Legal research: democracy, development and emancipation

A special contribution by Flávio Prol (USP/Yale/Cebrap)

Two recent posts in this blog reanimated the debate on what it means to do legal research in Law and Development (L&D). The brevity of the texts is inversely proportional to their contribution. Zanatta wrote a provocative post invoking scholars of L&D to work on fundamental normative questions. For him, this would represent a radical transformation in the L&D agenda, which insists in ignoring these questions. In his reply, Trubek, one of the leading scholars of L&D, stressed the importance of researchers interested in an empirical description of the functions of law in different societies.

Beyond mutual critiques, Zanatta and Trubek share a fundamental goal: both want to avoid top-down approaches to L&D, in which the solution to social conflicts are given by a small number of well informed specialists. However, without a perspective about legal research that tries to re-articulate both perspectives, normative - on the side of Zanatta - and functional and empirical - on the side of Trubek - there is no possibility of understanding the dynamics of the relationship between law, democracy, development and emancipation.

I believe Zanatta does not give due importance to empirical research. Perhaps the most common characteristic of legal dissertations - at least in Brazil, although this can also be the case in other contexts - is the existence of excessive normative ambitions. Academics tend simply to dismiss any commitment to describing empirical functions of the law in action. Legal scholars are eager to propose “solutions” to “social problems” without even trying to understand what is happening with legal practice and legal institutions. This is certainly one of the reasons why some have diagnosed in Brazil a discrepancy between the high quality level of research on Anthropology, Sociology and Political Science, when compared to Law. If this is the case, the cure prescribed by Zanatta can actually be worse than the disease, since proposing more normative research in a field almost entirely dominated by it could end up undermining the still fragile commitment of some legal scholars to empirical research.

On the other hand, Zanatta’s post perhaps points to one of the biggest missing parts of research on L&D today. In the opposite direction of traditional legal scholarship, research on the field of L&D seems to restrict itself to describing empirical functions of law in society. Recent papers do not deal with normative questions – or at least they do not do it explicitly (I have in mind some chapters of the excellent book Law and the New Developmental State, edited by Trubek, Garcia, Coutinho and Santos in 2013). However, and this is the question that stimulated Zanatta in the first place, what happens when social movements intensively dispute the meaning and the very functions of law? Do scholars of L&D have anything to say in this debate, beyond describing the roles of law?

Trubek’s reply to Zanatta, reproducing another paper he had written in 2007, states that reform practices of L&D should 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”. But I cannot see what role researchers - as Zanatta demands - or policymakers, who are going to put the reform of L&D in action, can play in these processes. If research is reduced to describing empirical functions of law for development, which metric can be used by scholars to differentiate good from bad developments? Should scholars look for this metric at all? If Trubek’s answer is negative, he might even share certain extreme relativism in the conception of research of L&D that it is not evident in the post or the paper.

I think it is possible to re-articulate the apparently opposite positions of Zanatta and Trubek. A research oriented towards a description of the empirical functions of law can incorporate the perspective of how law is disputed by social movements and stakeholders in the public sphere. This proposal could perhaps be better described as a research on social conflicts that dispute the grammar of democratic law for development. Based on this descriptive exercise, the researcher would discuss which normative tendency already present in the conflicts is preferable. And maybe the normative metric could be purely procedural. 

Such an empirical and functional description of law that brings to its center the social conflicts that dispute the inner normativity of the grammar of democratic law to development would allow us to grasp the emancipatory potential of law. In Brazil, these conflicts are various: affirmative action, abortion, media and internet regulation, same-sex marriage, the role of a development bank, among others. This proposal gives a broader agenda to L&D researchers, with the inclusion of an explicit normative component derived from a description of social and democratic conflicts for development. 

I hope this controversy, so rare among legal scholars in Brazil, goes beyond short texts on blogs, being carried on in more substantive pieces in the field of L&D.