willingness oF inability of the govern- rents to implement the Iavs.t0 In Af. ries constitutional freedoms of speech and press have proved insufficient to [Protect journalists and members of the political epposition Even statutes ad- dressed to development are often dic vorced from reality. Liberia, for ex ample, has @ compulsory education law nobvithianding a chroxie and ser shortage of school facilities Thus, a researcher cannot find an acourste dex seription of life in an underdeveloped ‘country in its laws ‘Whatever justifcation there may be for a failnre to enforce or implement modernizing legislation, the overall 10- salt is deterimental to the legal system ‘end t» political development. The rule of law is the first to suifer. Citizens lose their respect for laws that do nat meen what they say. And in turn dae plicity infects the supporting institu. tions aad the government tall. The nopenforcement of laws encourages both oficial corruption and popalr suspicion of corruption. In the words cof law professor recently returned from teaching tours in Chena and Nigeria: ‘The mos ebrious aypect of the common disecard for Iogalty is the widespread fcoraption that peemeater the fabric of fost African State,» Cernuption bias become the central encmy of de- lopment, at Jeast in West Africa is not surpzlsing thet within the between law and practice and behind a wil of corruption, “the lnvyor tends to Ibe looked upon as a kind of manipula: tor ar fixer who, in many ways, fails to represent socieiy's basic. values and attitudes” (3) Too many lawyers, The un- realiability or absence of satistical data in developing countries makes it dificult to rank lavyers on the man- power scale. Yet several commentators (lawyers as well as politcal scientists) ‘have concluded that the underdevel- ‘oped countries have too many layers. For example, L.C.B, Gover, for several years a professor of lew at the Univer- ‘ity of Lages, remarked that “too great proportion of highly trained talent is heing siphoned of into the legal profession to the detriment of ther gap skilk”.™ Professor Pye views the grow- ing. ronks of unemployed Inwyers with alarm, He describes them as ‘full of ‘unquencheble ambitions and, with time ‘on their hand, fro only to nurse their fantasies and fo engage in scheming”. Al this, he says isa threat to “orderly ‘and stable political life". ‘As Professor von Mehron chserved u India, the private law practice in der veloping countries offers fewer finan- cial or intellectual rewards than other professions and occupations** Conse- quently, 2 hrge number of lawyers in poor countcies rely om government service for employment, often retaining 1 parttime practice directed to foreign ©) Too much Utigation Com parative studies of the volume of trial court Iitigation have not yet beon writ ten. Administrative court records are as hard to come by at manpower data So again recourse must be made to vis itor’ impressions ané_ generalization. Tn West Aftica, for example, the gou eral populse is suitconscious. Tt is not unusual for the litigants to risk court costs and to assume attorney's fees far in excess of the amounts in dispute. As ‘a result, the magistrates and justices of the peace tend to become arbiters of the mest trvisl Kinds of diepa ‘Their dockets are habieaally crowed. It should, howerer, be pointed out that in a majority of these lower court ‘cases the litigants reprecent themselves for have a nonlawyer friend sot as their “agent” at tial. (Z)_ The pathy of lawyers toward development problems. ‘The failure of lawyers in advanced and poor countries slike to tackle develop: rent problems has slready been neted. Tn the developing countries, a descrip. tion of the Indien situation appears typical India totay presents the paradox—ore frequently encountered in the conten: porary vorlé—ot a apciety that makes fetensiva ase of laws bat Lacks « legal profeesion that understands Tew at an Instrument of economic and social a+ ceiteeure 8 Uhimately, the noninvolvement of lawyers in the development process Law and the Developing Countries aunties the problems of excessive ite gation and too many lawyers Law as an Instrument of Development Law in development is not withoat its defenders, They have contended. tat the strengthening of legal inst tions is a “precondition for ozonomie change”, “enucial to the viability of “modernizing. and innovative impact con the social order" = ‘The argumenis in support of law and Teg ineitations have taken tho {ellowing lines: (1) Law reform, espe cially in the aress of land tenure, bus nest lav, commercial transactions and taxation, stimulates economic growth. (2) Integration of daa legal system a key to zational unity and hence is a frat step towards political development (3) A legal system is the principal means of balancing change with stae Diy, state intervention with private rights and economic. growth with hhoman values, (4) ‘Tho climate for modernization is enhanced by a com patent, hoaest and independent