Sunday, November 20, 2016

Update -- new blog on 'regulatory geography'

Many of my previous posts on this blog have made reference to how dynamics of geography might effect law and development.  Along these lines, my own research focuses more on the regulatory effects of geography (what I call regulatory geography) than on law and development per se, which has made it difficult for me to develop a more sustained presence on this blog.  But for those who might be interested, I have started my own blog on regulatory geography, in which I hope that, since it aligns more closely with my present research and teaching agenda, I will be more active.  For those interested, the blog address is


Monday, June 15, 2015

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.

Tuesday, May 5, 2015

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.

Friday, April 10, 2015

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.

Thursday, January 22, 2015

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.

Monday, January 12, 2015

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.

Sunday, December 28, 2014

Dialogus de Beijing Consensus, Pessimo's Summation and Conclusion: 'Whither Beijing Consensus' -- not where you might think!

The Beijing Consensus, including its various derivatives, is not a model, it is a narrative.  Moreover, as a narrative, it is for the most part not particularly about China, nor is it particularly about development.  Rather, it is -- paradoxically -- a story that is primarily about the United States, and about America's place in human evolutionary history.  But this is not necessarily a bad thing.

* * *

In order to understand how this is so, we have to look a bit more closely about the intellectual history of 'development'.   As is well known, the modern law and development movement first emerged in the 1950s as a product of the Cold War.  The idea of development fit quite neatly into the American way of promoting itself vis-a-vis the Soviet Union.  The story was that economic development -- i.e., the development of standards of living and capacities to project political power characteristic of the advanced industrial democracies of the North Atlantic, and particular of the United States -- was the product of a liberal-democratic constitutional order interacting with a laissez-faire capitalist economic order.  Since both liberal democratic constitutionalism and laissez-faire capitalism were distinctly American attributes, 'development' itself came to be seen by many as proof of the practical and moral superiority of American-ness.

The emotional triumph of the American linkage of development, neo-Madisonian constitutionalism, and laissez-faire capitalism was, of course, the fall of the Berlin Wall.  This was, in the famous terminology of Frances Fukayama, proof that human's had finally reached the 'end of history' -- objective proof of the fact that the 'American'[1] linkage of liberalism and laissez-faire capitalism was indeed the only real path to human thriving, and perhaps by extension, proof that the United States' status as the World's  political, economic and ideological hegemon was in fact the morally deserved.  From a developmental perspective, this linkage came to be embodied what become known as the Washington Consensus, a developmental model that -- consistent with American triumphalism -- saw laissez-faire capitalism as silver bullet for economic development.

Of course, either the United States, nor the West, have ever been completely unified behind the American vision.  There have always been significant pockets of intellectual resistance to and dissent from the othodox American economic ideology, not simply as an international agenda, but particularly with the coming of Reagen-Thatcher 'revolution' as a domestic agenda.  Prior to the 1989, such dissent -- what we might call 'economic humanism' -- relied primarily on various versions of Marxism -- generally utopian Marxism in the United States (see, e.g., the Critical Legal Studies movement); structural Marxism in the case of Europe.  But to many in the West, and especially in the United States, the fall of the Berlin Wall was interpreted as a conclusive proof that Marxism, in all its variants, was simply wrong.  With this, the conceptual / and ideological foundation of economic humanism crumbled, particularly in the United States.  Critics had to search for a different narrative on which to frame their critique.

Despite all this, post-Cold-War American triumphalism was short lived.  Most particularly for our story here was the problem of China.  Even after 1989, China appeared to remain stubbornly non-liberal, both economically and politically, but also appeared to be experiencing significant developmental success.  Through 1997, the American / Western developmental orthodoxy was able to ignore the conceptual threat of China because of evolutionary ambiguities in the Chinese political-economic system.  Sure, the Chinese remained largely non-liberal both politically and economically, but at the same time, if you squinted just right, they could nevertheless be seen as possibly moving, again both economically and politically, in a liberal direction.

