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The Primacy of Society and the Failure of Law and Development

61 Pages Posted: 22 May 2009 Last revised: 1 Apr 2010

Brian Z. Tamanaha

Washington University in St. Louis - School of Law

Date Written: October 2, 2009

Abstract

Billions of dollars have been spent on law and development (or “rule of law”) projects around the world in the past two decades, focusing on judicial reform, legal training, constitution and code writing, legal transplantation, anti-corruption efforts, and more. In recent overviews, many participants and observers have deemed this effort largely a failure.

This essay focuses on surrounding social factors as the primary explanation for this failure. It begins by arguing that “law and development” is a misleading category and should not be seen as a “field.” The essay then examines three themes: legal development, law and capitalism, and the progressive law and development package. The ideas underlying each are elaborated, showing how surrounding social factors interact with each. The essay then argues that law and development projects are often run in a fashion that is flawed from the outset owing to a lack of familiarity with circumstances on the ground. It shows how Western law and development theorists from the right and the left have exported to developing contexts ideas taken from home that have potentially harmful consequences in different settings. The essay concludes that, while efforts to develop the rule of law are essential and must continue, law cannot carry the hopes of economic development or the progressive package. Functional alternatives to law should be supported or created when state legal institutions persistently fail.

Suggested Citation

Tamanaha, Brian Z., The Primacy of Society and the Failure of Law and Development (October 2, 2009). Cornell International Law Journal, Forthcoming; Washington U. School of Law Working Paper No. 10-03-02. Available at SSRN: https://ssrn.com/abstract=1406999

Brian Tamanaha (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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