Published online by Cambridge University Press: 06 March 2019
The purpose of this essay is to consider the significance of new developmentalism for the field of law and development. New developmentalism refers to a theory and practice of development economics, which appears to have entered mainstream development thinking. Its core elements also seem to have been a factor in the dynamic economic growth that has occurred in a number of emerging economies. This trend is significant for the field of law and development because: (a) conventional economic development orthodoxies are seen to have shaped previous law and development movements; (b) these models and their corresponding law reform projects were arguably inadequately adapted to existing domestic circumstances; and (c) new developmentalism represents a departure from conventional development orthodoxies, as it necessitates both learning and adapting to local settings. Yet such a system also creates new challenges for law reformers and policymakers within the international development community (not to mention domestic reformers), and it remains unclear (if not doubtful) that new developmental states can be engineered by external actors and institutions.
1 House, White, What's New in the Strategy for Afghanistan and Pakistan (2009), available at: http://www.whitehouse.gov/the_press_office/Whats-New-in-the-Strategy-for-Afghanistan-and-Pakistan, last accessed 14 September 2009.Google Scholar
2 G-20, Leaders Statement: The Global Plan for Recovery and Reform, 5 (2009), available at: http://www.g20.org/Documents/final-communique.pdf, last accessed 14 September 2009.Google Scholar
3 Office of Management and Budget, Budget of the United State Government, Fiscal Year 2010, 88 (2009), available at: http://www.whitehouse.gov/omb/assets/fy2010_new_era/A_New_Era_of_Responsibility2.pdf, last accessed 14 September 2009.Google Scholar
4 David Trubek, Developmental States and the Legal Order: Towards a New Political Economy of Development and Law, Univ. of Wisconsin Legal Studies Research Paper No. 1075, 16 (2008), available at http://ssrn.com/abstract=1349163, last accessed 14 September 2009.Google Scholar
5 See Trubek, David & Galanter, Marc, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, Wisc. L. Rev. 1062 (1974).Google Scholar
6 Trubek, David & Santos, Alvaro, Introduction: The Third Moment in Law and Development Theory and the Emergence of a New Critical Practice in The New Law and Economic Development: A Critical Appraisal, 1, 4 (Trubek, & Santos, eds., 2006).Google Scholar
7 Birdsall, Nancy, Rodrik, Dani, & Subramanian, Arvind, How to Help Poor Countries, 84 Foreign Affairs 136 (2005).Google Scholar
8 This term may be attributable to Luiz Carlos Bresser-Pereira; see Luiz Carlos Bresser-Pereira, The New Developmentalism and Conventional Orthodoxy, 20 São Paulo em Perspectiva (2006), available at: http://www.networkideas.org/featart/jul2006/Developmentalism_%20Orthodoxy.pdf, last accessed 14 September 2009.Google Scholar
9 Trubek (note 4), 10. The theoretical development of the concept of a “process of discovery” may be attributed to Hayek. See, e.g., F.A. Hayek, Competition as a Discovery Procedure, 5 The Quarterly Journal of Austrian Economics 9 [1968; transl. by Marcellus Snow] (2002).Google Scholar
10 See, G-20 (note 2)Google Scholar
11 See, e.g., World Bank, Economic Growth in the 1990s: Learning from a Decade of Reform (2005), available at: http://www1.worldbank.org/prem/lessons1990s, last accessed 14 September 2009; Fritz, Verena & Menocal, Alina Rocha, Developmental States in the New Millennium: Concepts and Challenges for a New Aid Agenda, 25 Development Policy Review 531 (2007); Commission on Growth and Development, The Growth Report: Strategies for Sustained Growth and Inclusive Development (2008), available at: http://www.growthcommission.org/index.php?Itemid=169&id=96&option=com_content&task=view, last accessed 14 September 2009; Rodrik, Dani, The New Development Economics: We Shall Experiment, But How Shall We Learn?, Revised Draft, 29 (2008), available at: http://ksghome.harvard.edu/~drodrik/the%20new%20development%20economics.pdf, last accessed 14 September 2009; Birdsall, et al (note 7).Google Scholar
12 See, generally, The New Law and Economic Development: A Critical Appraisal (Trubek, David & Santos, Alvaro eds., 2006).Google Scholar
13 Trubek, David, The Rule of Law in Development Assistance: Past, Present, and Future, in The New Law and Economic Development: A Critical Appraisal, 74, (Trubek, David & Santos, Alvaro eds., 2006).Google Scholar
14 See only Trubek, David & Galanter, Marc, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, Wisc. L. Rev. 1062 (1974).Google Scholar
15 See, e.g., Trubek, David, Max Weber on Law and the Rise of Capitalism, Wisc. L. Rev. 720 (1972); Kennedy, Duncan, The Disenchantment of Logically Formal Legal Rationality, or Max Weber's Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 Hastings L. J. 1031 (2004).Google Scholar
16 Trubek & Santos (note 6), 1.Google Scholar
