Law and development as practice and as theory – from self-estrangement to alienation?
For a long time now, I have had an interest in the question of how “Law” and “Development” are connected. By development, I mean not only the socio-economic and political development of what had been called “Developing Countries” and now is referred to as the “Global South”. What really interests me is why the socio-economic and political trajectories of the world’s regions and countries are so different, and by implication, the fascinating old Comparative Sociology question of what holds societies together and how social change occurs – one that has been at the center of the theories of Sociology’s “dead white males” such as Durkheim, Weber, Marx, or Luhmann. As a legal sociologist, I am looking in particular at the role of law in comparative historical sociology and political economy. Is law just an expression of power relations in a society, as Marx as famously argued, and as such just a “superstructure”? Or – on the contrary – is it, according to Weber, a prerequisite for the establishment of functioning social relations in communities that can no longer rely on face-to-face relationships. Or even: can it be regarded as an almost completely autonomous system, as Luhmann’s Systems Theory claims?
These questions are not simply academic. They have a potentially enormous relevance for today’s development policy debates. For example, for a long time, development aid policies reflected views of social development that were abandoned (or never dominant) in sociological theory, such as modernization theory, or later, the “Washington Consensus”. Of course, the kind of sociological theorizing does not provide (workable) prescriptions for “what is to be done”. It can only help us to critically reflect on “what is being done”. At the same time, the plurality of often conflicting sociological theorizing should make us wary of the validity of our own concepts and policy recommendations. As anthropology has shown, again and again, the world is more plural than our generalizations allow for. At the same time, we cannot do without some level of generalizations.
What prompted me to revisit the subject is a recent experience I had when organizing an event on “The Rule of Law in Afghanistan” in 2013. The “Rechtskulturen” program of the Forum Transregionale Studien had invited the head of a rule-of-law promotion project of the GIZ, the leading German agency for development cooperation, called „Strengthening Administrative Education in Afghanistan“. The project aimed at a more efficient public administration by helping to establish basic and advanced training for senior-level public service staff in Afghanistan. We had also invited two Fellows of the Rechtskulturen program to comment on the presentation. What was (maybe naively) meant as an encounter between theory and practice ended up (maybe predictably) in a showcase of the abyss that separates the two worlds. The motivation of representative of the GIZ, sent to Afghanistan with a mission to implement a project with pre-defined goals, was to present the successes of the project and to ask for scholarly advice about how to address the very specific difficulties and failures encountered so far. He was open to criticism, but not in a position to change the fundamental structure of the project. In contrast, the scholars criticized the underlying assumptions of development projects in general and this specific intervention in Afghanistan in particular. They questioned, based on their own empirical research in Afghanistan, basic concepts used in the project description and presentation, such as “corruption” or the “rule of law”. They pointed to the damage that was done by the presence of Western experts on the ground, such as the surge of prices for food or rent. Or by the artificial economy that was created by the demands of these experts for interpreters, drivers or bodyguards, destined to collapse once they left. They argued that the aim of rule of law promotion more often than not was to transform local economies to better serve the interest of global investors, rather than to improve the living standards of the local population.
The scholars had been hesitant to come to the event to begin with. Based on their experience, they had expected that the exchange would not be fruitful. As I understood them, they felt that in the “Law and Development” field, theory and practice are incompatible. The experts in the field are either unable or unwilling to accept the fundamental structural and cognitive problems that riddle rule of law promotion or similar activities.
Since they are well known, I do not need to elaborate. Just to name a few:
- Most fundamentally, the interests of the “Donors” are almost never the same as the needs and interests of the “Recipients”. Clash of values/beliefs/cultural practices, of foreign policy considerations, of economic interests etc. are unavoidable.
- More specifically, the bureaucratic nature of development aid is inflexible and risk-averse and in many cases leads to wrong priorities. Formal processes and standing operating procedures require that the complex and messy reality is simplified into stories and budgets that can be digested by bureaucratic organizations. Also, these organizations need to follow priorities of the donor countries and legitimize the spending of tax money. This can lead to a mismatch between what is needed and what is being offered.
- Because of the structure of the funding mechanisms, the short to medium term nature of projects are unable to induce sustainable change or systematically aggregate knowledge about local challenges.
