CHAPTER ONE

You should be familiar with the following areas

  • Concept of Law and Development
  • Objectives of Law and Development
  • Historical Development of Law and Development movements
  • Theories of Development
  • Function of Law and Development

1.1  CONCEPT OF LAW AND DEVELOPMENT

Law and Development is an interdisciplinary study of law and economic and social development. It will examine the scope and limitation of Law as an instrument of socio-economic development in Africa. The main issue to be addressed is what contribution have and can legal theory and legal institutions make towards the quest for socio-economic development in Africa? Is there any correlation between law and development?

Law and development examine the relation between law and development and analyses how to use law as an instrument to promote economic development democracy and human rights. It focuses on the relationship between law and development which has been a central concern of policy makers, lawyers and scholars throughout the last century. The difficulties that many developing states are facing in terms of not only rule of law, human rights, good governance, economic growth but also in relations to fighting poverty levels, improving health or education standards, have become central concerns both at the international level and for policy-makers within developing many countries questioned the role that law could play in improving the substantive existence of billions of people lives. Could law act as a engine for social change? Can laws built for the needs of one country be useful in another? Do international regulatory standards prevent countries from setting policies that are in their own best interest?

1.1.1Meaning of Law

According to Black’s Law Dictionary 8th Edition, 2004pg.900 defined law as the aggregate of legislation, judicial precedents and accepted legal principles; the body of authoritative grounds of judicial and administrative action. Or is body of rules, standards and principles that courts of a particular jurisdiction, apply in deciding controversies brought before them.

1.1.2 Development

is a set of activities that are carried out early in the systems engineering life cycle to collect and prioritize operational needs and challenges, develop alternative concepts to meet the needs, and select a preferred one as the basis for subsequent system or capability development and implementation.

1.2 OBJECTIVES OF STUDYING LAW AND DEVELOPMENT

(a) Be able to demonstrate the correlation between law and development and foundation knowledge of the theories and the type of problems facing less developed nations such as Tanzania in their quest to achieve economic development

(b) Be able to display an understanding of some of the many ways in which the law is involved in the development process particularly rule of law and good governance

(c) Be able to evaluate the operation of the law in the development process and vice versa

(d) Understand the different theories of Law and Development in the context of Africa though;

(i) Analyzing the indices of social economic growth and explore the role of law as an instrument of social engineering in Africa.

(ii) Demonstrate appreciation of the parameters of law and development in different Africa countries

(iii) Undertake critical research on the relationship between law, development and society and what contribution legal theory and institutions can make towards the question for socio-economic development in Africa.

(e) To equip students with legal technique of how to handle facts and apply abstract legal concepts to factual situations relating to law and development.

1.3 HISTORICAL DEVELOPMENT OF LAW AND DEVELOPMENT MOVEMENT

1.3.1 Post World War II to 1980

In the 1960s as many countries made the transition from colonialism to independence a law and development movement emerged. The movement was based on the concept that the rule of law would be an economic building block for these new nations with human and democratic spilling over from economic growth. As the US law professor who was one of the law and development promoter from that era say, now the promise was that the US  model for legal structures could and should be transparent to other nations, clearly though systems of legal education. If we could reform legal education to make it just like ours, it was assumed this would provide what was wanted.

By the early 1970s this jurisprudence paternalism had proves so unsuccessful, that, it was discredited by its own original proponents.

1.3.3 The 1980s to present

By the early 1990 law and development made a big comeback under the umbrella of rule of law or law reform. A foundation of the aids strategies of major international development investors include most notably the World Bank the Inter America Bank, the United National Development Programs and Bilateral programs such as the U.S Agency for International Development (USID). The key theoretical impetus for rule of law efforts during this era came from the neoliberal perspective often referred to as the “Washington Consensus” which hold that private sector economic development was enabled by strong government institutions providing consistent enforcement of laws especially in areas of contract and legal title to property.

It is economists and not lawyers who have been the chief source of taking points for the current wave of rule of law promotion. One of such economists is Amartya, he argue that development is a concept that goes beyond mere economic well be to embrace political freedom and social opportunities.

 Most of provisions of the village Land Act provides for the applicability of customary law to the village land. But the application of such customary law shall not be repugnant to the National Land Policy or other laws as provided under section 20(2) of the village Land Act. The World bank alone had spent $2.9 billion on the rule of law project since 1990 consistent with the Bank report of spending nearly $ 500 million per year of Rule of law loans from 2003-2008.

1.4 THEORIES OF DEVELOPMENT

There are three theories of development:-

  • Economic theories of development
  • Cultural theories of development
  • Legal theories of development

1.4.1 Economic Theories of Development

Overview of those theories is presented in four periods;

  1. Theories of linear stages of economic growth (1950s-1960s)
  2. Structuralism theory (1960-1970s)
  3. Free market economy (1980s-to date)

Theories of development are:

  • Bourgeoisie/ modernization theories
  • Marxist theories
  • Dependency

1.4.1.1 Bourgeoisie/ modernization theories

Most Bourgeoisies argue that, development is gradual process. It is an advance though progressive stage from low stage to higher stage where is better than the previous stage,

In progressive process many things are involved these include markets resources, infrastructure organization, entrepreneurs and investor. All these are related to one another.

Modernization theories include the following theory:

  1. Rostaw’s theory
  2. Nurkse’s theory

Rastaw’s stage of economic growth model (1950-1960s). According to Rastaw doctrine the transition from underdevelopment to development can be described in term of series of stages though which all countries must pass. Prof. Rostaw  in 1960 applied a stage approach to the course of development and come up with stages of economic growth.

