Response to Christian Boulanger’s paper “Law and Development as Practise and as Theory – from Self-Estrangement to Alienation?”

by Katrin Seidel¹

In his thoughtful paper on “Law and Development as Practise and as Theory – from Self-Estrangement to Alienation?” Christian Boulanger raises the question, whether “a critical, yet constructive academic engagement in ‘law and development’ project is possible”. This question is challenging in light of ‘Law and Development’s (L&D) underlying problematic ideas of ‘modernity’. As the Comaroffs (2012) remind us, ‘modernity’ embraces concepts of the person as self-actualizing subject; a vision of history as progress, of improvement through accumulation of knowledge and the pursuit of justice by means of rational governance. Modernity come with the inherent contradictions between its promises and the effects of practices pursued in its name.

Generally, it is hard to critique ‘law and development’ or ‘the rule of law’ (RoL) since everyone wants certain kinds of ‘certainty’ and ‘order’. However, scholars need to unpack what does it mean in practice, who is involved, who benefits and who is left apart. When thinking about the roles of scholars in the ‘Law and Development’ arena, one has to take into account that L&D is for a about half century on the academic agenda. Scholars have been critically assess assumptions of ‘modernity’, ‘development’ (see Parsons 1965, Trubek/Galanter 1974; Benda-Beckamnn, F.v. 1989; Tamanaha 2011, etc.) as well as the problematic ‘nomocentrism’ and ‘legocentrism’(Frankenberg 1984, Legrand 2005). Scholars have analysed the shift from the ‘legal imperialists (1950s), to the ‘the legal missionaries (1960s) to the ‘legal engineers’ (since the 1990s) by becoming increasingly upset about the still lasting mantra of development discourse in always new guises. Particularly, since the 1990s a new wave of L&D efforts in the name of ‘rule of law’ (RoL) spreads around the world. By claiming that RoL represents a worldwide consensus towards ‘problems’ of governance, intergovernmental institutions have urged countries to undertake legal reforms in order to implement RoL. The rule of law has become “the dominant paradigm for state governance in the international arena”. Thereby, its ‘establishment’ seems to be nourished “through the deployments of programmes of technical assistance that have sought to socialise elites and legislators into the rule of law mind-set”. The increasing pre-commitment to RoL seems to be sustained by political self-maintenance of the legal profession. (May 2014) Accordingly, multiple (legal) ‘experts’ promote their tool law as a solution to ‘problems’ of order. Within the L&D business, competing law exporting states have elevated so called ‘development’ or ‘transitional’ countries, to the ranks of ‘target’ countries. They are seen as new sites for market (legal) experimentations and law reform projects. Particularly, in light of the often heavily dependency of ‘post-conflict’ settings on international funding RoL seems to become a layer of conditionality. Monitored by international organizations, ‘legal engineers’ import and adapt legal ‘models’. It is the task of the ‘experts’ to establish a ‘rule of law’ that secures civil rights, facilitates investments, and complies with the demands of a globalized economy. These recent developments makes it even more difficult to answer Christian’s raised question.

In his paper, Christian looks for a constructive way of engagement by asking: “What is specific about ‘Law’ in ‘Law and Development’? Is ‘law just another case of ‘best practices’ that can be universally distributed and applied?”

One has to bear in mind that the concept of ‘best practice’ in policy discourses is based on a fatal underlying assumption: that production and management processes are uniform enough so that a ‘best practices’ can be identified and then adopted more or less “as it is” by another entity. However, the production of law is actively and constructively implicated in a constant re-negotiation and determination of the “legitimacy, social relevancy and meaning” of forms of knowing (Edmond 2000) through specific exclusion and inclusion dynamics. In order to make different setting comparable and measureable, ‘good’ and ‘best practices’ become a standardized tools of ‘rule of law promotion’ or ‘good governance’. Thereby, these tools become strategic representations and an advocacy scheme for those whose interests they serve. Those who practising ‘best practice’ take the implicit modernist assumptions for granted, even though unintenionally.

In my opinion, we need to look at how ‘law’ is made in processes of translation and how it functions as a mode of reduction and containment of ‘facts’ to gain a better understanding of how common narratives such as ‘rule of law’ or ‘law and development’ become driving forces for legal interventions.