- “Law and Development” is a multimillion dollar global business. Today development agencies, such as the GIZ, compete on a global market and are dependent on “success stories”. Transparency about project failures is largely incompatible with this demand. The competition between donors also has very negative consequences on the ground, leading to increased corruption, artificial economies, and the fragmentation of the so-called “civil society”.
- In addition to the negative consequences that might be caused by the competition between different development agencies, there is also a competition between legal orders. On one hand, it is an intellectual competition in which some scholars on each side want to prove that, for example, the common law is more efficient in resolving business disputes or that German institution of the Grundbuch (land title register) is better than the American system of real estate law. A much more important role, however, is played by the vested interests of law firms which are trying to secure their share in the global legal consultancy market.
- Usually, the practitioners are generalists or experts in a specific field of knowledge, such as law, not country specialists. Their interest is to “get the job done”, and not to systematically reflect on the merits or shortcomings of the project. This is what they are paid for, and they have to get the job done as good as they can, before they move on to the next project. At the same time, in most cases no extra budget exists for accompanying research that would be able to systematically analyze the “lessons learned” and preserve this information for other projects.
- Far from just organizing processes of the transfer of legal knowledge, development organizations can become administrative units in their own right, which compete with weak state administrations or local authorities for political leadership. Mostly with good intentions, but almost always without legitimation and without being able to take responsibility for the consequences, they change the local context by interfering with local arrangements. This has been critiqued by, among others, Franz von Benda-Beckmann.1
And so on, and so forth.
In essence, this situation seems present three possible roles of Law and Development scholars:
- If they participate in such projects, they risk to become accomplices in interventions into local contexts that cause more harm than good.
- If they choose to act as analysts, they act as forensics, who perform their duties when it is too late, and whose advice will be disregarded the next time, because of the fundamental problems of the whole enterprise.
- If we don’t like the first two options, isn’t the only remaining role the one of the cynical, alienated observer, who knows from the start that things end up bad?
I find it difficult to accept this – admittedly exaggerated – diagnosis. Without doubt, successful project do exist that have made the life of people better. Certainly, socio-legal scholars have been able to make a difference. But the problems are also real. Is a critical, yet constructive academic engagement in “law and development” project possible? Due to my lack of practical experience, I have no answer to this question. Also, there is a plenty of scholarship on this question that needs to be digested before I can even begin to formulate an argument.2 To start, I want to discuss two points that – it seems to me – are not so often discussed:
What’s Law got to do with it?
The first question that comes to my mind is whether there is anything special about Law in the dilemma that I have just set out. After all, the problem of the scholar that leaves the role of the observer at her desk to give policy advice that will actually be implemented exists for any type of development work – be it AIDS prevention, the digging of wells, helping to build schools, or set up systems of micro-credit. In each of these cases, the scholar has no control over the institutional structures or power relationships in which she applies her academic knowledge to real world problems, and cannot foresee or avert any unintended negative consequences of her intervention. At the same time, all the other “usual suspects” play a role – Eurocentric preconceptions, short project lifespans, mismatch of the interests of the donor and of the recipient, etc.
In addition, isn’t Law just another case of “Best practices” that can be universally distributed and applied? In a recent piece, the legal comparativist Ralf Michaels has made the “heretical” argument, against the orthodoxy of Legal Pluralism and Critical Law and Development, that there are legal rules that can work without looking at context and socio-cultural specificities of the legal system in which it is applied. He takes up Günther Frankenbergs “IKEA theory of legal transplants”, which tries to capture the idea of the “one size fits all” approach once championed by the World Bank in its “Doing Business” reports. Frankenberg was using the concept with a critical intention and only as applied to constitutional borrowings. In contrast, Michaels asks if the “IKEA Theory” does not describe what is actually happening on a large scale in practice in any case, with relatively good results. The idea, in Michaels’ summary is the following: “Just as IKEA brings affordable design into households that cannot afford tailor-made furniture, so a one-size-fits-all approach to law reform may create good-enough legal solutions that are at least as adequate for globalization as would be purely local rules.“ Isn’t this the same as a particularly clever way to produce solar-powered cooking oven? It might not be a local solution at all, but it can potentially help people cook their food without deforesting their environment.
