Sunday, March 29, 2009

New Book on 'Rights and Legal Empowerment in Eradicating Poverty'

Edited by Dan Banik of the University of Oslo, these essays give good arguments for the link between empowerment and poverty, and provide some useful case studies. At more the $100, it is a bit of of reach for most, but you can read excepts of the book online. Official description and links follows: 

How best to improve the position of the world's poorest people remains one of the major issues facing the human species. Empowering the poor requires more than simply a transfer of resources; it entails the creation of sound legal and political frameworks which specifically address the needs of the poor and vulnerable and hold political and administrative leaders accountable for policy failures.

This book investigates the role that legal empowerment and rights (including human rights) can play in tackling poverty and enabling poor people in developing countries to take action to improve their positions. Original in focus, the book provides new information and knowledge and presents informative and useful case studies on sub-Saharan Africa, Asia and Latin America.

Contents: Introduction, Dan Banik; Part 1 Conceptual Issues and Challenges: Rights, legal empowerment and poverty: an overview of the issues, Dan Banik; The political economy of legal empowerment of the poor, Arjun Sengupta; Legal empowerment as a new concept in development: translating good ideas into action, Mona Elisabeth Br√łther. Part 2 Promoting Access to Justice in Developing Countries: Constitutionalism in an insurgent state? Rethinking legal empowerment of the poor in a divided Bolivia, John-Andrew McNeish; Rural poverty, legal activism and development in rural China, Susanne Brandtst√§dter; The access to justice challenge in Uganda, Donald Rukare; Legal empowerment and the right to food, Marc J. Cohen and Mary Ashby Brown. Part 3 Formalisation of Property Rights Revisited: Are Africans culturally unsuited to property rights and the rule of law? Some reflections based on the Tanzanian case, Hernando de Soto; Formalisation of land and housing tenure to empower the poor: simple nostrum or complex challenge?, Edward Robbins; The challenges of promoting legal empowerment in developing countries: women’s land ownership and inheritance rights in Malawi, Asiyati Lorraine Chiweza; 'Not on our land!' Peasants' struggle against forced land acquisition in India's West Bengal, Kenneth Nielsen; Index.

About the Editor: Dan Banik is an Associate Professor of Development Studies at the University of Oslo, Norway.

Reviews: '…offers context-specific and theoretical insights regarding the difficult task ahead.'
Francis Cheneval, St. Antony’s College, University of Oxford, UK

'Empowering the poor through access to justice, property rights, labour rights and the charter of rights that promote business enterprise is the sustainable way to tackle poverty. It is the missing link which is well identified in this timely publication'.
Mary Robinson, Columbia University, USA, former UN High Commissioner for Human Rights (1997-2002)

'This book is a welcome contribution to our understanding of poverty reduction and is especially valuable in elucidating – through masterly theoretical reflection and timely case studies – what the editor correctly characterizes as a "relatively new and alternative development paradigm," namely, the legal empowerment of the poor (LEP). It has the added advantage of introducing into the analysis the explicit reference to the operational linkages between human rights-based development and LEP. Students and practitioners of development and human rights will find in this book essential reading on this important and promising dimension of the struggle against world poverty'.
Stephen P. Marks, Harvard School of Public Health, USA

'Legal empowerment of the poor represents a promising alternative to the problematic, top-down approaches that many donor agencies and governments have adopted for advancing the rule of law. In this trailblazing book, Dan Banik and his fellow authors usefully analyze this emerging approach and related efforts to improve access to justice across the globe. It is highly worthwhile reading for academics, policymakers and development practitioners aiming to integrate justice and development. Of particular note, the book will be of interest not only to lawyers but to many socioeconomic development experts seeking to explore and expand the relationship between justice and poverty alleviation.'
Stephen Golub, University of California, Berkeley, USA and Central European University (Budapest), Hungary

'This book offers a helpful guide to a contemporary leitmotif in the international development agenda and its associated methodologies: 'legal empowerment of the poor'. The promise of this concept is no less than a new model of development.' International Affairs

Visit Dan Banik's personal webpages

Extracts from this title are available to view:

Full contents list

Introduction

Index

Monday, March 16, 2009

berkman Webast on 4/22; "The End of Lawyers?"

Announcement of Webcast at Berkman:

Beth Kolko, a friend of mine who is at Berkman as a visiting scholar this year informed me about this interesting upcoming event. I've read some of Richard Susskind's writings and find him to be forward thinking and visionary, basing his thoughts on technological trends. I can absolutely relate to his sometimes frustrations about trying to sell new revolutionary ideas to the legal industry, one of the most traditional and inflexible professional groups. His Harvard lunch presentation should be interesting. Stay tuned for my summary of it after the event.



