On pianos, trees and development

An apologies to our readers for my absence during this semester. Family matters have kept me away from most of my professional commitments. But I am back, and happy to see that Michael Dowdle's has done a good job at keeping the blog alive!

In a beautiful autobiographic post on Law, Development and Music, Michael draws on a very personal experience to ask why, "in law and development, when looking at 'the Global South', we focus far more on what nations are not doing then on what they are doing." While Glenn Gould's piano led Michael to this question, Mahatma Ghandi's beautiful tree has led James Tooley to the same question.

On a mission to investigate the failures of educational systems in developing countries, Tooley accidentally bumped into private schools for the poor. These were often located in slums or poor neighborhoods; run by people who belonged to the community; and despite the fact that they charged fees, there were financial schemes to assure that the kids from the poorest families as well as those who were slightly better off were able to have access to education. 

Tooley finds these private schools in India, Nigeria, Ghana and China, as he report in his book entitled The Beautiful Tree: A Personal Journey into How the World's Poorest People are Education Themselves. The title, as the reader comes to find at the very end of the book (p. 220), comes from a speech: "When Ghandi spoke at the Royal Institute for Royal Affairs in London on October 20, 1931, (...) he said the British came to India and uprooted 'the beautiful tree', he was referring to the beautiful tree of a private education system serving the poor as well as the rich. Instead of embracing this indigenous private education system, the British rooted it out, and it perished. And this left India more illiterate than it was fifty or a hundred years ago."

The finding that there are private schools by the poor to the poor is interesting in and of itself, but Tooley's book gets even more fascinating. Tooley conducted standardized performance tests to compare the performance of the students in these private schools with those attending the public school system (which is the focus of many educational policies for development). In all countries except for China, students attending these low-fee private schools were getting a better education than their counterparts in the public system. 

The Chinese exception is explained in this nice summary of the book: "The logic seems to be somewhat different in China, where private schools are closer in performance to Government schools, but cater mainly for children in remote rural villages; parents are reluctant to send their children (especially their daughters) to distant Government schools. Their rationale is therefore slightly different to that in Africa and India – where the existence of private schools seems to be at least partly a function of perceived shortcomings in Government provision." (Click here for the full summary).

While Brazil (or any other Latin American country) is not featured in the book, last Friday I had a chance to visit Rocinha, the largest slums in Brazil. This sprawling favela with an estimated population of 100,000 people today has nothing less but three private schools. As far as I could assess, the schools follow the same model described by Tooley: low fees, organized by the poor and serving the poor. 

Over the weekend, I had a chance to talk to a law professor who is actively involved in the Association of the Residents of Favelas in Rio, and I asked her about the schools. She said that they were a common phenomenon. I asked if they were providing higher quality education than Brazil's public schools. Her answer was negative. She said that Brazil's public schools had very well trained teachers who could provide a much better education to the kids. The problem that private schools were solving is that they were dependable, unlike public schools, where there are recurrent strikes that can last for months, unforeseen closures, and all sorts of problems with transportation to get kids to and from schools. For working parents, specially single mothers, it was hard to find last minute alternative solutions to these problems. So, private schools were a tradeoff: kids get a worse education, but parents do not have any uncertainty about whether they will have a place to leave their kids or not. If this account is correct, the logic for these schools in Brazil would be very different from the logic in China (and probably the results about performance would also be inferior). 

In any event, this book (and the understudied phenomenon of private schools in Brazilian favelas) seems to suggest that we have much to learn about  creative and interesting solutions adopted by developing countries and specially how the poor people are managing to help themselves without counting or foreign aid or their national or local governments. Tooley showed that instead of looking at the education that poor kids were not receiving (public education) we should look at the education they were manage to guarantee for themselves. Following Michael Dowdle's call and Tooley's example, I think we should start looking into other instances of the same phenomenon. I am sure we will be surprised with what we will find.

M. Sornarajah's Resistance and Change in the International Law on Foreign Investment -- and its relevance to law and development (and New Development Economics in particular)

My colleague here in Singapore, M. Sornarajah has a new book just published by Cambridge University Press entitled Resistance and Change in the International Law on Foreign Investment.  The book has (surprising?) relevance to law and development.  In a nutshell, what Sornarajah presents is an intellectual history of the development of international investment arbitration as both a distinct profession and distinct academic discipline.  What makes this relevant to law and development is that for the most part, the same intellectual forces that propelled the emergence of international investment arbitration as a distinct field of law also propelled the second emergence of law and development as legal discipline.  One can see many parallels between the intellectual dynamics described by Sornarajah and those that have shaped law and development.