Michaels is certainly right that the stale debate between the straw men of universalism and culturalism has to be overcome and replaced by a more empirically based, pragmatic approach. The transfer of legal ideas, rules and institutions is not impossible – it has happened ever since and is happening all the time. That formal legal rules work differently in different places goes without saying for comparativists like Michaels. What counts for him is that they are better than no formal rules at all. Which sounds good in theory, but is highly problematic in situations of legal pluralism. For example, introducing formal property rights in a situation where land use is regulated by custom can a recipe for disaster for the rural population. To be sure, law can, on the contrary, also be a tool to protect peasants from having their land taken away, but this is much more difficult than simply introducing “best practices” of a system of property rights. It requires a very careful handling of the local legal pluralism.
Mentioning IKEA in an academic setting is always good to make a talk or paper more entertaining, but there are actually a couple of good reference points in this metaphor that allow to analyze the particularities of legal transfers. First of all, the phenomenon of what has been termed “glocalization”. I am sure at least one dissertation in cultural studies has been written that analyzes how the world-wide expansion of IKEA stores has led to a global homogenization of furniture taste as well as to a diversification of IKEA’s product line that takes into consideration local peculiarities. Just as Chinese food in Germany is not the same as Chinese food in Finland, or in Japan, I assume that IKEA adapts its offerings to local demands. But then there is still “Billy”, the bookcase, the same everywhere on the planet. But the difference between “Billy” and a specific piece of legislation is that a bookcase, or a solar oven, or micro-credits, are “sold” to end users. Their utility (or attractiveness) is immediately obvious to people. The (formal) Law is different in this regard. Legal rules provide incentives and symbolic resources that aim at creating an always unstable network of behaviors, expectations and communications which then again provides value to a community.
This is one reason why law seems to be “uniquely tethered to society”, as Brian Tamanaha has argued. He says:
The past thirty years have demonstrated that components of capitalism (introducing market mechanisms, securing financing, establishing factories and production chains) and democracy (instituting periodic elections) can be implemented through the creation of new institutional arrangements that function effectively—although they will not work the same or have the same consequences as in the West. Legal institutions, however, appear to be far more dependent upon and subject to history and surrounding social forces.
This is not to repeat the essentialization of different “legal cultures” that are incompatible with the rule of law. “Legal culture” is not a static property of societies (independent variable), but a consequence of various factors, among them the real value of law to people’s life. If legal institutions do no deliver their promise, it is highly rational to ignore the law. In contrast, it is to be expected that as soon as the law provides real benefits, “legal culture” will adapt.
Max Weber has shown us how the Law – as we understand it – is critically dependent on a legal staff with a very specific world view. This explains why the law functions very differently in, say, Germany, France, the UK or the US, just to name the few countries where I know anything about. Current Rule of Law promotion activities certainly know this, since many of them concentrate on the training of legal staff. What the law is, how it functions, and how it can be used is not immediately obvious to people. It is often deplored that the law is incomprehensible for lay people. But this is by design and by necessity: as Niklas Luhman has argued, the law can be analyzed as a system of communication that historically has separated itself from the moral discourse about right and wrong as societies become more and more complex. It becomes expert discourse requiring a community of experts to work with it. Legal sociology has recently taken up the concept of “epistemic communities” and applied it to the legal profession. Of course, many other professional epistemic communities exist, such as engineers, doctors, teachers, etc. But I would argue that lawyers are a very special category because they work with language and very local institutional practice much more than other professions.
So to conclude, I argue that it is the lawyers who make Law and Development different from, say Medicine and Development or Agriculture and Development. Each of these fields have epistemic communities and networks that are very specific to what they do. Lawyers, however, are engaged in constructing networks of communication and institutionalized practices that intrude much more into society than other professional fields. At the same time, if we assume that the basic assumptions of system theory have some value, for the legal system to function a very specific kind of autonomy is required.
What should we study when we study Law & Development?
That’s a big question, of course. First of all, we would have to talk about what we mean by “development”, a hotly debated question, which I cannot go into here. For the purpose of this discussion, I confine myself to a pragmatic, if tautological definition: I mean by “law and development” the current empirical practice of “law and development”, however well or ill-conceived it might be. In this context, I want to emphasize only one simple, almost banal point: The study of law & development projects needs to include the study of the aid organizations themselves and the processes by which their projects are conceived, negotiated, and implemented. My – very preliminary – impression of the current state of research is this: on one hand, there are studies of the (mainly) international actors that are in the business of “legal transplants”: development agencies, international legal firms, legal councils, NGOs, international organization such as the World Bank, the IMF or the WTO. These studies are in most cases based on published material, very seldom on actual field work. On the other hand, there are the studies done mainly be legal anthropologists, which focus on a particular local setting or local community, in which the legal interventions occurs. Very few studies trace the process of an intervention from its inception to the implementation on the ground. However, I think more works needs to be done on exactly that.
