Why
our laws have failed to promote development?
Barrister
Tureen Afroz
The
first law and development movement, which took off in mid 1960s, was
closely associated with 'Modernisation Theory'. History accounts that
the first law and development movement essentially began following the
Modernisation Theory of Political Development Movement initiated in
the early 1950s. However, the Modernisation Theory has its historical
root much earlier than that, basically in the writings of Max Weber.
Weber started his inquiry with two questions : why did a capitalist
economy develop in Europe and what were the necessary conditions for
such development? Weber found that a rational system of law played a
crucial role in the 'rise of capitalism' among the Protestant West by
allowing individuals to order their transactions with some predictability.
In 1950s, the Modernisation
theory of Political Development Movement borrowed its basic tenets from
Weber's finding on 'rise of capitalism'. It assumed that development
was 'an inevitable, evolutionary process of increasing societal differentiation
that would ultimately produce economic, political and social institutions
similar to those in the West'. The end result of this process would
be 'creation of a free market system, liberal democratic political institutions
and the rule of law'.
However, the reality
in the developing world was proving to be quite resistant to the theory
and as such, the Modernisation Theory of Political Development Movement
began to collapse by late 1960s. The initial blame for failure was imposed
on the internal civic, economic and political culture of the developing
countries.
More importantly,
Modernisation theory of Political Development Movement came under increasing
attack for its very basic inconsistent assumptions, especially the 'ethnocentrism'
it promoted. The theory could be a success in its developing country
origin but could be a disaster in the target developing country. There
is a stark difference in the initial conditions of once developed countries
on the eve of their entry into Modernisation and today's developing
countries.
It has also been
found that political development was neither a necessary condition for
Modernisation, nor a sufficient one. S. P. Huntington thus commented
that it was indeed a mistake to equate 'modernisation' with 'political
development' in the first place as many aspects of modernisation (such
as, urbanisation, increasing literacy, industrialisation, the spread
of mass media) rather coincided in developing countries with their stagnant
political development, or even with the decay of political institutions.
Quite apparently,
both Weber and the Modernisation Theory assume 'the rise of capitalism'
as a mark of 'development' for a nation. Rostow, the most influential
proponent of the Linear Stages Theory of Economic Growth, is of the
view that a nation goes through different stages of growth towards achieving
development. The Neo-classical Economic Growth Theory of Structural
Change would make us believe that a country can travel from a lower
stage of development to a higher one, only by way of engaging itself
into 'capital accumulation' and 'capital investment'.
It
is true that the 'capital formation' is an essential element for fostering
country's economic development. It is also true that the rise of capitalism,
as it was shaped in the West, is reflected in the increasing rate of
capital formation. However, it is stated that both Weber and the Modernisation
Theory were reluctant to explore the success (or even a possibility)
of notions like 'Socialist Capitalism' as it was experienced in China
or 'Religious Capitalism' as it was experienced in Islamic world. In
other words, it is suggested that Western Capitalist model is not the
only way to achieve Modernisation, the viability of other models have
been ignored by both Weber and the Modernisation Theory of Political
Development.
Notwithstanding
the increasing criticism on the Modernisation Theory of Political Development,
the first law and development movement in mid-1960s was geared by the
United States with an ambition to modernise developing countries and
bring them within the orbit of the West rather than the Soviet bloc
and for that purpose, Western legal values was presumed to be used as
an instrument for change. Based upon the Weberian spirit, the first
law and development movement assumed that the injection of Western law,
imitation of Western legal institutions, and building upon Western legal
expertise into the developing country's legal culture would facilitate
a rapid economic growth in the developing countries. Accordingly, massive
law reforms based upon Western type legal models were suggested and
implemented in developing nations for ensuring quick development therein.
However, the law
and development movement based upon Modernisation Theory was declared
dead even before completion of a decade of progress since its inception
for being "ethnocentric and naive".
The
aftermath of the pre-mature death of law and development movement could
be marked by various literary works of eminent law and development scholars
trying to identify and list various possible reasons for the failure
of the movement. The crisis in law and development movement based upon
Modernisation Theory, first declared in 1974 by D. Trubek and M. Gallanter,
continued for the following 20 years. Comparing and contrasting the
works of various critics, the following four very basic reasons for
the first law and development movement's failure can be found :
(a) Ethnocentricity
: Prima facie, the early law and development reformers assumed that
many problems of developing countries could be resolved by 'modernising'
their legal and social structures according to an idealised version
of American legal history. However, they failed to appreciate that the
so-called problems in developing countries had a different dimension
all together than that of America in its pre-modern stage. The reformers
were poorly informed about the political, economic and social conditions
of the developing world. For example, instead of political pluralism,
the developing countries had social stratification, sharp class differences
and authoritarian governments.
