that other sectors of the South African economy currently face. However, considering the legislative system in the mining industry specifically and in terms of a conceptual approach may show to the unique challenges the industry faces when it comes to mine community development. A conceptual approach requires asking whether the way in which the legislative system is framed and the rhetoric it promotes do not create expectations with mining communities that cannot be met by mining companies, because mining communities are not accurately depicted in the legislative system. The legislative system promotes “mine community development” by means of a complex interaction between various pieces of legislation and policy guidelines. At the centre of this interaction are the definitions of “community” and “mine community”. These definitions have been amended quite a few times since the enactment of the legislative system, attesting to the difficulty for the law to capture “community”. The latest iterations of the definitions are criticised for their ambiguity, causing uncertainty as to who should benefit from mine community development. This paper proposes that there is a conceptual problem when catering for communities, and not individuals, in a development paradigm, posing challenges for accurately defining “community”. It is not argued that community development should not be promoted, but a possible reason for why mine community development is not successful is proposed. The South African mining legislative system will be considered in parallel with relevant international legal instruments.

Africa and the developing world have been the theatre of countless rules of law assistance projects since the end of World War II, with mixed results. While the reasons for the mixed results vary from project to project and from country to country, this paper seeks to address the limitations that arise right from project inception, reviews the cycle of project management from problem construction to monitoring and evaluation, taking into account the core and secondary aspects of project management such as scope, budget, quality, schedule, as well as stakeholder engagement, communication, risk management and performance management. With a focus on the attainment of the Sustainable Development Goals of Agenda 2030, the paper addresses the following aspects: identify challenges of past approaches of major development partners and interrogate the current shift in paradigm by the World Bank, United Nations and the United Kingdom’s Department for International Development (DfID). It will consider lessons from complexity and other methodologies, theories of change, theoretical frameworks, and the Problem Driven Iterative Adaptation (PDIA) model as tools for doing development differently. The paper concludes with recommendations on improving the effectiveness of rule of law programmes, including a better approach to project design that makes allowance for results based programming, ease of adaptation, reflective learning through after action reviews and lessons learned from military science’s doctrines and practices in the management of complex operations. The paper also recommends, back and forth iteration and better stakeholder engagement, including at the lowest level of governance (local contextualization), to increase effectiveness of rule of law and change in mind-sets especially donor and development partner ideology.

“Law and Development: Forty Years after ‘Scholars in Self-Estrangement’” by David Trubek provides an account of the state of law and development and its growth for the past four decades. This note provides a comment on this account and proposes the way forward for law and development studies.