But . . . Sornarajah's book is a sobering read.  His is not a story where they end up living happily ever after.  It's more a story where they end up escaping into the wilderness pursued by large dogs.  And as some of you could probably guess, I think it thereby ultimately provides a much needed cautionary tale about law and development. 

Simply put, Sornarajah's story is ultimately one of the emergence, transcendence of, and of emerging resistance to, what we might call the 'global neo-liberal order'.  The present-day regime of international investment arbitration is very much a product and reflection of this order.  And, as well displayed by Sornarajah, it is not a pleasant sight, particularly for the countries of the global south (and also increasingly for developed countries as well).  The neo-liberal pursuit of the 'perfect' market -- a market that is said to only exist outside the reach of regulatory intervention -- has caused or at least allowed international investment law to transcend domestic law.  National efforts to regulate national economies, for example efforts to inhibit tobacco sales, are now being classified as 'takings' requiring compensation because they interfere with ideal market dynamics (or more precisely, investor expectations of ideal market dynamic).

Of course, all this is well observed in the area of law and development as well.  The intellectual symbiosis between neo-liberalism and law and development IFIs is well rehearsed.  But that is not what I found most striking in Sornarajah's account.  In fact, what I found most sobering is a particular interpretation one could give his story -- one, ironically, that I think he may well disagree with.

Sornarajah's story is one that he sees as being driven by human intentionality.  Neo-liberalism, by his account, is in the context of international investment arbitration seems very much a strategy and product of the investor class (and associated professionals).  But my own suspicion is that in fact, neo-liberalism is a spontaneous phenomenon -- one whose drive is not fueled by human intentionality or class / professional / economic interests but by dynamics that operate outside the reach of such intentionality.  And if this is the case, it is a much more troublesome beast than even Sornarajah would suggest.

My suspicion along these lines comes from a particular aspect of his story.  As portrayed by Sornarajah, neo-liberalism has a chameleon-like quality to it.  It changes its intellectual shape in response to intellectual challenge:  it starts out being simply about economic fairness; then it morphs into a trope about economic development; then it morphs again into a trope about the natural order of the economic universe.  In a book I recently co-edited about the globalization of competition regulation, one of the chapters -- by Ngai-Ling Sum of Lancaster University -- articulated a very similar story in the context of competition law.

I think we can also detect this evolution in the context of law and development.  But the thing about competition law and law and development (particularly competition regulation) is that in contrast to investment arbitration, they are not driven by the interests of international investors.  The interests that drive them are very different.  And yet, they have very similar intellectual trajectories.  This suggests to me a spontaneous rather than a designed order.

In The Blank Slate, Steven Pinker tells a story about an experiment that was undertaken using people with split-brain syndrome.  Split-brain syndrome is a condition in which the two hemispheres of the brain are not able to communication with one another.  What the experiment did was introduce stimulus to the left hemisphere, which provoked some response from the subject.  The subject was then asked to explain why she did what she just did.  Verbal explanation is a right-hemisphere activity, and because of the split-brain condition, the right-hemisphere could not actually know / perceive what the subject's action was actually in response to.  Nevertheless, the subjects, when asked, always provided an explanation.  The explanation was completely unconnected with the actual reality, but the subjects nevertheless honestly believed it.

So, here's my hypothesis.  Neo-liberalism is not a phenomenon, much less a project or a strategy.  It is simply an explanation we give for a phenomenon that operates outside our intentionality, but which we nevertheless want to believe we have capacity to control.

I think this is very relevant to law and development because much of law and development, at least for the present, projects itself as an effort to harness or control or resist neo-liberal economic dynamics.  I am thinking specifically here of New Development Economics (or 'experimentalism').  NDE sells itself as a means for escaping the neo-liberal orthodoxy that has dominated developmentalism for the past 25 year or so.  But if I'm right, then NDE will not give us such escape, it will simply end up reproducing neo-liberalism under some new intellectual guise.

And it may be even worse than that (assuming you, like Sornarajah and myself, think the 'neo-liberal global order' has its problems), because experimentalism seems to be like a distinctly un-self-aware developmental agenda (see also here; for Mariana Prado's disagreement with this claim, see here) .  By wrapping itself up in the language and metaphors of the natural sciences -- namely, the 'experimental method', NDE would seem to be particularly prone to naturalize its developmental effects, and thus to remove them from the reach of normative-critical inquiry.  At least the Washington Consensus was up front about what it claimed to to.  At least, it presented its particular vision of neo-liberalism in the form of a disprovable hypothesis.  Experimentalism, as a methodology, by contrast cannot be disproved (even while particular experiments can).  And if I'm right about the actual dynamics of neo-liberalism, NDE may thereby end up pushing neo-liberalism even farther outside the reach of human intentionality.

