WG Law and Development
Chair: Gregory Lewkowicz
Discussant: Pedro Rubim Fortes
Juan Antonio Gaviria | Universidad Pontificia Bolivariana
Cathalina Sánchez Escobar | Universidad Pontificia Bolivariana
Excessive Judicial Interference and Economic Development - The Colombian Case
Judicial interference, defined as the involvement of judges in all kind of decisions allocating the scarce resources of a society, may be inextricable linked to the development of a country. If the involvement is too little, judiciary resources might be wasted. If, on the other hand, the involvement is too much, to the point that litigation never comes to an end or that it is related to even the most trivial issues, the number and scope of judicial decisions might be beyond its efficient point; i.e., they would not only fail to contribute to the development of a country but may also obstruct it. This paper shows how, since its current Constitution was enacted in 1991, Colombia might be going through a period of excessive judicial interference; i.e., a time where too many social and economic conflicts are solved through litigation and not through negotiation or vote. This text would be an important contribution to the literature in law and development, which is rich regarding general matters such as the role of the judiciary for development (see, e.g., Lars P. Feld and Stefan Voigt, Economic Growth and Judicial Independence: Cross Country Evidence Using a New Set of Indicators; and Randall T. Shepard, The Judiciary’s Role in Economic Prosperity) but scarce in the specific topic of the metrics of judicial interference and its possible social and economic effects. On top of that, the conclusions of this paper might be useful for understanding the legal data and the efficient role of the judiciary in the development not only of Colombia but also of other Latin American countries with similar legal, social and economic circumstances. The text is structured as follows. Section I summarizes the literature on law and development related to the role of courts with an emphasis on Latin American countries. Section II explains how Colombia is traversing a wave of excessive judicial interference, mentioning some leading examples and presenting some data about litigation in this country. Section III explains how such excessive litigation may be a hindrance to the economic development or to development in general, enquires about the possible correlation or even causation between this amount of litigation and economic development, and proposes some approaches to avoid this negative trend. Section IV concludes by summarizing the findings and proposing some similar topics for future research.
Håkan Hydén | Department of Sociology of Law, Lund University, Sweden
The Relation Between Legal and Societal development
To have an understanding of law and its development, a theory of the relation between law and society is needed. There is are approaches to research in sociology of law research approaches which aim to describe the legal development in terms of different stages. Already, the first sociology of law relevant sociological studies of relevance to sociology of law by Emile Durkheim used the law as an indicator to describe the development of society. I´ am inclined to emphasize that different legal types are present in parallel with each other but with different functions and, in particular, with varying strength over time.
When we look at different society societal systems and the transactions between them through from a historical angle, we can see that the societal development appears to be cyclical. The Societal development can be regarded as waves breaking forth. These times of dramatic change which we are presently experiencing between an old, and overly mature industrial society and the current digital society, can, for the sake of simplicity, be described as a society in transition. In this situation, contradictions appear between the old and the new. Tensions arise between people who live with different conceptions of the world depending on where they have mentally localized themselves.
The logic behind legal development tends to differ from societal development. The development of normativity is distinguished by its movements within the frame for of bipolar opposing pairs. I therefore call this for the locomotive of legal change. It combines two separate and incompatible expressions. The metaphor of the locomotive reflects this conflict between static and dynamics, between position and movement. The locomotive unites the synchronic and the diachronic perspective. Whilst the locomotive moves forward, carriages are attached as the society undergoes various developments. The direction of movement is the same in the entire industrialized world. The differences in speed and development depends on, amongst other things, the relationship between the different, bipolar, normative positions that decide determine over the normative fundamental pattern. This is then related to a number of circumstances, from societal economic development levels, through institutional traditions to technological conditions.
Karol Muszyński | University of Warsaw
Jan Winczorek | University of Warsaw
Access to justice of small and medium enterprises at the periphery. Is law a source or an answer to uncertainty?
Paper is presented as part of ongoing research on barriers to justice of small and medium enterprises in Poland, conducted at the University of Warsaw, by Jan Winczorek PhD (PI) and Karol Muszyński MA. The research is undertaken in paths to justice tradition with influences from systems’ theory, and uses both quantitative (web survey on no less than 5000 enterprises) and qualitative (no less than 100 interviews) methods.
Paper will present preliminary empirical results and theoretical reflections from the research. Enterprises use law in order to control uncertainty appearing in their activities (insurance contracts to limit liability, contractual penalties to ensure implementation of agreements etc.). At the same time, law can be itself a source of uncertainty, as it may generate problems for enterprises that they are not used to deal with (long procedures; necessity to present their problems in legal language etc). The uncertainty related to using law can be controlled as well, as enterprises may use professional, external or in-house lawyers, or other means such as legal insurance in order to control uncertainty generated by using law. This paradox of uncertainty-controling tool that generates uncertainty is best observed at quickly developing semi-periphery such as Poland, where enterprises are continously balancing between observing law as a tool of controling uncertainty, and as a source of it. This is related to the inherent indeterminancy of law, but it is multiplied by the limited access to resources that is characteristic for the periphery. This not only promotes an emergence of substitute strategies for dealing with legal problems, but also makes the role of law in the economic development particulary ambiguous. Policy implications for the access to justice will be discussed.
David Restrepo Amariles | HEC Paris
Bruno Deffains | Paris II Panthéon Assas (CRED)
Revisiting the Law Matters Thesis: The Legal Certainty Index
In the last decade, the demand and supply for legal indicators has increased dramatically. Legal indicators render new data available about the trajectories and performance of legal systems and parts thereof. This contribution summarizes the key methodological and theoretical tenets of this new body of data and uses original empirical evidence to revisit the thesis that ‘law matters’. It argues that legal indicators have the potential to unleash dynamics of mutual reinforcement between law and economics, strengthening simultaneously the relevance of law as an instrument for socio-economic progress and the predominance of economic rationality in decision-making processes. We rely on the Index of Legal Certainty to show that this mutual reinforcement is conditional to legal indicators producing robust and reliable knowledge about law as a complex phenomenon, including through the combination with other legal and non-legal indicators. Under such conditions, legal indicators contribute to reduce information asymmetries in the legal market, enhance knowledge about abstract socio-legal realities and increase confidence of economic actors in the legal system. The article concludes that the production of sophisticated legal indicators requires enhanced interdisciplinary work between academic lawyers, socio-legal scholars and economists while embracing a policy-oriented conception of scientific research.