Multidisciplinary 'Law and Development' book tackles hard problems from principled perspectives

[UPDATE, March 31, 2020: The Introduction to Law and Development is now available for free download from Springer, via SSRN.]

I am thrilled to announce the publication of Law and Development: Balancing Principles and Values, from Springer, a publication in the Kobe University Monograph Series in Social Science Research (flyer). While I was privileged to serve as a contributor and co-editor, with Professor Dai Tamada (law site), of Kobe University in Japan, this book has been a project of passion for our lead editor, my inspiring colleague and friend, Professor Piotr Szwedo. On the law faculty of the Jagiellonian University (UJ) in Poland, Professor Szwedo serves as head of the OKSPO Center for Foreign Law Schools and co-director of UJ law programs with the Columbus School of Law at The Catholic University of America, and the Université d’Orléans.

Born of an international conference organized by Professor Szwedo at UJ, this ambitious multidisciplinary collection examines the problem of "development" across the world especially from perspectives informed by morality and ethics. Here is the jacket précis:

This book examines the concept of ‘development’ from alternative perspectives and analyzes how different approaches influence law. ‘Sustainable development’ focuses on balancing economic progress, environmental protection, individual rights, and collective interests. It requires a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept found in ethics. ‘Development’ can be considered as a value or a goal. But it also has a normative dimension influencing lawmaking and legal application; it is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker. This research examines how different approaches to ‘development’ and their impact on law can coexist in pluralistic and multicultural societies, and how to evaluate their legitimacy, analyzing the problem from an overarching theoretical perspective. It also discusses case studies stemming from different branches of law.

Prof. Szwedo

Prof. Tamada

In organizing the book's 13 contributed chapters, we envisioned and executed on four threads of approach: (1) conceptualizing development, (2) financing development, (3) development and society, and (4) applied sustainable development.  Scholars, lawyers, and scientists who approach development from diverse professional, geographic, and experiential perspectives all will find compelling inroads in this volume, which ranges from the highest echelons of philosophical thinking about the human condition to the most earthbound problems of how many fish swim in the sea.  With DOI links, here are the contents and contributors:

1. “Law & Development” in the Light of Philosophy of (Legal) History, by Tomáš Gábriš, Faculty of Law, Comenius University in Bratislava, Slovak Republic.
2. Populorum Progressio: Development and Law?, by Christine Mengès-Le Pape, University Toulouse, France.
3. Luigi Sturzo’s Socio-economic Development Theory and the Case of Italy: No Prophet in His Homeland, by Flavio Felice, University of Molise, Campobasso, Italy; and Luca Sandonà,University of Trieste, Trieste, Italy.
4. International Financial Aid, Catholic Social Doctrine and Sustainable Integral Human Development, by George Garvey, The Catholic University of America, Washington, D.C., USA.
5. Common but Differentiated Responsibilities for Developed and Developing States: A South African Perspective, by Zuzana Selementová, LL.M. (Cape Town), Valouch, and Attorneys-at-Law, Prague, Czech Republic.
6. Must Investments Contribute to the Development of the Host State? The Salini Test Scrutinised, by Dai Tamada, Graduate School of Law, Kobe University, Japan.
7. Water: The Common Heritage of Mankind?, by Franck Duhautoy, University of Warsaw, Centre of French Civilisation, Poland.
8. Private-Sector Transparency as Development Imperative: An African Inspiration, by Richard Peltz-Steele, University of Massachusetts, North Dartmouth, USA; and Gaspar Kot, Jagiellonian University, Kraków, Poland.
9. Between Economic Development and Human Rights: Balancing E-Commerce and Adult Content Filtering, by Adam Szafrański, Faculty of Law and Administration, University of Warsaw, Poland; Piotr Szwedo, Faculty of Law and Administration, Jagiellonian University, Kraków, Poland; and Małgorzata Klein, Faculty of Geography and Regional Studies, University of Warsaw, Poland.
10. A Comparative Law Approach to the Notion of Sustainable Development: An Example from Urban Planning Law, by Ermanno Calzolaio, University of Macerata, Italy.
11. Challenges Concerning ‘Development’: A Case-Study on Subsistence and Small-Scale Fisheries in South Africa, by Jan Glazewski, Institute of Marine & Environmental Law, University of Cape Town, South Africa.
12. Economic and Social Development in the Republic of South Africa’s New Model of Mineral Rights: Balancing Private Ownership, Community Rights, and Sovereignty, by Wojciech Bańczyk, Jagiellonian University, Kraków, Poland.
13. Sustainable Development as a New Trade Usage in International Sale of Goods Contracts, by Daniel Zatorski, Faculty of Law and Administration, Jagiellonian University, Kraków, Poland.

