21 ST CENTURY LAW AND DEVELOPMENT David M. Trubek Shanghai, June 2011.

21ST CENTURY LAW AND DEVELOPMENTDavid M. Trubek

Shanghai, June 2011

Law and development from the 1960s to the present

We look at changes in:

development theory

the nature of the world economy,

the role of law and lawyers,

research methodology

Periods of Law and Development (1) 20th Century

law as an instrument

law as a barrier

law as a framework

Periods of Law and Development (2) 21st Century

law as a discovery process

law as the result of global forces

law as development

20th Century L&D Two Moments of Doctrine & Practice

A dominant theory of development,

A privileged sector for growth,

A commitment to legal transplant

A primary legal change agent

First moment L&D

Theory: modernization, Sector: state led growth

Transplants: public law

Change agent: legal education

Second moment L&D

Theory: neo-liberalism

Sector: private sector & markets

Transplant: private law, judicial codes

Change agent: judiciary

Commonalities in 20th Century L&D Approaches

A meta-narrative –modernization and market fundamentalism

A privileged sector—either state or market A need for transplants from advanced

countries A leading sector for legal reform A commitment to certainty and rules A single formula—one size fits all

Lessons from 20th Century L&D Meta-narratives do not provide a script

for development One size does not fit all Legal systems are deeply embedded in

society and culture and legal transplants rarely “take”

There is no privileged sector for legal reform

Forces shaping Law and Development for the 21st Century

The impact of globalization

The emergence of the new developmentalism

The search for a new methodology

Globalization

International norms penetrate domestic law -BITs, WTO etc.

Emergence of transnational legal regimes

Changing role of Emerging Economies

Global lawyers, global law firms

The New Developmentalism

The only meta-narrative is that there is none

Development as experimentation and bootstrapping

Situated knowledge essential

Black and white cats: from either state or market to both state and market

Mutual public-private search for optimal paths

Law in and the New Developmentalism

Create a framework for public-private collaboration

Facilitate deployment of situated knowledge

Provide flexibility and encourage experimentation

Maintain predictability when needed

Law and Development without a Script

Orienting legal reform when:

General guidelines do not determine institutional design

Advanced country institutions do not provide a model

The choice between public and private law is pragmatic

Local context governs and situated legal knowledge necessary

Methodologies for reform without a script

Local empiricism —study locally, reform locally

Meta-empiricism —universal solutions derived from legal indicators, global data bases, and country rankings

Horizontal learning—scan globally, reform locally

Local empiricism—reform begins and stays at home

Reform should based on careful empirical study of what is working and not working

But without models to copy or a meta-narrative to guide us, how do we know if things could be better or what is the best way to improve them?

Meta-empiricism—indicators and league tables

Measure legal variables and correlate with development statistics

Produce “L&D league tables”: ranking by degree of institutional similarity to high-growth countries

Pressure laggards to move up the table.

Critiques of meta-empiricism Bias in selection of indicators—e.g. WB Doing

Business labor indicators

Validity of underlying data—based on perception of elite actors

Robustness of correlations

Continues top down, one size fits all approach

Horizontal Learning:Scan globally, reform locally

Networks of experts from similarly situated developing countries

Empirically based studies of things that work and don’t work in each country

Benchmarking: sustained dialogue among peer experts

Use of local knowledge concerning adaptability of peer country solutions

Advantages of horizontal learning Derives ideas for reform from successful

innovation in similarly situated countries

Takes account of local conditions and complexities

Proposals emanate from local experts, not from foreign models or international agencies

Decisions on which reforms to try draw on situated knowledge of national experts

Increases legitimacy and buy in by local change agents

Issues for horizontal learning in L&D: (1) “similarly situated countries”

Legal family and culture?

Development level and size of economy?

National development strategy?

Issues for Horizontal Learning In L&D: (2) Legal Variables

Form vs. function: what are comparable legal institutions?

Law in the books vs. law in action: how do we know what is actually working?

Defining success: how do we measure the effectiveness of legal institutions?

Determining compatibility: how do we transfer ideas and institutions?

The BRICSLAW Project

Foster horizontal learning among the BRICS

Creation international of network of scholars

Studies of law and development policy in selected areas

Discussion with policy makers and stakeholders

Launching BRICSLAW—the November 2010 São Paulo Conference

Empirical studies by Brazilian experts

Comments by experts on Russia, India, China

Comments by Brazilian scholars and officials Revision of Brazilian papers and publication

of papers and comments

São Paulo Topics

Foreign trade Foreign direct investment, Innovation policy and intellectual

property Competition law Finance and capital markets Social policy The role of courts in the economy

Assessment and Next Steps

Need for long lead time

Advantages of focus—one topic at a time

Importance of government participation

BRICSLAW 2012 –New Delhi

Conclusion

Horizontal learning avoids --meta-narratives--naive transplantation --spurious empiricism

While limited, BRICSLAW could form the basis for an authentic 21st Century Law and Development