The Role of Formal Contract Law and Enforcement in Economic Development

The primary inquiry of this Essay is consequentialist: whether the existence of a formal contract law and enforcement regime significantly contributes to economic growth in developing countries. As the Essay elaborates, two different hypotheses emerge from the literature. One takes the view that strong formal contract law and enforcement mechanisms are indispensable to economic development, while the other contends that much economic development is realizable through informal contracting mechanisms. To test the validity of these two hypotheses, we provide a critical review of existing literature, including an investigation of two cases of great contemporary development significance: the so-called “China Enigma” and the “East Asian Miracle.” In both of these cases, high rates of economic growth have been achieved, often in the absence of strong formal contract law and enforcement regimes.

We argue that at low levels of economic development informal contract enforcement mechanisms may be reasonably good substitutes for formal contract enforcement mechanisms, but become increasingly imperfect substitutes at higher levels of economic development involving large, long-lived, highly asset-specific investments or increasingly complex traded goods and services, especially outside repeated exchange relationships. Thus, the mix of mechanisms that are likely to ensure both a fair and efficient domain of contracting in developing countries is a function of highly context-specific factors that defy easy generalizations. We conclude that on one of the central questions in contemporary development debates – do good institutions cause growth, or does growth cause good institutions? – the answer, in the context of contract enforcement mechanisms, is a nuanced one.

Public Legal Reason

This Essay develops an ideal of public legal reason—a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what I shall call “public values”—values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines. The ideal of public legal reason is then applied to a particular question—whether “welfarism” provides the sort of reasons that are appropriate for legal practice. The answer to that question is “no”—to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that fail the test of public reason.

The Essay also investigates the thesis, advanced by Louis Kaplow and Steven Shavell, that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell’s argument, it does not show that welfarism can provide public legal reasons.

The essay concludes that law’s justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law’s deliberations should be shallow and not deep. Law’s reason should be public.