Mapping Law & Development

Author:Liliana Rodriguez
Position:Faculty of Law, University of Antwerp, Belgium
Pages:761-895
SUMMARY

This paper presents an overview of the emergence and evolution of the concept and field of Law and Development. The concept of Law and Development covers a variety of aspects. These aspects acquire different meanings depending on different criteria and approaches. It depends on the geographical context, depends on the scope and meaning that is given to the concept of "development," and depends on ... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2017 e Institute for Migrant Rights Press
An earlier version of this paper has been elaborated as a background document for
the International Conference on Law and Development, organized by the Law and
Development Research Group of the University of Antwerp, Ostend, September 2016.
e author thanks Koen De Feyter, Ellen Desmet, Wouter Vandenhole, Philippe De
Lombaerde and Stephen Kingah for helpful comments; and Filip Reyntjens for useful
inputs.
MAPPING LAW AND DEVELOPMENT
Liliana Lizarazo-Rodríguez
Faculty of Law, University of Antwerp, Belgium
E-mail: Liliana.LizarazoRodriguez@UAntwerpen.be
is paper presents an overview of the emergence and evolution of the concept and
eld of Law and Development. e concept of Law and Development covers a variety
of aspects. ese aspects acquire dierent meanings depending on dierent criteria and
approaches. It depends on the geographical context, depends on the scope and meaning
that is given to the concept of “development,” and depends on whether a disciplinary or
interdisciplinary approach is followed. e paper does not present the development of
Law and Development as a historical sequence of stages or waves, but rather emphasizes
simultaneity, cross-fertilization and dialogue, convergence and divergence, and hidden
connections between approaches. It recognizes that there is no unique or “best” way to
map and classify the various approaches to Law and Development and their respec-
tive abundant literature. ere is no unique criterion neither to establish the scope and
borders of this eld. Fuzziness and overlap between categories and areas are unavoid-
able. e paper opted for a fundamental distinction between approaches on the basis of
their scope, and taking the law as point of departure, as follows: national perspectives
(the economics-oriented/institutionalist approach versus the anthropology- and sociol-
ogy-oriented approach), international perspectives (public international law perspective
and the ird World Approaches to International Law), the transnational approach,
comparative Law and Development, and nally, approaches based on transnational the-
matic areas (human rights, sustainable development, and transitional/restorative justice
and post-conict law). From this mapping exercise, the author draws conclusions of two
types: conclusions related to the object and scope of Law and Development, and conclu-
sions related to the functioning of Law and Development as a community of scholars
and practitioners.
Keywords: Legal eories, Rule of Law, Law and Society, International Development
Law, Legal Pluralism, Sustainable Development.
IV Indonesian Journal of International & Comparative Law 761-895 (JOctober 2017)
762
Lizarazo-Rodriguez
I. INTRODUCTION AND PRELIMINARY
CONSIDERATIONS
e objective of this paper is to present an overview of the emergence
and evolution of the concept and eld of Law and Development. It does
not pretend to be an exhaustive and in-depth literature review; it rather
presents the general landscape of the various subelds related to the
concept of Law and Development by referring to the respective key ref-
erences as well as to signicant recent contributions in this eld.1 Being
aware of the fact that an important part of the discussions within Law
and Development refer to colonial or post-colonial Rule of lLaw and
that ideological positions are quite prominent in the literature, an at-
tempt is made to avoid siding with one or another specic approach or
position, and to present possible criticisms towards the most relevant
paradigms in a balanced way.
is paper will also present a mapping of the production and scope
of Law and Development in a historical context and explore whether
there is a distinct European school of Law and Development, which
contrasts with an American school (or other schools). e literature
study, which led to this paper, clearly revealed that the concept of Law
and Development covers a variety of aspects and acquires dierent
meanings depending on various criteria and approaches. e most
straightforward interpretation of Law and Development refers to a
simple combination of the concepts of Law and Development: law and
development, the law as development, the law in development, or law
for development. It is also clear that the scope of Law and Development
depends on the geographical context2 and the extent and meaning that
1. For good bibliographies on Law and Development and related topics, see also, B
Z. T, B  L  D C (1995); James T.
Gathii, TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative
Bibliography, 3 T L.  D. 1, 26 (2011); Randall Peerenboom, Toward a Methodol-
ogy for Successful Legal Transplants, 1 C J. C. L. 4-20 (2013). ese and simi-
lar reviews have been extensively referred to in this paper because they help to establish
the scope of the area and to identify the most important approaches and authors (i.e. to
“map” the eld). at is also the reason why several quotations are included in the text.
2. See, Randall Peerenboom, Law and Development in Middle-Income Countries:
Introduction (Jan. 22, 2013), available at http://ssrn.com/abstract=2205161;
Randall Peerenboom, Law and Development in Middle-Income Countries:
763
Mapping Law and Development
Lizarazo-Rodriguez
are given to the concept of “development.” Finally, the scope of Law and
Development also depends on whether an interdisciplinary approach
is opted for to understand the complexity of the interrelationships
(i.e. legal institutions in a development context as objects of study).
Alternatively, whether the relationship between law and development is
looked at from a disciplinary perspective and the potential value added
of legal scholarship is emphasized (i.e. legal disciplinary analysis of the
law and development nexus as a method, distinct from other methods).
Although this distinction is crucial, in practice, both approaches exist,
and they oen overlap.
e scope of Law and Development depends ultimately on how
scholars auto-dene their work. ere are diverging views, however,
on what the scope of Law and Development should be. is paper
seeks exactly to contribute to this and related debates, ex-ante a broad
and inclusive perspective was adopted with respect to disciplines and
approaches.
When revising the huge amount of publications that by and large
fall under the umbrella of Law and Development, it does not appear
that the history of Law and Development can easily be presented
as a chronological succession of models. On the contrary, various
perspectives appeared more or less simultaneously, even if they were
not directly identied as part of the Law and Development eld right
from the start. ere are a number of attempts, however, of authors
who tried to present the development of Law and Development over
time but they do not coincide in distinguishing between successive
“currents” and/or “waves.”3e reality seems rather to be that the
Conclusion (Jan. 22, 2013), available at http://ssrn.com/abstract=2205163.
3. See, David M. Trubek, e “Rule of Law” in Development Assistance: Past, Present and
Future, in T N L  E D: A C A,
E. D M. T  A S (), 74–95; Patrick McAuslan, In the Be-
ginning was the Law . . . an Intellectual Odyssey (Cornell Law Sch. East Asian & Culture
Conference Series 2, 2004); John K.M. Ohnesorge, Developing Development eory:
Law and Development Orthodoxies and the Northeast Asian Experience, 28 U. P J. I’
E. L. 219-308 (2007); Benjamin Van Rooij & Pip Nicholson, Inationary Trends in
Law and Development, 24 D J. C.  I’ L. 297-348 (2013); Yong-Shik Lee,
Call for a New Analytical Model for Law and Development, 8 L.  D. R. 1-67 (2015);
Duncan Kennedy, ree Globalizations of Law and Legal ought: 1850-2000, in Trubek
& Santos eds., supra note 3, at 19-73; Wouter Vandenhole, Law and Development Re-
visited: From Self-estrangement to Revival, 9 H. R  I’ L. D 112-18
(2015); Julio Faundez, Law and Development Lives On (Warwick Law Sch. Res. Paper

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