Between universalism and relativism

This paper traces the evolution in thinking among scholars and development agencies with respect to the relationship between law and development in the post-war period, in the context of the rise and fall of universal themes of development. For much of this period, universal theories of development prevailed, beginning with various versions of modernization, state-led theories of development that prevailed in the first three post-war decades and that often yielded disappointing outcomes. These were supplanted by in many respects the converse policy prescriptions: neo-liberal (‘Washington consensus’) policies that emphasized the role of markets and the limited capacity of governments in developing countries. These policies also often yielded disappointing outcomes. This perspective in turn was largely displaced in the 1990s by an emphasis on the role and quality of institutions in developing countries as a major determinant of their development prospects but, like prior universal theories of development, came to recognize, in the light of the mixed to poor record of donor-supported institutional reforms in many developing countries, that there is no general blueprint for the design of political, bureaucratic, and legal institutions in developing countries. The paper goes on to argue that while rejection of universal theories of development is generally to be welcomed, there are dangers in succumbing to an extreme form of relativism where each country ‘must write its own history.’ These dangers are illustrated by reference to the evolving and sometimes inconsistent views of two prominent law and development scholars – David Trubek and Brian Tamanaha – with respect to the role of the rule of law in development.