Class Five

What is law and What is development

Law

There are several definition of law, all of which are based from the various views on the origis or sources
of law, its relationship with the State, its purposes and what peculiar aspect of it is in investigation. 1
Positivists may define law as those rules which are posited to regulate those dealings by man. A realist
would opine that it is the judgements of a judge and nothing more, However a simpler and widely
accepted definition is that it is a system of rules which a particular country or community recognizes as
regulating the actions of its members and which it may enforce by the imposition of penalties. HLA Hart
states simply that law is a system of rules. 2

Development

Development on the other hand refers to improvement, progress or growth to advance, increase or
expand. However development does not simply refer to economic progress of any given country or
region. It equally speaks to the welfare of the regions inhabitants. For instance, their health, education
and crime rates. Amarty Sen refers tto development as a process of expanding the real freedoms that
people enjoy. 3

Law and Development

Law and development is the study of the relationship between the law and economic, social, civil and
political development. Its schorlars analyse the link between law and development and examines
methods of using law as a tool in advancing development including human rights.

L&D has therefore been used as synonym with progress.The purpose of law is to charter a path for
developmental progress.

Problematic Link between law and development

These arise from the various movements including:

1. “Its theories make presumptions into propositions i.e many assumptions are used as the basis of
the study.”
2. There is a divergence/ deviation between conditions in developing and developed countries
3. Legal services are not evenly distributed between the classes. There is an increased cost of legal
services as well as reduced participation of persons in legal matters that concern them. Kleinfeld
claims that there are legal reforms which are prompted by foreign actors attempting to promote
their interests in matters such as global security or influencing policies on exports, encouraging

1
A zaiets, ‘Problems of Definition of Law’ (2013) No 1 Law of Ukraine Available at: https://www. Irbis-nbuv.gov.ua
Accessed on:
2
Robert S. Summers, ‘Professor H.L.A Hart Concept of Law’ Duke Law Journal (1963) p.629
3
Amarty Sen “Development as Freedom” (Anchor Books 1999)
 loans as opposed to prmoting countries to develop. This puts them at a perpetual state of
dependency.4
4. Implementation Problems- Judges may make certain rullings which advance their own interests.
Many have reffered to this state of affairs as the critical legal studies movement which advances
that the law is made for the political elite or those on top of the class pyramids and does not
consider the needs of the rest of the population.
5. Law and development movements is an attempt by the United States to impose its ideas on
third world countries. For instance capitalism was not an attempt to enlighten the African
countries but was for its own economic and pollical survival on the cold against USSR.

Making Presumptions into Propositions

Legal Liberalism

David Trubek and Marc Galanter described the tenets of liberal legalism and states that law and
development studies was two pronged. They stated that it was:

1. “A general model of the relationship between law and society

2. A specific explanation of the relationship between legal systems and development.”

Legal liberalism scholars advance that law is an instrument for social engineering and the reform on
legal education and profession is a means for achieving development objectives. The assumption here is
that legal reform shall inevitably result in development.

The following assumptions are also made:

Law and Development Movements

1. Post World War II Beginning of Cold War

World war II brought a hole host of problems such as refugees, rectification and settlement of disputes
regarding boundaries and the aministration of territories of the defeated and conqured nations. For
instance. Germany was devided into four administrative units among the four allied powers of the USA,
Britain, France and USSR. The United Nations was also formed which overhauled its predecessor the
league of nations in abid to foster international relations and maintain peace.

The time saw countries setting there eyes out on economic recovery. There was mass rural to urban
migration in a bid to increase labour and rebuild infrastructure, adopt automation techniques most
notably in the car industries inorder to improve both the quality and quantity of manufactured products.
New methods to achieve greater produce was also adopted in the agricultural sector. Schorlars began to
take an interest in the poor nations of the world and the mechanisms that they could induce inorder to
achieve development. The assumption was therefore that with more robust laws, came greater
development. The cold war period saw a great number of American lawyers attempt to impose their
development policies on third world countries or in other words mimic the legal happenings of the

4
Kleinfield
western world in their attempt to achieve similar development in poorer nations. The success of this has
howver been disputed.

The L&D theories, are a by-product/ consequence of the developmental assistance activities led by the
United States, international agencies and private foundations in conjuction with local goverments and
legal institutions in the developing world.

The hypothesis is that law plays an integral role in the development process and it is thus an instrument
for reform. The role that lawyers and judges play is social engineering as they play a part in directing the
law. A number of American agencies and private institutions including universities made an attempt to
make developing countries achieve development by imposing their policies on these nations. There
were several legal developments, a majority of which aimed to reform legal education inorder to
achieve development.

Political Development Movement

“This movement was justified as an effective method to protect individual freedom and expand citizen
participation in decision making, enhance social equality and increase the capacity of all citizens
rationally to control and shape their social life.” 5

It was characterized by the following theories.