Rostow presented both a political theory as well as a descriptive economic study of pattern of growth and development. Hr argues in this theory that, it is logically and practically possible to identify stages of development and classify societies according to those stages. Stage depend on productive capacity and technology, manufacturing industry, transcript and savings, investment and trade. According to Rosatw, development require substantial investment in capital, for economic of least developed countries to grow the right condition for such investment would have to be created. If aid is given on direct foreign investment has been reached then injections of investment may lead to rapid growth.

  • Stages of economic development
  • Traditional society
  • Transitional
  • Take off
  • Drives to maturity
  • High Consumption
  • Nurkse’s theory

The theory expresses the circular relationship that afflicts both the developed and the supply side of the problem of capital formation in economically backward areas.  According to Nurkse a society is poor because it is poor. A society with low income has both low levels of saving and consumption.

  • The low level of savings means that low investment while low level of consumption means not enough markets to include investments
  • The low investments in turn means little ability of the society to expand its productive capacity or transition the quality of the productive force as a whole.

Relevancy of Nurkse’s theory

  • Rostaw fails to highlight the historical causes of poverty\
  • Nurkse does not present a realistic way for the underdevelopment countries to come out of poverty

1.4.1.2 Marxist theories

Theory developed by Karl Marx (1818-1883) formulated one of the leading theories is social development. It is a theory directed at social change, it analyze social relation relation that prevailed at the time and justified by the iron low of wages which aimed at paying low wages to workers.

Main Elements in Marxist perspectives

  1. Dialectical approach to knowledge and society- which in turn defines the nature of reality or dynamic and confliction. For marx changes happen because of class struggle and work though contradictions that are inherent in social and political phenomenon
  2. History iscreated through struggle over distribution of social product/surplus-the marx made class domination continue to his conception of social order and class conflict a defining feature of change in society
  3. Other say that Marxist analysis does not give particular attention to the classes-that existed in African situation (if any), the nature of the relations of production, the nature of the class struggle.
  4. Marxs argue that dynamism and conflict define reality and decisive –contradiction are economic contradictions that develop between the social forces and the social relations of production
  5. In turn intensifying class conflict that is generated between the existing dominant class and rising revolution class
  6. He strongly suggests that the revolution should occur first in most ecomomically advanced social formation of given society.
  7. He strongly suggests that, the revolutions should occur first in most economically advanced social formation of given mode of production

The Marx the continues to put down stages of development in a society; these are:

  • Primitive communalism
  • Feudalism
  • Capitalism
  • Socialism
  • Communism

1.4.1.3 Dependency Theory

The process of dependency has been described by different scholars such as frank (1969), palma (1978) Euaris (1979), Szentes (1970) Gilbert and Haralambis (1973).

These point out same features underdeveloped which include:

Dependency is a condition situation in which the economies of one group of group of countries are conditioned by development and expansion of others. Dos santos (1970) argues that dependency is  condition whereby the expansion of one country as reflection of the other’s expansion

This theory point out some features of underdeveloped which include:

  • Economic system with dependency on foreign trade and foreign investment
  • In increasing imported technology and finance
  • Expression of relationship of exploitation
  • Underdevelopment also manifests itself in cultural, ,military and economic aspects
  • General features are poverty, low labour productivity, backward technology, inadequate equipment, poor science and technology and dependency on agriculture sector.

Dependency school concentrated with the relationship between developed and developing countries. They argue that developing countries are incapable of following an alternative path because their decision are conditioned by the developed countries

They therefore suggests breaking the cycle of economic and political relevance on developed capitalist nations

Some of the dependency theorists spreading from Marxist analyse and theseare Neo Marxist being led by Paulo Baron who can be rightly be called the father of Neo Marxism.

They argue that dependence is result of capitalism and international conflicts in the developing countries

1.4.2 Cultural theories of Development

Theory stipulate that, cultural a fundamental constituting role creating human development. When several Asian nations entered a period of rapid and sustained economic growth in the 1980s, questions were raised regarding the secret of the Asian economic success story. The answer, many political philosopher, economists and historians were quick to claim, was the Asian culture and its predominant Consusian ethics. Francis Fukuyama said “ The important variable in the Asian economic experience is not industrial policy per se but culture”. Alan Greenspan, former chairman of the US Federal Reserve Board, said in a congressional testimony in 1997, “ Much of what we took for granted in our free the role of Confucian ethics, Fukuyama wrote, “Confucianism has defined the character of social relations within the Chinese society over the last two and a half millennia. It consists of a series of ethical principles that are said to undergird a property functioning society” Social capital, which is a function of social trust, facilitates the creation of associations in society whose presence is indispensable to economic growth.

1.4.3 Legal theories of Development

Legal theories emphasize two channels via legal system influence development.

First channels:

  • The legal traditions differ in terms of the priority they attach to private property rights and the rights of investors in firms.
  • The protections of private property rights and outside investors form the basis of financial development, so that historically determined differences in legal tradition help explain international differences in financial development today.

Second channel: Legal theories emphasize a second channel though which legal traditional influences the development;

  • The legal traditions differ in terms of their abilities to adapt to changing commercial and financial conditions
  • Legal systems that adapt quickly to minimize gaps between the needs of the economy and the legal system’s capabilities more effectively promote contracting and financial development.

1.5 FUNCTIONS OF LAW AND DEVELOPMENT

(a) It promote property rights though the promotion and making property and trade market occasion to the poor by which it accelerate innovation e.g. Copyright

(b) It also promotes challenges in law legal system since the main objective of law and development movement is to reform law and legal sytem.

(c) It encourage basic constitution principles provided in our Constitution of United Republic of Tanzania e.g. Rule of law