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The Lessons of Law-and-Development Studies

Published online by Cambridge University Press:  27 February 2017

Brian Z. Tamanaha
Brian Z. Tamanaha*
Affiliation:
Van Vollenhoven Institute for Law and Administration in Non-Western Countries, Leiden
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Type
Review Article
Information
American Journal of International Law , Volume 89 , Issue 2 , April 1995 , pp. 470 - 486
Copyright
Copyright © American Society of International Law 1995

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References

1 The only discipline neglected in these collections is legal anthropology, though many of its insights have been incorporated into the articles. For an overview of law-and-development literature, see Brian Z. Tamanaha, Bibliography on Law and Developing Countries (1995).

2 David Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 1974 Wis. L. Rev. 1062 [hereinafter Self-Estrangement].

3 Adelman & Paliwala, Law and Development in Crisis, in Adelman & Paliwala at 10.

4 See generally Tony Smith, Requiem of New Agenda for Third World Studies, in Political System and Change 347 (Ikuo Kabashima & Lynn T. White III eds., 1986).

5 For an informative discussion of modernization theory, see David Apter, Rethinking Development: Modernization, Dependency, and Postmodern Politics (1987).

6 See Samuel P. Huntington, Political Development and Political Decay, in Political System and Change, supra note 4, at 96.

7 See Gabriel A. Almond, The Intellectual History of the Civic Culture Concept, in The Civic Culture Revisited 1, esp. 26–29 (G. Almond & S. Verba eds., 1980).

8 A leading example of this critique is Alvin W. Gouldner, The Coming Crisis of Western Sociology (1970).

9 Huntington, supra note 6.

10 Id. at 138.

11 Tony Smith, supra note 4, at 349.

12 See John H. Merryman, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 Am. J. Comp. L. 457, 457–58 n.4 (1977).

13 This chronology contradicts the claim of Adelman and Paliwala that “the crisis in law and development emerged far earlier than that in development studies as a whole” (p. 10). Their assertion is incorrect. As Tony Smith points out, “by around 1970 [the field of political development] had become relatively moribund.” Supra note 4, at 347.

14 See Elliot M. Burg, Law and Development: A Review of the Literature & a Critique of “Scholars in Self-Estrangement,” 25 Am. J. Comp. L. 492, 496–98 nn. 17, 18, 22 (1977).

15 See Marc Galanter, The Modernization of Law, in Modernization 156 (Myron Weiner ed., 1966).

16 David Trubek, Toward a Social Theory of Law: An Essay on the Study of Law and Development, 82 Yale L.J. 1 (1972).

17 Trubek & Galanter, supra note 2, at 1071. This account is an abbreviated version of their list.

18 W. at 1080.

19 W. at 1099.

20 See generally Michael J. Shapiro, The Globalization of Line, 1 Ind. J. Global Legal Stud. 37 (1993).

21 See John H. Schlegel, Notes toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies, 36 Stan. L. Rev. 391 (1984). (Although Galanter was not an adherent of CLS, he has become an influential socio-legal scholar.)

22 Self-Estrangement, supra note 2, at 1089. Galanter listed many of the discrepancies in his 1966 article (supra note 15, at 156–65). Many of the same points can also be found in an early article by Lawrence M. Friedman, On Legal Development, 24 Rutgers L. Rev. 11 (1969).

23 Self-Estrangement, supra note 2, at 1090.

24 Id. at 1096 n.92.

25 M. at 1091.

26 Roberto Unger, Law in Modern Society 192–200 (1976).

27 Adelman & Paliwala, supra note 3, at 10.

28 For a more elaborate discussion of these issues, see Lawyers in the Third World: Comparative and Developmental Perspectives (J. Dias, R. Luckman, D. O. Lynch, & J. C. N. Paul eds., 1981).

29 In another piece I have shown how transplanted U.S. laws and legal institutions worked reasonably well in Micronesia by remaining mostly limited to serious crimes and commercial transactions, and for the rest not interfering with the still effective traditional systems. See Brian Z. Tamanaha, Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law (1993).

30 An excellent description of these activities is set out in David Greenberg's Law and Development in Light of Dependency Theory, in the Carty volume, at 89–119.

31 For an exhaustive account of dependency theory, see Francis G. Snyder, Law and Development in the Light of Dependency Theory, 14 Law & Soc'y Rev. 723 (1980).

