Abstract
The relationship between law and the process of development is highly problematic and has been the subject of intense controversy for several decades. This debate has been re-energized by the explosion of rule of law (ROL) programs being implemented in emerging economies and most developing countries. This chapter explores the theoretical foundations of development and describes a possible reconciliation of opposing viewpoints and approaches to development both in practice and in theory. This chapter also sets forth a new analytical framework for legal reform programs in light of the ROL work that has been completed since 1989.
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Notes
- 1.
See Giddens (1971), pp. 124, 125.
- 2.
Id. at 125.
- 3.
It has also been argued that the Protestant work ethic is not the only “spirit” which motivates capitalist production. Overseas Chinese communities have been singularly successful in generating economic wealth without relying on rational laws but by relying on their traditional customs. Thus, informal relationships rather than formal laws prescribe successful capitalist behavior for them. Therefore, traditional customs need not be inimical to a rule of law framework and may effectively control behavior integral to the successful generation of capitalist wealth. See generally, Plotkin (1992), where the successes of the Chinese, Japanese, Indian, Jewish, and Protestant “tribes” are critically examined with regard to the linkages between ethnicity and capitalist success. Indeed, Max Weber may have put this type of analysis in motion by his thinking that certain ethnic enclaves by being excluded from positions of political influence “were driven with peculiar force into economic activity,” with the specific examples of Poles in Russia and Eastern Prussia; the Huguenots in France; Quakers in England; and Jews in mind (See Weber 1992). See also Chua (1998), pp. 1, 32 n. 152.
- 4.
See M. Weber, Economy and Society, G. Roth & G. Wittich, eds. (1978). This three-volume work contains excerpts from Weber’s Sociology of Law .
- 5.
Id.
- 6.
Id.
- 7.
D. Kellner, “Globalization and the Postmodern Turn,” at 7, 8.
- 8.
See e.g., Rostow (1960). The modern-day descendant of this type of approach is generally referred to as the “Washington consensus.” See Trubek (1996), pp. 223–224, who writes: “The ‘Washington consensus’ is a term often used to refer to the dominant paradigm in development thinking among Bretton Woods institutions [i.e., the World Bank and the IMF]. This approach is radically different from development thinking in the 1960s when the law and development idea was first articulated. Then emphasis was placed on central planning, state enterprise and inwardly oriented import substitution industrialization. The Washington consensus, on the other hand, promotes markets as allocative institutions, favors privatization and promotes closer linkages to the global economy.”
- 9.
In fact, Rostow divides that linear process into several stages: (1) the traditional society; (2) the creation of the preconditions for capitalist development; (3) the mature capitalist state; and (4) the final stage of mass consumption. Under modernization theory, the role of an entrepreneurial class that saves and invests wisely is critical to this linear progression. Creating a consumer-based society is the final dictate of capitalist success. See W. W. Rostow, The Stages of Economic Growth; see also Rostow (1990), pp. 4–46.
- 10.
This approach was based on the ground-breaking work of Walter Rostow. See Rostow (1960).
- 11.
Id.
- 12.
See generally, Hunt (1989).
- 13.
A new economic discipline was imposed in terms of stabilizing the developing economies through structural adjustment took the form of: (1) a balance-of-payments reconciliation; (2) a realistic and often devalued foreign exchange rates; (3) restrictions on the money supply to curb inflation; (4) fiscal reform by reducing the fiscal deficit by curbing government expenditures, eliminating subsidies and increasing the tax base of the economy; (5) reforming the financial sector by introducing bank restructuring (including meaningful bank supervision and controls), privatization of state-owned enterprises (SOEs) , and encouraging and stabilizing emerging capital and commodity markets; (6) opening the economy to free trade and investment and finally, (7) making necessary sectoral reforms in the agriculture, industry and the social sectors of health, education and social safety net issues.
- 14.
Bruton (1998).
- 15.