An introduction from the editors ties the work together.  Previews (with abstracts) of each chapter can be viewed from the book's home page at Springer (or from the DOI links above), where also a flyer about the book can be downloaded.  Working on this project has been a tremendous education for me on law and development.  My congratulations and deep gratitude extend to Professor Szwedo, Professor Tamada, and every one of the contributing authors.

Book chapter examines information access in context of Polish privatization, law and development

My colleague Gaspar Kot and I have published a book chapter entitled Private-Sector Transparency as Development Imperative: An African Inspiration.  The chapter appears in the new book, Law and Development: Balancing Principles and Values, from Springer, edited by Professors Piotr Szwedo, Dai Tamada, and me (more in the next entry on this blog).  Here is our abstract:

Access to information (ATI) is essential to ethical and efficacious social and economic development. Transparency ensures that human rights are protected and not overwhelmed by profiteering or commercial priorities. Accordingly, ATI has become recognised as a human right that facilitates the realisation of other human rights. But ATI as conceived in Western law has meant only access to the state. In contemporary development, private actors are crucial players, as they work for, with, and outside the state to realise development projects. This investment of public interest in the private sector represents a seismic shift in social, economic, and political power from people to institutions, akin to the twentieth-century creation of the social-democratic state.

Contingent on state accountability, Western ATI law has struggled to follow the public interest into the private sector. Western states are stretching ATI law to reach the private sector upon classical rationales for access to the state. In Poland, hotly contested policy initiatives over privatisation and public reinvestment have occasioned this stretching of ATI law in the courts. Meanwhile, in Africa, a new model for ATI has emerged. Since the reconstruction of the South African state after Apartheid, South African ATI law has discarded the public-private divide as prohibitive of access. Rather than focusing on the nature of a private ATI respondent’s activity as determinative of access, South African law looks to the demonstrated necessity of access to protect human rights.

This chapter examines cases from South Africa that have applied this new ATI model to the private sector in areas with development implications. For comparison, the article then examines the gradually expanding but still more limited Western approach to ATI in the private sector as evidenced in Polish ATI law. This research demonstrates that amid shifting power in key development areas such as energy and communication, Polish courts have been pressing ATI to work more vigorously in the private sector upon theories of attenuated state accountability, namely public ownership, funding, and function. We posit that Poland, and other states in turn, should jettison these artifices of state accountability and look instead to the South African model, since replicated elsewhere in Africa, for direct access to the private sector. ATI law should transcend the public-private divide, and the nations of the North and West should recognise human rights as the definitive rationale for ATI in furtherance of responsible development.

Gaspar Kot

With Mr. Kot's help, this chapter extends to a European context my previously published comparative work on private-sector information access. Gaspar's expertise was invaluable for Polish legal research, to be sure, but moreover to help me to understand Poland's richly complex, on-again-off-again courtship of privatization.

In earlier works, I compared the South African approach with the United States FOIA and with Indian RTI law.  I am excited about this approach in access-to-information law, which is now gaining traction elsewhere in Africa, because I believe it to be a potential game-changer in saving democracy and human dignity from corporatocracy. I am spending some of my sabbatical time this semester in Africa and other parts of the developing world studying how this approach is especially salient in the context of problems in social and economic development.

Happy Independence Day, Namibia!

Your humble blogger reaches Swakopmund, crossroads of the Namib Desert and South Atlantic Ocean.
All photos RJ Peltz-Steele CC BY-SA 4.0.

Yesterday, March 21 was independence day in Namibia. One of the youngest countries in the world, Namibia attained independence from South Africa in 1990 after a brutal war and bloody history of subjugation as the German colony of Southwest Africa. Public celebrations of 30 years of independence were cancelled because of the coronavirus, though an inauguration ceremony of President Hage Geingob, for his second term, proceeded.

Sign fallen to the ground in Windhoek.

I found mixed feelings on the ground about Geingob, who was the country's first prime minister and a hero of the independence movement. One middle-aged man from Namibia's rural north told me Geingob can't be blamed for entrenched intransigence and corruption in the political establishment, that he can only do so much. Meanwhile a young woman in the capital, Windhoek, stringing together multiple jobs to put herself through university, blamed Geingob squarely for double-digit unemployment--by various estimates, one in three Namibians, or more, need work--and fiercely lamented his second term.

The National Museum and historic German Lutheran church stand in juxtaposition in Windhoek.

Me and Nujoma. He holds the Namibian constitution.