The End of Lawyers? The End of Law Schools?
Professor Richard Susskind, Author of "The End of Lawyers?" and IT Adviser to the Lord Chief Justice of England
Wednesday, April 22, 12:15 pm
Griswold Hall 110, Harvard Law School
RSVP required for those attending in person (rsvp@cyber.law.harvard.edu)
This event will be webcast live at 12:15 pm ET.

Will lawyers be casualties in the digital revolution?  This is the controversial prediction of Richard Susskind, author of The End of Lawyers? Rethinking the Nature of Legal Services.  He believes that lawyers will have to ask themselves what elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality using different and new methods of working – because if they don’t, their competitors will. The market is unlikely to tolerate expensive lawyers for tasks that can be better discharged with support of modern systems and techniques.
Prof. Susskind predicts that the legal profession will be driven by two forces in the coming decade: by a market pull towards the commoditization of legal services, and by the pervasive development and uptake of new and disruptive legal technologies. The threat here for lawyers is clear - their jobs may well be eroded or even displaced. At the same time, for entrepreneurial lawyers, Susskind foresees quite different law jobs emerging which may be highly rewarding, even if very different from those of today.
Is the same true of law schools?  Is the current model of legal education facing radical change?  Prof. Susskind will explore these and other challenging questions in a lecture open to the entire Law School community.
About Richard Susskind
Richard Susskind has specialized in legal technology for 25 years, advising firms and governments. Since 1998, he has been IT Adviser to the Lord Chief Justice of England. In 2003, he was appointed by the Cabinet Office as Chair of the Advisory Panel on Public Sector Information. He holds law professorships at Gresham College in London and the University of Strathclyde in Glasgow.  Susskind is a graduate of the University of Glasgow and earned a doctorate in law and computers from Balliol College, Oxford. He is a Fellow of the Royal Society of Edinburgh and of the British Computer Society.

Sunday, March 1, 2009

Paradigms and Theories of Law and Development

(Updated from 4/7/2006)
Currently the 'flavor of the month', "Rule of Law" (ROL) has been the dominant theory in the development industry with regards to the role of law in development since the 1990s. However, like with general or sectoral development theories, the current thinking was not always the case, and even today, there is disagreement about what ROL really is, as well as suggestions of alternatives to thinking about this relationship between law and development.

Caveats:

1. I am attempting to summarize some of the thinking about this relationship. The problem with available literature is there isn't an established framework for Law and Development theories because:

  • This topic, like its mother theory of ‘Development’, is relatively new, and compounded by the fact that it is not a mainstream in development practice
  • There are inconsistencies about what 'law' means, and what 'development' means
  • Consequently, there is a lack of consensus about the role of law in development, ranging in a spectrum from legal determinism (law is a main cause of development) to law has no causal effect with development. Most current literature lie somewhere in the spectrum.
  • Because of the contested nature of the research and practice in this field, it is hard to design a definite framework to discuss the theories of law in development.
    • Firstly inconsistent and obscure terminology by authors result in readers not really knowing for sure if they are talking about the same or different issues
    • Secondly, vocabulary is inconsistent because development experts from across disciplines, as well as across time.
  • Each theory expounded, even if it has a discrete name, overlaps with elements of others
  • Even within each theory, there is often disagreement about definition and application.
  • Law and Development as a field, so far, can best be described as reactive and learning

2. I use the word 'theory' loosely - it simply refers to the ways that people think about the role of law in development. Some authors claim that there are ‘3 Movements’, some use ‘4 Phases’, most use their own frameworks, and others do not use any at all.

3. I also start where 'development' as an industry started, around 1950. However, the study of this relationship started way earlier in the 18th century with Western scholars like Weber. I hope to write more about the history of law (as applied to development) in future, but for our current purpose, let's start with 'contemporary' development.

Introduction
This table summarizes the rest of this post.

Period
Dominant Development Theory
Law and Development
Theory
Program and Policies
1950-1980
Modernization and Growth Theory
Law and Development Movement
Transfer of US model of law to foster development via the state (judiciary and legal profession)
1980-2000
Washington Consensus
Law as tool for markets
Creation of pro-market laws and pro-market institutions
Current
New Development Economics
Rule of Law
Rule of law as an intrinsic goal in context




Each theory description follows:


Modernization and Growth Theory

The intellectual background to this movement lies in the post- World War II period where the aid industry as we know it today really started, first in Europe after the war. Correspondingly, scholars and policymakers started being interested in the poor nations of the world.