See generally, Fitzgerald (1995), who argues, in part, that free markets cannot compete with the successes of state-led economic growth both in Europe and the United states from 1945–1970s, and in Asia from the 1970s onwards.
- 16.
See Furuoka (2005).
- 17.
Rodriguez (2008), p. 39.
- 18.
- 19.
See generally, Irogbe (2005).
- 20.
For an overarching view and critique of dependency and world-systems theories, see generally, Kiely (2010).
- 21.
Williamson (2002).
- 22.
See Rodrik (2006), p. 973, Table 1 at 978.
- 23.
Roxas (1996).
- 24.
Easterly (2001), Chapter 2.
- 25.
Arner (2007), pp. 15–16.
- 26.
- 27.
Arner (2007), p. 19.
- 28.
See e.g., Fukuyama (1992) (purportedly describing man’s “universal history” by arguing that liberal democracy is the “end point of man’s ideological evolution” and thus, the final form of human government. This, in essence, constitutes the “end of history” beyond which no further evolutionary development should be expected). In response to vigorous critiques of his analysis, Fukuyama defends himself as a “former neoconservative” whose visions of the” “End of History,” present a kind of Marxist argument for the existence of a long-term process of social evolution, but one that terminates in liberal democracy rather than communism.” Francis Fukuyama, “After Neoconservatism,” New York Times Magazine (February 19, 2006). However, this “vision” still delineates a linear view of history with a predetermined Western-focused ending point.
- 29.
Modernization theory supports the view that, “law is essential to economic development because it provides the elements necessary to the functioning of a market system. These elements include a universal rule uniformly applied, which generates predictability and allows planning; a regime of contract law that secures future expectations; and property law to protect the fruits of labor. In theory, law assists political development by serving as the backbone for the liberal-democratic state. Law is the means through which the government achieves its purposes, and it serves to restrain arbitrary or oppressive government action.” Tamanaha, supra, note 2, at 473.
- 30.
See generally Botchway (2001), pp. 159, 177–180.
- 31.
See e.g., Shapiro (1997), pp. 14, 20:
The traditional critiques about Modernization theory’s ethnocentric bias are still relevant. The assumption that Western forms of political, economic, and social organization can provide universal models requiring only minor adaptations to the cultural and historical contexts of CEE [Central and Eastern European] countries reflects Western cultural biases. At the same time, this view dismisses the anthropological conceptions of culture and postmodern understandings of context where systemized ways of organizing the world are embedded within specific cultural and social systems. . . Modernization models are derived from Western cultural and historical legacies. The specific conditions from which free markets and liberal democracies in the West emerged are not comparable to those in CEE countries, even those CEE countries that had some prior democratic and free market traditions. Further, Western political and economic systems have undergone massive changes since their inception so that the current forms barely resemble the early stages. Yet countries in the CEE region are expected to catch up to conditions that have taken decades to develop in the West. Many authors have noted that such expectations are a formula for uneven and unpredictable development. In many ways, the Modernization process in CEE is like trying to rebuild a Skoda into a Mercedes while speeding down the road at seventy miles an hour. Id. (citation omitted).
- 32.
Indeed, the so-called “neoconservatives” have cautiously declared victory in war-torn Iraq, initially seen as a “neocon” policy disaster. But 17 years following the invasion of Iraq in 2003, and having defeated the Islamic State in Iraq and Syria (ISIS), ushering in democratic elections, and staving off a Kurdish move for independence, some see the invasion as “justified.” This is certainly not accepted in all quarters as, “[t]oo much blood was shed along the way in Iraq and elsewhere. America botched the occupation, touching off a brutal Sunni insurgency. Then Iraq’s politicians stoked sectarian divisions, leading to yet more violence. They must learn from these mistakes, or they will waste this hopeful moment.” “Fifteen Years After America’s Invasion, Iraq is Doing Well,” The Economist, (March 28, 2018).
- 33.
