Academic journal article Texas International Law Journal

Law and Economic Development: A New Beginning?

Academic journal article Texas International Law Journal

Law and Economic Development: A New Beginning?

Article excerpt

LAN CAO ^

Law and Development. Edited by Anthony Carty. New York, N.Y.: New York University Press, 1992, pp. 506.

I. INTRODUCTION

Law and development as an academic field of study in the United States began in the 1940s, thrived in the middle to late 1960s, and was declared dead by its proponents in the late 1970s. ' The publication of Law and Development, an anthology of writings compiled by Professor Anthony Carty, signals a budding resurgence in this field, perhaps the result of the economic and political transformations that accompanied the demise of the Soviet Union and occasioned a somber assessment of centralized planning. As transitional economies in Eastern Europe, Africa, and Asia adopt mea lures to loosen the monolithic hold the state once exerted on the economy, in essence reversing decades of state domination, the relationship between law and economic development is becoming all the more urgent. Despite the unique historical legacies that inform the different mixes of choices and outcomes in each country, a common problem exists: how to restructure the economy to create economic growth without inflicting lawlessness or, conversely, how to institute a legal infrastructure that maximizes order and simultaneously promotes economic growth. This common problem has precipitated a reexamination of the relationship between law and development.

While the current preoccupation with the institutional arrangements of law and development is related to the contemporary wave of lawmaking sweeping Eastern Europe and the developing world, the connection, if any, between aw and development has been examined before. As revealed in the wide selection of articles included in Professor Cart's anthology, wrestling with the law of emerging legal and economic orders predates the collapse of the Berlin Wall and, until recently, has been ide fied not with Eastern Europe but with the struggles of the developing world. For ex le, the first part of Law and Development includes articles drawn from scholars who subscribe to either of the two dominant paradigms that have defined the field: modernization theory and dependency theory, both of which have pre-Berlin roots. The second part of Carty's work explores the continuing debates in the field about the existence of a "right" to development, and the third part examines the international law of development.

Like other books on law and development, Carty's anthology suffers from a truncated and ahistorical perspective that has plagued the field since its "founders" declared themselves estranged from their research and scholarship. Although most law and development inquiries, like Professor Carty's, start by examining the modernization theory of development that arose in the 1940s and culminated in the 1960s, the field in general and modernization theory in particular have their origins not in the American law and development movement of the 1960s, but in the writings of Marx, Engels, and Weber. The themes identified by those writers are especially relevant for contemporary scholars interested in the relationship between the development of law and the development of economics. In Part II of this review, I examine the historical foundations of law and development that predate both modernization and dependency theories. I also examine these two defining models of the law and development debate and analyze how they have been influenced by the theoretical underpinnings developed by Marx, Engels, and Weber concerning the rule of law and the idea of law as an autonomous versus an instrumental system of governance. In Part III, I examine the right to development and the international law of development, the two areas that form the bulk of Professor Carty's anthology. Part III situates these two phenomena against the background norms and aspirations of the dependency model. In Part IV, I briefly explore a subject not addressed by any contributor to the anthology-the emergence of a global economy-and I examine the possibilities it poses for development. …

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