Old habits in a new agenda: rethinking law and development

A special contribution By Rafael Zanatta 

Does it make sense to talk about “law and development” (L&D) after the June riots in Brazil? What is the meaning of the “law and development agenda” in times of global crisis, “networks of outrage and hope” and attempts to reinvent democracy? When we do not know which development we want, how can we talk about institutional and legal reforms? 

These are some questions that L&D scholars do not want to answer. They argue that we do not need a clear conception of development to pursue an agenda of applied legal research. They dismiss normative questions. In their view, the L&D researcher must understand what is the role of law in certain historical contexts and what is the impact of legal reforms in countries that face processes of social change.

One of the leaders of this agenda is David Trubek, one of the pioneers of the law and development movement. Seven years ago, Trubek claimed for a network of functional and empirical legal researchers around the world. Several “law and development projects” were funded by governmental agencies in Brazil, India and Russia. This instrumental view of law was acclaimed in developmental states. It seemed that Brazil was in the right path and new legal arrangements could be forged for economic growth.

The year of 2013 showed that something was wrong, at least in Brazil. The massive riots in the streets put some normative questions in the centre of the public debate. What society do we want? Why do we need institutional reforms? What is the long term perspective in this model of economic growth? How to deepen the democratic experience in Brazil?

It seems that Trubek does not acknowledge that we need some kind of normative orientation, or at least a concept of “democratic development”.  In a recent text about the “Cross Border Legal Institutional Design” run by the Nagoya Law School, Trubek goes back to the “old law and development” spirit and defends this functional approach to applied legal research: “students engage in real-world projects, meet with leading scholars and experts, travel to developing countries to do field work, and prepare concrete reform proposals”.

Clearly, Trubek acts in good faith. He is proposing more “law in action” research and the sharing of knowledge about legal reform -- which is always great. But, at the same time, he is reinforcing the idea that a small group of scholars know better than developing countries citizens and politicians what to do and what to reform.

I think that it is time to move one step back. Maybe it is time for L&D scholars to face some harder questions: what are the purposes of a given institutional reform? What are the demands of different social groups and how can we see the many conflicts behind institutions? How can we translate the discourses of new social movements -- like “human rights collectives”, “hackers’ labs”, “makers”, and “civil society activists” – in applied legal research?

It seems that Trubek’s agenda ignores those questions. Should we?

P.S. For Rafael Zanatta's original response to David Trubek's post (in Portuguese) click here.