Law, Development and Emancipation: A Reply to Zanatta

Does the Nagoya program I praised reproduce errors of the past? Is it a bad thing to train lawyers from North and South to work on law and development issues?  Should we abandon functional and empirical approaches? Are law and development scholars indifferent to normative issues? Is law and development partly responsible for the current crisis in Brazil? These are all questions Mr. Zanatta’s post raises. 

Let’s start with the Nagoya program. Zanatta quotes me as praising the program because “…students engage in real-world projects, meet with leading scholars and experts, travel to developing countries to do field work, and prepare concrete reform proposals.” Then he suggests that such a program reinforces the idea “that a small group of scholars know better than developing countries citizens and politicians what to do and what to reform”. 

I suggest Mr. Zanatta would have been better advised to study the program before launching his attack. His critique could not be further from the mark. In the study I observed, students used their skills to help local communities achieve their goals. The project involved ways to use the law to protect communities in the Philippines negatively impacted by mining operations while allowing sustainable mining important for economic growth to continue. The students met with local communities to understand their needs. They tried to figure out how national and international norms could be deployed to help them. They explored ways that local legislation might be strengthened and global norms applied. They were encouraged to share their findings with various audiences in the Philippines including the communities.

To be sure, the project, like all good L&D work, is “functional” and “empirical”. Zanatta uses those words as if they denoted something bad. But if lawyers are to help achieve the democratic goals that Zanatta professes to believe in, how else can they proceed? They need to understand the functions that communities and social movements look for in the law, and be able to understand empirically what will work and what will not work. While training in understanding the functions of the law and studying the law in action empirically may not be sufficient to create a democratically responsive and effective legal order, it certainly is a necessary part of the tool kit of lawyers who support that goal. The lawyers trained in the Nagoya program, whether from South or North, will take these skills with them when they go on to jobs in the developing world.

Zanatta is not really concerned with the Nagoya program about which he obviously knows very little. He uses my praise of it as an excuse to take on the whole field of “law and development”. He suggests that the movement created an instrumental view of law that eschews normative questions. He claims that I am the prophet of such an approach. He hints that this approach is one source of the crisis in Brazil.

To support this claim, he cites to my 2007 article The Owl and the Pussy-Cat: Is there a Future for “Law and Development?” . In that article I argued that while Law and Development always had an emancipatory intent, it had sometimes succumbed to a top-down, technocratic approach that drew on uniform one-size fits-all global scenarios. I called for a new approach that would preserve the emancipatory goals of the movement: Such an approach would foster a new:

“…reform practice that is open to complexity, distrusts holistic schemes and universal formulae, and looks at each country and each area of law in its particularity. Such realism is the necessary first step towards better practices. It requires detailed empirical knowledge of the conditions in any given country and critical assessment of the role of actually existing legal regimes. But it must be complemented by processes that allow clear articulation of values; close participation of stakeholders in the design of reform projects; careful attention to successful reform efforts in similar settings; and careful monitoring of the effects of change. So this essay is a plea for a new approach. Let’s call it “post-law and development,” not because this term offers a new big idea, but because it suggests we have to build our new practices on the shards of the past.”

I am not sure how Zanatta was able to claim that this essay, which rejects much of the top-down approach of the past, is grounded on the preservation of the emancipatory ideal, and calls for clear articulation of values and close participation of stakeholders, could be the source of the kind of mindless technocratic approach to law that he quite rightly opposes.

The final question: can Brazil’s real problems be attributed to too much “law and development” as Zanatta hints? I would say: quite the opposite. I would think that if Brazilian lawyers and lawmakers were more sensitive to the needs of stakeholders, more attuned to values of equity and inclusion, more aware of the functions law can and should play in dealing with social needs, and more able to study empirically how law works, then there would be less, not more, social unrest in the country where I have worked for 50 years and consider my second home.

A Critique of Development as Freedom – Part I: Freedom as a Non-universal Value

As I wait for another skewering from Professor Prado regarding my anti anti-corruption stance, I want to begin advancing another idea that Mariana asked me to develop for this blog, and that is my disagreement with Amartya Sen’s particular notion of development as freedom.  As with my previous part, this critique will involve a somewhat complex argument, which I will break into parts so that you don’t miss your stop when you’re reading this on your way to work.

Sen’s idea of development as freedom is probably the most important and influential development in the project of development to come along this century.  It seems to be almost unanimously endorsed by the development community, at least in the advanced industrial world.  Nevertheless, I find it highly problematic.  In a nutshell, what I will argue is that Sen’s conceptualization of development as freedom embraces a particular value, freedom, which is not universal, and which therefore threatens to distort our efforts to promote development. 

Of course, phrased this way, this critique sound like old hat.  So let me first say what I am not arguing.  I am not arguing that freedom is a distinctly Western value, or that it is a value that does not resonate in most if not all other parts of the world.  Rather it is a value that is localized in something akin to class rather than in some particular territory or intellectual tradition.  This is the focus of this particular entry.  In the next entry, I will address how the non-universal nature of freedom as a value can distort developmental programs.  Finally, in Part III, I will offer some speculations of what this critique might mean for the developmental project.

