Le couple droit/économie dans la théorie et le droit international du développement

Pascal McDougall

Revue internationale de droit économique, 2018, vol. t. XXXII, issue 1, 41-74

Abstract: This article deals with the broad question of the relationship between legal and economic knowledge through the case of Anglo-Saxon development theory, a multi-faceted literature that encompasses development economics, ?development studies? in the social sciences, as well as what francophones call the international law of development. It analyzes three schools of thought born during the crucial period of the ?institutional turn? of the 1990s in development theory. These schools are (1) the New Institutional Economics of Douglass North, (2) the New Development Economics of Joseph Stiglitz, and (3) the capabilities approach of Amartya Sen. These three currents complexified the simplistic picture of law prevalent in neoclassical economics by bringing attention respectively (1) to the legal rules of property and contract as opposed to the more abstract neoclassical categories of ?competition? and the ?market,? (2) to market failures necessitating legal intervention, and (3) to human rights as a non-economic component of development to be enacted in law. In so doing, these currents gave more importance to law and undermined the long-standing domination of development theory by economics and economists. This article thus celebrates these three schools by analyzing them in detail but also criticizes them, arguing that they still do not sufficiently take account of the complexity of law. Specifically, it argues that they do not provide a way to choose among the various legal regimes that all correspond to private property and freedom of contract but diverge in the allocation of resources and distribution of wealth they bring about. The text proposes possibilities for reforming economic analysis and development theory to register this legal complexity and calls for a new ?institutional turn? to complete that, indispensable but insufficient, of North, Stiglitz, and Sen.

Keywords: Economic development; institutionalism; developmentalism; neoliberalism; capabilities; North; Sen; Stiglitz; Law and Economics; Law and Development (search for similar items in EconPapers)
Date: 2018
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