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Extra resources for Lawmaking for Development: Explorations into the Theory and Practice of International Legislative Projects (AUP - Law, Governance, and Development Research)
Sample text
Especially across the CIS, but also elsewhere in the transition zone and the developing world, the messy, chaotic, ‘unrationalised’ state of legislation, the susceptibility of legal processes to various sorts of manipulation and instrumentalisation prevails. Realists and post-realists do not simply view this set of circumstances as a failure to follow prescriptions or an index of continuing legal underdevelopment. For the critically minded analysts of the PM, it rather looks like a preferred state of affairs, which serves the interest of dominant economic and social interests and which has subtended the emergence of an oligarchic political economy (especially in Russia).
36 S. NEWTON Although the alternatives are presented as binary for simplicity’s sake, they are in fact multiple and more complex. And, each choice among alternatives strikes a different balance and favours some people at the expense of others. Under such a view, certain conclusions are inescapable: one can conceal political decision-making and call it technical expertise, but call it what you like, it is still politics. PM L&D studies examining the distributional consequences of standard Legal TA approaches promoting maximally ‘unregulated’ markets have appeared, as first steps towards correcting, qualifying, and disputing the standard legal ‘case for growth’ of the RM.
It makes a big difference to a jurisdiction contemplating the adoption of a reform of its company law whether it moves in the one direction or the other. And it is not simply a technical difference, a matter of adopting ‘best practice’. It is a matter of the fundamental political choice of institutional design, of the vision of company organisation that a given society in the exercise of its political will decides to adopt. The same point can be made for all variety of things: for pension law (defined benefit, or state-provided versus defined contribution, or investment-based), for insolvency law (creditor-friendly versus debtorfriendly, liquidation-preferring versus reorganisation-preferring) for delicts (strict liability versus negligence).