(By San Ng, created 3/9/09, updated 7/8/09)


The use of 'law' to promote 'development' has been prevalent since the beginning of the 'development' field, which arguably began after World War 2. Since then, it has ebbed and flowed, with a renewed life since the early 1990s. While there have been much written about about law and development, there is a clear lack of consensus about whether law can have a real impact in international development. So let's take a look at what some of the things scholars are saying, and why there are so many disagreements. 


Views of Law and Development


While these might seem to be discrete views, they are in fact overlapping and 


Historical Views of Law and Development


Scholarly interest in this area began long ago, for example:



scholars such as Weber studied the various aspects of this relationship in the 18th and 19th century. 
Scholars have also been interested in the role played by law during colonization in the 18th and 19th centuries. 
Since the 19th century, scholars from developing countries have been deeply concerned about the role that law might play in development.While I hope to be able to learn and share more about the historical theories of law in development in future, I will only explore the views that are relevant to 'international development' as we know it today.




Modernization Theory 


In line with 'International Development' arising as a field of study and practice after World War 2, the first application of law in this field, which emerged in the 1960s, is known as the 'Law and Development movement'. While it has been widely criticized (actually first by the very peopke who had initially pushed for and implemented it), current scholarship and practice has roots in this movement. Some have continued to claim that institutions like the World Bank, which was a big proponent of the Modernization theory, is still practicing it today despite claims of doing otherwise. 

Because this movement arose from the Modernization Theory, let's look at what the latter says about development: 
Poor countries need to 'modernize'- undergo the same linear process of evolution from undeveloped to developed, as developed countries had experienced themselves. 
This 'modernization' would be done by the transfer of capitalism institutions, and values from the developed countries. 
What is important is a free market system, the rule of law, multi-party politics, the control of power, and human rights.
Throughout this process the state would serve as the primary agent of social change. This translated into a theory for that Western laws and legal theory can help 'modernize' developing countries. 

It focussed mainly on the transfer of the substantive rules of law
It also believed that the law profession and the state will act as 'social engineers' and promote 'development', ie that 'reformed' lawyers will promote a 'reformed state'. 
Some also argue that common law is inherently superior to civil law.
It has a top-down, north-south, 'one-size-fits-all' approach. 


New Institutional Economics 
This is the school of thought propose that legal institutions and systems (as opposed to lawyers and the legal profession), are the key instruments for development. This theory has roots in the emergence of the New Institutional Economics in late 1970s/early 80s, law and development specialists. There are many overlapping beliefs betwwen the New Institionalists and the Modernists. 


Specifically: 

Instead of wholesale promotion of Western laws, certain types of laws became more important that others. These are the ones that promote and facilitate a businesses and system of capitalism the most: property rights, contracts, corporate law, credit and bankruptcy laws, and taxation. 
To promote the making and enforcement of these laws, law-making institutions involve with law making, law enforcement and administration should be transparent, inclusive and effective. 
Some New Institutionalists, unlike the Modernists, believe that it is not necessary that Western norms in laws and institutions be exported. All that matter is that local norms support the making and enforcement of laws that promote a market system. 



New Constitutionalism


In light of the end of the cold war and the disintegration of the USSR in the early 1990s giving rise to a host of transitioning countries, Constitutional Law became the new kid on the block in Law and Development theory and practice. Over 56 per cent of the 188 member states of  the United Nations made major amendments to their constitutions in the  decade between 1989 and 1999 and of these states at least 70 per cent adopted completely new constitutions.