CONTEMPORARY LEGAL PROBLEMS

LAW AND DEVELOPMENT

Reading:
1. Ann Seidman & Robert B. Sedman: Making Development Work
Legislative Reform for Institutional Transformation and Good Governance (1999)

2. The Charter of the United Nations (Bruno Simma, 1994)

3. UNEP, UNEPs Way Forward: Environmental Law and Sustainable

Development

Wisconsin International Law Journal 1999

Cultural Activities
At the cultural level, activities take place: Do those activities make legal
intervention necessary?

Culture can be defined integrated pattern of human behaviour including talk,

speech and artifacts and all of this depend on mans capacity for learning and
learning is transmitted through generation.

The totality of socially learned behaviour is another definition of culture. This

means that culture encompasses all the elements of behaviour that a person
learns by virtue of belonging to a social unit with a distinct set of modes of
actions, trends of thought, beliefs, ideas and other cultural elements. Therefore
in abroad sense culture represents all socially acquired knowledge which
determines ones behaviour including morality.

Traditional practices: FGM-education-law-research.

You need law to legitimize research and other programmes.

Industrialization
What does industrialization involve?

Development activities create the need for legal intervention. You need law to
address the various development issues that arise, You need law to facilitate
development activities. Facilitation can be, for example, by authorizing certain
developments to take place.

You also need law to encourage development by rooting our or removing

traditional practices that stand in the way of development.

Law lays down the rules and procedures in development, it provides a forum for
settlement of disputes, protection, imposes taxes for developing other areas.

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Development of society as a whole.

Political aspects of development

The role of law in development

The origins of the debate on law and development.

The law and development debate

This debate has been going on for several years. It started early in the 19 th
century and it include such issues as to whether law has role to play in
development, whether modernization is development, what is development and
how developing and least developed countries should attain development. Thos
are some of the issues in the debate.

In the process of this debate it has been accepted by both academics and
professionals that role is a key determinant of development.

The debate intensified after the Second World War because this was the point in
time when major reconstruction efforts were being undertaken because the war
had devastated many countries. One of the things that was being constructed
were the economies of those countries. It was the need for reconstruction in the
post war era that gave birth to the World Bank.

Until the 1960s the dominant paradigm in development circles was the
modernization theory. Professionals as well as scholars especially in the
developed countries insisted that modernization would promote development.
Modernization theorists maintained that least developed states and developing
states including African countries must pass through a predefined set of stages
involving the adoption of modern practices and modern systems in order to attain
full development. To them, for example, developing states had to adopt western
ideas, western legal systems and economic systems. If they did not adopt the
western systems, then, according to the theory, they had to adopt systems that
were similar to those in the west. This proposition led to the funding and
importation of western systems, e.g. by the World Bank. This was done through a
variety of ways, such as the establishment of legal systems similar to those of the
west.

What this transplantation of western institutions meant was that developing

nations would be dependent on the west on ideas, on economic institutions, etc.
With respect to the importation of law the basic idea of modernization was that
law had helped in western countries to facilitate development. So apply same in
developing counties. This conclusion was arrived at through two approaches:

1. There are those who adopted an approach to explain certain legal

characteristics of their governments that they thought had encouraged

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 development in their countries. Here the focus was western institutions.
The answer lies in the legal characteristics of the governments in the
developed countries.

But it was found these countries had accumulated capital and through
capitalism these countries flourished. So one of the characteristics was
that they had laws that promoted capitalism.

The laws were separate from the rest of government, in the way the
government operates. So law was separated from the rest of government.

Secondly they said these laws were good and helped to generate
capitalism because they were based and interpreted according to basic
legal principles. And the public considered the laws to be bindings. And
the laws were applied to all members of society regardless of their rank.

These kinds of laws created the kind of environment that supported

economic development. Because the loegal rules protecting legal
entitlements promoted economic activities especially in the field of
contracts.

The laws allows the development of legal concepts that promoted

economic activities.

2. The second approach investigated how individual transactions and

behaviour can be affected by legal systems. The argument was that an
economic actor m such transaction costs involved policy and enforcement,
bargaining. Such costs tend to reduce the value of rights to individuals and
therefore the costs should be reduced by a strong government which
developments an appropriate legal system and enforces the law. This had
helped them to attain development.

DESPITE that a lot of effort was made on the basis of this analysis not much was
included in terms of development through the modernization theory. Moreover by
the 60s the modernization theory was declining. It was not until 1989 that they
rekindled the debate on law and development. This time with more emphasis on
economic development through a variety of mechanisms. All the mechanisms
emphasized economic development. The mechanisms as follows:

1. Rolling back the state or reducing state controlled economy through

liberations
2. Good governance
3. Political credibility
4. Legal reform