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The growth of international law in the post-World War II era stemmed partly from the belief that universal norms would make life for the entire world's population safer, more equitable, and more conducive to each person's acquisition of basic material needs. Starting in the sixties and seventies, some scholars and activists challenged this assumption and established the school of "cultural relativism," a model that pays deference to local cultural traditions and favors them over international human rights norms. Scholars tried to create and practice a middle-ground approach between universalism and relativism, whereby the most egregious violations would be prevented through assimilating only jus cogens norms into indigenous groups' existing cultural traditions. Such efforts at combining a few select international norms with local cultural traditions largely failed. Culture in Law and Development presents a provocative new solution to the seemingly intractable problem of combining international norms with local cultural traditions by changing culture through law and development. In this book, Lan Cao demonstrates how the gradual expansion of customary international law (CIL) provides a model for changing culture in ways that protect and advance local populations. The book adopts a holistic view of development and argues that cultural norms that impede the human capabilities of the poor, women, and other marginal groups should be changed. The book reveals how a more conscious, coordinated effort on such change can succeed while non-violative local traditions are otherwise honored and preserved. Cao proposes that cultural change does not have to constitute cultural disrespect, and that local societies only benefit by a careful combination of externally wrought change and internally fostered tradition.
This book presents a distinctive approach to the study of law in society, focusing on the sociological interpretation of legal ideas. It surveys the development of connections between legal studies and social theory and locates its approach in relation to sociolegal studies on the one hand and legal philosophy on the other. It is suggested that the concept of law must be re-considered. Law has to be seen today not just as the law of the nation state, or international law that links nation states, but also as transnational law in many forms. A legal pluralist approach is not just a matter of redefining law in legal theory; it also recognizes that law's authority comes from a plurality of diverse, sometimes conflicting, social sources. The book suggests that the social environment in which law operates must also be rethought, with many implications for comparative legal studies. The nature and boundaries of culture become important problems, while the concept of multiculturalism points to the cultural diversity of populations and to problems of fragmentation, or perhaps to new kinds of unity of the social. Theories of globalization raise a host of issues about the integrity of societies and about the need to understand social networks and forces that extend beyond the political societies of nation states. Through a range of specific studies, closely interrelated and building on each other, the book seeks to integrate the sociology of law with other kinds of legal analysis and engages directly with current juristic debates in legal theory and comparative law.
Globalization and international economic governance offer unprecedented opportunities for cultural exchange. Foreign direct investments can promote cultural diversity and provide the funds needed to locate, recover and preserve cultural heritage. Nonetheless, globalization and international economic governance can also jeopardize cultural diversity and determine the erosion of the cultural wealth of nations. Has an international economic culture emerged that emphasizes productivity and economic development at the expense of the common wealth? This book explores the ‘clash of cultures’ between international law and international cultural law, and asks whether States can promote economic development without infringing their cultural wealth. The book contains original chapters by experts in the field. Key issues include how international courts and tribunals are adjudicating culture–related cases; the interplay between indigenous peoples' rights and economic globalization; and the relationships between culture, human rights, and economic activities. The book will be of great interest and use to researchers and students of international trade law, cultural heritage law, and public international law.
This book draws on the analytical framework of New Institutional Economics (NIE) to critically examine the role which law and the legal system play in economic development. Analytical concepts from NIE are used to assess policies which have been supported by multilateral development organisations including securing private property rights, reform of the legal system and financial development. The importance of culture in shaping the legal environment, which in turn influences financial sector development, is also assessed using Oliver Williamson’s ‘levels of social analysis’ framework.
Culture in Law and Development presents a provocative new solution to the seemingly intractable problem of combining international norms with local cultural traditions by changing culture through law and development. In this book, Lan Cao demonstrates how the gradual expansion of customary international law (CIL) provides a model for changing culture in ways that protect and advance local populations. The book adopts a holistic view of development and argues that cultural norms that impede the human capabilities of the poor, women, and other marginal groups should be changed. The book reveals.
In this thoroughly revised and updated second edition, Mariana Mota Prado and Michael J. Trebilcock offer a succinct and readable introduction to the main concepts and debates in the field of law and development. They examine the role of legal systems and institutions, investigate perceptions around what laws and legal arrangements encourage and facilitate development, and probe the issues arising in both private law and public law as well as in international economic relations. Written with the insight of two top experts in the field, this Advanced Introduction covers the most recent trends in law and development research and highlights areas that remain underexplored.
To the extent that international trade and development policy employs legal methods, institutions and participants, there is a need to take into account the role of legal culture. There are many different legal cultures in the world, including the widely found common and civil law traditions, as well as the many non-western legal traditions and sub-traditions found within the hundreds of different legal systems spread across the globe. International law has, however, traditionally eschewed consideration of legal culture -- arguing that international law is unique, is sui generis, and as such domestic legal traditions were not relevant. Yet, the humans involved in creating and nurturing international legal fields and institutions will themselves reflect the legal culture of their home states, and will often import aspects of those legal cultures into international law. The same must be true of international development law. In addition, international legal fields, such as international development law, must often work within domestic legal systems, and as such they will directly interact with the domestic legal traditions. It is thus important to understand the interaction between the legal cultures reflected in the relevant part of that international law and in that of the domestic legal system. Such an understanding can be useful in ensuring the effective interaction of the two systems. This paper explores these themes, continuing the author's past and ongoing consideration of the role of legal culture in international law, including its role within institutions such as the World Trade Organization.
For many years research on development has been focused on complex economic models. However, the underdevelopment phenomenon entails important cultural aspects which have been barely explored. One of those aspects is the relationship between legal culture and the rule of law, and its effects on development. The aim of this article is to find evidence of the relationship between the lack of the binomial rule of law/legal culture and underdevelopment. The article states that legal culture and rule of law, as factors for development, are a binomial, meaning that, in the research of development/underdevelopment phenomenon, those factors are to be studied together. Rule of law, in terms of its relationship with development, should not be conceived as a mere formal expression of generalized submission to laws, including on the part of the organs of the State itself, but it should also be observed from a broader perspective. Hence its necessary connection with the legal culture, as the existence of these laws and the actual fact that people, generally, be conscious of them and their conduct be guided by them. The existence of the binomial rule of law/legal culture constitutes, in this way, a framework for the flourishing of development in a given region or country.
Law, Culture, and Economic Development brings together some of the leading legal scholars, policymakers, and practitioners in the international economic development area - with the emphasis on Latin America - to address key issues of legal reform facing developing countries in their effort to achieve accessible, equitable, and sustainable economic development. Issues of cultural impediments are stressed. This collection includes contributions from many experts in the field, including current and former officials from the World Bank. Topics considered from a developmental perspective include human rights, legal institutions, judicial reform, investment treaties, investment disputes, corruption, financial sector reform, accounting systems, linkage to the WTO, administrative legality, intellectual property, corruption, taxation, and legal education reform. The chapters in this festschrift are derived from presentations made at the 2006 Paul Carrington Memorial Lecture at Southern Methodist University Dedman School of Law in Dallas, Texas, honoring the distinguished career and 75th birthday of the Hon. Roberto MacLean - a law dean, judge, central banker, ambassador, legal scholar, and judicial reform expert.