The first real challenge to Washington-Consensus triumphalism came from the Asian Financial Crisis ca. 1997-2000.  Efforts by IFI's and the American government to craft / impose a Washington consensus solution to that crisis not only resulted in failure, but in many cases they appeared to exasperate the social effects of that crisis.  This gave economic humanists a new conceptual peg on which to hang their critique. The on-going American (and European) battle between laissez-faire capitalists and economic humanism -- a battle that dates back at least to the 1880s in the United States (see, e.g., the 1896 presidential campaign between William McKinley and William Jennings Bryan) -- now shifted to a new front, that of East-Southeast Asia ('ESE Asia').  And insofar as that larger front was concerned, China would quickly come to represented ground-zero.

The East Asian Financial Crisis (AFC) introduced two subtle but extremely catalytic changes in to Euro-American conceptualizations of the global economic order.  First, the fact that that crisis was largely localized to East and Southeast Asia catalyzed the identification with the countries of ESE Asia of a distinct and structurally and conceptually coherent capitalist structuring, what is often today referred to as 'Asian capitalism'.  (Such an identification can be traced back at least to the 'developmental state' literature of 1980s, but the AFC greatly popularized it.)  That 'Asian capitalism' represented a distinct form of capitalism helped explain why the Asian Economic Crisis was largely localized to ESE Asia.  That Asian capitalism represented a structurally coherent form of capitalism helped explain why that crisis impacted equally an otherwise wide diversity of politically autonomous national systems (from seemingly industrial democracies like South Korea to seemingly autocratic kleptocracies like Indonesia).

As a territory within the ESE region, China was naturally included in this new, Asian-capitalist narrative.  This, in turn, highlighted its 'otherness' -- the degree to which it now appeared to stand as contradiction of (rather than as support for) American triumphalism.  This otherness was further heightened by the fact that not only had China largely escaped the social and economic disruptions of the ARC, but it had -- along with Japan -- sought to provide an alternative form of transnational economic response to that crisis, one that deviated significantly from the Washington Consensus based response offered by the international IFIs,  but was prevented from doing so by political pressure from the United States.

All this made China a very attractive peg on which economic humanists and others could begin to re-frame their ideological objections to American triumphalism.  This was clearly why Joshua Ramo choose to name his humanist alternative to the Washington Consensus the 'Beijing Consensus', despite the fact that it had almost nothing to do with anything that China had actually done, intentionally or unintentionally, in the context of its own post-1980 economic and social evolution.  And the appeal of China-centric adjectives like 'Beijing' and 'Chinese' extended beyond the realm of economic humanism.  The American Cold-War linkage of the economic with the political with the developmental made China-centric adjectives useful in a wide diversity of Western ideological contestations -- not simply economic, but political and cultural as well.

* * *

This helps explain why the 'Beijing Consensus' is a least in part a story about the America.  But couldn't it also at the same time still also be a story about China's actual development? and through that a model for development more generally?

Likely not.  For a number of reasons.

First, I think it highly questionable whether China actually presents us with a show-case example of 'development'.   As least some portion of China's development has been a product of an earlier economic insanity that needlessly devastated China's productive capacity for over two decades.  Much of China's subsequent growth was simply a product of China opening it markets, much like the rest of the world had already done some 200 years earlier.  In other words, China's dramatic economic growth may well be the product of China simply no longer being stupid and not of China being particularly smart.  Is simply not being stupid really that meaningful a developmental model?  Beyond this, Green GDP measures suggest that China's unprecedented environmental degradation is now actually destroyed as much wealth as China's GDP growth is producing.   In other words, China's may have effectively stopped growing altogether once one accounts for environmental degradation.  Related to this, China significantly underperforms its income class in terms of iHDI, environmental sustainability, and subjective well being -- suggesting that even if China is 'growing' economically, it may not be growing into a country in which most people would actually want to live.  All of this gives very good reason to question where China's particular pathway to economic 'growth' is really something we want to other countries replicate. 