Law, Development, and Music: a belated, overblown and far too self-absorbed tribute to Glenn Gound -- but an honest tribute non-the-less.

A long time ago, in order to prepare for becoming a failed legal academic, I first becoming a failed musician.  A composer, actually:  I made it into the doctoral program in music composition at Columbia University.*  But that was as far as I could go.  Sometime during that time, I simply stopped being able to do whatever it was I was trying to do.  It is something that consumes me to this day.  What happened?

My problem was 'form'.  I simply could not generate pieces of any significant length.  Ten minutes max.  In part, this was because I couldn't hear form.  The formal structure of music always eluded my ears, even if I could appreciate it in the abstract (on the page, as it were). 

When you study music -- what is called 'music theory' -- you study form.  In the canonical music of the 18th and 19th centuries, there are two dimensions to form.  The micro dimension is a vertical structure known as chords.  Traditionally, music phrasing was constructed out of a particular chordal progression that would typically be represented by I ... V-I (the tonic chord (I), leading to the dominant chord (V), resolving immediately back to the tonic).  The macro dimension is key: a particular relationship among notes that is structure around a particular note that serves as the tonic.  Again, here, the archetypical relationship is I-V-I, in which the first theme is expressed in a particular tonic (say, 'C' major), a second theme is expressed in the 'dominant' ('G' major), with the music returning back to the tonic in a re-expression of the first theme: an archetypical form known as the 'sonata-allegro form'.

My problem was that even as regards to the most orthodox compositions, I simply could not hear chords or keys.  I couldn't hear the transition from tonic to dominant in the sonata-allegro form.  I couldn't hear the chord structures playing out in the progression from tonic (I) to V-I.  Because of the former in particular, I could not hear 'length' -- which means that I could not write pieces of significant length.  This is what ultimately made me into a 'failed musician'.

That was many years ago.  I have not put note to stave for a quarter century, although I think about it often.  And as alluded to above, even after all these years, it still bothers me:  why could I not write music of significant length?

When I was studying music in the late 1970s and 1980s, there was a general buzz about a particular, eccentric pianist named Glenn Gould.  I wasn't a pianist, and Gould was generally known for his eccentric interpretations of non-modern classics -- Bach in particular (although, as it turns out, he was also very fond of the music of Arnold Schoenberg).  As a composer, I listened generally to music written in the 20th century.  So I never listened to him.

And since then, I haven't really listened to much any music  -- it reminds me of dreams that long ago escaped my my grasp.  But by dint of fortuity, this morning I began watching a you-tube video of Gould playing -- and more importantly discussing -- the fugues of J.S. Bach.  And two things happened: a quarter century too late, I finally heard Bach for the first time; and a quarter century too late, I finally learned, well into my later autumn, why I failed in my earlier spring.

Like his playing, Gould's analysis of Bach's work was like nothing I ever heard.  It had almost nothing to do with the analytic frameworks I had learned and pursued in Conservatory.  There was no mapping of I ... V-I.  There was no mapping of  the key structures of the 'exposition'.  Rather, Gould describes how both key and chord in Bach's fugues emerged naturally out of the melody.  Sometimes that structure followed I ... V-I.  But often, perhaps more often, it did not.  Bach appears to have been particular fascinated exploring keys built on the the III and the VI -- the mediant and sub-mediant.  I have a theory for why, but the important part is that Bach's structure is not meaningfully captured using the conceptualization of music theory that I was taught as an undergraduate.  In Bach, key and chord where products of the melody, not designs for the composition.  It is the line, not the form, that is the crucial determinant of length.

And then, something amazing happened.  As Gould was playing some of Bach's fugues, I started to 'hear' the keys.  And they are very different from what I had always imagined them as being.  They are fleeting, ever changing -- a kaleidoscopic mosaic rather than the architectural edifice I had always been looking for but could never perceive.  (I still don't hear them as well in the Preludes, but interestingly, Gould himself was not particularly interested in the Preludes.)

Like Bach, my compositional forte and emphasis was counterpoint.  What I 'heard' when I heard music was (and still is) principally the interplay of voices.  But being concerned with form and length as I was taught it, and being a product of the intellectual traditions of my time, I was always thinking in terms of large scale structures of key and chord independent of voice.  And like me, Bach's focus was also on counterpoint.  Unlike me, he was not particularly concerned with concerned with large-scale structures of key and chord.  His keys and chords and length were determined, not by formal dictate, but simply by the melody and its contrapuntal unfolding.  And -- why didn't I see this before? -- like me, his works tended to be between 5 and 7 minutes in length: but unlike me, he did not care. 