There is an excellent paper on this topic by Markus Weilenmann. Weilenmann’s paper is one of the few German language analytic academic accounts of law and development projects that I know (Let me know if you know other such accounts). He had been an advisor to the GIZ for more than ten years when he wrote the paper in 2004. Weilenmann argues that, on the one hand, many studies on international legal transfers from legal scholars or social scientists read like abstract speculations in the ivory tower that have little to do what is actually happening on the ground (you are just listening to one of those). On the other hand, the actually existing development projects have no instruments to reflect on the socio-cultural dimensions of their own actions. Thus, they remain blind towards the all the problems that are caused by the mismatch of values, habitual practices and discursive strategies between “donors” and “recipients”.
Weilenmann describes how he, as a consultant, was able to propose a new project that focused on the role of women in legal pluralist settings within the GIZ. Because of the organizational logic of the government (The ministry of economic cooperation) and the development agency (GIZ), the reason why the project was finally realized had little to do with it its intended goals. The project had to adapt to the current priorities of, and the specific language required by, the donor and the implementing agency. This is obviously not very surprising and happens to all of us when we apply for funding for our research. The difference is that the final project, unlike our research papers, intervenes into the lives of real people. Weilemann also describes in detail the kind of compromises that have to be made in the field: how the local NGOs, which depend on donor money on their survival, will do everything to retain their position as “brokers” between the donors and the community that is the target of the project. Or how much corruption is introduced by the project to secure the cooperation of local bureaucrats or NGO functionaries. If Weilemanns account is representative of legal development projects, this presents a sad irony, since in many cases one of their official goals is to reduce corruption.
These kind of problems are probably old news for anyone who knows the field. But what is still lacking are studies that use this empirical information and combine it with the knowledge from institutional and organizational theory. The goal should be to systematically collect, analyze and preserve this information in order to better understand why so many things go wrong in practice, and, possibly, to change the practice.
To conclude my little exploration into the field of Law and Development: I have argued that the law is different from other development topics since it involves a very special social system and professional group. Second, my impression is that more research is needed that focuses on the processes in which legal development projects are conceived, negotiated, and implemented. This requires the actors in the field to study themselves and the positionality of their knowledge. Such knowledge thus cannot be regarded as “given”, since it will always be embedded into institutional constraints and might lead to completely unintended consequences.
As a final note, it seems to me that it is necessary to revisit the vocabulary: Concepts like “import”, “export”, “transplant” or “transfer” are misleading, since they don’t describe what is actually happening. What we are dealing with are transformations of normative orders, or “traveling models”3. Law is about stability of expectations, and this is a function that legal systems must provide, regardless of their external appearance. The key is to check whether global models fit the local context, and meet actual local needs.
An earlier version of this text has been presented at the Joint Institutes Colloquium, MPI for Social Anthropology and Seminar for Social Anthropology, Martin-Luther-Universität Halle-Wittenberg, on January 20th, 2015. I am grateful for two comments by Katrin Seidel and Christina Gabbert which will be published on this blog. “Law and Development” is also the theme of a track at the Conference “Die Versprechungen des Rechts”, September 9-11, 2015, Humboldt Universität zu Berlin.
- See, for example “‘Recht und Entwicklung’ im Wandel”, Verfassung und Recht in Übersee 41 (2008): 295–308 or the classic text “Scape-Goat and Magic Charm. Law in Development Theory and Practice.” Journal of Legal Pluralism and Unofficial Law 28 (1989): 129–48. [↩]
- For only some of the relevant recent contributions see Trubek, Law and Development: 40 Years After Scholars in Self Estrangement – a Preliminary Review, 2014; Frankenberg (ed.), Order From Transfer, Edward Elgar, 2013; Tamanaha/Sage/Woolcock (eds.), Legal Pluralism and Development : Scholars and Practitioners in Dialogue, 2013; Trubek/Santos, eds. The New Law and Economic Development: Cambridge University Press, 2006 [↩]
- See K.F. Roehl’s series of posts reviewing Behrends/Park/Rottenburg (eds.), Travelling Models in African Conflict Management, 2014 (in German) [↩]