Rethinking the Relationship between Intellectual Property and Islamic Shari’a
4.2.1 A Secular Perspective on Development
At the outset, there is no intention of shifting the reader‘s attention to the complexities associated with the term ‘development’ as a contested term in the social sciences.3 Rather, the term will be used to the extent needed to assist in realising the purpose of this chapter, which is to understand what impact Islamic Shari’a might have on the currently dominant IP system.
In the field of social sciences, ‘development’ is a complex and multifaceted notion.4 A standard dictionary definition indicates a process of positive change, growth, advancement, evolution or improvement.5 Generally, in the field of economics, the concept of development ‘incorporates the diverse and broad aspirations of what might be called good life in all its economic, social and political dimensions’,6 which includes improvement in education, health, skills, income and employment to the extent that people in a given society have the ability7 to choose a healthy life, better education and decent standards of living.8 James Cypher and James Dietz understand development as being about:
a) Equality of opportunity;
b) Increasing income and standards of living;
3 Anthony Payne and Nicola Phillips, Development (Polity Press, 2010) 1.
4 James Cypher, and James Dietz, The Process of Economic Development (Routledge, 2009) 30.
5 Oxford Dictionary <http://oxforddictionaries.com>; Dictionary, <http://dictionary.reference.com>.
6 James Cypher, and James Dietz, above n 4 31.
7 This might be considered as part of the ‘Capability Approach’ developed by Amartya Sen and Martha Nussbaum which views the essence of development not as an economic process of raising individuals’ income per capita, but more broadly as a set of capabilities that include: being able to live to the end of a human life of normal length; being able to have good health including reproductive health; being able to move freely from place to place; being able to use one’s senses including thinking, imaging and reason ‘in truly human way’ and being able to participate in political choices.
Martha Nussbaum ‘Capabilities and Human Rights’ (1997-1998) C 66 Fordham L. Rev., 273.
8 Rohan Kariyawasam, International Economic Law and the Digital Divide: A New Silk Road? (Book News Inc, 2007) 266.
104 c) Equity in the distribution of income and wealth; political democracy and widespread
participation in society’s decision making;
d) Increased opportunities for education and self-improvement;
e) The expanded availability of, an improvement in, health care.9
Development has three main aspects that are interconnected: human development, economic development and social development.
The Human Development Report defines human development as a ‘process of enlarging people's choices... to lead a long and healthy life, to acquire knowledge and to have access to resources needed for a decent standards of living’.10 According to the Report ‘additional choices [for achieving human development include] ...
political, economic and social freedom to opportunities, being creative and productive, enjoying personal [self-respect] and guaranteed human rights’ 11
Irma Adelman12 defines economic development as ‘a process by which an economy is transformed from one whose rate of growth in per capita income is small or negative to one in which a significant self-sustained rate of increase of per capita income is a permanent long-term feature’.13
The process of economic development is understood today to encompass positive reforms in economic growth, patterns of production, technological capacities, modernising of social and political institutions and widespread improvements in human conditions.14
9 James Cypher, and James Dietz, above n 4, 31.
The view of the authors on development draws upon what is known as Millennium Development Goals adapted by 189 United Nations members in 2000 as goals to be achieved by 2015. For more information please see: United Nations, Millennium Development Goals (2000)
http://www.un.org/millenniumgoals/
10United Nations Development Program, Human Development Report 1990, 10 available online at
<http://hdr.undp.org/en/reports/global/hdr1990/chapters>.
11 Ibid.
12 University of California, Berkeley.
13Irma Adelman, Theories of Economic Growth and Development (Stanford University Press, 1961) 1.
Notwithstanding the fact that economic growth is used in the abovementioned definition to measure economic development, many economists maintain that economic growth should not be confused with economic development because ‘the two are not identical. Growth may be necessary but not sufficient for development. Economic growth refers to increase in a country’s production or income per capita ... [economic] development refers to economic growth accompanied by changes in output distribution and economic structure’ Wayne Nafziger, Economic Development, (Cambridge University Press 2005) 15. Also see Richard Grabowski et al, Economic Development: A Regional, Institutional, and Historical Approach (M.E. Sharpe, Inc 2006), 6.
14 Ibid.
105 The concept of social development, first attracted unprecedented interest after the World Summit for Social Development held in Copenhagen in 1995 as a result of the principles declared by the Summit.15 It was emphasised at that time that social development ‘should serve to build up egalitarian and solidaristic communities and create societies in which human beings can live together in peace and in which their basic rights are respected’.16 Various definitions are given to social development, which reveal its strong and interconnected relation to the other aspects of development. James Midgely17 defines social development as a ‘process of planned social change designed to promote the well-being of the population as a whole, in conjunction with a dynamic process of economic development.’ 18 Another commentator observes that ‘social development is inclusive of economic development but differs from it in the sense that it emphasises the development of the totality of the society in its economic, political, social and cultural aspects’19 Leading philosophers Amartya Sen and Martha Nussbaum introduced a holistic approach to defining and measuring development known as the Capabilities Approach.20 They argue that a comprehensive conception of development includes economic growth but must go well beyond that. Nussbaum states that: development must be defined in light of ‘what is each person able to do and be?’.21
15 The United Nation Report on the World Summit for Social Development introduced the main objectives of social development as to include eradicating poverty, enhancing productive employment and reducing unemployment, and fostering social integration. Report on the World Summit for Social Development (April, 1995), available online at: http://www.un.org/documents/ga/conf166/aconf166-9.htm
16 Hans Günther Homfeldt and Christian Reutlinger, ‘Social Development’ (2008) Social Work and Society Online Journal, Vol 6, No 2, available online at:
<http://www.socwork.net/sws/article/view/70/372>.
17 University of California, Berkeley.
18 James Midgley, Social Development: The Developmental Perspective in Social Welfare (Sage Publication Ltd, 1995), 25. On the relation between social and economic development the author states that ‘social development and economic development form two sides of the same coin. Social development cannot take place without economic development, and economic development is meaningless unless it is accompanied by improvement in the social welfare for the population as a whole.’
19 Manohar Pawar and David Cox, Social Development: Critical Themes and Perspectives
(Routledge, 2010), 15 citing Gore (1973). The author also cites on page16 other definitions for social development that embark from a different perspective, viewing social development as a structural change or as a process that aims to realise the human potential, needs and quality of life. It is noteworthy that the latter perspective resembles the mentioned definition of human development as a process of enlarging human choices in terms of rights and quality of life.
20 Martha Nussbaum ‘Capabilities and Human Rights’, above n 7, 273; Amartya Sen, Development as Freedom (Anchor Books, 2000).
21 Martha Nussbaum, Creating Capabilities: The Human Development Approach (Harvard University Press, 2011) 18.
106 Both Sen and Nussbaum argue that to achieve an efficient and balanced development process, law and policy must secure for all citizens central capabilities that include:
access to adequate health care and the capability to use the senses, imagination, and thought in a way informed and cultivated by an adequate education.22
Development revolves around positive progress in the overall well-being of a given society. This can be measured according to several factors; most importantly, the ability to live healthily, the ability to learn and the ability to have access to a decent source of income. These abilities are in complete conformity with the main objectives of law making in Islamic Shari’a.