Looking back over an ocean of years, I seem to remember that that's how my work also tended to proceed.  It was the line that drove me, even while it was the form that obsessed me.  Far too late, Glenn Gould taught me want it was I needed to know those many years ago; he gave me the answer I'd been wondering about ever since: in fact, I was doing it right all along.  The reason I became a failed musician is because at the end of the day, I was too concerned with what I was not doing and not concerned enough with what it was I was doing.

And this brings me to 'law and development'. 

In law and development, when looking at 'the Global South', we focus far more on what nations are not doing then on what they are doing.  Like music theory, law and development see law as a form, as an expression of particular collection of keys and chords that make up that particular compositional structure we call 'rule of law'.  And when we don't see those keys and chords, we obsess about it: where is the dominant? why has India become trapped in the sub-mediant?

But I wonder what law and development would look like if we saw each legal system, even those of the 'lesser-developed' world, as articulating their own form, their own chord and key, out of the particular melodies they have inherited or invented?  Some doing it better than others, obviously, and all make many mistakes along the way (one of the other really interesting things about Gould's analysis is that he did not valorize Bach, his Bach was a human who often made mistakes or became distracted by his own compositional obsessions--just like our own legal systems even as they are articulated by the developed world).  I think of Indonesia -- a legal system that from the perspective of chord and key seems dysfunctional beyond measure, but operating in a society that nevertheless seem to show its own distinctive and extremely fascinating -- compelling -- legal and constitutional 'aesthetic' -- an aesthetic that somehow 'works in the sense that Indonesian society seems generally functional both sociologically and economically.  Law and development likes to focus on what it is that the Indonesian legal system does not.  And become understandably frustrated by it.  But while there is definitely value in doing so, at the same time, we might also occasionally focus on what that system does (somehow) do -- and be amazed by it.  There is need for both perspectives.  And after finally having 'met' Glenn Gould, I for the moment at least find myself feeling very much drawn to the latter.

*  My mentor was the great Mario Davidovsky, who -- ironically -- studied law before deciding to go into music.

Dowdle's post-mortum on our Dialogus

Writing as myself rather than as 'Pessimo', I generally agree with Mariana / Optimo's concluding assessment. I think at the end of the day, we just disagreed about what is necessary to constitute a 'model'.  I think I am much more demanding on this regard.  This came out most clearly, to me, in our discussion of Peerenboom's 'East Asian Model' and experimentalism.  In both cases, Mariana / Optimo seemed to locate the purported model in the discourse that experimentalism could be used to provoke.  I don't regard discourse as a 'model' -- although I recognize it as very useful.  This may well be simply a definitional disagreement, one that has no real bearing on substance.

Along these lines, I had 'Pesimo' take a more hard-line position on experimentalism than I would take personally.  In real life, I am sympathetic-but-somewhat-skeptical of experimentalism.  I think there is something viable to experimentalism, and have even written a couple of articles using Sabel's model to look at public law evolutionary processes in the People's Republic of China (in the process, identifying a spontaneous experimentalist dynamic that I called "discursive benchmarking").  My principal problem  with both Sabel and Rodrik is that I think they, like many in the American 'law and development' and 'law and economics' communities, are (far) too optimistic about the applicability of their model.  They're writings read more like sales-pitches than like objective academic analysis.  Their supporting case studies analyses are often much more rosy than the cases themselves actually turn out to be.  This is certainly the case with Rodrik's presentation of 'experimentalism' in China. Even Sebastian Heilmann's "Policy Experimentation in China's Economic Rise", the principle case-study support for Rodrik, made clear that China has hereto been unable to institutionalized its so-called 'experimentation', although it has tried.  I think there is a utility to experimentalism, but I think that utility is quite limited, and it is certainly not the magic bullet portrayed by Rodrik and earlier by Sabel.

Once we get beyond our definitional disagreements, thought I think we did ultimately find very common ground in the idea of development as a kind of discourse.  Again, Mariana would appear to say that this particular kind of discourse constitutes a particular kind of model, I would disagree on definitional grounds, but that really isn't that important, at least for now.  Interestingly, we found unexpected support for this point in Jed Kroncke's contribution to that same conference, which characterized the meaning and value of the 'Beijing Consensus' precisely in the kind of developmental discourse that 'consensus' generated in Brazil.  My take on the developmental discourse the Beijing Consensus has generated is different from Jed's, and is different from Mariana's.  But not completely incompatible.  All in all, I left the Dialogus feeling much that the idea of development as discourse makes my much more optimistic about the possibilities of "law and development" than the more orthodox conceptualizations of development as 'model' for institutional reform.

