Beheading the Hydra: Legal Positivism and Development

Article excerpt

Abstract

For the last sixty years, the concept of development has operated as a proxy for conversations about global inequalities. However its transformative logic ultimately implies that the West is the only legitimate source of models for social, economic and political organization. The understanding of law and legal systems is part of this broader tendency. A close study of the contemporary orthodoxy that promoting the 'rule of law' will bring about development reveals the way that developmental logic both secures a specific, positivistic conception of the rule of law, grounded in Western political theory and jurisprudence, and negates the possibility of other forms of normativity and regimes of legitimacy. Critiques which centre on the 'political' character of positive law are useful in pointing out the mythic character of institutional models, which empirically find no exemplars even within the 'developed' world. However such critiques ultimately avoid a consideration of the specific form which politics takes in positive legality, and the way developmentalism as a logic secures the ostensible universality of those Western forms of socio-legal ordering in the first place. Because of this, such interventions risk increasing, rather than reducing the sphere of intervention in Third World sovereignty legitimated by the concept of development.

Keywords:

Law, Development, Legal Positivism, Critical Legal Theory, Law and Development, Rule of Law, Third World, World Bank, Sovereignty.

1. Introduction

Development is a story about human history in which a certain number of societies have, over time, achieved the most perfect forms of social, legal, political and economic organization which could reasonably have been achieved by now, but which other societies have not yet achieved. (1) According to this story, 'society' 'law' 'politics' and 'economics' in their ideal forms can be found in the knowledge, if not always the practice, of societies which have already achieved development and will slowly be achieved by the other societies. Experience has shown that this process can be hindered by many factors and that it is difficult to accelerate. However, there has grown a large industry devoted to discovering how this acceleration may be achieved and implementing its discoveries. In this story, development is the task of those who are still in the process of developing. The privileged too, have a role, for they must help those less fortunate by providing knowledge about the meaning of development and the means to try and accelerate the arrival of a state which time has already brought them and would eventually have brought to the less privileged too. But the pace of history is too slow to tolerate in this increasingly interconnected world, (2) and so in this story the developed societies must give to the developing societies many gifts of knowledge. Significant among those gifts is law.

The ideal(ised) version of law in the development story is the law of the legal positivist. Legal positivism as a jurisprudential endeavour is another narrative, about a certain body of rules made in a particular way. According to this story, these particular rules are the only rules which may rightly bear the name of 'law'. And this 'law' is the language in which legitimate authority is brokered in modern society. When certain scholars critique the premises of legal positivism in the context of development (3) they are usefully holding a mirror up to the societies claiming for themselves the exemplary position of the developed and saying, 'Look! In this respect, you do not meet your own ideal'. This can be a politically suggestive project which implicitly undercuts at least one aspect of development discourse.

But predictably the story is more complex than this, because in part, positive law as 'law' (4) draws its power from a constellation of concepts homologous with and including development. …