The concept of development law' André Thomashausen* ‘The discipline of development law is relatively new. It followed the emer- gence of development policies after the second world war. The enormous challenge facing the industrialized nations is to find an answer to the stag- nation, or rather very slow progress, of the so-called third world Originally, the solution was exclusively sought in economic theories. An inerease in eoonomic growth was equated with development. As a result, the definition of ‘under-development’ relied merely on measureable indi- cators of economic wealth. The evident failure of purely economic deve- opment policy not only wasted billions, but often cost hundreds of thou- sands of innocent lives, ost for no purpose whatsoever. Moreover, serious ecological disruptions in the third world were often the consequence of at tempts by the Western world at artificially stimulating immediate eco- nomic growth without regard to natural and cultural, social and political conditions of third world countries. ‘The first fundamental criticism of the traditional eeonomie development strategies was formulated by third world countries in terms of a marzist approach: the greed of the capitalist world was blamed for the failure of the developing countries to achieve progress. Development policies and de velopment aid of the industrialized nations were branded as only more sophisticated forms of neocolonialist, economic domination policies and thus as the perpetuation of the exploitation of the poor nations by the in- dustrialized world? ‘As a compromise model, the World Bank in particular, and other inter- national development agencies favour the ‘basic needs concept’* This eon- cept assumes that poor nations should be given a fair chance at achieving their own development by being granted the necessary assistance to s0- tisfy the most basic needs of their population. The basic needs concept is attractive because it avoids an answer to the origins and causes of under. development. It allows politicians to keep a clear conscience and is less costly than @ strategy which would not merely aim at fulfilling ‘basic needs’. By providing for basic needs one does not have to be bothered re- peatedly with pictures of people starving to death, ‘The criticism of developing nations is that assistance which merely pro: vides for basic needs cannot facilitate progress, as it does not provide these countries with the means to develop intrinsic know-how and means of pro “University af South Atrice 1 Paper delivered ets workshop on developmen law strategies, 8 September 1988, Univer: sity of South Ace 2 See Ror The sags of roomie aro 960) 416, LAccumade lungs 1s. Kahn, Lae & Alfthan The basic needs approach to development. Some iseues re igorcing conse and methodalngy 19781 and Nuthanika The international lov of del ton Wol 6, "Basic Decaruent (1885,ew, It followed the emer- vorld war. The enormous ind an answer to the stag- led third world, Lin economic theories. An development. As a result, ‘ely on measureable indi- ‘fa purely economic deve- tn cost hundreds of thou- \soever Moreover, serious ten ti. _“onsequence of at- smulating immediate eco- Itural, social and political nal economic development ies in terms of @ marxist blamed for the failure of lopment policies and de- sre branded as only mare domination policies and he poor nations by the in- varticular, and other inter needs concept’. This con- « fair chance at achieving vecessary assistance to $6 ‘basic needs concept is ‘gins and eauses of under- ear conscience and is less ly abv > falfiling "basie hat be bothered re sistance which merely pro- 1s it does not provide these row-how and means of pro- 0 8 Beptembar 1983, Univer ‘aon (1969; Amin Accum Vonrung und Ertscklangap | te development Some issu re Tresinterational la of dep The concept ot nt law 231 duction, since the satisfaction of basic needs from outside the country merely results in increased population growth which these poor nations ‘cannot accommodate. Sociological development research has drawn attention to the need for a holistic approach. According to Talcott Parsons, the primary objective of development policies must be ‘acculturation, that is the adaptation of tra- ditional behaviour petterns and structures to the requirements of industri- alized life. Modernization became the key-word to many more recent political pro- grammes in the third world, the achievement of which, however, remains ‘to be seen. The obvious shortcoming of the sociological approach is once again, that an answer to the question of the causes of under-development is avoided and that the entire approach is as mechanistic as is the econo: ‘ists’ emphasis on economic growth. It is of interest to note that the theoretical and academic investigation of ‘under-development isin itself under-developed, ‘The most important point to emerge from experience over the past de- cades is that under-development is not an economic problem and cannot be solved with economic measures such as the provision of cheap capital or technology transfer only; the human factor has turned