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Sen’s argument for development as freedom depends on freedom being a universal value.  If the value of freedom is not universal, if it is distinctive to a particular population, then an model that advocates development as always being about promoting freedom threatens to devolve into a form of imperialism, one in which the values and goals being advanced are those of the program designer and not necessarily those of the target population.   

And this, I will argue, is indeed the case with the value of freedom.  This can be shown by reference to the physiological phenomenon known as “Maslow’s hierarchy of needs.’  Maslow’s hierarchy describes a particular phenomenon in which a human’s focus of wants change in response to changes in her condition and environment.  According to Maslow, human confronting brutal poverty or chronic threat of violence or instability will focus their wants on material and physical security.  Once these are satisfied, that focus changes to a focus on securing social intimacy with family and friends.  Once these wants are satisfied, the focus shifts again to concerns with status and esteem.  And it is only when these wants are satisfied that the individual begins to concentrate on what Maslow called ‘self-actualization’ – concerns such as morality, creativity – the highest level of Maslow’s hierarchy.

As a focus of want, freedom lies most naturally in this highest level of Maslow’s hierarchy.   It reflect the preoccupations of a particular class of people, namely those people whose life conditions are such that they do not need to concern themselves with issues of security, isolation, or lack of status.  And for this reason, it is not universal as a focus of want.  And perhaps more damningly, it is not a focus of want that is likely to vest in the very populations that development is seeking to serve – the poor, the vulnerable, the isolated and the alienated.

It is in this way that freedom can be seen to not be a universal value.  It is a value that is indeed likely to resonate with development project designers, but not with the vulnerable, insecure and impoverished populations that these projects are supposed to be serving.  But of course, there are responses that one could make to this argument.  One might argue, for example, that Sen meant ‘freedom’ to mean something different and more than what Maslow meant by ‘self-actualization’.  And indeed, I suspect that this was indeed the case.  Nevertheless, as will be explored in the next part to this argument, this response is not sufficient to re-establish the universality of the value of freedom.  Even meaning what I think Sen wants freedom to mean, characterizing development as ‘freedom’ will always threaten to reduce developmentalism to an imperialist project.

Old habits in a new agenda: rethinking law and development

A special contribution By Rafael Zanatta 

Does it make sense to talk about “law and development” (L&D) after the June riots in Brazil? What is the meaning of the “law and development agenda” in times of global crisis, “networks of outrage and hope” and attempts to reinvent democracy? When we do not know which development we want, how can we talk about institutional and legal reforms? 

These are some questions that L&D scholars do not want to answer. They argue that we do not need a clear conception of development to pursue an agenda of applied legal research. They dismiss normative questions. In their view, the L&D researcher must understand what is the role of law in certain historical contexts and what is the impact of legal reforms in countries that face processes of social change.

One of the leaders of this agenda is David Trubek, one of the pioneers of the law and development movement. Seven years ago, Trubek claimed for a network of functional and empirical legal researchers around the world. Several “law and development projects” were funded by governmental agencies in Brazil, India and Russia. This instrumental view of law was acclaimed in developmental states. It seemed that Brazil was in the right path and new legal arrangements could be forged for economic growth.

The year of 2013 showed that something was wrong, at least in Brazil. The massive riots in the streets put some normative questions in the centre of the public debate. What society do we want? Why do we need institutional reforms? What is the long term perspective in this model of economic growth? How to deepen the democratic experience in Brazil?

It seems that Trubek does not acknowledge that we need some kind of normative orientation, or at least a concept of “democratic development”.  In a recent text about the “Cross Border Legal Institutional Design” run by the Nagoya Law School, Trubek goes back to the “old law and development” spirit and defends this functional approach to applied legal research: “students engage in real-world projects, meet with leading scholars and experts, travel to developing countries to do field work, and prepare concrete reform proposals”.

Clearly, Trubek acts in good faith. He is proposing more “law in action” research and the sharing of knowledge about legal reform -- which is always great. But, at the same time, he is reinforcing the idea that a small group of scholars know better than developing countries citizens and politicians what to do and what to reform.

I think that it is time to move one step back. Maybe it is time for L&D scholars to face some harder questions: what are the purposes of a given institutional reform? What are the demands of different social groups and how can we see the many conflicts behind institutions? How can we translate the discourses of new social movements -- like “human rights collectives”, “hackers’ labs”, “makers”, and “civil society activists” – in applied legal research?

It seems that Trubek’s agenda ignores those questions. Should we?

P.S. For Rafael Zanatta's original response to David Trubek's post (in Portuguese) click here. 