I've been sensitive in traveling Africa to the subtleties of foreign influence, especially that of China, and that shadow turned up in a curious way in Namibia. Like elsewhere in Africa (I wrote earlier about Guinea-Bissau), communists financed the independence movement as an aspect of the Cold War; consider, for Namibia, this was the 1980s. North Korea grew close to legendary independence leader Sam Nujoma. North Korea financed a great many public works projects in independent Namibia, including recently and strikingly, the National Museum, which opened in Windhoek in 2014. The building is modernist (technically "socialist realist"), marking a contrast with Windhoek's colonial center, and boasts a Kim Jong-ish statue of Nujoma. The interior is to match, celebrating Namibian independence with socialist-style murals and cult-of-personality-type homages to national leaders.

A mural in the National Museum celebrates independence.

The sun rises over the Rössing Uranium Mine in the Namib.

Why does North Korea's interest persist so many years after independence? Locals point to Namibia's especially valuable natural resource: uranium mines in the western Namib desert. Though North Korea formally is walled off by the West from materials that might advance the DPRK's nuclear capabilities, suspicions point to China as a willing intermediary. And so the African "natural resources curse" persists.

Namibian Parliament: A banner on the Parliament's administrative building heralds 30 years of independence.

Customary law undergirds justice systems in Africa: A-courting in Harare

Outside the "Harare Civil Court" buildings, a discarded sign reads, "Harare Magistrate's Court / Civil and Customary Law." Other court building in Harare are pictured below. All photos RJ Peltz-Steele CC BY-SA 4.0.

The integration of customary law into national legal systems based on post-colonial polities is a challenge, and an opportunity, throughout Africa. I wrote recently about customary legal authority in the Casamance region of Senegal, and Zimbabwe is no exception to the norm.

The Zimbabwe constitution expressly preserves customary law, and federal enactments spell out the scope of customary law in sensitive areas, such as marriage and child care. The constitution creates customary courts and charges other courts, including the Supreme Court, with respecting and developing customary law, just as they do common law. For NYU Law GlobaLex, Saki and Chiware (updated by Pfumorodze and Chitsove, 2017) further explained:

The main reason for the existence of these customary law courts is to provide a justice system to ordinary people in rural areas which is consistent with African custom and values.  It is  realized that most ordinary Zimbabweans regulate their lives in accordance with customary law to the extent that the legal ideas and institutions inherited from the system has  preserved the authority of traditional leaders  to adjudicate in civil disputes by customary law.

In Zimbabwe, customary courts have jurisdiction over civil, but not criminal, matters. Common law controls in the civil sphere, while criminal law is strictly codified in Zimbabwe's mixed system.

Scales of justice adorn a high court building where criminal cases are heard.

Jehovah's Witnesses occupy the walk outside the characteristically modest legal aid office.

Your humble blogger stands before the highest court('s house) in the land.

Constitutional Court.

[March 21, 2020] Sabbatical update: For obvious reasons, I am home, and not in Africa. Thanks to my wife who booked my return journey from Windhoek to Boston. Stay tuned for a return to normalcy. Meanwhile, #QuarantineLife.

Shop like a termite: Sustainable architecture in Harare

Leko, my guide in the Okavango Delta of Botswana, uses a termite mound for elevation.
All photos RJ Peltz-Steele CC BY-SA 4.0.

The Eastgate Centre in Harare, Zimbabwe, pictured outside and inside below, uses passive cooling (read more at Wikipedia) to keep cool without exhaustive power consumption. Designed by Zimbabwean architect Mick Pearce, the shopping and office complex opened in 1996. Pearce works in "sustainable architecture" and developed the field upon an interest in biomimicry. The passive cooling design of the Eastgate Centre is said to be based on principles observed in southern Africa's ubiquitous termite mounds.

Eastgate Centre

Zimbabweans still await their development moment

Robert Mugabe airport.
All photos RJ Peltz-Steele CC BY-SA 4.0.

In Harare, Zimbabwe, my host (whose identity I am protecting) brought me up to speed on national politics and the present fuel shortage. I had been under the impression that the exit from nearly 30-year rule of President Robert Mugabe, with subsequent electoral fanfare, marked a turning point for the southern African nation. Alas, my host reported that the new regime of President Emmerson Mnangagwa is same story, different day.

Zimbabwe imports its oil, but there is no ready explanation, such as a natural disaster or embargo, to explain the latest (nor the prior) bottleneck and long gas lines. My host blames politics as usual, which means control of the country's oil market awarded to cartels in exchange for lucrative kickbacks to politicians. A business owner dependent on vehicles to move assets, my host explained the strategies he employs to keep his fleet in service, including foreign currency purchases, which can bypass gas lines; fuel storage for a rainy day; the occasional financial inducement to a fuel seller; and, when all else fails, waiting in the interminable lines.

