Volume 9, Issue 2 - Special Issue (2016): Law and Development: What’s Next?

Despite a radical change in the contemporary regulation of Indigenous lands, comparative scholarship remains focused on state determined rights and their development by the judiciary. This focus is rooted in an assumption that rights recognition bestows protection on identified groups and their lands. However, the model has limited the ability of comparative law to engage with regulatory approaches to Indigenous land tenure – instead characterized by regulatory institutions that enable decision-makers to avoid encounters. This article corrects this anachronism by reframing comparative Indigenous law to better recognize how rights are embedded in nested regimes that legitimate rationalized decision-making. The concept of nested regimes, which has mostly been used internationally, is applied in the domestic context in order to clarify where regulatory authority overlaps and how decision-making on rights or its avoidance impacts other actors. Using several institutions – the judiciary, the executive, private industry, police, and Indigenous communities – the article illustrates how overlapping regimes attempt to avoid a rights based discourse and therefore complicate Indigenous strategies of resistance and reform. In doing so, this article presents the outlines of a larger project to develop methodologies that pay attention to the regulatory dimension of implementing constitutionally secured rights. This contributes to the growing interest in synthesizing law and development, comparative law and regulatory perspectives; disciplines which have remained intellectually isolated from each other until recently.

The past decade has witnessed a revival in interest in the relationship between rule of law and economic development. Disenchantment with the universal model that emerged from the Washington Consensus era led to a shift in focus to a more pluralist approach in which policy prescriptions became tailored to each country’s socio-political context. The authors suggest that the pendulum may have swung to the other extreme, and that the newly ascendant pluralist approach may overemphasize pluralism at the expense of core rule of law principles. This paper examines the rule of law building efforts pursued by the BRIC countries to shed light on their strikingly different processes of economic transition. The authors argue that formal, informal, and transitional institutions have played distinct roles in these divergent economic development narratives. While informal and transitional institutions have facilitated growth during initial and intermediate phases of development, a degree of formalization across some institutions is critical to support the long-term development of a market economy. The authors set out the core tenets approach, an exploratory concept that emphasizes a malleable set of fundamental rule of law principles which exist alongside transition institutions to build trust in formal institutions as an economy advances.

The place of labor regulation in contemporary development discourse revolves around the validity of the neoclassical assertion that any interference with market wage-setting mechanisms leads to a cruel twist–workers left unemployed in a less productive economy. The push for reducing individual and collective labor rights across the globe, commonly termed labor flexibilization, has been justified on the grounds that not only do “rigidities” arising from ostensibly pro-worker regulations hurt workers, they are also key and central impediment to growth. While the empirical grounds of the neoclassical assertion have become ever murkier over time, the appeal of this pro-growth assertion has been recurrent in economies of diverse incomes. For lower-income countries this has been doubly true, with pro-worker legacies cast as urgently necessary targets for reform. However, no true sustained example has emerged of a country that has unleashed employment growth through workplace deregulation. Instead, most attempts at such reform have ultimately led to political backlash when this promise has not materialized and populations have suffered the dislocations of ever-more precarious work. In this context, this paper looks at the recent discourses on workplace deregulation as applied to three of the largest global economies: Brazil, India and China. Each currently is at a different stage of what will be called “the flexibilization cycle.” In China, the Chinese Communist Party is grappling with a fundamental challenge to its legitimacy stemming from the accumulated dissatisfaction with weak workplace regulation and has rejected the flexibilization agenda. In India, workplace regulation has been promised by a new administration, but has been frustrated in attempts to combat significant backlash. And in Brazil, a new political administration has made the promise of flexibilization as foundational to reinvigorated growth after a pause in a decade of inclusive growth. Examining these case examples will expose why the cruel neoclassical twist never materializes and then leads to popular unrest. The twist’s assumptions about wage setting, especially in lower-income nations, ignores but is ultimately undermined by inherently unequal power dynamics in workplace institutions and the primacy of enforcement mechanisms. Further, general levels of human capital formation are far more central to actual economic development, which are in turn eroded by precarious work. The common emergence of labor flexibilization discourses during periods of economic recession is driven instead by opportunistic attempts to re-entrench elite status by diverting attention away from meritocratic reforms. By refocusing the debate on human capital development, the truly elusive growth potential of genuine meritocracy, rather then flexibilization, becomes clear as a driver of developmental success and as an explanatory factor in politics of labor regulation debates.

Is it possible to reconcile one of the institutional strategies to promote development, known in the literature as “the developmental state”, with contemporary democratic systems of government? If so, what are the challenges, trade-offs and potential gains that such an effort may entail? The vast literature on “the developmental state” claims that it is more likely to succeed under autocratic regimes. While a “democratic developmental state” seems possible in theory, there is very little empirical evidence to show how it would work in practice. This article tries to contribute to this debate by analyzing the case of Brazil, a country that transitioned from a military dictatorship to a democratic regime in the late 1980s, and has been moving towards increasing state interventionism since 2002. While the policies implemented by the “New Developmental State” in Brazil have been explored in the academic literature, their democratic dimensions remain unchartered. There has not been a detailed analysis about how the autocratic features that characterized the developmental states in Latin America from the 1950s to the end of the 1980s (i. e. political exclusion of the majority of groups, and control of economic policies by an elite) have played out in its renewed version. Understanding the interactions between the New Developmental State and the democratic system not only allows for a better understanding of the Brazilian case, but it also sheds light on one of the most important theoretical questions raised by the development literature: is a democratic developmental state possible? Based on the Brazilian case study, we argue that it is not hard to reconcile “the developmental state” with a thin conception of democracy, i. e. with free and fair elections. In contrast, the picture is more complex if the question is whether it is possible to reconcile developmental policies with a thicker conception of democracy that includes demands for transparency, protection of minority groups, a system of checks and balances, and due process. To develop this argument, this article is divided in three parts. In the first part, we provide an overview of the literature, outlining the concept of developmental state, and the tensions that the developmental state policies may create in a democratic setting. In the second part, we focus on the Brazilian case (the “new developmental state”), exploring how these tensions played out in three concrete settings: industrial policy, infrastructure sectors, and social policies. In the third part, we identify some of the research implications of the challenges identified in the Brazilian case, especially for future law and development scholarship.

The article explores the different ways in which the relationship between law and development has been thought of by policy makers and academics in Colombia. It proposes that there are two prevalent ways of understanding this relationship, either interpreting law as marginal to the economic development endeavor or central to trigger it. Furthermore, it argues that these two prevalent interpretations have underestimated the complex ways in which law functions. In order to illustrate the complexity of the interaction between law and development, the article then presents the different ways in which property is legally defined in the Colombian context. These definitions range from the classical liberal included in the Civil Code to the Social and Ecological function enshrined in the Constitution.

The current multilateral trading system under the auspices of the World Trade Organization (WTO) displays a substantial development gap in the regulatory and institutional frameworks. The Doha Round negotiations, which was initiated to promote development interests under the Doha Development Agenda (DDA), have not been concluded for over 14 years, raising doubts about the ability of the WTO system to promote development interests effectively. While the Doha Round was sluggish for a number of years, regional trade agreements, which currently include every WTO Member, have been proliferated, creating significant implications for developing countries. This article examines the development of the Doha Round, analyzes the causes of its impasse, and explores its future prospects. The article also discusses the development gap in the current trading system and advances reform proposals to fill the gap in the system.