Alvaro Santos

The World Bank's Uses of the 'Rule of Law' Promise in Economic Development

In this chapter, the author seeks to disaggregate the World Bank and provide insight on the impact that particular groups have in dominant development strategies. By analyzing the internal dynamics among groups at the Bank, his aim is to illuminate the rise and fall of ideas about development and their resistance to both empirical evidence and academic critique. These internal dynamics include institutional inertia and constraints, groups’ struggle and competition over resources and prestige, and the relationship between groups at the Bank and the governments of borrowing countries.The argument presented is that the conceptions of the rule of law behind these various projects need not be, and indeed are not, consistent with each other. They often conflict, but their inconsistencies or contradictions regularly go unnoticed due to a conceptually confused discussion coupled with the dynamics of a complex institution. To explore this point, this chapter undertakes both a conceptual analysis of the “rule of law” and an institutional analysis of the dynamics among the groups leading these projects in the Bank. The author gives an account of the ways in which the rule of law rhetoric within the Bank forecloses an analysis about the very policies these reforms introduce, their consequences among groups in society, and their ultimate relationship to economic development. Finally, it is argued that the agenda for the rule of law is not exclusively about the role of law in economic development. It is also about defining and expanding the role of the World Bank groups in domestic policies around the world.This argument is developed in three parts. In the first part, four conceptions of the rule of law are sketched, developed in jurisprudence and in the literature of economic development, as a template with which to analyze the Bank’s strategies and the position of the various groups on the subject. The author considers the lack of conceptual agreement on the meaning of the rule of law and explores its multiple interpretations, as well as the overlap and tensions among these conceptions. It is argued that these various conceptions of the rule of law, as channeled in the Bank, constitute a hodge-podge that enables different and often conflicting projects to be pursued under the same agenda.The second part provides an overview of the World Bank’s engagement with the rule of law, describing the different conceptions of the rule of law introduced at various points in time. The author analyzes how, since its inception, the rule of law has been a powerful rhetoric to justify the Bank’s involvement in reforming developing countries’ legal and judicial systems and to portray this endeavor as an apolitical one. This part includes a description of how the rule of law rhetoric has dramatically expanded from an instrumental conception focused on economic considerations to an intrinsic conception that values legal and judicial reforms as good on their own right and considers them an inherent part of the development process.The third part looks at the practice of rule of law projects and describes the various divisions in the World Bank currently engaged in reforming courts and laws. The author highlights which conceptions of the rule of law these units have adopted and describes how, despite internal disparities and conflicting views among them, their agendas reinforce each other in what seems a common position. This part offers an analysis on this apparent consensus at two levels. First, it describes how the conceptual hodge-podge bonds under the same rubric different agendas and competing interests. Second, it analyzes the dynamics among the various World Bank groups, and the relationships between these groups and the borrowing countries. The author shows how this implicit consensus enables them to discount unfavorable results, support the continuation of their projects and validate a variety of different policies.

The New Law and Economic Development: Introduction: The Third Moment in Law and Development Theory and the Emergence of a New Critical Practice

The study of the relationship between law and economic development goes back at least to the nineteenth century. It is a question that attracted the attention of classical thinkers like Marx and Weber. And there were some early efforts to craft policy in this area; for example, under the Raj, some English Utilitarians tried to put Jeremy Bentham’s ideas about law and economic progress into practice in India. But it was only after World War II that systematic and organized efforts to reform legal systems became part of the practice of international development agencies. Initially, development agencies turned to law as an instrument for state policy aimed at generating economic growth. Starting in the 1980s, interest in the role of law in economic development grew, but it was an interest in law more as a framework for market activity than as an instrument of state power. This book argues that, starting in the mid-1990s, development practitioners approached law in a fundamentally new way – as a correction for market failures and as a constitutive part of “development” itself. As a result, “the rule of law” has become significant not only as a tool of development policy, but as an objective for development policy in its own right. This book charts the history of this growing interest in the legal field, explores the shifting rationales behind development policy initiatives, and explores in detail the newest – and most surprising – of these rationales. To do that, we trace the history of a body of ideas about law and economic development that have been employed not just by academics but also by development practitioners responsible for allocating funds and designing projects. In this introduction, we refer to that body of ideas as law and development doctrine. Although this doctrine has academic roots in economic and legal theory, it is a practical working tool of development agencies. This is not a static body of thought. Views on the relationship between law and development, and thus on the nature of legal assistance efforts, change over time. As ideas change and practices evolve, older ideas are challenged

Law and the new developmental state : the Brazilian experience in Latin American context

