Abstract The argument in this paper is that international lawyers—scholars and practitioners alike—should be cognisant of the fact that different economic distributions within nations will lead to the establishment of different international legal systems in terms of their formation and evolution, as well as in relation to the extent to which they are respected and adhered to. Rising economic inequality within nations is an issue of incredible systemic importance to international law; it should be pushed further up the agenda when it comes to devising the laws between them because this will, on balance, assist in creating a more peaceful and prosperous world underpinned by an effective law of nations that is up to the types of contemporary challenges which of necessity require more cooperation between states. Accordingly, from the perspective of this paper, international lawyers should, at a minimum do the following (i) give consideration to the direction of distributional trends within nations when attempting to understand how current international law works (i.e. how it formed, evolves and the extent to which it is respected and adhered to); (ii) give consideration to these same trends when conceptualising and designing the international law(s) of the future and (iii) to the extent necessary, think about the development of the mechanisms at the international law level that encourage and enable the reduction of economic inequality within nations with a view to ensuring that the better functioning, at a systemic level, of the international legal system in general, as well as the various parts of which that system is comprised.

Abstract Since the economic reforms of the 1990s, Indian states have largely contributed to India’s foreign policy decision-making in two critical areas, namely, economic diplomacy and influencing India’s foreign policy with its neighbours. Given India’s growing importance in the world arena, one would assume that Indian states will continue to have an increased role in its foreign policy decisions. However, the Indian Constitution was framed with the idea of a strong union government and the power to drive foreign policy initiatives continues to remain under the exclusive purview of the union government. There is no institutional framework that facilitates the involvement of the Indian states’ in foreign policy decision-making. States’ involvement is usually on an ad hoc basis and often pushed through by strong state level leaders or by the coalition compulsions. The article examines the Indian paradiplomacy experience to note that paradiplomacy has the potential to democratize foreign policy decision-making only if it is supported by a strong institutional framework. A fragmented practice of paradiplomacy to suit immediate political needs neither promotes democratization of foreign policy nor does it allows for a meaningful engagement of Indian states in the global governance debate.

Abstract We relate the rules versus standards debate to legal norms of taking law in developing countries and argue in favour of more precise legal norms regulating takings in low-income countries. Clear, specific and exact legal norms should be socially preferred whenever a regulatory law cuts into fundamental rights as this improves the possibilities of supreme courts to check the constitutionality of such norms. This holds equally for rich and poor countries. But in poor countries, precise norms have additional advantages over standards, whose adjudication requires highly qualified and loyal judges and administrators, is information intensive and increases procedural costs for the parties. We argue that in the course of economic development, courts and administrations should be granted more flexibility and rigid rules should gradually be replaced by more adjustable legal standards which are more flexible and can adjust better to the merits of a single case.

Abstract Throughout its history, law and development has been so confined to or dominated by the economic, that a clear break with the past may be needed. The “three moments” analysis that Trubek and Santos presented in 2006 shows that, whereas law and development theory moved from law as an instrument for state power (first moment) to law as an instrument of the market (second moment), and in a third moment was conceived of as regulating the market, it never lost its primary focus on economic development and on economic law. And more fundamentally, it may never have moved beyond a market-friendly approach. Just like institutional dimensions (including law, legal institutions) were for a long time marginal in development theories, justice concerns have not taken center stage in law and development studies, although the rule of law has had some traction. This begs the question whether those studying the role of law in bringing about justice and transformative social change should claim the law and development field as their field of study too, or rather create a countervailing field. This paper examines pros and cons for claiming a fourth moment in law and development studies by those who study whether and how law (including human rights law) disciplines and tames the state, the market and other powerful actors.

