Prof. Kerry RittichDevelopment Old and New

Professor Kerry Rittich

Development has been reconceived. After a period in which the pursuit of economic growth was the preeminent objective, now a host of other goals are articulated as integral to development. According to the international financial institutions, there are now two sides of the balance sheet: the conventional macroeconomic concerns remain as relevant as ever, but now they must be supplemented by greater attention to the "structural, social and human" dimensions of development.

Law and legal institutions have become central to the way in which these new development objectives are formulated. In the official story, lack of development can largely be attributed to the following internal difficulties and deficiencies: the absence of key institutions, corruption on the part of government officials, and lack of respect for the rule of law. But law is also part of the reconceptualization of development: freedom, democracy and the enhancement of human capabilities. Because law serves both dimensions of the development agenda, almost everyone places enhanced attention to the rule of law at the beginning of the list of reforms. Indeed, law is a defining feature of second generation development efforts, the 'post'-Washington consensus as it is sometimes called, the element that most clearly demarcates the current from the earlier moment.

 

"Whether development reinvented around law and governance can better respond, not only to the demands of growth but to the demands of justice and democracy, remains the central question."

 

The new focus on law in development, however, turns out not merely to concern cultivating a healthy respect for the rule of law; nor is it about the promotion of societies that are law-governed rather than arbitrarily ruled. Instead, law reform is part and parcel of a more comprehensive effort to institute good governance in developing countries. If the development consensus of the 1980s revolved around getting the state out of the market, then now that consensus has shifted in favour of defining the proper role of the state in the market. What has been described as a 'remarkable consensus' in the developed and industrialized worlds has emerged concerning the place of the state, the market, and private actors and 'civil society' groups in the global economy. The state should play an 'enabling role' in market transactions. Private/public partnerships should be sought wherever possible. Volunteer and civil society groups, NGOs, and perhaps even religious groups have an important role to play, whether as a means to democratize society, as conduits for transmitting popular desires to decision-makers, or as alternative providers of goods and services. Driving the new visibility and popularity of both the market and the 'third sector' is the view that a large role for the state is both economically unsustainable and normatively undesirable: the state cannot be trusted to perform many of its traditional economic and welfare functions, but even if it could, such a role is passe.

While this is the official story, it is worth reflecting on the other reason for the emergence of the new development agenda. Revamped development objectives centered around law, institutions and governance did not emerge simply out of a recognition that their importance had been earlier overlooked. Instead, the prevailing development paradigm was undermined by a series of crises. From East Asia to Sub-Saharan Africa and Central and Eastern Europe and the states of the former Soviet Union, key operating assumptions driving the management of financial crises, development policy and market reform seemed to be mistaken, with the result that growth was often undermined rather than furthered. Not only was the development agenda often failing on its own terms, by the late 1980s, the international financial institutions were bombarded with complaints from a widening range of sources concerning the social, political and distributional impact of their policies. In the eyes of their critics, development policies were frequently harmful to social development, undemocratically generated, and unequal in their impact upon different groups. The development institutions first resisted but ultimately absorbed at least some of these critiques. Their response was a new focus on social issues, a promise of greater grassroots participation in the formulation of development objectives, and greater attention to specific groups, such as women, who claimed to be disadvantaged under the conventional approach to economic development. These reforms, too, proceeded in the name of law. Human rights, the language that grassroots organizations, scholars and activists typically used to frame their criticisms of development policy, are now officially incorporated into the ends and means of development.

This transformation is important to the legal agenda. Once development itself has been reformulated - reflecting a larger, more varied set of objectives - then what law is for and what it does in development also takes on new significance. Although for a long time the international financial institutions put aside questions of equality and distribution while crafting development policies, equity and efficiency are - and are increasingly recognized as - not separate but deeply interconnected issues. Yet this remains a deeply contested issue. Whether development reinvented around law and governance can better respond, not only to the demands of growth but to the demands of justice and democracy, remains the central question.

Part of the answer will lie in how law is used. The introduction of the rule of law and human rights gives the reformed development agenda a newfound legitimacy. But it also gives us another means by which to evaluate development initiatives. Because specific laws provide both the material incentives and the normative structure in which different actors, public and private, are expected to perform, the prescriptions concerning the rules necessary to development give us priceless clues about the distinctive shape and character of the new development agenda. They reveal not simply its abstract hopes and commitments, but the manner in which, for better or worse, they are prioritized and the route by which they are to be realized.

Quite apart from the content of law, who controls the path and processes of development remains contentious. However well intentioned and conceived, the new development agenda does not stand on its own, nor is it even necessarily perceived as new. Those on the receiving end may experience current governance and law reform efforts as the latest in a line of encounters with powerful outsiders who often have objectives of their own. Whatever their promise, many developing countries have experienced disappointment with what multilateral institutions and greater participation in the global economic order have delivered so far. The new development agenda is even more pervasive in its reach than its predecessor; moreover, ideas about good governance, enlightened policy and good and bad legal reforms are powerful disciplinary and regulatory tools. Whatever the commitment to democracy, civil society, and greater grassroots participation in the latest phase of development, important parts of the reform agenda remain largely predetermined: they are not up for discussion. Thus, the new agenda has powerful internal tensions. However, those states and groups looking for something more and something different from the new development agenda can now be expected to ask, for what and for whom is law in development used?

This article first appeared in the Spring 2003 issue of Nexus.