(b) Universal applicability
of instrumental view of law: Scholars identified that there is a danger
in exporting an instrumental view of law to the developing countries.
When the state is under control of authoritarians (which was the case
for many developing countries), law can become an instrument of furthering
authoritarian goals. Not only its applicability in developing world,
instrumental view of law was also strongly opposed in America by many.
Many observed that the rise of instrumental view of law was a major
aspect of the disintegration of the rule of law and the shift to a post-liberal
society and the social welfare state.
(c) Defective Legal
Intervention : The aims of the American legal assistance projects and
the legal education projects were unspecific and over ambitious, planned
in ignorance of developing country's local politics and as such, sometimes
'incredibly inept'. There were inherent weaknesses in American legal
models.
(d) Resistance of
legal culture : Legal culture is conventionally classified into common
law and civil law, and it is assumed that there is mutual resistance
between them. The first law and development movement failed because
it was discovered that it was not easy to successfully transfer legal
experience of one legal culture to another.
It
is stated that the reasons forwarded by the eminent law and development
scholars for the pre-matured death of the first law and development
movement requires more critical analysis from different dimension. Until
and unless, it is done, it cannot be said that there was actually a
death of law and development movement based upon Modernisation Theory
in the early1970s. More importantly, there can be vital implications
in finding the relevance of Modernisation Theory in the contemporary
law and development movement and for that, the reasons of failure demands
closer look. The following observations can be made :
First, American
legal experience could have been of relevance to developing countries
had the reformers been more selective in transferring the American experience
right from the beginning of the law and development movement. Selection
could be country specific or project specific. Even though with utmost
care, it is actually possible to transfer some selected aspects of American
models to the developing countries.
Second, it is misleading
to blame the absence of American type (liberal) 'rule of law' model
in the developing countries for the unsuccessful outcome of the first
law and development movement.
Third, the failure
of inept 'American legal assistance projects' and the unsuccessful transfer
of fundamentally flawed 'American legal models' cannot be attributed
to the total failure of the workability of the Modernisation Theory.
If the early law and development reformers would have planned to implement
more effective legal projects suitable for the specific needs of the
developing countries or to transfer refined American legal models into
the developing countries, the fate of the first law and development
movement could have been different.
Fourth, the reasons
in regard to the resistance of recipient legal culture to successful
legal transfer, is superfluous. It assumes that each country has a single
legal culture, and tends to treat legal cultures as unified actors.
For example, Bangladesh has a mixed legal culture of British common
law, European civil law and also, of Islamic law. Legal transfer to
such a country may have different implications from the perspective
of each legal culture prevalent there. Any legal transfer would have
to understand that dynamics. What is more interesting is to note that
even the contradictions within the similar legal cultures are as much
as true as that of contradictions among different legal cultures. For
example, while the Islamic legal culture of Tunisia could accept the
'abolishment of polygamy' in their society, the Islamic legal culture
of many other Muslim countries could be strongly resistant to that.
Finally, even though
there was a formal declaration of death of law and development movement
in the early 1970s, the law and development movement did not actually
die out. Till date scholars continued writing on the topic while the
lawyers in developing countries continued 'apace the borrowing of laws
and building of legal institutions based on Western models'. Simultaneously,
the 'globalisation of law', in terms of universal as well as regional
harmonisation and unification of both legal rules and regimes, gained
growing importance more than ever before. It is hence stated that the
crisis identified in the law and development movement in the early 1970s
cannot be termed as a "death", it could at best be a "detection
of disease" which itself could be cured by proper treatment.
As far as, the issue
of contemporary relevance of Modernisation Theory after the experience
of first law and development movement is concerned, it is stated that
the theory might have been a failure in the structural sense but can
still be a success if taken in spirit. Weber's investigation and finding
regarding the relationship between law and development and also of the
rise of capitalism was very much time and zone specific. He investigated
the rise of capitalism and the role played by law in development in
a specific area zone (in the West only) and during a specific time period
(the European renaissance period and the advent of Industrial revolution
era). Similar investigation in other parts of the world or other time
period might have a different lessons to offer in exploring the relationship
between law and development.
It is also suggested
that the Modernisation Theory of Law and Development Movement be reinterpreted
and reformulated to take into account the contemporary empirical experiences
of law and development efforts in many developing countries as well.
It is not wise to discard the Modernisation Theory of Law and Development
Movement just because it failed to achieve its desired goal during the
first law and development movement under the patronisation of American
law and development reformers. The tenets of the theory could still
be a success if applied with caution and with profound understanding
of the problems and prospects of law and development movement in the
context of developing countries.
Barrister
Tureen Afroz is an Advocate of the Supreme Court of Bangladesh. She
is currently doing her PhD in Law at Monash University, Australia.