Abstract This article critically examines the role of political leadership in shaping and sustaining institutional reforms. While leadership has recently attracted a great deal of attention from other social scientists, law and development scholars have only begun to seriously consider the influence of leaders on institutions and development outcomes. The article explores the new mantra that “leadership matters” as cause for both careful optimism and renewed attention to some deeper anxieties about the future directions of law and development. On one side, emerging models of leadership provide important insights about how to change dysfunctional institutions and how to sustain those changes over the long run. A number of major studies published in the last few years have made some version of the claim that successful reforms inevitably require the dedicated leadership of one or more prominent individuals, positing good leaders as a necessary condition for institutional transitions. But the argument that good leadership itself determines good institutions also risks reproducing one of the most obstinate dilemmas in modern social theory: the contest between “structure” and “agency” as causal explanations of social change. If the new mantra that “leadership matters” represents a shift in focus away from the structure of law and politics and towards the influence of individual agents’ choices, actions, talents and beliefs, there is good reason to be sceptical about whether simply privileging agency over structure—or the inverse—has any greater chance of success than the many failed attempts to do just that in other fields of knowledge over the past several decades. Instead, the present moment could be a valuable opportunity to assess whether alternative and more integrative approaches to the longstanding structure-agency impasse in development law and policy are possible.

Abstract Especially in resource rich countries with weak institutions of governance, the interests of governments often diverge from those of their citizens and creditors. Sovereign bond contracts can potentially help align these interests, to the benefit of all parties, by indexing payment obligations to improvements in the health and education of the issuer’s citizenry. To that end, this Article proposes a Human Development Bond (HDB) with a variable coupon schedule that both insures issuers against recessions and incentivizes them to encourage investment in human capital when economic growth is strong. The potential benefits of such an instrument can only be realized, however, with significant support from the international community. Moreover, further empirical research is needed to calibrate the HDB’s coupon schedule to provide well-timed and appropriately sized debt relief.

Abstract This paper examines whether the current South African legal framework and subsequent policies post-1994 encourage and have emphatically fostered industrialisation in South Africa primarily and Southern Africa more generally. The primary contention of this paper is that the South African State, unlike fellow Southern African States, has a long history with industrialisation and should have laid the foundations for Southern Africa’s large scale industrialisation trajectory. However, the post-1994 government vision for South Africa has never had a Law and Development philosophy that prioritises and fosters industrialisation. Industrial Promotion in Africa, is understood as being concerned with drafting, strategically implementing and investing in industrially minded action plans. Through the prism of Local Economic Development policy and legislation in the Sedibeng region, this paper contends that industrialisation is still a farfetched endeavour despite industrially minded policies like the New Growth Path and the Industrial Policy Action Plans in South Africa. Moreover, South Africa’s industrialisation agenda is compromised by the Law and Development philosophy of the African National Congress led government. At the core of this philosophy is an overestimation of social justice activity like Human Rights promotion at the expense of Asian Developmental States’ non-human rights approach to economic development activity, like industrialisation in rural and township regions of South Africa.

Abstract The advent of the digital milieu and the explosion of the internet has made access, use, modification or duplication of original work easy. Physical reproductions have been replaced by digital reproduction, which has become much easier as well as cost-effective. The increased use of digital technology and online activities pose a serious threat to the cardinal objective of copyright protection. To counter these threats, measures have been developed technologically to make digital works difficult to copy, distribute and access without the necessary permission. These measures are covered under the heading of Digital Rights Management (DRM). Traditional copyright laws did not contemplate these threats and does not make provision to tackle them. Several countries have amended their copyright laws to address the threats posed by digital advancement. In this context, Nigeria has a draft (amendment) bill, 2015, which is before its national assembly. This paper calls for the swift passage of the bill to enable Nigeria to effectively provide for a legal framework to counter the threats posed by these digital advancements.

Abstract This article develops a model for explaining private sector response to law reforms in developing countries. The dependent variable in this model is the demand for law – the extent to which business owners and firm managers engage the formal legal system and attempt to mobilize the law to their advantage when making market decisions. Demand for law is a crucial micro-connection in the causal chain linking law and law reform to market expansion and economic development. The theoretical framework developed here focuses on the interplay between informal and formal social institutions in influencing market decisions made by private sector actors. The article tests hypotheses generated by this framework by analyzing survey data collected from business firms in Dar es Salaam, Tanzania. The results support the hypothesis that demand for law is shaped by informal market institutions, particularly the informal business networks developed and maintained by firms. The analysis further suggests that these “demand-side” variables matter more than “supply-side” variables identified in the social science literature. These findings have important implications for law reform initiatives in developing countries and suggest avenues for further social science research on the relationship between law and economic development.