See e.g., Robert Kaplan, “Turkey’s Precarious Success,” New York Times , Feb. 27, 2001.
- 34.
- 35.
The Globalist, “Turkey’s Erdogan: Leader-for-Life?” (March 20, 2018). Of course, bear in mind that most parliamentary democracies do not have specified term limits, so that Germany’s Chancellor, Angela Merkel, for example, is in her fourth term as of this writing. Id.
- 36.
Carlotta Gall, “Erdogan’s Victory in Turkey Election Expands His Powers,” New York Times (June 24, 2018).
- 37.
Chris Buckley & Adam Wu, “Ending Term Limits for China’s Xi is a Big Deal. Here’s Why,” New York Times (March 10, 2018).
- 38.
Alexander Noyes, “In Africa, presidential term limits are working,” Wash. Post (April 24, 2018).
- 39.
Id., see also Cheeseman (2018).
- 40.
Sarfati (2017), pp. 395–415.
- 41.
See e.g., Larry Rohter, “Chile’s Retirees Find Shortfall in Private Plan,” New York Times, Jan. 27, 2005; Joseph Kahn, “Democratic Hopes Test China’s Political Limits,” New York Times, Mar. 2, 2003.
- 42.
William Galston, “The rise of European populism and the collapse of the center-left,” Brookings (March 8, 2018).
- 43.
See e.g., Shapiro (1997), pp. 14, 20.
- 44.
Tamanaha, supra, at 472.
- 45.
See Trubek and Galanter (1974), p. 1062. These commentators proposed an “eclectic critique” that criticized the law and development model based on modernization theory as “ethnocentric and naïve.” Id. at 1080. They argued that this modernist view of developing a legal infrastructure did not reflect the realities of developing countries, and was potentially dangerous by attempting to export legal forms and institutions that could too easily be manipulated by and for the purposes of the controlling elites in the countries in question. Id. at 1099.
- 46.
“These Modernization revisions included: (1) a greater focus on the role of tradition in processes of social mobilization and change; (2) an expanded methodology of case studies and historical analyses; and (3) a more sophisticated analysis of change that examined the role of multiple institutions, multilinear paths toward development, and the interaction of internal and external factors influencing change.” Shapiro, supra note 8, at 16 (citation omitted). Most importantly, modernization thinking has been revised to move away from nation-state directed growth (top-down approach) and towards civil society development (bottom-up approach).
- 47.
- 48.
Bilder and Tamanaha (1995), p. 473.
- 49.
Id. at 474.
- 50.
Trubek and Galanter (1974), p. 1062.
- 51.
Bilder and Tamanaha (1995), pp. 470, 474–475.
- 52.
Id. at 475. For a much fuller discussion on the different movements and tensions within the Law and Development movement, see Trubek and Santos (2006). Specifically, Duncan Kennedy’s essay, “Three Globalizations of Law and Legal Thought: 1850-2000,” gives an historical context to shifting forms of legal thought encompassing classical legal thought (1850–1914), social thought (1900–1968) and neoformalism (1945–2000).
- 53.
Id. at 474–475.
- 54.
Id. at 475.
- 55.
See e.g., Franck (1992), pp. 18–24.
- 56.
See S. Huntington, Clash of Civilizations, at 310.
- 57.
Indeed, this may be a propitious time to renegotiate what constitutes “universal” or “fundamental” rights, long considered self-evident and a human entitlement to Western scholars. If, however, this effort is to be undertaken seriously, non-Western societies may need to re-examine the principles of cultural relativism that can all too easily be used to camouflage and perpetuate violations of basic human norms. Not all practices swept under the rubric of “culture” are supportable. For example, many cultural forms that oppress women (e.g., dowry, female circumcision) should be critically re-examined to assess their value, as cultural norm. Despite the “imperialist” pretensions of modernists, however, past experience clearly demonstrates that any real change to cultural norms must come from within the society. Conformity to non-indigenous cultural norms cannot be imposed from the outside. See Mountis (1996), p. 113. (See the discussion on whether there is a human right to development in Chap. 4 of this text.)
