Volume 15, Issue 1

We study attitudes to legality and the rule of law in Russia through analysis of interviews with legal and business professionals conducted in 2013–14, the high point of the stabilisation of the Russian economy and polity following the transition of the 1990s. The annexation of Crimea occurred during the course of our fieldwork but the effects of the cooling of relations with the west and the introduction of sanctions were yet to be felt. We observed a perception that the administration of civil justice was not uniformly corrupt, but that in ‘political’ cases, that is, those involving state officials or powerful private interests, judicial decisions could in effect be bought and sold. This commodification of civil justice was the result of an empowered but predatory state. While the state was strong enough to engage in predation, however, it was seen as lacking the capacity to manage the economy in an effective way or to deliver essential public goods. We consider the implications of our findings for a conception of the rule of law as an emergent social norm. We conclude that the 1990s policy of weakening the state through privatisation and the removal of regulatory controls, a policy designed to ensure that the command economy did not return, has left Russia with a dysfunctional public order, under which the ‘normality’ envisaged by the reforms of the 1990s is a distant prospect.

Early March 2021, following its ratification of the Agreement Establishing the African Continental Free Trade Area (AfCFTA agreement), Nigeria’s National Office of Trade launched a consultative process into issues constituting the country’s priorities as it prepares to participate in the negotiation of the AfCFTA agreement’s protocol on intellectual property rights (IPRs). We contributed a position paper to that process, with a focus on key policy considerations that should form Nigeria’s negotiation priorities on IPRs. This article describes some of the most important points of our submission and concludes by stressing that the broad policy focus should be to champion initiatives that promote Nigeria’s national interest and, at the same time, recognize and accommodate the ideals of inclusiveness, openness, and collaboration within the context of the AfCFTA. In this regard, the paper recommends that Nigeria should prioritize negotiations in recognition of her strongest economic assets in copyright-related sectors and focus on institutional capacity-building for its patent and technology transfer offices so that Nigeria can effectively take advantage of the relevant Trade-Related Aspects of Intellectual Property Rights flexibilities locally. Nigeria can learn from South Africa in domesticating the appropriate legal framework for benefit sharing and the general protection of traditional knowledge and genetic resources. The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore 2010, the Arusha Protocol for the Protection of New Varieties of Plants 2015, and the African Union model law for the protection of the rights of local communities, farmers, breeders, and for the regulation of access to biological resources offer relevant guidance.

This article examines the rise of Germany from the nineteenth century to explain that it is open access in the economic sphere, as well as institutional building related to the protection of property rights, contract enforcement, financial markets, rule of law, and human resource accumulation that determine economic and human development. The case of Germany is not very consistent with the logic of the open access orders of North et al. or the theory of extractive political institutions of Acemoglu and Robinson along the line of contestation and inclusiveness. The case of Germany is, however, able to support the research of Przeworski and Limongi that economic development is more likely to sustain democracy. Germany is certainly not the only case in explaining that stable democracy is not the cause but rather the consequence or outcome of lengthy economic development. The historical evidence from South Korea and Taiwan similarly supports the position that democracy is the outcome of economic and political development. This article, however, does not examine whether western values of human equality and human freedom are essential in economic and human development. They are very likely to be so as human equality is the precondition of open access in the economic sphere and human freedom is closely integrated with the interconnected institutions examined in this article. Future research may investigate the roles of these values in different political systems regardless of whether a political system is under the rule of one party, by a dominant party, or through the utilization of a multiparty system.

A substantial consensus has emerged in development circles that the reason why some countries are rich and others poor is largely a reflection of the quality of their institutions – political, bureaucratic, and legal – and that countries with seriously dysfunctional institutions cannot expect to pursue a successful long-term trajectory of economic and social development. Many studies support this consensus, but institutional reform efforts for developed countries have resulted in mixed to weak results; many of these efforts have failed, for example, to establish a robust rule of law to protect the rights of citizens, publicly accountable political regimes, a meritocratic, noncorrupt, and efficient bureaucracy, and an independent media. Reportedly up to 60% of donor-assisted reforms have yielded no measurable increase in government effectiveness. It is inferred from this disappointing result that institutional transplants are often ineffective, and the path dependence, caused by accretions of the particularities of given countries’ histories, cultures, politics, ethnic and religious make-up, and geography leaves each country, for the most part, “to write its own history”.

As part of anticorruption reform, the Indonesian Anticorruption Court Law 2009 mandated the establishment of 514 anti-corruption courts in every city. The Indonesian Supreme Court, however, could only establish 34 courts. Three factors that explain this delay: (1) a lack of budget to fund the court; (2) the limited number of people with the integrity and capacity to serve as ad hoc judges; and (3) distrust from citizens regarding the conviction rate and corruption that occurred within the anticorruption court. Some activist and legal scholars proposed either to evaluate or even abolish the anticorruption court. This article contributes in evaluating the newly created court. There are two indicators, cost per case and collection of monetary penalty that could serve as the basis of cost-effectiveness analysis of the Indonesian Anticorruption Court. As a preliminary review, the prosecution of the crime of corruption is cost-effective if the cases had been prosecuted by the Anticorruption Agency (KPK). Alternative policies based on cost-effectiveness are proposed to improve the performance of the anticorruption court without sacrificing resources.

This article identifies and analyzes the theoretical, constitutional, and practical bases for governmental land acquisition in Vietnam from a comparative perspective. The authors contrast political ideologies of private ownership and public interests to elucidate the grounds for compulsory acquisition of property for public uses. By reviewing constitutional provisions on compulsory land acquisition in several countries (Singapore, Korea, Australia, India, and the United States), and exploring Vietnam’s constitutional provisions on land acquisition for national defense, security and socio-economic development, this article analyzes some key themes of purposes, procedure, and compensation. The paper then suggests specific changes to Vietnam’s Land Law to increase transparency and to provide more legal safeguards for private users of property when government entities recover privately-used land for public purposes.

Under the label “New Latin American Constitutionalism”, scholars have explained the emergence of new constitutions or organic constitutional reforms in the eighties and nineties and, since the 2000s, the constitutions associated with the “Left turn” in the region. Radical constitutional changes, however, have not stopped the expansion of social conflicts associated with internationally-backed extractive and infrastructure projects deemed as crucial for national development. As new processes of constitution building are gaining momentum in the region, it is crucial to investigate the reasons why societies under progressive and neoliberal constitutions suffer from similar conflicts. Drawing on decolonial theory and critically dialoguing with the literature on constitutions and development, the article proposes an analytical scheme to understand the relationship between constitutional arrangements and development in neoliberal and multicultural Peru and Colombia, and post-neoliberal and plurinational Bolivia and Ecuador. The article argues that even though these constitutions possess deep differences at the level of development discourses, strategies, and tools, they share the same development paradigm.

A controversial paper by Ramseyer, “Contracting for Sex in the Pacific War,” which argued that the victims of sexual slavery (“the comfort women”) perpetrated by the Japanese military during World War II were voluntary prostitutes under contract, has raised substantial controversy around the world. This argument has provoked a public outcry, and thousands of scholars, including Nobel laureates, have criticized this paper and denounced it. Ramseyer has subsequently published a response to these critics in a non peer-reviewed, publicly accessible paper series disseminated by the John M. Olin Center for Law, Economics, and Business at Harvard University. His response does not remedy fundamental flaws and inaccuracies in his original paper. This essay discusses these flaws and inaccuracies and also points out the problematic manner in which the author mischaracterizes and omits key materials, misleading readers. The war may have ended several decades ago, but its trauma continues today, exacerbated by the troubling denials of the atrocities.