What is legal development, and why should military lawyers or civil affairs practitioners care about what development practitioners do? Modern legal development has a political history linked with modernization efforts reaching back at least as far as nineteenth century Japan . It famously adopted German (Civil Law) models as part of its emergence into the modern world, and 100+ years later most Asian jurisdictions have followed in joining the Civil Law family. More recently, it was tied to the 1960s Law & Development movement as grandfather to current rule of law development efforts worldwide. So why is something so broadly practised still so poorly understood?

Post World War II, legal change has been embedded in modernization concepts for developing countries as a whole, commencing in Latin America and Asia in the 1960s. It was adopted more broadly on the economic law side in Asia as part of development policy, became part of international financial institution orthodoxy, then visibly crossed over into public law as part of the push to restore the rule of law or Rechtsstaat in Eastern Europe post-1989. It continues as the technical level of democratization efforts which were largely transferred from Eastern Europe to the Middle East and Central Asia post 9/11. Thus, current efforts to foster legal development in Iraq, Afghanistan and elsewhere stand at the end of a long technical history concerning the transfer of entire legal orders, most of which technical knowledge and history is lost in on-going debates concerning introducing the rule of law in conflict or post-conflict situations.

Legal change is embedded in modernization, but presents an underlying chicken and egg problem. Can law be employed to shape behavior as a form of social engineering, or must social behavior change first, and legal change can only follow as form of ratification or reinforcement of changed behavior? The counterweight to modernization’s implicit assumption of secular, national legal development as part of economic and social development may be a growing emphasis on non-Western alternatives, such as incorporation of sharia law into national legal systems in Islamic countries, or other alternatives elsewhere. But, paralleling issues in the West, is the claimed religious basis for law more a dispute over social standards rather than about doctrine? What is legal development, once we distance ourselves from modernization? And this is not just a question for foreign legal systems, since what does it mean for domestic law purposes if we change statutes but social behavior lags, for example, in areas like anti-discrimination law?

On the social science side, we seek insights into the underlying chicken and egg problem of legal development. There are related but slightly different aspects of the chicken and egg problem depending upon whether one looks at what might be called democracy & governance or general rule of law work (such as pushing judicial development or anti-corruption work, less expressly economic and quasi-political), versus economic growth work (pushing the Washington consensus, based in ideas about transaction cost economics and a liberal economy), versus pushing democratization (e.g., in the Middle East). The first pits existing social networks against formal law, while the second includes that plus embeddedness issues. The third adds the additional element of difficulty that one addresses expressly political elements in conflict or post-conflict situations, ultimately incorporating liberal ideas. The first two overlap in issues about approaches to modernization, but how one answers the chicken and egg question is quite important in terms of legal change and development in practice. The third raises obvious questions about the likelihood of longer term success for US foreign policy approaches dating back to the early 1990s.

In practical terms, the issues underlying legal development have resurged in the switch from a 1990s concentration on restoring a pre-existing social and legal order lost in Eastern Europe for 50-75 years, to legal transfer efforts as part of development or similar post-colonial policies in non-Western countries. Legitimacy becomes part of the equation because, if modernization is not the basis for legal change, what justifies it? The 2007 Barnes Symposium brings together a distinguished group of academic and military lawyers, plus religion and social science scholars together with legal development practitioners with experience in the Islamic world to explore these issues.