Replacing the Search for a Beijing Consensus with a Toronto-Singapore-São Paulo Dialogue

I have learned a lot with this dialogue and was happily surprised to find out that Pessimo and I actually had a number of points of agreement, contrary to what we assumed when we started this exercise.

1)    We may have numerous disagreements about strategies to enhance efficiency on capturing wealth and thus generating economic growth. However, if we move beyond economic concepts of development (such as the GDP per capita indexes used by the World Bank) Pessimo's determinism seems to fade away and we are on common ground. While this is not of much utility here, as the Beijing Consensus seems to be primarily focused on economic growth, this may be a topic to be fruitfully explored in a future dialogue.

2)    The discussion about Ramo’s three theorems helped us define the terms of our debate. On the substance of the debate, we agree that a Beijing consensus does not need to show that China has done things right or has already succeeded. So, a discussion about the consensus should not be based on empirical disputes about what has happened in China. The question that we need to focus in whether the proposals inspired by China can serve as a model for other countries.

3)    The discussion about Ramo also helped us refine and agree on what do we mean by a “model for development”. We are both looking for sustainable and feasible guidance for action, with internal coherence, and grounded on some form of credible knowledge (theoretical or empirical). The only difference is that I may be more open to accept negative guidance (“do not follow the Washington Consensus”), while Pessimo seems to be looking for more concrete proposals.

4)    On the East Asian Model proposed by Randall Peremboom, the terms of the debate as stated earlier did not reveal much of a consensus. We debated the meaning of the term “gradualism” and simply disagreed on what it meant and whether the gradualism implemented by Asian countries could serve as a model for the rest of the world. I am more optimistic about seeing at least the semblance of a model in the ideas of sequencing and gradualism than Pessimo does partially because I am focusing on these two ideas as meta-principles. While Pessimo seems too attached to the idea that gradualism has only been used by centralized economies to transition to market systems, I am wondering if – acknowledging that – we can still transport the strategy to other contexts. Thus, the reason of my optimism is largely connected with the idea of meta-principles, which Pessimo did not seem to disagree with, at least in principle.

5)    Still regarding the East Asian model, there was one point of agreement that did not come across explicitly in our exchange. Pessimo response to Optimo indicated that he did not disagree with the normative argument presented by Amartya Sen, but he worried that neither Sen nor the supposed East Asian model offered strategies on how to promote political liberalization. Indeed, Pessimo indicated that without a concrete strategy, there was very little utility in such normative statement. This is certainly a point in which we agree.

6)    Then we turned to the third and last part of our debate: experimentalism. Here, I do not think that we have any point of agreement. At the same time, this seems to be the most elaborated and cited version of the idea of Beijing Consensus in the literature. Thus, it is worth flashing out our disagreement.

Pessimo has challenged the possibility of using experimentation as a model given the fact that it does not help us define what are the ends of development. This connects with Pessimo’s earlier claim (regarding the East Asian Model) that muddling through is what capitalist countries have been doing all along. It also connects with Pessimo’s conclusion indicating that muddling through is not a model, as we do not have a system to define the ends and therefore to assess successes.

I do not agree. I have proposed that a thin conception of experimentation could bracket that question while providing guidance for action. Perhaps what I called a “thin” conception of experimentation can be illustrated by what Cass Sustein calls “incompletely theorized agreements”. Actors do not need to agree on the ends in order to collaborate on the implementation of means, as long as these means are conducive to the different ends pursued by these actors. This seems to be perfectly feasible in the development field. As I stated at the beginning of the debate, development goals are not as antithetical to each other as we like to portray them. Indeed, promoting economic growth versus enhancing capabilities or eliminating abject poverty are often intertwined processes. Sometimes they are so entangled that it is not only hard to separate them analytically or empirically, but it may not be very productive to do so.

In sum, in the process of mapping points of disagreement, Optimo and Pessimo have surprisingly found a lot of common ground and arrived at a very promising starting point for something constructive. Indeed, if I were to extract any lessons from this academic exercise, this exchange illustrates that “Replacing the Search for Consensus with Open Dialogue” may be a far more productive strategy in the development field than the ones adopted so far.

I hope this blog will continue to serve as a space for this and other conversations to continue.