judicie ‘iy. (6) The legal profeeion may act as an efcent countervailing force in & fone panty sate (2) Law reform, Long before the ‘ra of planned development, ‘Thomas [athus saw the importance of law in fostering national westh: 1G Lambor Lamy Aneateas Soci Smoronce inn’ Fonineat inerrenrone oor tine) TY, The beaey hand ofthe cont poe Ip swaprening ertcin fe noted tm Mae, Fone Tact Goiemas Rowe” bees Law Jounal 179300" Decide, 1969) a Hobe et a, US. dom crea Hand book jor Liberia THB19 {1968 TS Seidmaan, sara mete at 2 1, Von Mette: Law avd Loge fitucatoe fn 'Indue” Sone Gbieratons, 18 Hate. Ty ees 069) TS Gos, Isisrmouer Amica: Tag CGuatsezon io THe Lucas Proreston 109, ‘sen Te Pyoy supe mote 8 a 12, TE Ve! Mom supra ncte ot 110 IE Yon Motor, supra nots (ht 118, 1S. Alle, supra aote 4, at 207 20, Bren The Holt af Caw in Pai al Dereopment, Paper read Bofre the Cn (feence om Tatrtatnal end Comparative nwo! the Comments, Dake tinier, Dahan, Nor Canon Oct 38186 danuary, 1972 © Volume 58 35‘Law and tne Developing Countries L. Michael Hager, Regional Legal ‘Adviser to Me United States Agency for International Develooment Mis- sions to Pakistan and Afgharistan, was 2 former attorney-adviser in the Office of Goneral Counsel, AID.. Wathington, D.C. Ho rocolved his education at Harvard University (A.B. 1960, LL.B. 1963, NLP.A, 1968). much lesa t9 cope vith the wore dy namic requirements of economic plan ring. Two examples will Mustrate the problem, Many Afviean countries 2c- tain one or more systems of tribal oF socalled customary ln. Usually these laws coexist with a ntlonal legal ays tem based on Western lw. Within Kine ited jusiditional bounds, customary lave may even be enforced by the na- ional courts. Whilo customary law re. flects the traditional cure and sspi- rations of a majority ofthe peopl, it is rooted in » subsite economy a 1 paternalistic, kinship-oiented policy. Ie fellows that the customary law “dons not address itelf to any of the impor. tant isves raised by development”? ‘A similar appraisal might be made ‘of the received law in many underde- wloped countries, Almest everywhere ithas failed to hep pace vith modern- Jnntion ideals. The traditional system of land tenure may be ilhsited to eficient use of land: the absence of ion may inhibit the supply of credit; the out-of-date char- acter of the commercial law may deter Bren more fundas rentals, the recsived law is unpre: pared to balazee private agaist public rights in cases of planned economies 94 American Bar Association Journal tervention (2) Law ae @ protector of the status quo. Unreformed law ia any seciety san umbrella for vested inter ets ofall art, By the same tcken law “on the books” has an inert which is Alffoult 1 overcome. In developing Counties the propertiod end political ‘lite eft rai legal defenses of their prsileges. This may be done openly and direlly, as by lavs outlawing op- position panties! or providing for im Prisonment for debt? Or it may be ac- complished more subtly, 28 by adopt. ing eles taxes and customs duties in prelereree to progressive income taxes. Thus, as Profesor Crot concluded with respect to the law in Cexteal America itn as ely for ln to ere ‘as “the last line of defense ofthe status ao” as the “spearhead of social change® (3) The remoteness of the a- tional law from the popular cul- ture. Most underdeveloped countries use Western law in one form or an- other. A principal legacy of colonisl- jem was the civil law of continental Ea rope and the common lew of Great Britain. ven in nations that escsped colonial rule (such as Liberia) where hhas been a tendency to “receive” An- glo-American or Eurepedn law? The fact that these legal systems have been. externally imposed or imported, rather than created from within, raises’ at least two questions: Can a legal system, bb responuive to a society if it does not substantially reflect the culture and mores of that soriety? Has the eolenial 2, Stan, “Law ad Beonorie Devslep- amet in Independent English Speaking, Se, Sharan Aina", Ardea aN Law, 32 Ce ‘Sc ALLoTE, “Legal Development aed Beo- remnic Growih ln ines Canarne LAR TS Desatarise Cotntiis Top. (908). ‘Se eg, Slerea Leone, Nalenal Reform aon Goaicil (Preservation ef Peace) De: fee Noy 33/st, Citad in 3 Arca Liew Dieeer 36 (ier in eh part "Shoatd he dator bave ne property {the choi! shall aryat the dior and lake him before the Magitate er Tuve of reo Tage who shal tem con Tore de to be ingon’d na sail be provid for the pur: ‘6. Crus, “Lay, Development, and Regiosal Integrin in Conia Armeres: Analyt and past served to disoredit Western law? To the fir question the critics “no” and to the second “yes”. In op: posing an immediate sacrifice of eu tomary law te national law, Professor ‘Schiller has weitten: Tf fature judgments are rendered by tagitreles who afe strangers to the ‘community, and if they are based upo peineiples dictated by the central gov- emment and at odds with velles. tublished and recognized rales of local tcurtonary lew, there