The CGLAD team invited Law and Development scholars to answer the question 'What is the Future of Law and Development? Click here to read Prof. Michael Trebilcock's (Toronto) reply, which is also a reaction to Prof. David Trubek's March 24th post.
ABOUT THE AUTHORDiogo R. Coutinho Diogo R. Coutinho is an Associate Professor at the University of Sao Paulo (USP), and a research fellow at the Brazilian Center of Analysis and Planning (CEBRAP). He holds a master from the London School... [see more]
The CGLAD team invited Law and Development scholars to answer the question
'What is the Future of Law and Development?'
See below Prof. David Trubek's (Wisconsin) reply and check this website soon to see Prof. Michael Trebilcock's (Toronto) reaction:
" The study of how law influences development in the Global South is flourishing but the field faces several challenges including an acute need to expand research capacity in the
Academic work in the US started in the 1960s as an offshoot of reform projects supported by the Ford Foundation and USAID. A few agency officials thought law was important for development and recruited lawyers and academics to lead reform. When US lawyers recognized they lacked an intellectual framework for reform planning and project assessment, they sought support from USAID, Ford Foundation and the International Legal Center (a Ford spin-off) to create academic centers and launch ambitious projects. The L&D pioneers, who lacked training in empirical research and socio-legal theorizing, teamed with social scientists and socio-legal scholars to craft an interdisciplinary field.
As the field evolved, scholars began to question assumptions behind projects they and the agencies had developed. Critics questioned the transplant of law from advanced countries, realized that legal reform might strengthen authoritarian regimes, and doubted some strategies they initially supported. Calling for better theory and more empirical study, they tried to escape the “pull of the policy audience.” Nurtured by major grants to universities, the academic field flourished for about ten years. But by the mid-1970s it had lost momentum: the funding dried up and law schools were unable or unwilling to provide continuing support. The field faltered because it lost outside support before it had built a sustainable
place in the academy.
The first L&D wave had repercussions in some parts of the developing world. Probably the most active region was Latin America. Many of the early reform projects involved law schools. US L&D pioneers worked closely with scholars in countries like Colombia, Peru, Chile, and Brazil some of whom studied in the US. Interchange between scholars in the North and South contributed to the increasing sophistication of the field. But as agency support declined, the L&D wave in Latin America receded.
All this changed in the 1990s. The rebirth of agency interest launched a second wave. Unlike the first, this time it was big business. In the first wave, L&D had been a marginal activity for most development agencies. But in the 1990s it became a priority area for the World Bank and others: projects proliferated and billions were invested. This L&D boom was partially the result of new ideas in economics and the influence of the economists within the agencies. Economists who looked at the transition from command and state-dominated systems to market economies recognized that legal institutions were essential for markets and supported legal reform. Agencies listened.
Massive investments by the Bank and other agencies brought academics back into the law and development field. While agency interest stimulated academic work, it did not dominate the second wave of university L&D work. By the 1990s the overall scene in US law schools had changed substantially. Legal academics learned to employ socio-legal and economic analysis and employ empirical methods. A number of subfields developed around specific issues in the relationship between law and social and economic outcomes: they included law and society, law and economics, critical legal studies, feminist jurisprudence, human rights, and law and the environment. US law schools were better equipped to support research and students more sophisticated. At the same time some law schools in the Global South were increasing their capacity to deal with L&D issues and new links were formed between those looking at L&D in the South and those in the North.
As a result, by the dawn of the 21st and economy in the Global South was robust. However, the field faces two major problems. The first is that it has fragmented into many specializations that do not necessarily communicate with one another: law and economics people do not necessarily talk to people concerned with human rights or gender equality and vice-versa; critics do not exchange ideas with those they criticize. The second is that the field contains asymmetrical North-South linkages in which the scholars and institutions in the North sometimes have more power and influence even though these networks are created to deal with issues in the South.
As 21st Century L&D evolves, the field must deal with these problems as well as with changes in the global environment and the emergence of new development theories. Globalization has changed the frame for L&D: countries are facing the need to maintain global competiveness and domestic legal systems are increasingly influenced by transnational law. We have seen both a return of the state led by the BRICS and the rise of the “new developmentalism” which posits the need for experimentation and flexibility in development policy and sees new roles for the state and industrial policy. Finally, one can see a new humility as L&D scholars and practitioners assess the record of the past and acknowledge the limits of former ideas and strategies.
These new trends place greater emphasis on the need for local and contextual knowledge. New developmentalism fosters policy variation not one-size-fits-all so universal generalizations are dubious. The reassessment of the past has taught us that legal systems are deeply embedded and effective reform possibilities depend on local conditions. Finally, while we can break “development” down into subparts (economic, social, political) these strands come together in specific reforms in specific countries and their interaction can only be understood in that context.
The need for contextual knowledge means that law and development cannot fulfill its promise unless there is substantial research capacity in the Global South. Whether research involves scholars in the North or not, the final word and truly usable knowledge must come from those familiar with local conditions in the South. While capacity is growing in some places in some countries in the South, it falls far short of what is needed. That is the challenge we must address today. "
ABOUT THE AUTHORDavid M. Trubek David M. Trubek is Voss-Bascom Professor of Law and Dean of International Studies Emeritus at the University of Wisconsin-Madison and a Senior Research Fellow at the Harvard Law School. A graduate of ... [see more]
On November 12, 2013 the Faculty of Law at the University of Toronto hosted a joint Law & Economics and Law & Globalization Workshop with David Trubek. This was the first in a series of events that aim at creating opportunities to reflect on the history of the field of Law & Development, and start a conversation about where we should be heading. This workshop will be followed by an online debate about the past and future of L&D which has started with the contribution by Trubek (above). The discussions will culminate in a Law & Development Conference in Brazil in December 2014. Stay tuned!
At the Toronto Workshop, Trubek presented analysis of what happened in the field of law and development in the 40 years since the publication of his seminal article with Marc Galanter entitled Scholars in Self-Estrangement; Some Reflections on the Crisis in Law and Development Studies in the United States (1974). The talk was followed by a Q&A session with faculty and students.
Noting that 2014 marks the 40th anniversary of the publication of Scholars in Self-Estrangement, Trubek looked at the field of law and development during these four decades. In a preliminary report, he reviewed the critique outlined in Scholars and the claim that its publication killed the field it was designed to save. Acknowledging that the field had lost momentum by 1980 he argued that the decline occurred because the field lost the support of development agencies before it could establish a secure place in the academy. Noting that the field revived in the late 1980s-early 1990s, he observed that conditions for law and development scholarship are much better today and there is a proliferation of research much of which has avoided errors pointed to in Scholars. This has enriched the field but at the price of fragmentation: the field has split into a number of “sub-disciplines” that do not always communicate with one another. Scanning the field in the 21st Century he noted the influence of new ideas about development which stress experimentation and local variation in policy. These, combined with a better understanding of the embeddedness of local legal systems and the limits of legal transplants, demand more attention to local context and variation. Looking to the future, he concluded that if law and development is to produce useable knowledge the separate aspects of the field should be better integrated, more attention paid to local variation and context in law and policy, research capacity in the Global South enhanced, and North-South communication improved.
To read the full text of "Law and Development 40 Years after Scholars in Self Estrangement: A Preliminary Review ", by David Trubek please click here. You can also watch the full presentation and discussion at video.law.utoronto.ca.