Second, implicit in the story above is the observation that what adjectives like Chinese, Beijing and Asian are really doing is appealing to a particular quality of otherness.  They are negative rather than positive definitions -- their principal purpose is to signify what something is not -- that it is not supportive of American triumphalism -- rather than what it is.  But a model, on the other hand, is not about what something it not, it is about what something actually is.  And for this reason, a negative definition can never serve as a meaningful 'model'

We see this most clearly in the legal-developmental 'models' of experimentalism (aka New Development Economics') and the East Asian model.  Experimentalism might represent an affirmative model when we structure it as a controlled experiment, but without control, and Rodrik makes clear that 'control' is not a necessary or even feasible component of the experimentalism of New Development Economics, experimentalism becomes nothing more than simply 'muddling through'.  But 'muddling through' clearly does not describe anything that could meaningfully be called a model, rather it expressly denotes the affirmative absence of a model.    

What really prevents some vision of a Beijing Consensus from developing into an affirmative model for development is that at the end of the day, our understanding of development itself is founded upon a series of conceptual categories and distinctions that ultimately emerged to express particular moral-ideological understandings of the Cold War binary.  They simply do not translate into post-Cold War understandings of the human condition.

One the other hand, the last 70 years of human economic history has made increasingly clear that we really still have no hard evidence as to what triggers actually 'development'.  Of course, we have gained considerable knowledge about what doesn't promote or trigger development:  we now know, for example, that Soviet style command economies are often not particularly good at promoting economic development; more recently, we have also found out that implementation of greater laissez-faire capitalism, a'la the Washington Consensus, also does not promote economic development, at least by itself.  But if not socialism or laissez-faire capitalism per se, what does promote development?

To observe that China's political economic system deviates from that promoted by American triumphalism ultimately only tells us what that system is not, not what it is.  Along these lines, it tells us of what is not essential to promoting development, but is much less clear about what it is that does promote development.  Is it sequencing?  is it state capitalism?  is it Confucianism?  Is it all of these, or something different?  Or is it those emergent elements of Western-American capitalism that we saw in China's post-Mao opening but which the discourse of 'Asian capitalism' has tended to invisiblize?  How much of China's economic growth post 1980 is attributable to the fact that prior to 1980 China effectively obliterated industrial economic productivity through 25 years of disastrous economic policymaking, namely the Great Leap Forward and the Cultural Revolution?  (The World Bank, for example, has recently praised China for “lifting 500 million persons out of poverty” without acknowledging the role that China may have played in putting those people in poverty in the first place.)  We might also note even more radically along these lines that some argue, rather convincingly to my mind, that development is actually not primarily the product of institutional or capitalist design at all.  China's development can be explained simply by reference to its particular location in transnational political-economic space (its proximity to Taiwan and Japan, and by its location in the Cold War political contestation between the US and the USSR).   

Much of the problem in this regard is that the very categories we use to conceptualize our possible predicates for economic development are themselves the product of Cold-War mythologizing. The fact is that the American economy never functioned the way that what I have been calling 'the laissez-faire capitalism' model of the Cold War claimed it did.  American capitalism is actually a highly variegated economic system that includes within it a wide diversity of capitalism each serving a distinct social purpose.  And there is no evidence that the particular features that we during the Cold War chose for ideological reasons as signifying the essence of the American economy are actually what drove economic growth, or whether that growth might have been catalyzed to considerable extent by other structural elements that were invisibilized by this myth because they were less effective at politically and ideologically branding the American economic system in distinction from the Soviet economic system (such as state and local social public welfare systems, or the quasi-monopolies that Joseph Schumpeter termed 'core industries' and that tended to populate the pinnacle of the American economic order, or the state-capitalist linkages created by the linkage of private campaign finance and political lobbying).

The same is true with regards to American framing of its political order.  American liberalism -- rights, democracy, rule of law -- has always been much more conditional than our engagement with the transnational world would often lead one to believe.  Human rights are frequently qualified and the will of the demos is frequently subordinated to more sectoral, modernist, or otherwise elite perspectives.  'Rule of law' does not structure American social, political or economic ordering to the degree that that transnational 'rule of law' discourse suggests.  And at the same time, these liberal elements also enjoy at least some degree of qualified respect -- sometime highly qualified to be sure, but some degree of true respect nevertheless -- in most of the world's political orders, including that of China.  The difference is a difference in degree, not a difference in kind.