fe good reston to expect ees resorting to the stato cary Focusing upon the colonial imprint fof Western lav, Professor Pye has pointed out that “there is considerable danger that with the rise of popular nationalisn in many parts of Asia and Africa the principles of an orderly egal system will become unduly identi fied with @ past and parily-hated pe- riod of colonial rule”? He contends that the “ritualistic character and au- tonomous nature” of Western law, a applied in the developing countries, ae a deterrent to rapid change, (4) The gap between theory and practice. Closely related to the problem of remoteness is the disparity Detween law in theory and law in prac- tice. Tn ‘underdeveloped coun: tries, formal legalism supplants legal- ity. The impact of constivwional and statutory mandates upon everyday Life may be negligible. Exemples of ineffec- tual law abound. In Latin America the zeal for legislative enactment of land reform han heen exceeded by the un- etn A Reps wie Sere Ga Benet tae ie ee cet Si yherstieshcoral Se oe Py MSE aon Pete teat ed cele or ae ees faactel and by the’ Liberian cmon ai eagtind aed of the United. Site of SNe ae ot foth in eam and Blacks ‘tom's aad Kent's Commentary ann other Sithogard teatiges snd Gent” "Sciminse “Tatoguetien™= Arwuca_ aN ‘Pre Atrecrs or Pournen. Devetor swe 123 (1966)The Role of Lawyers in Developing Countries by L. Michael Hager Lawyers of developing counts ELATIVELY FEW schclars have cis tov inootves and ather ype of have not smpoyed ther talons in examined the role of law in eco. lw reform, Bathe dite is nee et ‘developmental activities, and the fol omic development. Why this neglect? ily resolved. An Education and World ‘of law in economic developmenthas There would seem to be at Feast three Afsirs report recently pointed oat the ems see manent: te reasons. First, the lawyers of the devel- “paucity of research relating to the Geveloping countries are 1 actHeve — od mutions are to blame. By and connection betwen law and social, the potential beneis of lepal ea Berea iy sad Gl Ae poeta bane of large they have not concerned them economie and pa - rvlogment ay cue ges” eee wih te peablame of the deel inf, ei the comin Seeceale erte eee mere oping countries. Economists, cultural te analyze these relationships effec sno can umount ie existing. oPINE . ; “ Me ieee ucicu Calpe: wraysle vem enloe te Geobes poeeee, acini . ~ involved in the codification of laws and cal scientists have taken the lead. the reform of legal institutions, until a When lavyers have parcignted in Wham lta be re paoning minions, they have tens arctmalatd found themselves elegeted 10 & Lay and Legal Insitutions whereas” fanction Play Significant Role Second, lawyers of developing coun Tia law and legal institutions play a tries generally have sot employed their gigriicant role inthe development Tegal talents in developmencal acivle process? While most observers would ties. Even cabinet ministers and £0"- Guewer “yee”, thoy would disegree a8 rnment officials who are lewyers by to whether that role is beneficial or training tend to divorce law from de- farmful ‘The argements in the nes velopment. A specifically Teyal a> ive fad fault with both law and law- proach has been lacking. Lawyers in yers, These criticisms may be summa- the poor countries do not enjoy a fa- ged as follows: (1) The Taw ia unre vorsble pablic image, Too often they gponsive to development needs. (2) are aseociated in the popular aritdl yw js yd by the government to pre with personal ambition ard selintor- ccrve the aatus yuo, (3) The la fe ts fet Peshaps this orientation detives foote from the popular cultere apd largely from the private law bias of fence meaningles te « majority ofthe mort legal odveatin the field of “d>- populace, al The dispanty between velopment Jaw” is virally unknown. [ert theory and prartice makes te Finally, the neglect of law in devel- corded law a sham (3) There are ‘opment studies reets uncertainty 8 pore than enouzh’ lawyers for the s0- to ite uhimate contribution. The qies- ety to absorb, (6) Exconsive litigation for ome observers is not siwply a isa waste of scarce resources, (7) Law ratier of degrve bat whether the law is yers are unconrerned vith development an ally of developarent oF an enemy. problems, Cities point to the familiar syndrome "Fach of these indictments bears cof too many lawyera—precee closer examinstion. With Ttigston and legal protection of "(Ly ‘The unresponsiveness of the political stetas quo. Proponents Inw to development needs. The law {in most underdeveloped countries isin Avrnor’s nom: This onde is adapted adequate to meet the day-to-day needs fom a peyer Pnpared fr the Sema’ om of their rapidly growing populations Erreien Aid he faba F, Kenedy Shon] idly growing pop at Cororamentamard Usieraty in De epecest 1 Fdgeaton and World fain “Lae ie Sree ef Agency Sor Tntenntbat Des Schnle™n toy commen drat, Novrber, ‘elogmen, hot Solely hose of the nar, 1956, rer 26 January, 1972 » Volume 58 33