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January 18, 2004

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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.


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