1. Law, state, and the new developmentalism: an introduction David M. Trubek 2. New state activism in Brazil and the challenge for law David M. Trubek, Diogo R. Coutinho and Mario G. Schapiro Part I. New Industrial Policies: Global Insertion, Productive Transformation, Investment Strategies, and Flexible Law: 3. Understanding neo-developmentalism in Latin America: new industrial policies in Brazil and Colombia Shunko Rojas 4. Rediscovering the developmental path? Development bank, law, and innovation financing in the Brazilian economy Mario Shapiro Part II. Trade Law: Carving out Development Policy Space within the WTO Regime: 5. Carving out policy autonomy for developing countries in the World Trade Organization: the experience of Brazil and Mexico Alvaro Santos 6. Developmental responses to the international trade legal game: cases of intellectual property and export credit law reforms in Brazil Michelle Ratton Sanchez Badin Part III. Social Policy and Equity: Two Approaches to the Relationship between Social Policy, Law, and Development Strategy: 7. Decentralization and coordination in social law and policy: the Bolsa familia program Diogo R. Coutinho 8. Social policy and the new development state: the case of Colombia Helena Alviar Garcia.

Law and the New Developmental State: Notes on Contributors

1. Law, state, and the new developmentalism: an introduction David M. Trubek 2. New state activism in Brazil and the challenge for law David M. Trubek, Diogo R. Coutinho and Mario G. Schapiro Part I. New Industrial Policies: Global Insertion, Productive Transformation, Investment Strategies, and Flexible Law: 3. Understanding neo-developmentalism in Latin America: new industrial policies in Brazil and Colombia Shunko Rojas 4. Rediscovering the developmental path? Development bank, law, and innovation financing in the Brazilian economy Mario Shapiro Part II. Trade Law: Carving out Development Policy Space within the WTO Regime: 5. Carving out policy autonomy for developing countries in the World Trade Organization: the experience of Brazil and Mexico Alvaro Santos 6. Developmental responses to the international trade legal game: cases of intellectual property and export credit law reforms in Brazil Michelle Ratton Sanchez Badin Part III. Social Policy and Equity: Two Approaches to the Relationship between Social Policy, Law, and Development Strategy: 7. Decentralization and coordination in social law and policy: the Bolsa familia program Diogo R. Coutinho 8. Social policy and the new development state: the case of Colombia Helena Alviar Garcia.

Law and the New Developmental State: New Industrial Policies: Global Insertion, Productive Transformation, Investment Strategies, and Flexible Law

1. Law, state, and the new developmentalism: an introduction David M. Trubek 2. New state activism in Brazil and the challenge for law David M. Trubek, Diogo R. Coutinho and Mario G. Schapiro Part I. New Industrial Policies: Global Insertion, Productive Transformation, Investment Strategies, and Flexible Law: 3. Understanding neo-developmentalism in Latin America: new industrial policies in Brazil and Colombia Shunko Rojas 4. Rediscovering the developmental path? Development bank, law, and innovation financing in the Brazilian economy Mario Shapiro Part II. Trade Law: Carving out Development Policy Space within the WTO Regime: 5. Carving out policy autonomy for developing countries in the World Trade Organization: the experience of Brazil and Mexico Alvaro Santos 6. Developmental responses to the international trade legal game: cases of intellectual property and export credit law reforms in Brazil Michelle Ratton Sanchez Badin Part III. Social Policy and Equity: Two Approaches to the Relationship between Social Policy, Law, and Development Strategy: 7. Decentralization and coordination in social law and policy: the Bolsa familia program Diogo R. Coutinho 8. Social policy and the new development state: the case of Colombia Helena Alviar Garcia.

Law and the New Developmental State: Contents

1. Law, state, and the new developmentalism: an introduction David M. Trubek 2. New state activism in Brazil and the challenge for law David M. Trubek, Diogo R. Coutinho and Mario G. Schapiro Part I. New Industrial Policies: Global Insertion, Productive Transformation, Investment Strategies, and Flexible Law: 3. Understanding neo-developmentalism in Latin America: new industrial policies in Brazil and Colombia Shunko Rojas 4. Rediscovering the developmental path? Development bank, law, and innovation financing in the Brazilian economy Mario Shapiro Part II. Trade Law: Carving out Development Policy Space within the WTO Regime: 5. Carving out policy autonomy for developing countries in the World Trade Organization: the experience of Brazil and Mexico Alvaro Santos 6. Developmental responses to the international trade legal game: cases of intellectual property and export credit law reforms in Brazil Michelle Ratton Sanchez Badin Part III. Social Policy and Equity: Two Approaches to the Relationship between Social Policy, Law, and Development Strategy: 7. Decentralization and coordination in social law and policy: the Bolsa familia program Diogo R. Coutinho 8. Social policy and the new development state: the case of Colombia Helena Alviar Garcia.