Law, Rights and Development

John Linarelli 

Swansea University School of Law
February 1, 2013

Research Handbook on Global Justice and International Economic Law, Edward Elgar, ed., Forthcoming 
Abstract:      
This chapter will appear in the forthcoming Research Handbook on Global Justice and International Economic Law, to be published by Edward Elgar. It does two things. First, it examines the idea of a human right to development and how it might be morally justified. It deals with some of the conceptual difficulties a human right to development faces, in both the law and in moral and political philosophy. Moral imperatives apply in the global context but they might not be in the form of a human right to development. Second, it provides an intellectual history of the field of law and development. In its beginnings in the 1960s, the field was focused on the “modernisation” of societies through law. In the immediate post-Cold War period of the 1990s, its focus was on economic development and economic growth. The field in its current stage still maintains a predominant focus on economic development, though it is has been experiencing something of a turn away from aggregated measures and towards measures of human development that respect the separateness of persons. The first law and development thinkers were mainly American legal scholars working at a time when modernisation theory was at its most prominent and in a post-American Legal Realist intellectual context in which law was seen as an instrument of social change. Their focus was on modernising societies, where law served as an instrument of change. A second movement took hold in the immediate post-Cold War period, based in the neoliberalism of the so-called Washington Consensus. This second movement grounds itself in New Institutional Economics (NIE). It is a more significant movement partly because of its acceptance and funding by the World Bank and other development institutions. While NIE accounts remain prominent in law and development, other accounts are or are becoming important, particularly as the world moves away from the Washington Consensus. Some development practitioners apply a human rights-based approach (RBA), but it is unclear whether this approach has had much influence in law and development. A move can be seen towards understanding the role of institutions in development from moral and political standpoints. The moral approach to the study and design of institutions tends to be located in the capabilities account developed by Amartya Sen and Martha Nussbaum. A political approach with strong ties to NIE is located in the work of political economists like Daron Acemoglu and James Robinson, who locate the most important variables in the development of states in political and civil rights for broad segments of a state’s population

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2210374