The essays collected in this volume reflect a long-term collaboration between the University of Trento and the Federal University of Minas Gerais in Belo Horizonte. The topics covered include anticorruption law, legal theory, consumer law, Internet law, the law of indigenous people, law and development. In each chapter, the authors try not only to provide an informed analysis of legal problems, but also to reflect on how they are defined in each legal system and whether current legal methodologies are fit for their purposes. The volume could be of interest to comparative legal scholars and policymakers in both Europe and Brazil.
Giuseppe Bellantuono is professor of Comparative Law at the University of Trento, Faculty of Law, Italy.
Fabiano Lara is professor of Economic Law at the Federal University of Minas Gerais, Faculty of Law, Brazil.
Comparative Law for What Kind of Development ?, (pp. 189-191)
The law and development field has had a troubled relationship with comparative legal studies. More often than not, comparative legal scholars have criticized both the scientific underpinnings and the political strategies that studies on law and development are assumed to endorse. Over the past decades, the crisis of the law and development field and its multiple failures in promoting effective legal reforms have been repeatedly denounced. This debate did not only concern methodological disagreements, but involved broader challenges to the Western concept of development and to the capitalist system it supports. Undeterred by these criticisms, both the international donor community and law and development scholars have kept searching for new and improved approaches to legal reform in developing countries.
The research question addressed in this chapter is whether the eruption on the global scene of the Sustainable Development Goals (SDGs), unanimously adopted by the UN General Assembly in 2015 and heralded as the major driver of development policies in the next decade, should prompt a reassessment of the relationship between law, development and comparative legal studies. On an optimist tone, the SDGs «may be an important step in the longer-term development of more widely shared norms of sustainability around which states can craft policies, actors can mobilize, and institutional mechanisms can adapt and support». A more pessimist view is that the SDGs still rely on a concept of development which cannot be decoupled from environmentally unstainable practices and social injustice. Given that controversies on development are not going to end any time soon, the argument could be made that the SDGs cannot help the community of law and development scholars to coalesce with the community of comparative legal scholars around a shared research agenda.
The view advocated in this chapter is that the limits of the SDGs are the main reason why the legal dimensions of development should be addressed in a comparative perspective. The starting point should not be the search for widespread consensus on concepts of development, but the planetary ecological crisis and the growing global inequalities within and between countries. The SDGs may or may not contribute to mitigate both problems. Perhaps they will fail to mobilize the financial resources needed to implement them. Still, they include two innovative features which offer the opportunity to move past current disagreements. Firstly, the SDGs propose a universal approach to development, which also applies to developed countries. This means that legal change is being promoted within a common framework across radically different institutional contexts. This new round of legal reforms could provide a natural experiment to test alternative concepts of development and ways to implement them. But a necessary condition is that information about local experiences is collected and analysed with sound comparative methodologies. Secondly, the collective effort to implement the SDGs will make available new communication channels, new monitoring mechanisms and new accountability systems. All of them will prompt research questions about institutional change and inertia, effectiveness of legal reforms, explicit and implicit assumptions embedded into the SDGs implementation machinery. Both law and development scholars and comparative legal scholars should be attracted to such questions.
The view advocated here does not try to bracket the most controversial issues on development. It tries instead to suggest that the most radical criticisms of Westernized concepts of development (and of the rule of law) should be employed to foster the dialogue among legal scholars in the Global South and in the Global North. Amidst the fragmented and heterogeneous approaches to development themes, the aim to be pursued should not be convergence toward common solutions, but stronger awareness of the impact of contextual differences. This aim could be achieved in several different ways. A focus on the SDGs could have the advantage of shifting the debate toward more practical goals. Of course, some scholars will argue that nothing short of the demise of capitalism will help address ecological crises and global inequalities. Though, even these scholars should be willing to acknowledge that a comparative framework could help identify the stated and unstated assumptions behind the measures implementing the SDGs. Without this kind of knowledge, it is hard to see how alternative views of development could be proposed.
Libro in Open Access scaricabile gratuitamente dall’archivio IRIS - Anagrafe della ricerca con Creative Commons. Il presente volume è pubblicato anche in versione cartacea, con il contributo finanziario della Regione Autonoma Trentino-Alto Adige, per i tipi di Editoriale Scientifica - Napoli, con ISBN 978-88-9391-461-1.