Once we recognize how much distinctiveness of both the American liberal market economy and its liberal political ordering have been exaggerated, then we see how exceedingly difficult it becomes to identify any set of features of China's political-legal-social-economic system that are really that distinctive to that system.  China's is not a liberal market economy to be sure, but at the same time it to some extent it has within it all the elements of a liberal system.  And its deviations from the ideal of market liberalism can be mapped onto deviations that are also found even in the United States.  The same is true of its political system, and of its social system.  And without being able to actually identity and meaningfully distinctive features of China's system, we can't identify what is actually distinctive about some so-called Chinese 'model'.  Clearly, it is different, but it is also to some extent the same.

Beyond this, even our understanding of what constitutes -- or what indicates -- development is highly colored by Cold-War ideological concepts that are of questionable application to the real world.  As noted above, the modern idea of development -- the idea that equates development with GDP or GNP growth -- is an invention of the Cold War:  we equated development with GDP growth because GDP growth was something that the West in general, and the United States in particular, has historically been particularly good at.  But there are a number of problems with this.  First, GDP was originally developed to measure industrial productivity in a classically Fordist economy -- that of the United States during the Second World War.  The farther one moves away from that kind of economy, the more problematic that particular measure -- or its derivatives, like GNI -- become.  Lessor developed countries are also lessor industrialized, and even beyond that not particularly Fordist, and this causes significant portions of their economy to elude GDP / GNI capture.  Sometimes, these portions represent pockets of considerable productivity, other times, they can represent pockets of considerable non-productivity.  And since they are by definition invisible, we really can't know which are which.  Further catalyzing this ambiguity is the fact that in developing countries, the economic figures used to construct GDP / GNI measures are invariably provided by governments whose legitimacy and even survival depend upon a positive GDP / GNI assessment of economic growth.

But even beyond this, the actual relationship between GDP / GNI growth and a conception of development that is actually desirable from the point of view of the national populations experiencing it is also quite contentious in the post Cold War world.  China in particular showed us that GDP development can at least in some circumstances be severed from what we regard as political development (such as political liberalization, political or economic equality, 'freedom' or 'capabilities'), and this has lead many to question whether economic growth by itself actually captures anything we would consider desirable, at least in the absence of some corresponding political development.  But of course, as we explored above, our understanding of what actually constitutes 'political development' is invariably itself highly colored by our Cold War narratives as to what constituted the structural 'essence' of the late-industrial American political-legal system.  It is by no means structurally comprehensive, and in some cases is structurally arbitrary.  For this reason, our choice as to what constitutes a meaningful political-social structure that is indicative of 'development' is as conditioned on ideology as our choice as to what constitutes a meaningful economic structure.

All in all, in discussing a possible Chinese model of development, not only are we unable to objectively identify any truly essential structural features of Chinese capitalism, we are also unable even to objectively identify whether China is actually experiencing and meaningful sense of 'development'.   At least for the present, our choice of which particular economic and political-legal structures are meaningful within the context of development continue to be borne primarily out of American efforts to locate itself in the political world created of the Cold War, and through that in human history.  For this reason, our stories about China's 'development' -- both positive and negative -- are ultimately not stories that are ultimately about China.  They remain, for the present at least, stories about what China has to tell us about being American.

* * *

And this is not at all a bad thing.  As Baruch Spinoza so cogently identifies, knowing the world and knowing oneself are symbiotic endeavors.  The more we can learn about who we really are, as distinguished from who we like to think we are, the more we are likely to truly understand and appreciate our place in the world, and through that the world as it actually is.  Speaking now as an American, the problem with the Cold-War ideology along these lines is precisely that it represents a picture of ourselves as we wish we were, but not as we actually are.  Seen in this light, endeavors to identify (and contest) a Beijing Consensus, even though they are really about America, are indeed nevertheless very much worth the effort.  Because in telling us who we really are (as distinguished from who we wish we were), these effort ultimately help us appreciate how the world actually is (as distinguished from how we want it to be).  This we have to do first, before we can knowingly identify any meaningful paths to 'development' -- however conceived -- through law.

Wait . . . did Pessimo just end on a note of optimism?