17 Trubek (note 4), 3.Google Scholar
18 “Classic developmentalism” is not the universally recognized term for state-led development. It is employed by David Trubek (note 4) to mark the distinction between this model and new developmentalism, and is used for the same purpose here.Google Scholar
19 Trubek (note 13), 75.Google Scholar
20 Important representatives include Walt Rostow, The Stages of Economic Growth: A Non-Communist Manifesto (1960) Theodore W. Schultz, Transforming Traditional Agriculture (1964) and Neil Smelser, Towards a theory of modernization, in Essays in Sociological Explanation (1968); for a recent overview of the state of debate, see Waltraud Schelkle et al., Paradigms of social change: Modernization, development, transformation, evolution (2000); for early formulations, see of course the work by Condorcet, as well as Emile Durkheim, The Division of Labor in Society [1893; transl. by Halls, W.D.] (1984), and Weber, Max, The Protestant Ethics and the Spirit of Capitalism (1904/05, Talcott Parsons transl.) (1930).Google Scholar
21 John Isbister, Promsises Not Kept: Poverty and the Betrayal of Third World Development, Sixth Edition, 32-41 (2003).Google Scholar
22 Davis, Kevin & Trebilcock, Michael, The Relationship between Law and Development: Optimists versus Skeptics, 56 Am. J. of Comp. L. 899 (2008).Google Scholar
23 The term “functionalism” is used here to describe law as a means to achieve a certain economic end. See Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12 (1910), cited in Zumbansen, Peer, Law After the Welfare State: Formalism, Functionalism and the Ironic Turn of Reflexive Law, 56 Am. J. Comp. L. 769 (2008) [also available at: ssrn.com/abstract=1128144].Google Scholar
24 Trubek (note 13).Google Scholar
25 Id., 76.Google Scholar
26 See, e.g., David Trubek, Toward a Social Theory of Law: An Essay on the Study of Law and Development, 82 Yale L. J. 1 (1972); Kennedy, Duncan, Legal Education and the Reproduction of Hierarchy. A Polemic against the System (2004).Google Scholar
27 Trubek (note 13), 76-77.Google Scholar
28 Id., 77.Google Scholar
29 Id., 80-82.Google Scholar
30 Id., 82-83.Google Scholar
31 See, e.g., Joseph Stiglitz, Globalization and its Discontents (2002), Woods, Ngaire, The Globalizers: the IMF, the World Bank, and Their Borrowers (2006), Scholte, Jan Art, Globalization: a Critical Introduction, 2nd ed. (2006), The Washington Consensus Reconsidered: Towards a new global governance (Serra, Narcís & Stiglitz, Joseph, eds., 2008).Google Scholar
32 Trubek (note 13), 84.Google Scholar
33 Ohnesorge, John, Developing Development Theory: Law and Development Orthodoxy and the Northeast Asian Experience, 28 U. Pa. J. Int'l Econ. L. 219, 247 (2007).Google Scholar
34 Kennedy, David, The “Rule of Law,” Political Choices, and Development Common Sense, in The New Law and Economic Development: A Critical Appraisal, 95, (Trubek, David & Santos, Alvaro eds., 2006).CrossRefGoogle Scholar
35 See, generally, Trubek, & Santos, eds. (note 12).Google Scholar
36 Rittich provides the leading analysis on the place of social concerns within the transition from “first generation” to “second generation” neoliberalism. See Kerry Rittich, The Future of Law and Development: Second Generation Reforms and the Incorporation of the Social, 26 Mich. J. Int'l L. (2004/2005) [a chapter by the same title is also included in Trubek, & Santos, eds. (note 12), 203].Google Scholar
37 Trubek & Santos (note 6), 3.Google Scholar
38 Trubek, & Santos, eds. (note 12).Google Scholar
39 This term may be attributable to David Kennedy (note 34), 150.Google Scholar
40 Barr, Michael & Reuven S. Avi-Yonah, Globalization, Law and Development: Introduction and Overview, 26 Mich. J. Int'l L. 1, 5 (2004/2005).Google Scholar
41 Trubek (note 13), 87.Google Scholar
42 Katharina Pistor and Daniel Berkowitz, Of Legal Transplants, Legal Irritants, and Economic Development, in Corporate Governance and Capital Flows in a Global Economy, 347-348 (B. Kogut and P. Cornelius, eds., 2003).Google Scholar
43 For example: Davis & Trebilcock (note 22); Kennedy, David, Laws and Developments, in Law and Development: Facing Complexity in the 21st Century (A. Perry-Kessaris and J. Hatchard, eds., 2003); Ohnesorge (note 30); Daniels, Ronald & Trebilcock, Michael, The Political Economy of Rule of Law Reform in Developing Countries, 26 Mich. J. Int'l L. (2004/2005).Google Scholar
44 Hauserman, Bridget, Exploring the New Frontiers of Law & Development. Reflections on Trubek/Santos eds., The New Law and Economic Development (2006), 8 German Law Journal 533, 547 (2007), available at: http://www.germanlawjournal.com/article.php?id=834, last accessed 14 September 2009.Google Scholar
45 Carothers, Thomas, Promoting the Rule of Law Abroad: The Problem of Knowledge, Carnegie Endowment for International Peace, Rule of Law Series, Democracy and Rule of Law Project, 11 (2003), available at: http://www.carnegieendowment.org/files/wp34.pdf, last accessed 14 September 2009.Google Scholar