Spanning from about 1950-1980, this initial phase of development has many names like ‘Modernization’, ‘Growth Theory’, ‘Industrialization’, ‘Import substitution’, and is based in large part on Neo-Classical and Keynesian theories. Following Walt W. Rostow, theorists of the 1950s and early 1960s contended that:

  • Developing countries follow the same logical process of evolution from underdevelopment to development previously experienced by the western world
  • The modernization of the latter would be accomplished by the diffusion of capital, institutions, and values from the First World (eg a free market system, democracy, and human rights)
  • This transfer would promote greater social equality, giving rise to development
  • The state/governments would serve as the primary agent of social change
Applying this paradigm to law in development, law was seen as instrumental to development in the following ways:
  • law, that based the western/modern model (ie US), is a technical set of skills that should be transferred to developing countries
  • law is central to the development process, that is, only when law is in place, development can and will take place. In other words, law fosters development
  • The legal profession will be the activists that will initiate reform, and legal education was emphasized to train judges and lawyers using a US-based model
  • Law reform (based on US legal culture) on substantive law was also emphasized, though less so.
  • The approach is 'top down' because of the state's central role, via the Judiciary and Bar 
However, after just a decade of implementation, the very proponents who started the movement claimed that it had been a failure. You can read my previous post here for more details, leading to decreased interest in Law and Development programs.


Neo-Liberalism/New Institutional Economics

Adjustments to Development Theory were made between 1980-2000, in large part because of the Neo-liberal Thatcher/Reagan influence. This resulted in the Washington Consensus for development by major aid institutions. Among the values and policies were:

  • Once the market is healthy, development will take care of itself (as opposed to development being a series of steps as above)
  • The intervention of the state should be minimal (compared to the above theory), only in so far as to promote and maintain a healthy national and global market
  • Fiscal policies and other key elements in the Washington Consensus were emphasized.

At this time, law was applied, not as a concept central to development, but as a tool to promote these healthy markets. Believes and practices included:

  • Formalization and standardization of laws that are important to promote free markets, such as
    •  Privatization
    • property rights
    • contracts;
    • corporate law that facilitates capital investment
    • a system of secured lending
    • o a tax system favorable for investments
  • State institutions should be developed to the extent that they can enact and enforce these laws. Some important values were (and you can see that they are from the same vein as ‘free markets’)
    • Stable institutions
    • Transparent and non-corrupt
    • Participatory
    • Competent and effective
    • States do not necessary need to adopt a western/US legal model, as long as their laws serve the above purposes

Post Washington Consensus/New Development Economics

In the 1990s, practitioners witnessed the disappointing results under the Washington Consensus. In fact, some have argued that the Washington consensus itself brought about devastating economic consequences in the 1990s such as mounting Latin American debt, the Asian Economic Crisis and the backlash from Eastern European transitional policies. The major aid agencies finally acknowledged the market’s inadequacies and since then have seemingly taken an about turn back to the first phase of development, where the state (and not the market) has a prominent role. However, these agencies counter-claim that the New Development Economics is different than that before, in these ways:


  • While there is an emphasis on democracy and governance, this is actually a convergence of the last two major paradigms
  • There is less determinism about what works, and more recognition of the contextual factors of countries.
  • There is more room for experimentation
  • pragmatism – there is no longer a belief in the absolute roles of states and/or markets

It’s implications for law is that it frees the practice of law and development from its absolute reliance on the market. While the literature (as I mentioned under my caveat) shows a lack of consensus of what Law and Development really is today, some general values and practices are as follows:

  • Law, like other sectors of development, needs to be sensitive to local contexts, including social, cultural and political, in addition to the market (ie economical). law seeks to remedy the failures of the preceding development efforts by addressing these dynamic aspects.
  •  The new buzz word within the industry is the ‘Rule of Law’. However, it means many different things to many people/organizations:
    • For some scholars and practitioners, the rule of law is an objective it inself, an end rather than a means, because it is a set of intrinsically valuable characteristics of a legal system, development.
    • For others, the Rule of Law is a means to other intrinsic ends such as good governance democracy, freedom of speech, human rights.
  • In practice, we have seen
    • The New Constitutionalism- the drafting and amendments of constitutions- which might be rooted in goals like democracy, human rights and freedom of speech.
    • Many big legal and judicial reform projects, under the umbrella of good governance
    • An increased focus on International Law and movements such as trade, labor, climate and the Millennium Development Goals (MGDs)
  • There is also a movement on law for poverty alleviation as a central theme. Increasingly, this is becoming known as ‘Legal Empowerment of the Poor’. It is not clear if this is part of ‘Rule of Law’ or something different altogether.
    • Rule of Law Proponents see this as part of the spirit of the ‘Rule of Law’, and offers it as a complement (or even alternative) to the current practice of ‘Good Governance’. This would mean a bottom-up approach grassroots approach, rather than a top-down legal/judicial reform.
    • Still others see this as a part of Legal and Judicial Reform umbrella under the Rule of Law.
    • Other yet offers it as an alternative paradigm based on the ‘Rights Based Approach’ to development, (which is a development paradigm that arose in the 1990s that I have not written about here because it was not mainstream, but I have published an article on it and will blog more about later.)
    • This is still a relatively infant movement, and, despite criticisms that it is still market focused or that it deals only with the very poor, it will be interesting to see where it will go. (I hope to blog more about this in a later post)
Summary
In summary, this is a simple framework to try to explain law and development in the aid industry. 
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