My main concern with Christian’s paper is the mentioned argument made by Ralf Michaels. I wonder what kind of legal rules are meant, when arguing ‘there are legal rules that can work without looking at context and social-cultural specifities of the legal system in which it is applied’? Legal and institutional ideas are always produced in specific normative spaces by specific constellations of actors. Plurality of coexisting normative orders are continuously generated and used by them, with different sources of legitimacy (Benda-Beckmann 2009). Michaels’ extended application of Frankenberg’s ‘IKEA theory of legal transplant’ raises severe questions of ‘legitimacy’, ‘sovereignty’ and ‘hegemony’ as well. It picks some ‘positive’ effects without looking at the whole picture of legal transfer and its translation processes. Moreover, the Michaels’ assumption that ‘formal rules are better than no formal rules at all’ seems to be an expression of a certain notion of ‘legal certainty’ which is rather doubtful in light of the manifold empirical studies on legal pluralism all over the world.

Christian has also raised the question, ‘what we should look at when we study cases of “L&D”’. Agreeing with Christian that socio-legal scholars need to continue their critical engagement, I see two important ways in which scholars can engage:

First, from within the ‘governance matrix’ (Santos 2009): by critically assessing the intricacies of intervention in order to make the variety of the interdependent legal orders visible and to conduct ‘impact assessments’. Secondly, from outside the ‘governance matrix’: to show the different ways of law & development practices. Both approaches together can help to overcome the ‘modernity’ paradigm and fundamentally rethink the role of law as instrument of socio economic ‘development’.

Crucial objects of study metioned by Christian Boulanger are indeed international operating organisations’, but also private enterprises and law firms who constantly (co-)redefine ‘law and Developemnt’. Accordingly, we can identify the actors who move between different frames of references, and analyse the ‘technologies of social ordering’ they help to establish, their interests, performances as well as the impacts they have. We can examine how the intertwined manifold actors in different arenas negotiate and translate, appropriate, and adapted, but also resist circulating pre-formulated models. (Rottenburg 2009, Behrends et al. 2014) Thereby, we need to draw attention not only to the ‘translation chains’ (Rottenburg 2009) but also to the frames of references, the positionality of knowledge of ‘experts’, their perseptions and ranks in the hierarchy of major discourses. This processual understanding leads to an analyses of power relations as processes of negotiation between different frames of references among actors.

References

• Behrends, A. et al. (2014) Travelling Models in African Conflict Management. Translating Technologies of Social Ordering, Brill.
• Benda-Beckmann, F. et al. 2009. Rules of Law and Laws of Ruling. On the Governance of Law, Ashgate.
• Benda-Beckmann, F.v. 1989. „Scape-Goat and Magic Charm: Law in Development Theory and Practice”, Journal of Legal Pluralsim 28, 129ff.
• Comaroff, Jean and John. 2012. Theory from the South. Or, How Euro-America is Evolving towards Africa, Paradigm.
• Edmond, G. 2000. “Judicial Representations of Scientific Evidence”, Modern Law Review 63, 216ff.
• Legrand, P. 2005. “Paradoxically Derrida: For a Comparative Legal Studies”, 27 Cardozo Law Review 631, 655ff.
• May, C. (2014) The Rule of Law. The common sense of global politics, Elgar.
• Parsons, T. 1965. “Evolutionary Universals in Society”, 29 Am. Soc. Rev., 339ff.
• Rottenburg, R. (2009) Far-Fetched Facts: A Parable of Development Aid, Cambridge.
• Santos, B.d.S. 2009. “Governance: Between myth and reality”, RCCS Annual Review 1, 1ff.
• Tamanaha, B.Z. 2011. “The Primacy of Society and Failures of Law and Development”, 44 Cornell Int’l L.J. 209ff.
• Trubek, David and Galanter. 1974. “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States”, 4 Wisc. L. Rev. 1062ff.

1. Postdoctoral research fellow at the department ‘Law & Anthropology’, Max Planck Institute for Social Anthropology in Halle (S.)/ Germany. Situated at the intersection of legal pluralism and heterogeneous statehood, her socio-legal studies are concerned with the interdependent relationships between plural normative and judicial orders at different levels of regulations. Current research is focused on South Sudan’s constitutional genesis in the context of plural legal realities. [↩]