International Development Law

by

Jing Gu

• LAST REVIEWED: 25 November 2014
• LAST MODIFIED: 25 November 2014
• DOI: 10.1093/obo/9780199796953-0121

Introduction

The field of law and development examines the role of law, legal institutions, and legal systems in economic, social, and political development. As a comparatively recent field emerging in the 1960s, law has become an increasingly important aspect of the issues and debates surrounding international development, particularly since the 1990s. Debate continues over the meaning of “development” and what constitutes international development law, as well as over theoretical approaches: the character, role, and impact of legal institutions and development actors; the structures and processes of development; and the principles and norms that are already or arguably ought to be in the system. International development law generates a range of practical challenges, including implementation and enforcement of a right to development; the role of state, and the role of an increasingly globalized civil society; the rule of law; environmental sustainability; land reform; poverty and aid; issues of gender in law and development; law-building in post-conflict situations; transparency and accountability for donors and recipients; and the relationship between human rights, social justice, and rule of law. The centrality of sustainable development, the complexities of globalization, the private sector, civil society, new technologies, and the rise of emerging powers—some as new “nontraditional” donors—further add to the necessity and importance of understanding law and the sustainability of development. Together, these factors of change and transformation provoke new thinking and debate within this field on the role of the state in development and how the international legal rules of the game should operate. From the perspectives of developing countries, primary issues of concern relate to development cooperation and pro-poor, inclusive growth; improved access to trade for small enterprises; development effectiveness; South-South dialogue; climate change; and low-carbon development. Environmental protection and sustainable development represent significant challenges for international law-making, while also offering innovative solutions to some of the systemic problems of the international legal order. One central thrust of contemporary analysis and practice in law and development is the search for better understanding of the relationships between social and cultural factors and international development law in promoting more multidisciplinary approaches. Another central theme is the role of the state in development. The state is not simply a formal legal institution, but has both internal structures of legal competence and external, international legal commitments. There is a pattern of litigation history between the compatibility of the two, with implications for development law. Extensive debate continues over what constitutes development, why and how developing countries should pursue it, and what the eventual goal ought to be. This debate is necessary in retaining the vitality and practical relevancy of law. Development constitutes a form of social and societal change, and the relevancy of law depends on its responsiveness to such change; as such, the role of law in development should be of significant, if not dominant, importance.

Theoretical Overview

Over time, the perceived purpose of law has shifted from being an instrumental means to development to a, if not the, principal objective, alongside economic and political development. While legal, economic, political, and social systems were seen as mutually constitutive, law was held to have primary function, being conceived as having the capacity to engineer development (Tamanaha 2011). However, attempts to transplant this legal model to developing countries were unsuccessful (Merryman 1977, Tamanaha 1995, Levy 2011), a key explanatory reason being the absence of underpinning legal cultures in these countries requisite for legal models to take root. As Carty 1992 and Carty 2002 illustrate, the trajectory of the field has changed over time, from overwhelming stress in the 1960s and 1970s upon the role of law in international development driven by an interventionist state to the 1980s and 1990s focus on market-driven development (the so-called Washington Consensus) and to the post-Consensus years, which have seen a comprehensive, holistic approach bringing law, good governance, and economic and sociocultural dimensions together under the rubric of “human development” (Carty 2002). Law and development as a field began initially with positive energy, marked by a sense of human progress during a period of sociopolitical change: from the dismantling of segregation in the United States to the decolonization-independence process in Africa and Asia (Carty 2002; Merryman 1977; Faúndez 2012; de Waart, et al. 1988; de Waart and Denters 1992). However, the work produced by the law and development movement was, according to Merryman 1977, heavily isolationist, leading to it being little used in other disciplines. Contributing significantly to its decline at that time was the Movement’s own intellectual style, grounded in an “American style” of legal scholarship that was parochial and isolationist. More critically, it created a problem in communicating with those it was seeking to help—the “Third World”—and its inevitable failure came from its attempt to impose American ideas and attitudes on a Third World with vastly different legal traditions and legal orders. The emphasis, consistent with the view of law as a means of social engineering, was reform of legal education and the legal profession in these countries as a tool for achieving development objectives. During the 1960s, the law and development movement had a significant influence on legal training and the legal professions in many developing countries such as Colombia, Chile, Ethiopia, Peru, and Sri Lanka (Tamanaha 2011). This period also saw the emergence of a critical law and development school of thought. Trubek and Galanter 1974 charged the liberal rule-of-law model with ethnocentrism. “Self-estrangement,” however, had far more to do with events at home in the United States than with the situation in developing countries (Tamanaha 2011), and this further pushed the law and development movement into the doldrums, coinciding with the onset of the market-driven philosophies of neoconservative perspectives and the Washington Consensus era (Carty 2002). A key aspect of law and development’s ongoing crisis is that the scope and practice of the field remain poorly defined (Levy 2011, Carty 1992). This can, of course, be an advantage offering opportunities for cross-fertilization and interdisciplinary approaches (de Waart and Denters 1992), but it can also be a disadvantage in a central lack of agreed core focus. However, an emphasis upon overcoming damaging allegations of ethnocentrism, either real or imagined, and a shift in focus to questions and challenges of social change and transformation, including situations of post-conflict societies, as well as the increasing international acceptance of sustainable development have served as factors of renaissance (Faúndez 2012).

