Thursday, November 6, 2014

Dialogus de Beijing Consensus -- The Beijing Consensus v.2.1: Pessimo on Experimentalism

A couple of years after Ramo postulated the notion of a Beijing Consensus, several scholars began advancing another kind of development model deriving, as they saw it, from China's experience.  One of these is Dani  Rodrik's 'New Development Economics', which -- inspired to considerable extent by Sebastian Heilmann's "Policy Experimentation in China's Economic Rise" -- "calls for an approach that is explicitly experimental, and which is carried out using the tools of diagnostics and evaluation. . . .The proof of the pudding is in the eating: if something works, it is worth doing." [p.2]  Does such experimentalism hold meaningful promise as a 'model' for promoting 'development' more generally?


'No, it does not.'

Following Optimo's advice regarding Ramo's model, we will leave alone the question as to how China's experience actually supports Rodrik's model.  

First off, I want to clarify what I see as the attributes of a 'model'.  A 'model' is by its very definition a universal template -- a developmental model is a template for development that can be effectively applied independently from context (unless some prerequisite context is specified in the model itself, which is not the case with 'new experimental economics'). Also, to the extent that 'law and development' models seem ultimately to be devoted to promoting development assistance, a developmental model also needs to provide direction for how such assistance should be constructed.  A developmental model that provides no significant guidance to the entity promoting development is not the kind of 'model' that serves the (traditional) 'law and development' agenda.

Following this, I would argue that Rodrik's model does not provide any meaningful guidance for developmental assistance, because it ultimately provide no universalizable template for developmental assistance -- at least in the area of law and development.

First, Rodrik’s experimental approach only really works when the developmental ends are agreed upon.  New Development Economics is a process by which we can identify different means that better serve some given ends.  But for many aspects of law and development, the means are the ends.  With regards to China, for example, the issues is often not ‘how best to promote rule of law’, but whether ‘rule of law’ should receive priority over other possibly competing goals – like ‘modernization’ or ‘economic growth’.  When the developmental issue is normative rather than practical, New Development Economics does not provide a model for promoting development.

Note that with regards to law, this problem can even infect aspects of legal development in which there appears to be consensus as to the developmental end.  For example, both the Chinese side and the development organization may agree that China needs to develop stronger ‘judicial independence’.  But for the most part judicial independence is as social construct -- it can mean very different things, both in terms of institutional structure and in terms of its contribution to the legal system, to different people.  One study suggests, for example, that donors are more likely to conceptualize judicial independence as means for promoting procedural justice, whereas Chinese are more likely to conceptualize judicial independence as a means of promoting substantive justice or factual accuracy in decisionmaking.  Again, experimentalism does not provide a model for addressing these kinds of developmental issues.

(One might respond that we could still use experimentalism to find ways of reaching and convincing the Chinese that judicial independence is indeed really about procedural justice rather than substantive justice.  But that gets us into question of moral imperialism, which Pessimo will leave for another time.)

I would suggest that a good many ‘law and development’ issues in China are of this sort.  There is in fact much disagreement between China – or at least China’s political leadership – and the law and developmental community as to what goals law and development should be striving to promote.  This is true not simply insofar as what following Randall Peerenboom we might call ‘thick’ notions of law and development is concerned, i.e., notions that see developmental as necessarily including promoting human and political rights, and various (liberal) conceptualizations of ‘justice’.  But it is also likely to be true with regards to more economically oriented developmental projects.  China and ‘the West’ often have significantly different understandings as to the role that market capitalism should play in society.  China’s understanding is much more akin to what is sometimes termed ‘economic nationalism’, while ‘the West’s’ understanding is much more politically neutral and cosmopolitan.  For this reason, even many economic legal reforms projects – such as reforms to corporate governance of capital markets – are ultimately thwarted by disagreement over ends, not by ignorance with regards to means.  Here, too, experimentalism does not help.

Another area in which experimentalism seems to have little utility is in that of national legal development.  As described by Rodrik, experimentalism is a very contextualized developmental process.  A national legal system, by context, is by its very nature a-contextual, it is almost by definition a ‘one-size-fits-all’ phenomenon insofar as the social space of the nation is concerned.  Here, a developmental model that focuses on responding to minute nuance of local context again is of little utility.  At most, experimentalism would counsel the developmental agent to promote decentralization, local experimentation, and perhaps data gathering.  But what would this accomplish?  Any local success or local failure could well hinge on contexts that are unique to the locale.  For this reason, local successes or failures are unlikely to be able to serve as positive or negative models for elsewhere, even after they have been ‘evaluated’ by central entities.  At best, decentralization and experimentalism might promote local legal development, but not national legal development.

This suggests that if there is a legal-developmental model in New Development Economics, it is a model that counsels the developmental agency to focus on local legal development rather than national legal development.  But there are problems with this as well.  One of the major value-added's provided by international legal developmental aid lies precisely in its greater familiarity with more global experiences with law and development.  The more localized and locally contextualized problems to be addressed through development, the less a developmental facilitator who is located internationally is able to bring to the table in the form of useable knowledge.  'Legal development' becomes reduced primarily to simply being a source of funds for local projects developed by local actors.  

Whether simply being a content-less source of funds this is sufficient to constitution a developmental model is an open question.  But whether this is a feasible model of development is another issue.  Such a model would be particularly costly to implement.  Development of local legal institutions costs about the same as development of national legal institutions.  But they benefit far, far fewer people.  Costs would be even further increased by the experimental nature of the development project, because it would involve funders paying for a lot of failures in addition to the occasional localized success.  Given its extremely high cost-to-benefits ratio, it seem very unlikely that many funders would embrace such a model.

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