A gas line runs along the road.

A Total station is closed except for its 'Bonjour' shop.

The high ratio of pedestrians to vehicles on the streets of Harare is like none I've seen elsewhere in a major city, as even minibuses are in short supply for want of fuel. There are taxi stands, but the cabs are decidedly parked and not cruising for customers. My host said that the aforementioned politicians never seem to be wanting for fuel, though. Indeed, around Parliament and the executive administration building, I saw many official vehicles, and early in the morning, I saw workers filling their gas tanks from fuel cans. Entrepreneurial roving street merchants, who might be selling bananas, nuts, or newspapers in another city, hawk fuel cans and funnels in Harare.

Customers wait for the grocery store to open in the morning.

Another curiosity that struck me in Harare was crowds of people around and in the grocery stores. Outside a CBD branch of the popular market chain OK were a score of peddlers bearing cardboard signs showing numbers. My host explained that, in tandem with Zimbabwe's economic woes, and also a function of corruption, he asserted, runs the country's currency shortage. Indeed, I paid always with U.S. dollars, received change in same, and never saw other than inflationary Zim notes being sold as touristic novelties. In part because of the currency shortage, and to prevent a run on banks, people are restricted in bank withdrawals. That means one must go more often to the grocery store. But people have adapted, and they do have access to their money through electronic devices. The peddlers outside the stores are brokers, or internet-age money changers, who, for a competitive cut, convert electronic bank balance into hard currency to spend on groceries that don't directly accept debit or public assistance payments.

My host lamented: Zimbabwe is a country rich in natural resources and natural beauty to rival regional neighbors such as Tanzania and South Africa. Yet in 55 years since independence from the UK, the country inexcusably has failed to mature domestic productivity or the touristic sector. Sadly, coup d'etat and the long-anticipated exit of Mugabe seem not to have precipitated meaningful change.

Just wait, my host said: if the people don't see improvements, they'll change leadership again; and again, until someone gets it right.

Zimbabwe Parliament building sits on Africa Unity Square.

Poor development choices may bolster quality-of-life disparity on Tanzania's Msasani Peninsula

 Coco Beach, Msasani Peninsula, Dar es Salaam, Tanzania. All photos RJ Peltz-Steele CC BY-SA 4.0.

The short length of Coco Beach is the touristic gem of Tanzania's largest city, Dar es Salaam, which, for all its rugged charms, is not rich with touristic gems. Coco Beach sits on the eastern, Indian Ocean, coast of the ritzy Msasani Peninsula, just a few kilometers northwest of the CBD.

Msasani says a lot about wealth stratification in Africa. The worsening wealth gap is an issue that vexes me in the United States. But we've got nothing on many an African country. Where subsistence living is the norm, and social safety nets are nearly non-existent, the disparity between haves and have-nots gets closer at each end to all and nothing. And as on Msasani, the extremes are often abruptly juxtaposed. The peninsula is home to subsistence fishermen, and the polluted beaches of the slipway, in the west, and the luxury condominiums of posh Oyster Bay, in the east.

Luxury condo building on the road from Oyster Bay to Sea Cliff Village

I walked the peninsula from west to east and saw, in the span of just a few kilometers, ramshackle wood dwellings on potholed dirt trails without plumbing, in the west and center, and gated condo complexes with marble-esque, statued facades, in the east. While the former teemed with human life, the latter were eerily vacant, deserted of all but the occasional maintenance worker. I assume the condos are mostly second-home getaways and vacation rentals for the well-to-do in high season and on weekends. (I was reminded of the dark-windowed high rises that loom over Central Park West, New York.)

Qatar's is the most modest of the beachfront embassies.

At that, the most striking residences of the eastern Msasani are not luxury homes, but foreign embassies, including those of Qatar, Brazil, Canada, Ireland, the UAE, and Saudi Arabia. (The U.S. embassy and others are in Oyster Bay, but in the interior.) They line the main coastal road that runs between Oyster Bay and Coco Beach, which runs on northward to swank Sea Cliff Village and the Yacht Club.

Present service structures on Coco Beach, astride road construction.

At present, it isn't easy to cross this road, because a massive construction project runs all along the length of Coco Beach. I had hoped that this construction would improve the beach for touristic use that might fuel economic development to benefit the peninsula's have-nots. What passes for services on the beachfront now are wood shacks of dubious hygiene, selling drinks and snacks that might prove hazardous to foreign GI tracts. One municipal toilet building has seen better days and is now inaccessible anyway because of the construction. Alas, no, a local on the beach informed me: The purpose of the construction is to convert the shoulderless, two-lane, asphalt coast road into a four-lane highway, because, he said, the embassies want better and more secure access.