1. Modernization theory

The origins of this theory can be traced back to the 1950s in the aftermath of the the second world war.
It has been credited for informing the political development movements through the efforts of
Americcan economists, political scientists and sociologists. The proponents of the modernization theory
hold the view that development is an inevitable, evolutionary process and thatultimately all
development was geared towards achieved in the global west. 6 The theory thus assumed that there is or
will be a diffusion of western law to the developing states. This is achieved in five developmental stages
namely:

i. Traditional stage- societies existed in forms of tribes and clans and production was largely
agricultural. (capital and technology lacking)
ii. Preconditions for takeoff stage- financial capital and technology received from Western
societies through foreign aid and investments.
iii. Take-off stage- cultural practices abandoned and western characteristics adopted.
iv. Drive to maturity stage- exportation of raw materials and manufactured products this
countries estabilish themselves in the world trade market.
v. Age of high mass consumption-high urbarnisation and social welfare.

According to theorisist espousing the mordernization dogma, underdevelopment is caused by the

traditions and cultures of societyand where a country can begin to embrace the modern ecnomic,
5
Rajeev Dhavan, “Law as concern:reflecting on law and development” in YashVyaset, Law aand Development in
third world (Kenya Litho Limited, Nairobi, 1994) p. 25-50
6
Trubek & Galanter p 1062
political, social and cultural characteristics or structures of the first worl, they too will achieve similar
growth in their economic and social spheres.

Criticisms

 The mordernisation theory has recived heavy criticism of its tenets. The first and most critical
criticism is that it works under the presumption that it is necessary for developing countries to
conform to the development strategies used in western countries.
 Secondly, it abhors the traditions of the non-western States and proposes that these traditions
are responsible for inhibited economic growth.
 It further makes the assumption that western societies is what is ideal and to be strived for but
does not consider the pitfalls of western society such as its anti social nature and social
discrepencies.

2. Dependency Theory

This theory is the anti-thesiss to the mordernisation theory. It puts forth that the delayed growth of the
developing world is a result of placid policies towards the Western world and its economic
development. Proponents posit that the effects of exploitation through colonization, slave trade,
exploitation of natural resources and labour are a direct result of the economic dwarfing or stagnation
of developing nations. Schorlars point to the restrictions on trade by colonizers so as to avoid
competition as well as various other means of economic and social exploitation. They further argue that
the advent of independence of colonized states does not neccessarilly correlate with liberty. Infact
colised States continue to rely on their cononizers through various ways including foreign aid.

They are of the opinion that the local political elites in developing countries formed class alliances with
foreign captialists and often with local governments who in turn surported the interest of the elites.
They are therefore political puppets of the developed world. It is common ground therefore for a
foreign country to declare its support for a particular presidential candidate due to their perceived or
real alignment iwht the countries intrests. The persons who bear the brunt of these unions or
agreements are the working class citizens.

Dependency theorists argue that development in the first world is not beneficial to the third world. The
solution to this problem is to delink from western capitalism and growing local markets. The theory is
therefore opposes the mordernisation theory which insists that external solutions such as foreign aid
and investment are the key to development.

Critisisms

 There are deeper reasons to under development aside from western interfearence such as
corruption which can not solely be blamed on the West
 It undermines the positive influence of the western world and dictates that the developing
nations can only develop if the developed world ceases to develop.

Liberal Legalism Movements/Law and Development Movements

The movement commenced in the 1960s and continued in the 1970s. It was led by a lawyers who sought
to sponsor the reform of law in developing countries. The movement came to an abrupt an
unceremonious end in the 1970s. Many havexplained these failures of this movement onn the naïve
belief that the American legal system which are reffered to by Trubek and Galanter as liberal legalism
could be transpanted to developing countries.

Further, the movement is critisesed for its lack of theory on the impact of law and development. Hence
it did not offer any means of predicting the effects of various actions.

Thirdly, the participatory involvement from the lawyer was minimal even though they were the one
tasked with conducting the reform measures as well as dictate the pace for those reforms.

Lastly, the movement laid emphasis on the formal legal systems to the exclusion of customary laws and
various other ways in which many developing nations lived.

Critical Legal Studies Movement

 Blaming all the ills of the developing countries on the imperialism of the west
 Touting socialism over liberalism
 Argued that the cultures of developing countries had to be protected against encroachment of
western values

Globalisation of Law

In the setting of trade, globalization is the “process by which businesses or orgarnisations develop
international influence ir start operationg on an international trade.” 7 The global market therefore
becomes a mxing port from commerce. Globalization is the augmented growth of economic activity
across national and regional political borders. It is associated with increased movement of tangible
and intangible goods and services, including intellectual property rights in a quest for profit.

There are several factors which are credited to contribute to the growth of multinational companies
and the growth of new actows in the international arena. 8

7
www.oford dictionaries.com/definition/English/globalization
8
Benedict Kingsbury et al, “The emergence of global administrative law” Law and contemporary problems (2005)