13. Law and development

• Schools of Thought for "Law & Development"

  Overview

  • Field of Study: Examines the relationship between law and economic, political, and social development in developing countries.
  • Objective: Explore how legal systems can be designed and implemented to promote development goals such as poverty reduction, economic growth, and social justice.
• Main schools of thought

  Modernization theory

  • Concept: Developing countries need to adopt Western-style legal systems to achieve economic development.
  • Objective: Promote sustainable market economies with unified, impartial, and efficient legal frameworks.
  • Examples: Positive results seen in South Korea, Singapore, Thailand, and Malaysia.
• Dependency theory

  • Concept: The existing international legal order perpetuates underdevelopment in poor countries by benefiting developed countries.
  • Critique: Highlights the risk of legal imperialism and the exploitation of poor countries by rich countries.
  • Diversity: Emphasizes the importance of considering local contexts and the cultural dimensions of development.
• Legal Pluralism

  • Concept: Recognizes the existence of multiple legal systems within a single country, including formal state law and informal customary law.
  • Context: Advocates for legal frameworks compatible with unique political, economic, geographical, environmental, social, and cultural situations.
• Law and development: modernization theory

  Theory overview

  • Objective: Promote the adoption of Western-like institutions and legal infrastructures.
  • Framework: Provides a logical structure for achieving a sustainable market economy with an efficient legal system.
  • Examples: Successful implementations in South Korea, Singapore, Thailand, and Malaysia.
• Main Questions

  1. How to restructure the economy to create economic growth?
  2. How to institute a legal infrastructure that maximizes the rule of law while promoting sustainable economic development?

  Historical Context

  • Origins: First studied in the US in the early 1940s, focusing on post-war order and the independence of former colonies.
• Law and development: dependency theory

  Theory overview

  • Concept: Development and modernization are seen as a process where society evolves from "primitive" to "modern."
  • Diversity: Differences in land mass, natural resources, location, and population impact development paths, highlighting the impossibility of uniform globalization.
  • Critique: Rich countries exploit poor countries using entrenched laws and colonial institutions, delaying development and ignoring cultural dimensions (risk of legal imperialism).
• Evolving Nature of the Role of Law

  20th century

  • Law as instrument
  • Law as a barrier
  • Law as transplant

  21st century

  • Law as a discovery process
  • Law as a result of globalization
  • Law as a tool for sustainable development (SDGs)
• Theory of Law & Development in the South Pacific

  Concept of development

  • Question: What does "develop" mean for your country?
  • Alternative Practice: Suggests Pacific SIDS should create their ideal of development with sustainability in mind.
  • Legal Framework: Must be compatible with unique political, economic, geographical, environmental, social, and cultural situations.
• Challenges and approaches

  • No universal script for how law can make development work.
  • Legal systems are deeply embedded in society and culture; legal transplants rarely succeed.
  • No privileged sector for legal reform; priorities are politically sensitive (e.g., land reform).
• Globalization and Climate Change

  • Need for New Framework: Search for new methodologies for 'law and development.'
  • New Developmentalism and UN SDGs: Require rethinking the role of law and law reform for 21st and 22nd-century challenges.
  • Global Lawyers: Advocating for global cooperation while applying and reforming laws locally.
• Meta-Theory

  • Concept: There is no single overarching theory for law and development.
  • Needed:

  1. Effective legal framework for public-private collaboration.
  2. Contextual knowledge and sharing lessons learned.
  3. Flexibility for experimentation with law reforms.
  4. Maintenance of good governance and rule of law.
  5. Appropriate institutional design.

  Slogan: COOPERATE & LEARN GLOBALLY, APPLY & REFORM LOCALLY!