Anti- Anti-corruption -- Part I!: The practical problems with anti-corruption

I will respond later to Mariana’s rebuttal to my claim that one of the appeals of anti-corruption discourse among the law and development community may lie in its character as a “self-congratulatory and self-serving discourse of developed countries.  But for now, I will continue discussing the problems of what I regard as our developmentalist ‘obsession’ (a hyperbole tendered in the hope that it will provoke comment) with anti-corruption, because it responds to another important point raised by Mariana in her just-posted response.

In that response, Mariana posits that:

Perhaps, Dowdle's concern is not with the specific terms according to which the debate has been framed by academics and policy makers, but with the fact that it has had undesirable ideological consequences (which are distinguishable from the motivations that guided those formulating policies and theories).

Mariana is right that simply pointing out ideological problems with the discourse does not (by itself) constitute a critique of the actual value of that discourse – good results can come from false reasons (see, e.g., Plato’s concept of the ‘noble myth’ or ‘noble lie’).  But my concern with our obsession with anti-corruption derives not simply from its ideological problems. i

i Practically, our obsession with anti-corruption can work to make the perfect by the enemy of the good insofar as developmental projects are concerned.  An example of this is found in the ADB and WB’s response to the Asian Financial Crisis of the late 1990s, when their obsession with the ‘corruption’ that they claimed had caused that crisis caused them to forego, and even obstruct, particular responses that actually turned out to be more effective in addressing the social impact of that crisis that those they themselves developed.  An example of this is found in the WB/IMF resistance to and obstruction of a program developed by the Miyazawa Fund of Japan that sought to distribute social welfare assistance to rural Thailand by using clientistic and neo-patriomonial political networks to identify target populations.  The WB/IMF opposed this approach because they believed it would end up simply reproducing the ‘crony capitalism’ that they argued had caused the crisis in the first place.  Instead, they implemented a social welfare program that relied on competitive bidding.  But their program was completely unable to identify target populations.  One the other hand, the Miyazawa Fund approach turned out to be quite successful in delivering much needed social welfare protections to needy rural populations..

As noted above, the reason why the WB/IMF opposed the Miyazawa approach was because they felt that it would encourage the very corruption that the WB/IMF believed had caused that the Asian Financial Crisis.  In fact, however, the general understanding today is that the AFC was not caused by crony capitalism and associated corruption.  Moreover, subsequent studies found little corruption in the distribution of Miyazawa funds.  Here, I would argue, we have a clear example of our obsession with corruption causing us to reflexively forego and even obstruct a very useful developmental response.

(For a more detailed discussion of this incident, see Pasuk Phongpaichit  & Chris Baker, Thailand's Crisis (2001).)

Another dimension of this derives from the anti-corruption discourse’s tendency, discussed in my previous post, to encourage an uncritical belief in the powers of (Western) human agency to promote ‘development’ however we envision it.  For reasons I may explain in some future post, there is good reason to suspect that there is actually little we can to do promote ‘development’ as that development is most commonly conceived, i.e., as convergence with the economic, social, and political conditions enjoyed by advanced industrial economies, and particularly those of the North Atlantic.  This being the case, what we should be doing is not pretending that we can make everyone become ‘developed’ simply by getting them to ‘get their institutional right’ (often primarily by getting rid of corruption).  Rather, what we should be thinking more realistically about how we can promote people’s lives in under enduring conditions of lesser levels of economic development.

Some developmental scholars have already begun doing this.   

Good examples include Abhijit Banerjee and Esther Duflo’s Poor Economics (2011) and Charles Kenny’s Getting Better (2011).  But what is particularly notable about these two works is how little issues of corruption enter into their analyses.  Following on other observations made above, what this suggests is that (1) there may well be very litte that developmentalism can actually do about corruption (see my previous post); but (2) eliminating corruption is not a critical aspect of improving the lives of most people living in poverty in the Global South.  This being the case, then it would seem that the resources we are currently devoting to anti-corruption programs would as least sometimes be much better spent on programs of the sort advocated by Banerjee/Duflo and by Kenny.  But the current developmental obsession with corruption prevents us from exploring when and where this might be the case.  
         

This is not to argue that we should simply ignore corruption.  Corruption does have its costs, and they are important.  For example, perceptions of corruption de-legitimate governmental authority, and thus increase the cost of regulatory effectiveness above and beyond whatever the direct regulatory costs of corruption are.  But here, too, I see a possible problem with Western corruption discourse, not in promoting awareness of corruption, but in causing people to become more sensitive to the possibilities of corruption.  We might note that in many developing countries, corruption discourse is particularly popular with middle class urbanites, and they use this discourse to de-legitimate governments that bend toward the more rural or lower-class social classes.  In both Thailand and the Ukraine, corruption discourse has been used to legitimate, particularly among the international community, urban middle-class effort to overturn popular, democratic election of parties and leaders whose political support and social policies served to support rural and lower-class interests.  To me, this is another example of the practical problems caused by our 'obsession' with anti-corruption.

* There's a bug in the blogger program which messes up the formatting. Sorry about that.