46 Trubek, David, The Owl and the Pussy-cat: Is there a future for “Law and Development”?, 25 Wisconsin International Law Journal 235 (2007), available at: http://www.law.wisc.edu/facstaff/trubek/WILJ_owl.doc, last accessed 14 September 2009.Google Scholar
47 The LANDS website is available at: http://www.law.wisc.edu/gls/lands.html, last accessed 14 September 2009.Google Scholar
48 Trubek (note 4), 5.Google Scholar
49 Id., 6-12Google Scholar
50 Id., 10; on this see also: Nelson, Richard, Economic Development From the Perspective of Evolutionary Economic Theory, Working Papers in Technology Governance and Economic Dynamics no. 2 available at: http://hum.ttu.ee/wp/paper2.pdf (2006).Google Scholar
51 Rodrik (note 11), 29.Google Scholar
52 Trubek (note 4), 8.Google Scholar
53 Id. Google Scholar
54 On this see, e.g., Zumbansen, Peer, Transitional Justice in a Transnational World: The Ambiguous Role of Law, CLPE Research Paper 40/2008, available at: http://ssrn.com/abstract=1313725, last accessed 14 September 2009, at 22; see also Zumbansen, Comparative Law's Coming of Age? Twenty Years after ‘Critical Comparisons‘, 6 German L.J. 1073 (2005), 1077-1084 (available at: http://www.germanlawjournal.com/article.php?id=614, last accessed 14 September 2009).Google Scholar
55 Trubek (note 4), 9.Google Scholar
56 Hausmann, Ricardo, Rodrik, Dani, & Sabel, Charles F., Reconfiguring Industrial Policy: A Framework With an Application to South Africa, Center for International Development at Harvard University, Working Paper No. 168, 5 (2008).Google Scholar
57 Teubner, Gunther, After Legal Instrumentalism? Strategic Models of Post-regulatory Law, in: Dilemmas of Law in the Welfare State 299 (Teubner, Ed. 1986); Zumbansen (note 23); Zumbansen, Peer, Law's Effectiveness and Law's Knowledge: Reflections from Legal Sociology and Legal Theory, 10 German Law Journal 417 (2009) [also available at: ssrn.com/abstract=1415565, last accessed 14 September 2009].Google Scholar
58 Trubek (note 4), 17-18.Google Scholar
59 Coutinho, Diogo & Mattos, Paulo, LANDS – Law and the New Developmental State (Brazilian pilot project), 9 (2008), available at: http://www.law.wisc.edu/gls/documents/lands_brazilian_pilot_study_oct08.doc, last accessed 14 September 2009.Google Scholar
60 Trubek (note 4), 19-20. On the importance of structuring public-private interactions in this context, see also Dani Rodrik, Industrial Policy for the Twenty-First Century, 3 (2004), available at: http://ksghome.harvard.edu/~drodrik/unidosep.pdf, last accessed 14 September 2009: “The right model for industrial [i.e. developmental] policy is not that of an autonomous government applying Pigovian taxes or subsidies, but of strategic collaboration between the private sector and the government with the aim of uncovering where the most significant obstacles to restructuring lie and what type of interventions are most likely to remove them. Correspondingly, the analysis of industrial policy needs to focus not on the policy outcomes—which are inherently unknowable ex ante—but on getting the policy process right. We need to worry about how we design a setting in which private and public actors come together to solve problems in the productive sphere, each side learning about the opportunities and constraints faced by the other, and not about whether the right tool for industrial policy is, say, directed credit or R&D subsidies or whether it is the steel industry that ought to be promoted or the software industry.”Google Scholar
61 Trubek (note 4), 22-23.Google Scholar
62 Fritz & Rocha Menocal (note 11), 531.Google Scholar
63 For example, this approach is followed in Protecting Internally Displaced Persons: A Manual for Law and Policymakers, Brookings Institution—University of Bern: Project on Internal Displacement, 6 (2008). In the context of economic policy see Rodrik's “design principles for industrial policy” (note 60), 21-25.Google Scholar
64 For a shared sense of this optimism, see Rodrik (note 11), 32.Google Scholar
65 Gross, Daniel, The Recession Is Over. Now what we need is a new kind of recovery, Newsweek (August 3, 2009), http://www.newsweek.com/id/208633: “The Obama administration's strategy rests on what some might call industrial policy or excessive government intervention—or even creeping socialism. I call it ”the smart economy.“ It means eschewing the blunt economic instruments we've always used and focusing resources and rhetoric on strategic sectors: renewable energy/green technology, infrastructure, broadband, and health care. It means making investments to run vital systems more intelligently and efficiently, thus creating a new infrastructure on which the private sector can work its magic. This philosophy, legislated in the $787 billion American Recovery and Reinvestment Act, holds that a mixture of targeted investments, tax credits, subsidies, reforms, and direct purchases can preserve or create jobs in the short term, improve America's economic competitiveness in the long term, and catalyze private-sector investment.”Google Scholar