- 58.
See e.g., Greenberg (1992).
- 59.
While the relative merits of this critique lies outside the scope of this discussion, it is important to note that this theory formed the basis of certain economic models used by developing countries, the most prominent being import substitution. In another contrast with modernization, dependency theorists did not describe a single “process of development” but rather several models of development.
- 60.
Declaration on the Establishment of a New International Economic Order, G.A. Res. 3201 (S-VI), § 4e, U.N. GAOR, 6th Spec. Sess., Supp. No. 1, at 3, U.N. Doc. A/9559 (1974).
- 61.
Certain parts of this following analysis was originally set forth in a previously published law review article, Sarkar (2005), p. 367.
- 62.
Widespread debt relief has not always met with approval even from a developing country perspective as there is an implicit “moral hazard” to debt relief insofar as recipient nations may appear uncreditworthy and unattractive to investors. See e.g., Barbara Crossette, “Ex-Premier of Singapore See Pitfalls in Debt Relief,” New York Times , Oct. 15, 2000, at Final 4.
- 63.
See e.g.,15 U.S.C. § 4728(a) (2004) (stating in relevant part: “it is the policy of the United States to foster the export of United States environmental technologies, goods and services. In exercising their powers and functions, all appropriate departments and agencies of the United States Government shall encourage and support sales of such technologies, goods and services.”).
- 64.
Bilder and Tamanaha (1995), p. 479.
- 65.
See Lan Cao, Book Review of Law and Development, at 554–555.
- 66.
Conference of the Parties to the Framework Convention on Climate Change: Kyoto Protocol, Dec. 10, 1997, U.N. Doc. No. FCCC/CP/1997/L.7/Add.1, reprinted in 37 I.L.M. 32 (1998) [hereinafter Kyoto Protocol].
- 67.
See FNM Team, “Difference between Paris Agreement and Kyoto Protocol is in the Approach to Achieve the Ultimate Goal of Stabilizing Greenhouse Gases in the Atmosphere,” Facts N Me, (May 20, 2017).
- 68.
Id.
- 69.
Id.
- 70.
Id.
- 71.
See UN Climate Change website listing the Status of Ratification.
- 72.
Michael Shear, “Trump Will Withdraw U.S. From Paris Climate Agreement,” New York Times , (June 1, 2017).
- 73.
Mythii Sampathkumar, et al., “Syria Signs Paris Agreement—leaving U.S. only country in the world to refuse climate change deal,” Independent (November 7, 2017).
- 74.
“Climate change: Trump says US ‘could conceivably’ rejoin Paris deal,” BBC News (January 11, 2018).
- 75.
See Stone (2004), pp. 276, 278.
- 76.
The General Agreement on Tariffs and Trade (GATT) added nonreciprocal trade provisions in favor of developing countries in 1979, by permitting “differential and more favorable” tariff treatment. Stone, supra, at 278.
- 77.
Stockholm Declaration of the United Nations Conference on the Human Environment, Stockholm Declaration, U.N. Doc. A/CONF.48/14, princ. 12 (1972), reprinted in 11 I.L.M. 1416, 1419 (1972).
- 78.
See Report of the World Summit on Sustainable Development, U.N. Commission on Sustainable Development, U.N. Doc. A/Conf. 199/20 (2002).
- 79.
Montreal Protocol, art. (2)(9)(c).
- 80.
Kyoto Protocol, supra, art. 3(1).
- 81.
The Kyoto Protocol entered into effect on February 16, 2005 following its ratification by the Russian Parliament on November 5, 2004. Article 25 of the Protocol specifies that ratification by 55 countries representing 55% of the total worldwide greenhouse gas emissions is necessary in order for the accord to take legal effect. See Kyoto Protocol, supra, art. 25. Notably, the United States and Australia have not ratified Kyoto. See Gary Thomas, “Global Warming Accord Takes Effect Minus US, Australia,” Voice of America, Feb. 14, 2005.
