Law and Development

Legal arrangements Discussions about the relationship between law and development began almost at the same time as the emergence of the second concept after the Second World War. As Escobar (2012) indicates, among others, development emerged as a discourse and regime of practices aimed at governing the nascent “Third World” after the decolonization process and in the context of the competition between blocs that generated the Cold War.

Development begins its career with the theory of modernization, according to which technology, science and capital constituted the basis of the well-being of the peoples (Escobar, 2006). According to this theory, the absence of these variables would show countries presumably located in a backward historical state. This pretense of measuring and evaluating the degrees of progress in relation to technology, science and capital justified the possibility of “classifying” the countries and of envisioning a holder of these variables whom to position as the example to follow. In Baxi's words, a focus of power related to the "representative" of development was set. Other theories about what it is and how to achieve development succeeded that of modernization, such as the import substitution model, the Washington Consensus model associated with neoliberal ideas and, more recently, what the literature has called the Post-Washington Consensus in which includes notions such as human security and sustainable development.

There are at least two streams of discussions about the relationship between law and development. The term "law and development" was coined in the United States by the movement launched by David Trubek at the University of Wisconsin. In the 1950s, hand in hand with the theory of modernization and the concerns of the moment to “modernize” the laws and institutions of the Third World, David Trubek and Marc Galanter began to reflect on the role of law in the changes it demands. the development. His first approach was an instrumental theory of law: law is a tool at the service of the administration of the economy and society, it is a tool for State intervention (Trubek and Santos, 2006). With the rise of neoliberalism in the Anglo-Saxon world in the 1980s, the question of state intervention in the economy was abandoned and a new vision of the role of law in development emerged: law as a tool at the service of the market. Discussions on law and development turned to debates on what kind of legal arrangements and institutions are the best to make the market more efficient and extend its logic to new areas. Consequently, the development agenda focused on legal transplants, projects for the modernization of public institutions related to the market (such as the regulatory agencies of the financial system and the central bank) and on the strengthening of judicial systems as a precondition for the completion of contracts and guarantee property rights. Hand in hand with the Post-Washington Consensus, since the late 1990s, law has become constitutive of development. On the one hand, the development agenda - from institutions such as the World Bank and various international cooperation agencies - has focused on improving institutions along with the good governance agenda. This has resulted in the modernization of judicial apparatus and regulations in broad spheres (from fiscal regimes, through state contracting and environmental law, to property regimes). On the other hand, development has also begun to be measured in terms of protection of the rule of law and human rights. Added to this is a return of the State not only as a regulator but also as an agent that must remedy and compensate for market failures; hence the resurgence of social policy as a way to mitigate the social debt associated with the market. According to Duncan Kennedy, the law in this context acquires a balancing function of the multiple opposing interests. This function extends to the jurisdictional functions; This means, for example, a recognition of the distributive role of judicial decisions.

A more critical aspect of the relationship between law and development can be found in schools associated with TWAIL (Third World Approaches to International Law) and postcolonial and decolonial critiques of development. Authors such as Anthony Anghie and Sundhya Pauja (2005) argue that international law and development are part of the same apparatus aimed at governing the countries of the now called global South. Other authors such as Luis Eslava show how local law has been instrumental in putting international development agendas into practice. However, as Eslava also highlights, it is not simply a dominance relationship.