Law under Institutionalism

Legal institutionalism (LI) is an emerging theory and related body of empirical research at the intersection of law and the social sciences, which seeks to move beyond the overnaturalized conceptions of law and the market that have until recently dominated academic and policy discourse, including the “law & economics” paradigm and the theory of “legal origins.” LI operationalizes insights familiar to legal theory, including law’s normativity and scalability as a mode of governance and its role as a locus and source of power in society, for use in those social sciences disciplines that have until recently neglected law as a causal variable. An LI lens reminds us that development is a contingent and contested process, and that it can be a basis for coercion and exploitation as well as for growth. While the “coding” of land as collateral helped pave the way for economic growth in early industrial Britain, the coding of “labour” as service, indenture, and slavery was no less central to the legal construction of empire. Understanding what is at stake in the use of law as an instrument of development may help avoid not just a misreading of history, but recurring policy errors, such as “shock therapy.”