21ST CENTURY LAW AND
DEVELOPMENT
David 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




th
20
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




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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