out to be erucial* At a recent special session of the United Nations General Assembly on 81 May 1986, the entire misery of traditional development aid in Africa ‘was mostly criticised by the African leaders themselves. Africa's external debt amounts to US8175 billion, The yearly interest on this debt elone totais US$25 billion, which exceeds the gross annual export earnings of all African states together.” Famine is an ever present reality in 24 African nations and the United Nations Food and Agricultural Organisation (FAO) estimates that 150 million people in Africa are undernourished * ‘A most recent and still discreetly discussed approach is that of the ‘reco- lonisation’ of Africa, whereby the industrialized nations would make avail- able surplus skilled manpower, in order to supplement development. aid and transfer of technology through transfer of human skills and services, It is interesting to note in this context that the traditional ides of man- power assistance, by means of providing expatriates for short periods of a few years only, is also being eriticised: unless the expatriate is ‘imparted’ in such a manner that he identifies with and really gets to know the coun: ‘try which he is supposed to assist, his services will have little lasting ef fect. This is where South Africa is in a unique position. Tt is the only Afri- ‘can nation which ha= an original and indigenous font of skilled manpower, which consists basically of the Afrikaner tribe. 5 Parsons ‘Das Probean dee Strukturwandels eine theoretiache Skin” in Zapf Theorien des Seziolen Wandels (878) 85; Hongvelt The sciolgy of developing soiches (0978) 20-8, 6 Allo "The pat az future contri af lw lp development in Arie’ 1980 Jahrbuch far Afribanisches Bech 819, 1 Quoted from Espresso Lisbon) 31 Mas’ 1986 at 11 . 5 FAO Conference In Nalvbi, March 1954; sec Franfarir Aligemsine Zeitung 10 March 1984 at 8; Preona Neve 18 January 1964 27.232 SA PublikregPublicLaw ‘Modern studies of under-development emphasize that any development ‘assistance must be integrated into the existing cultural, social and politi- cal framework of a developing country. The natural rejection of alien struc- tures, alien ways of production, and generally ‘foreign blueprints’ is teach- ing the industrialized world to show some modesty and to have at least a bbasie respect for foreign, albeit poor, societies and their values. This is where the importance of development law derives from. Law is the most common and identifiable expression of culture, social norms and traditions, and political structures generally. Over the last decade new interest was shown in the United States and Europe in African law, and many new publications and institutes devoted to the research of African law emerged. The US “Law-and-Development” schoo! is but one of the better known in- itiatives in this direction” Moreover, it is clear that law is a basic element of a country’s economic infrastructure. Certain types of economic development presuppose & cer- tain legal mechanism without which they cannat succeed."* To give just one recent and rather unimpressive (but nevertheless in terms of money, very relevant) example which I experienced during my involvement in the Lesotho Highlands Water Project: the necessary blasting for geological surveys and tests was seriously delayed and hampered because of the existing and extremely restrictive licensing requirements for the handling of explosives under Lesotho law. It is significant that the industrialization in Europe was accompanied by ‘a modernization of commercial laws, in particular company law, the law of negotiable instruments and the law of civil procedure. In all European na: tions this modernization was achieved through harmonisation of the law by means of codification. The industrial revolution was also a legal revo lution. In South Africa, however, the industrial revolution seems to be ac- ‘companied, not by the ereation of legal certainty and the unification of the Jaw, but instead by increasing fragmentation and dissipation of the law ‘This should certainly not be the purpose of decentralisation and regionali sation, Development law is thus a new discipline of law. It abandons the re- straints of the traditional groupings of law into private, public and crimi- nal law, or even into more specific categories such as the law of negotiable instruments or international law. Development law embraces any legal field which, under the given circumstances of a country, is relevant or es- sential for social, economic and political development or advancement 9 Morryman ‘Comparative law and social change: onthe origins, style, decline and revival ‘ofthe lar and development movement’ 1977 Amerian Journal of Comparative Lass 487 4491; Tubek & Galantor Scholar in selestrangement some reflections on the eri in law and development studies in the United Seales’ 1974 Wisconsin Late Review 1062; 1Ore Trabek war scl ary of x an ey onthe dy of aw and devel ment’ 19123 Yale Lowe Journat 1-55 10 Grunter "Le traction en tant que limite aux réformes dy drvit' 1979 Revue Internationale du Drat Compare 37.125