Mapping Law & Development

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

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.”3 e 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