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Law and Development and the Global Discourses of Legal Transfers

Law and Development and the Global Discourses of Legal Transfers

Author: John Gillespie; Pip Nicholson
Publisher: Cambridge University Press
ISBN: 9781107018938
Published In: June 2012
Format: Hardback , 408 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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This volume of essays contributes to the understanding of global law reform by questioning the assumption in law and development theory that laws fail to transfer because of shortcomings in project design and implementation. It brings together leading scholars who demonstrate that a synthesis of law and development, comparative law and regulatory perspectives (disciplines which to date have remained intellectually isolated from each other) can produce a more nuanced understanding about development failures. Arguing for a refocusing of the analysis onto the social demand for legal transfers, and drawing on empirically rich case studies, contributors explore what recipients in developing countries think about global legal reforms. This analytical focus generates insights into how key actors in developing countries understand global law reforms and how to better predict how legal reforms are likely to play out in recipient countries.

• Proposes a recipient-focused understanding of law and development that shifts attention from the delivery of legal reform programmes to the social demand by recipients in developing countries

• Case studies demonstrate in rich empirical detail the processes recipients follow in interpreting global legal reforms

• Comparative analysis provides insights into the local historical and social factors that shape different interpretive practices

Preface	ix
1 Taking the interpretation of legal transfers seriously: the challenge for law and development John Gillespie and Pip Nicholson	1
Part I Theorising legal transfers towards an interpretative analysis	27
2 Relocating global legal scripts in local networks of meaning John Gillespie	29
3 International and domestic selective adaptation: the case of Charter 08 Pitman B. Potter	56
4 Rights and regulation as a framework for exploring reverse legal transfers: hegemony and counter-hegemony in the Bolivian water sector Bronwen Morgan	82
Part II Re-interpreting universalised standards of practice: TRIPS and human rights norms	119
5 The transfer of pharmaceutical patent laws: the case of India’s paragraph 3(d) Christopher Arup	121
6 Between rhetoric and reality: the use of international human rights norms in law reform debates in China Sarah Biddulph	143
Part III Re-interpreting the rule of law as transfer	179
7 Between global norms and domestic realities: judicial reforms in China Randall Peerenboom	181
8 Official discourses and court-oriented legal reform in Vietnam Pip Nicholson with Simon Pitt	202
9 Constructing law from development: cause lawyers, generational narratives, and the rule of law in Thailand Frank Munger	237
Part IV Re-interpreting global family and religious norms	277
10 Family law transfers from Europe to Africa: lessons for the methodology of comparative legal research Mark Van Hoecke	279
11 Resistible force meets malleable object: the ‘introduction’ of norms of gender equality into Japanese employment practice Frank K. Upham	303
12 Discordant voices on the status of Islam under the Malaysian Constitution Elsa Satkunasingam	333
13 ‘Unpacking’ a global norm in a local context: an historical overview of the epistemic communities that are shaping zakat practice in Malaysia Kerstin Steiner	356
Index	378