Critical Essay: Theoretical Foundations in Development Law: A Reconciliation of Opposites?

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INTRODUCTION

This Critical Essay will examine certain philosophic implications of modernization theory and dependency theory, and their impact on development law. The essay will also identify certain similarities and key differences between the two theories and explore past histories and future trends of both theories. Finally, this Essay will propose a means of reconciling the two, thereby ending the decades-long stalemate between the two theoretical perspectives. If accepted, this reconciliation may provide common ground for development law practitioners and specialists to work more harmoniously together into the future. However, before embarking on a discussion of the theoretical foundations of development law, let us take a step back and examine why this inquiry should be made.

Development law, as I have defined it, is a subject that establishes a new legal architecture between developing and advanced nations. (1) Moreover, development law, by its nature, is a multidisciplinary study that incorporates aspects of economics, political theory, philosophy, history, sociology, and even legal anthropology as well as other subjects. While philosophy may not be as important in other subjects of law, it is particularly relevant to an understanding of development law. The theoretical foundation of development law is its cornerstone, and any change in its philosophic underpinnings has profound implications with respect to the subject generally.

Indeed, it may be argued that development itself is essentially a political process. It may be further argued that as a consequence, the political theories, ideologies, and philosophies that motivate and guide the political process are vitally important regardless of whether individual political actors acknowledge it, or are even aware of it. Philosophic orientations and approaches, whether overtly acknowledged or not, tend to describe, define, and differentiate developing nations from their more advanced counterparts. The post-WW II era has seen a clash of ideals that has been the genesis of the political thinking and action on both sides of the "development" equation, between the so-called "haves" and "have nots." Therefore, a clearer understanding of the philosophic dimensions of this divide both deepens and broadens the debate.

The second preliminary question that needs to be addressed is why modernization theory and dependency theory are considered to be rivals. Modernization theory, discussed below, rose into prominence after the end of WW II, primarily as a result of the efforts of U.S. economists, political scientists, and sociologists. (2) In contrast, dependency theory achieved its prominence after the decline of modernization theory in the mid-1970's. (3) It became a discipline that both stemmed from Marxist political theory, and was adopted by Marxist-influenced political regimes. This, in my view, led to the unhappy juxtaposition of the two approaches within the context of the Cold War during the decades that followed.

A potential reconciliation of opposite views and approaches as discussed in this Critical Essay is important not simply from the perspective of intellectual history, but more importantly, in terms of developing a more coherent, consolidated approach to development theory. If this reconciliation occurs in fact, this will have far-reaching consequences, and a potentially beneficial impact, on development law as a whole. In my view, there may be a significant shift underway in that direction for the reasons discussed below.

I. THE THEORETICAL UNDERPINNINGS OF DEVELOPMENT LAW: MODERNIZATION THEORY

Modernization theory is based on the assumption that development is the inevitable, evolutionary result of a gradual progression led by the nation-state that results in the creation (and ascendancy) (4) of Western-styled economic, political, and cultural institutions. These institutions rest on three pillars: a free market capitalist system, liberal democratic institutions, and the Rule of Law.

In this context, modernization theory is anchored by two principal thinkers: first, Adam Smith's elevation of the drive to acquire material wealth to a classical economic ideal, and second, John Locke's demand that the State protect private property and individual liberties, thus setting the stage for liberal political theory. (5) In other words, the pursuit of one's own personal happiness through the material acquisition of personal wealth as well as the state's protection of individual liberties has become a Western classical ideal. Indeed, the terrifying force of this ideal may be its universality.

While Western societies developed legal structures over the centuries to protect private property--such as contract enforcement, mortgages, secured loans, liens, and bankruptcy proceedings--and to ensure the protection of individual liberties--for example, passage of a Bill of Rights, due process of law, and jury trials, non-Western societies did not, for the most part, develop similar institutions. What revolutionized our world at the end of the last millennium was not the adoption of a Western classical ideal by the non-Western world, but the adoption of the Western methodology of achieving this ideal through private property, democratic governance, and the Rule of Law.

Under modernization theory, there is a clear and pronounced emphasis on constitutional, legal and regulatory reform. (6) In fact, modernization theorists created the so-called "Law-and-Development" movement in the 1960's, (7) espousing the idea that emulating Western legal principles and institutions lays the foundation for legal development, and therefore, supports the development process in general. A modernist approach creates a solid foundation for creating a positivist, normative style of law-making with which most common law practitioners are familiar.

However, the fundamental character of modernization theory seems to be, for the most part, overlooked. The theory describes an ahistorical, linear process based on the …