21 ST CENTURY LAW AND DEVELOPMENT David M. Trubek Shanghai, June 2011
Mar 30, 2015
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