Volume 8, Issue 2 - Special Issue (2015): New Directions for Law and Development Studies

This article introduces a series of articles prepared in connection with an April 2015 conference jointly sponsored by the Law & Development Institute and the Payson Center for International Development at Tulane University Law School. The introduction first surveys the uncertain and chaotic terrain of current and competing definitions of development and then introduces the articles in this special volume, identifying common themes and differences. In the process, the introduction suggests, law and development studies present great promise to provide greater coherence to development studies and practice going ahead, providing the approach is pluralist and inclusive.

This essay challenges the ubiquitous and rarely questioned assertion that legal property rights are necessary for economic growth and argues that this view of development is incomplete, misleading, and dangerous. The faith in legal property rights emerged from neo-institutional economics, particularly from the work of Ronald Coase, Harold Demsetz, and Douglass North, who recognized that economic assets depended on informal social norms as well as formal legal ones. To date, however, development assistance policies have been narrowly focused on formal legal institutions and have resulted in limited success and often destabilized existing property regimes, leaving societies worse off than before. Through a comparative and historical analysis, this essay preliminarily addresses these theoretical and policy failures and aims to deepen and complicate our understanding of the role of formal legal property rights in changing societies. Examples from the 16 th century English enclosure movement, postwar Japanese land reform, late 20 th century Chinese economic growth, and 21 st century Cambodia demonstrate that the role of formal property rights in economic growth is complex and contradictory. Law and property rights have sometimes slowed the process of change, sometimes legitimated it, sometimes become the very agent of change, and sometimes played no role at all. This essay contributes to the literature of law and development as well as contemporary policy debates by deconstructing the conventional paradigm of property rights and suggesting a more nuanced and contingent view.

In his recent article, “Call for a New Analytical Model for Law and Development,” Yong-Shik Lee undertakes an ambitious pair of tasks: to redefine the field of law and development, and to provide a guiding framework for future work on law and development. In this short comment, I argue that, with some qualifications, Lee’s efforts promise to provide a healthy degree of coherence to an inevitably eclectic field.

In this essay, we attempt to lay the initial groundwork for a clearer understanding of rule of law both as a concept and as a distinct field. We respond to the assertions that the rule of law field is non-existent or incoherent, and assert that a field of rule of law is not impossible to ascertain. First, we survey how rule of law – as both a term and a state of political being – is understood by practitioners and scholars, as well as how scholars reconcile the lack of a clear, widely universal understanding of the concept of rule of law. Second, we put forth our approach to rule of law studies, embodied by the Rule of Law Collaborative (ROLC) at the University of South Carolina. ROLC supports the idea that a variety of disciplines and factors impact the rule of law, while accommodating the multiple, competing understandings of the concept of rule of law that exist on the University of South Carolina campus and elsewhere.

The rule of law is frequently claimed to be an important factor – if not a necessary element – for advancing international development. Among the development goals conformity with the rule of law has been thought to advance are economic growth, legal compliance, and respect for human dignity. Yet, as many commentators have observed, any attempt to draw straightforward conclusions about the relationship between the rule of law and these aims will inevitably be frustrated by the fact that there exist a number of very different understandings of what conformity to the rule of law consists in. In this paper, I draw attention to the distinction between competing “thin” and “thick” conceptions of the rule of law. Understandably, the thin conception’s relevance for advancing development aims has often been overlooked in favor of the thick conception’s. Nevertheless, I offer here a decision-theoretic analysis of the thin conception’s relationship to growth, compliance, and respect for dignity that justifies special focus on its significance for these areas. Specifically, I argue that, all things being equal, members of a state which violates the thin conception will have less incentive to engage in pro-growth conduct and/or more incentive to engage in anti-growth conduct, less incentive to comply with the law and/or more incentive to not comply, and will have less incentive to perform actions that will yield them greater utility and/or more incentive to perform actions that will yield them lower utility. In turn, this analysis predicts a negative relationship between violations of the thin conception and economic growth, legal compliance, and the amount of utility members of the state’s decisions will yield them.

