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Key Text The Relationship Between Law and Development: Optimists versus Skeptics

Author: K. E. Davis, M. J. Trebilcock
Date: 2008
Size: 62 pages (260 KB)

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Summary

Is legal reform always an appropriate tool for promoting development in the global South? This article from the American Journal of Comparative Law argues that donors should adopt a cautious approach to investing in legal reform without further empirical study. While there are grounds for guarded optimism about the impact of legal reform, numerous fundamental issues remain unresolved and open to debate. Empirical studies have produced consensus about the importance of institutions overall, but much less agreement about legal institutions in particular.

Optimists and skeptics continue to debate which kinds of legal institutions are important and which can be replaced with informal instruments and practices. Optimal institutions of this type will be highly context-specific, with vital input from history, culture and established political and institutional practice. Related debates surround the questions of whether meaningful legal reform is indeed possible in certain situations and what shape the reform process should take.

This paper surveys a variety of optimist positions, including constitutionalism, internationalism and others, as well as a range of skeptic critiques regarding issues such as implementation and legal determinism. Findings include the following:

Cross-country data demonstrates that there is high variability in the performance of legal institutions, even over very short periods of time. It is thus unlikely that unchanging economic, cultural or political factors are fundamental in shaping these institutions.
Empirical evidence contradicts the skeptic claim that colonial heritage is an inescapable factor accounting for cross-country variation in legal institutions.
Full specification of a group of strong institutions for a country will depend heavily on context. There should be allowance for change over time and interaction with local, informal norms, a point that optimists often overlook.
Existing studies have added little to the understanding of how legal reforms should be implemented, including the positions of local and foreign actors. Another outstanding question surrounds the alleged conflicts of interest and tendencies towards bias of foreign actors.
Many of the results of previous studies should not be taken at face value, given subsequent critiques of the methodologies employed.

A number of specific implications for policy-making emerge from the findings above, modifying the more optimistic hopes for legal reform in the developing world. For example:

The international community should proceed modestly when promoting rule of law and other legal reform measures in the developing world. ‘Insiders’ with relevant local knowledge should hold a privileged position in any such efforts.
The key points of reference for many developing countries should rarely be legal regimes imported from the developed world. Legal arrangements in other developing countries with a shared background may be more appropriate models.
Policy-makers should carefully consider the particular comparative advantages which ‘outsiders’ from the developed world can bring to legal reform. The most prominent examples include money, technical expertise and comparative experience from other, similar legal reform situations.
Future research should be directed towards a detailed and context-sensitive analysis of actual legal regimes and institutions in different societies. Evaluations of these specific reform efforts can be compared to a broad set of generalised development goals.

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Source: Davis, K.E. and Trebilcock, M.J., 2008, 'The Relationship Between Law and Development: Optimists versus Skeptics', American Journal of Comparative Law, vol. 56, no. 4, pp. 895-946.
Author: Kevin E Davis , ked2@nyu.edu