- 82.
While the Kyoto Protocol excludes developing nations from making emissions reductions, Art. 12 of the Protocol establishes a Clean Development Mechanism to provide incentives to industrialized countries to finance emissions reduction projects in developing countries (e.g., emissions trading, carbon sinks). See Kyoto Protocol, supra, art. 12.
- 83.
Magraw (1990), pp. 73, 74.
- 84.
This section is a summation of a previously published law review by the author, “Theoretical Foundations in Development Law: A Reconciliation of Opposites?” 33 Den. J. Int’l L. & Pol’y 367 (2005), and published here with the kind permission of the publisher.
- 85.
Neil MacFarquhar, “Unexpected Whiff of Freedom Proves Bracing for the Mideast,” New York Times , March 6, 2005; Todd Purdum, “For Bush, No Boasts, but a Taste of Vindication,” New York Times, March 9, 2005; Thomas Friedman, “Arabs Lift Their Voices,” New York Times, Apr. 7, 2005.
- 86.
For a fuller discussion on the collapse of failed and failing states and its relationship to Islamic-based terrorism, see Sarkar (2013).
- 87.
In an attempt to mitigate the one-sidedness of this approach, I have proposed the Janus Law Principle (JLP) after the Roman God Janus, who looks both forwards and backwards simultaneously. By this, I simply mean to suggest that there are implicit time and space dimensions to sequencing and synchronizing legal reforms. The developing country in question should plot out on a time-space axis for the multi-dimensional legal reforms it is considering. For example, on the time axis, the types of legal reforms a developing country wishes to make in terms of globalization of law efforts (future) along with maintaining its own authentic legal traditions worthy of preservation (past) should be plotted out. On the space axis, the country in question should look to its internal national needs (home) and its need to integrate more fully into the global economy (the world.) One of my students also suggested that the JLP axis also be used as the legal coordinates for a fuller analysis that could include economic data and socioeconomic criteria.
- 88.
Section 2.2.2 is a summarized excerpt from an earlier publication by the author, “The Developing World in the New Millennium: International Finance, Development, and Beyond.” 34 Vanderbilt L. Transnat’l L. 469 (2001).
- 89.
In fact, it may be wise to draw a distinction between ethical values and the methods of deriving such values. The Josephson Institute, for example, has developed a methodology for deriving corporate or institutional ethical values by asking participants in its sessions to name persons with admirable qualities, identify the underlying characteristics of such people, and through the process of hypothetical examples, apply such qualities to problem-solving situations. Over the course of this process, the participants are able to weight these qualities, and decide what their core ethical values are. Applying such core values to ethical problems (that cannot be answered by reference to established legal norms) helps to integrate the corporate culture with its ethical basis. See Josephson Institute for Ethics, “Ethics is Everyone’s Business!” Ethics in the Workplace Training Program.
- 90.
Prematurely imposing legal codes and substantive law principles is something that Professor Salbu warns against by stating: “the codification of values has greater potential within highly cohesive, well-developed communities than within culturally fragmented, developing communities. Codification prior to the development of a traditional community structure becomes totalitarianism at the extremes because moral judgments are imposed absolutely without a source of democratic support. . . . As the Twentieth Century draws to a close, nations must coexist before mutual cultural assimilation can occur. It is likely that efforts to force assimilation by prematurely codifying ethical codes would be ineffective and dangerous. Laws without underlying values are meaningless to those who do not understand them because their foundations are alien. Further, the application of laws without an understanding of their purposes is a potential source of international and intercultural resentment and hostility.” Salbu (1994), pp. 327, 351–352.
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Sarkar, R. (2020). The Rule of Law: Theoretical Principles. In: International Development Law. Springer, Cham. https://doi.org/10.1007/978-3-030-40071-2_2
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