• Carty, Anthony. Law and Development. London: Dartmouth, 1992.

  This is a particularly useful collection. It provides a selection of readings that traces the boundaries of the law and development debate within states as well as internationally over the 1960–1990 period. It ranges from Marxist to liberal, human rights–based theories.

• Carty, Anthony. “The National as a Meta-Concept of International Economic Law.” In Perspectives in International Economic Law. Edited by A. Qureshi, 65–79. Leiden, The Netherlands: Kluwer Law International, 2002.

  A work that examines the historical evolution of the right to economic self-determination and the New International Economic Order of the 1960s and 1970s in the light of the new “neo-liberal imperialism” of the 1980s and 1990s.

• Chowdhury, Subrata Roy, P. de Waart, and Erik Denters. The Right to Development in International Law. Leiden, The Netherlands: Martinus Nijhoff, 1992.

  This study presents a wide-ranging discussion and debate about the right to development, with a central interest in the theoretical and interdisciplinary dimensions.

• de Waart, Paul, and Erik Denters. The Right to Development in International Law. Dordrecht, The Netherlands: Martinus Nijhuff, 1992.

  The chapters in this book draws upon a set of 1992 conference papers on the NIEO, related to the U.N. Declaration to the Right to Development, is highly diverse, covering over 33 topics with arguments in favor and against the Declaration clearly presented. The book examines the points raised in the first chapter that “the Declaration continues to be a challenging subject for legal commentary for its detable legal status, its combination of collective and individual rights, its expansive conception of development and its equivocal obligation.”

• de Waart, Paul, Paul Peters, and Erik Denters, eds. International Law and Development. Berlin and New York: Springer, 1988.

  This offers a useful critical review of the “first wave” of international law scholarship in the wake of the passing of the UNGA Resolution on the Right to Development. It includes contributions from the leading figures in the field at the time.

• Faúndez, Julio, ed. Law and Development. London: Routledge, 2012.

  This four-volume collection traces the evolution of the Law and Development movement, identifies key theoretical texts, provide articles from various disciplines, and offers a selection of case studies on implementation. Also covers later period.

• Levy, Brian. “The Politics of Development.” Development Outreach 13.1 (2011): 58–63.

  DOI: 10.1596/1020-797X_13_1_58

  Levy’s account of the development model over the last fifty years and the “numerous tectonic shifts” it has experienced shows how it has had far-reaching implications for development policy formulation and implementation.

• Merryman, John Henry. “Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement.” American Journal of Comparative Law 25 (1977): 457–491.

  DOI: 10.2307/839690

  The article explains the intellectual origins of the law and development movement; diagnoses the dominant intellectual style of the movement, which Merryman argues contributed to its decline; and identifies a subfield he believed held promise for the post-movement future of the field.

• Tamanaha, Brian Z. “The Lessons of Law-and-Development Studies.” American Journal of International Law 89 (April 1995): 470–486.

  DOI: 10.2307/2204226

  The paper reviews the accomplishments of law and development, its condition, and its future direction. It sets out lessons related to the role law plays in developing countries and the nature and effect of the study of law in developing countries.

• Tamanaha, Brian Z. “The Primacy of Society and the Failures of Law and Development.” Cornell International Law Journal 44 (2011): 209–247.

  A typically incisive analysis from one of the field’s leading figures. The paper aims to “expose aspects of the relationship between law and society that are usually hidden from view.” It critiques the field, identifies failings, and emphasizes the importance of law and society through the “connectedness of law principle.”

• Trubek, David, and Mark Galanter. “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States.” Wisconsin Law Review (1974): 1062–1101.

  A landmark critique; a powerful analysis of the foundational features of the dominant epistemology and practices of law and development, labeled as legal liberalism. It goes on to provide a comprehensive and incisive exploration of the sources for the challenge to legal liberalism.