32 Adelman & Paliwala, supra note 3, at 5.

33 Smith, supra note 4, at 364.

34 UNCTAD World Investment Report at xix (1994).

35 Id. at 369.

36 See A. Leftwich, Governance, the State and the Politics of Development, 25 Dev. & Change 363, 377–80 (1994).

37 See World Bank, Managing Development: The Governance Dimension (1991).

38 See Snyder, supra note 31, at 761. See also Greenberg, supra note 30, at 98.

39 Snyder, supra note 31, at 780. See also Yash Ghai, Laxu Development and African Scholarship, 50 Mod. L. Rev. 750, 771 (1987) (“They regarded law as peripheral, a mere emanation of the economic forces of society.”).

40 See generally Greenberg, supra note 30.

41 See Declaration on the Establishment of a New International Economic Order, GA Res. 3201, 29 UN GAOR, 6th Spec. Sess., Supp. No. 1, at 3, UN Doc. A/9559 (1974). See generally Mohammed Bedjaoui, Towards a New International Economic Order (1979); Milan Bulajic, Principles of International Development Law: Progressive Development of the Principles of International Law Relating to the New International Economic Order (1966).

42 See, e.g., David Heywood, Deep Seabed Mining: Alternative Schemes for Protecting Developing Countries from Adverse Impacts, 12 GA.J. INTL&COMP. L. 173 (1982); Stephen Gorove, Utilization of the Natural Resources of the Space Environment in Light of the Concept of Common Heritage of Mankind, in Third World Attitudes Towards International Law 775 (F. E. Snyder & S. Sathirathai eds., 1987).

43 See, e.g., Codes of Conduct of Multinationals: Their Impact on Third World Countries (Aloysius Fonseca ed., 1984); S. K. Agrawala, Transfer of Technology to LDCs: Implications of the Proposed Code, 23 Indian J. Int'l. L. 246 (1984).

44 A. G. Frank, Debt Where Credit is Due, in Economic Development and World Debt 34 (H. W. Singer & S. Sharma eds., 1989).

45 As Jack Donnelly argues, at the core of liberalism lies a set of principles that are adaptable and can support the recognition of social and economic rights, such as the rights to food, health care and work. Jack Donnelly, Human Rights and Western Liberalism, in Human Rights in Africa 49 (F. M. Deng & A. A. An-Na'im eds., 1990). There is no reason these principles cannot take us farther.

46 See statement of Antony N. Allott, Introduction to Peoples' Law and State Law: The Bellacio Papers (Antony N. Allott & Gordon Woodman eds., 1985). Richard Seidman is a prominent exception; throughout this period, he continued to tout law as an essential tool for development, against the mostly negative attitudes about law that prevailed. See Richard Seidman, The State, Law, and Development (1978).

47 For a rehearsal of these arguments, see J. Silk, Traditional Culture and the Prospects for Human Rights in Africa, in Human Rights in Africa, supra note 45, at 2290–328.

48 For a discussion of the issues involved, see A. A. An-Na'im, Problems of Universal Cultural Legitimacyfor Human Rights, in Human Rights in Africa, supra note 45, at 331–67; Fernando R. Tesón, International Human Rights and Cultural Relativism, 25 Va. J. Int'l L. 869 (1985); R. A. Dundes, The Unanswered Challenge of Relativism and the Consequences for Human Rights, 7 Hum. Rts. Q. 514 (1985).

49 See K. O. Adinkrah, Folk Law Is the Culprit: Women's “Non-Rights” in Swaziland, 30–31 J. Legal Pluralism 223 (1990–1991).

50 Jack Sheinkman (President of Amalgamated Clothing and Textile Workers' Union), The Sweatshops for Children Are Unfair all Around, Int'l Herald Trib., Aug. 12, 1994, at 4 (editorial).

51 See Zygmunt Bauman, Intimations of Postmodernity 35 (1992).

52 The substantive parallels between this model and the rule of law have also been noted. See L. Theberge, Law and Economic Development, 9 J. Int'l L.& Pol'y 231, 237 (1980).

53 See, e.g., id. at 236–38; Franck in Carty, pp. 24–26; Self-Estrangement, supra note 2, at 1083; Snyder, supra note 31, at 780; Adelman/Paliwala, p. 182; id., pp. 286–97.

54 As Joseph Raz argued, the rule of law is even compatible with nondemocratic systems. Joseph Raz, The Authority of Law 210–29 (1979).

55 This pattern was first evidenced in a report issued by the International Legal Center that explicitly urged turning away from doctrinal research. See International Legal Center, Law and Development: The Future of Law and Development Research 18, 48 (1974).

56 Yash Ghai, Law, Development and African Scholarship, 50 Mod. L. Rev. 750, 775 (1987).

57 Self-Estrangement, supra note 2, at 1069.

58 International Legal Center, supra note 55, at 23.

59 Bauman, supra note 51, at vii–viii.