Ideas expressed as law and development theories have sought to connect law and development by creating a framework within which the role of law in development may be better understood and perhaps even packaged as a kit to be recommended to governments as a way of advancing development. Over the years, thoughts on law and development have crystallised around various concepts such as economic growth, the rule of law, the empowerment of the poor and the growth of institutions. One thing that stands out clearly from these debates is that while there may be a measure of consensus around particular theses or propositions, unanimity among all thinkers, scholars and actors is not likely to follow, nor is it necessarily desirable. This paper draws out threads of thought that present various positions as facets of the law and development dynamic and at the same time, progressive points on the multi-dimensional development continuum. The first section on the progression of law and development summarises a number of themes at the forefront of law and development theorisation over the years. Reflections on these developments follow in the second segment, while a third segment describes various contexts for engaging with law and development studies. This segment, which leads into the conclusion, highlights some key dimensions of law and development thought that need to be further explored and given a place in the taxonomy of law and development scholarship.

This paper argues that the World Bank’s adoption of the principle of sustainable development is an example of the persistence of the law and development approach. Indeed, the World Bank’s interpretation of the principle translates into its projects; through soft law and loan conditionality, it applies to the borrower and regulates behaviors at the country level. This potentially results in the legal transplantation of a cross-culturally valid principle. The paper will present a case study of the sustainable development principle’s application by the World Bank in Argentina: the “Riachuelo-Matanza Basin Sustainable Development Project”. Given the difficulties of implementing the project, the paper makes the case that, to bridge the gaps described by Trubek and Galanter, Argentina needs scholars specialized in law and development as a unified field in order to fine-tune the development approach of international development actors to national realities and thus create a real impact.

Legal scholars engaged with the Law and Development literature usually propose two subtypes of scholarship. One type looks at a given law and tries to fix it, assuming that there is a positive relationship between law and socio-economic change. The second type of scholarship challenges the assumptions about the nature of the relationship between law and socio-economic change. This paper is situated in the second group. By analyzing domestic and international legal regimes and how they relate to domestic and international economic policy, this article addresses the disparities between the relative capacities of countries in different developmental trajectories to innovate in terms of industrial policies. This paper offers a distinction between the concepts of policy space and policy autonomy within the World Trade Organizations’ legal framework that reflects how countries with different regulatory traditions interact with the world trade regime. Focusing on the industrial policies implemented by the United States and Brazil in the period after the 2007–2009 economic crisis, it compares the room for policy space and policy autonomy under the WTO regime.

In Europe and especially in France, the African business law landscape, as well as the legal discourse, for developing West African countries is almost exclusively dedicated to OHADA, the Organization for the Harmonization of Business Law in Africa, created in 1993. While economic development in the Member States is the obvious underlying reason for the modernization and unification of African business law, the exact nature of such development remains uncertain, as does the manner in which a such result can or will be achieved. OHADA’s Uniform Acts are, with some minor exceptions, a carbon copy of French business law. The only goal is to increase international investment, which, in turn, is expected to generate economic development, but all without taking any notice of equality or social justice issues. That, without a doubt, is the reason why OHADA is constantly criticized as a law that benefits foreign investors, while remaining ineffective, even illusory, for local traders. To go beyond the criticism, the authors have decided to focus on the relationship between law and the informal sector and to draw lines between formal and informal rules in the business sector.

This paper uses the “developmental state” model to conceptualize state participation in African extractive sectors. What form thss can take in resource-rich states has not been extensively studied, since most countries labeled as “developmental states” lacked significant natural resources. Borrowing from the experiences of “successful” African developmental states – notably Botswana and Mauritius – this paper proposes a graduated developmental state model that is driven by state capacity, both fiscally and structurally. This paper is divided as follows: Section 2 provides an overview of the “developmental state” and examines the specific role law has played in its evolution. Section 3 then examines the developmental state in Sub-Saharan Africa, paying particular attention to model countries put forth in the literature. Finally, Section 4 proposes the graduated developmental state model in resource-rich Sub-Saharan Africa by examining important considerations for its adoption and providing tailored recommendations.

Voluntary private sector agreements are common as a tool to regulate industries including the enforcement of labor laws in domestic and overseas markets. Agreements cover many different industries, and they differ greatly in scope, implementation and monitoring. Challenging to enforce, they have often been criticized by consumer groups and have sometimes failed. This article examines one of the oldest and most prominent examples of a voluntary industry agreement in agriculture, the Harkin-Engel Protocol targeted at addressing the worst forms of child labor in the cocoa sectors of Côte d’Ivoire and Ghana. In 2006, the authors of this paper were first tasked by the U.S. Department of Labor to oversee the implementation of the Harkin-Engel Protocol on behalf of the U.S. Congress. They have since documented the Protocol’s implementation for more than eight years. This paper discusses the authors’ experience with private sector voluntary agreements for achieving social change in developing countries at the example of the Protocol. Special issues around the role of regulation and law within this process are our focus in this article.