Tuesday, April 29, 2014

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.

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