Nearly completed end of beachfront highway entering the CBD.

Many an American city can today tell tales of costly woe for having built transportation and utility infrastructure along prime waterfront property. It's bad enough that embassies, with their high, secure walls, occupy this land on the peninsula to begin with. Their inefficient use of prime real estate, distant from the administrative offices of the CBD, and in the company of Tanzania's "one percent" and cloistered ex-pats, sounds an awakward echo of colonial elitism.  To boot, now, the embassies and luxury homes will soon be served by a four-lane road that will further limit public access from the peninsula to the already underdeveloped beachfront.

Tanzania in 1974 moved its capital de jure to central Dodoma, in an effort to broaden economic opportunity in the country beyond Dar es Salaam. Nevertheless, concentration of development in Dar is still a problem that plagues the country. A businessman in the northeastern town of Arusha told me there's mounting resentment there about rural taxes paying for big-city infrastructure. (Boston says hello, western Massachusetts.) Maybe foreign nations can help Tanzania take a step forward by transferring their embassies from walled beachfront luxury to central locations with better access to government, whether Dar or Dodoma, on condition that appropriate public development of the Msasani Peninsula be left in their wake.  After all, foreign diplomatic posting is supposed to be a hardship, and it's compensated accordingly.

The new highway runs in front of the historic Ocean Road Hospital, where a street sign bears a familiar name.

US President haunts African 'ghost capital'

Main traffic circle in Canchungo, Guinea-Bissau.
All photos RJ Peltz-Steele CC BY-SA 4.0.

Throughout Guinea-Bissau, in West Africa, characteristic landmarks found in town centers, parks, and traffic circles are large, dilapidated blocks of painted concrete, often graffitied. These blocks are actually bases that have held statues of prominent leaders during the country's tumultuous history since independence was declared in 1973.

For Guinea-Bissau, it's been a journey as rocky and potholed as the nation's roads. Independence from Portugal was hard fought, with the Soviet Union, Cuba, and China pouring in arms for the revolutionaries to the end of establishing a communist foothold in West Africa. Anti-revolutionary soldiers were mass murdered after their defeat. Subsequent instability and corruption led to civil war in the 1990s, and election turmoil and political violence marked the 20-aughts. The presidential election in 2019 was contested, and just this week, since inauguration of the ultimately recognized victor, there are reports of military intimidation of the courts. No wonder statues don't last long in poor Guinea-Bissau.

That makes one statue still standing all the more an oddity. In an overgrown park in the heart of the main town on Bolama Island, in the Bijagos Archipelago, at the center of low walls of crumbling concrete that once demarcated colorful stars, the likeness of 18th U.S. President Ulysses S. Grant rises defiantly.

The Grant statue is a curious throwback to Portuguese colonial rule. Actually, all of Bolama Town is a throwback to colonialism. Once grand Portuguese constructions crumble in slow decay in what's sometimes called Guinea-Bissau's "ghost capital." European powers such as Portugal favored locating their colonial bases of operations on offshore islands, where winds kept malarial mosquitoes at bay. Today the ghost capital is inhabited, despite its state; thousands of people live in subsistence, and sometimes dependent, conditions amid the ruins.

In the 1860s, President Grant became the mutually agreed upon arbitrator between Portugal and Great Britain over territory in the islands. After Grant awarded Bolama to Portugal in 1870, the Portuguese erected the statue to honor him. Notwithstanding the resolution of that dispute, and despite British efforts to aid the Confederacy and topple the Union in the Civil War, Grant was ultimately credited with strengthening U.S. relations with Britain during his two terms as President in the Reconstruction era. Grant proved so popular abroad that he and his wife embarked on a world tour after his presidency, and, with the imprimatur of President Rutherford B. Hayes, Grant inaugurated the custom of former presidents conducting informal diplomacy abroad.

The tale of Grant's Bolama ghost gained an unusual epilog in 2007, when the statue went missing. Ofeibea Quist-Arcton reported the story for NPR. Apparently stolen to sell as scrap metal, Grant was recovered in pieces, and authorities ultimately restored him--not how things usually work out for statues in Guinea-Bissau.

Ruins of Portuguese palace in Bolama Town

Abandoned cinema in Bolama Town

A storefront in Bolama Town painted for politics

Kids swinging in a refurbished Bolama Town park

No bulls*** on the pitch. Vote Rapinoe!

The local football pitch in Reino de Tor, Guinea-Bissau. RJ Peltz-Steele CC BY-SA 4.0.

Vote Megan Rapinoe for BBC Women's Footballer of the Year 2020. She's no BS.