Saturday, February 15, 2014
Sunday, November 24, 2013
Richard Dawkins: British Wit or Upper-Class Twit?
Today the excellent radio show Skeptical Sunday, which airs on my radio home here in Ithaca, WRFI, broadcast a thought-provoking interview by philosopher Peter Boghossian with Richard Dawkins, Oxford prof and author of the best-selling and equally provocative book The God Delusion. Dawkins is a British wit and intellectual, cut from the same cloth as the journalist Christopher Hitchens, with a manner that does not gladly suffer fools and an imperiousness that is thankfully tempered by wry humor.
These three men share a commitment to atheism and, somewhat paradoxically, are rather evangelical about it, each authoring widely read tomes denouncing all things religious.
Boghossian's conversation with Dawkins inevitably turned to Islam (on which Dawkins' comments have frequently proven controversial) and that's what I'm writing about today. Dawkin's discourse on the subject struck me at times as willful bordering on obtuse, and endangered him with metamorphosing from rapier wit to oblivious twit... And here's why.
Of course atheists, and for that matter Muslims, and anyone else, should be free to criticize Islam. But when you do so, understand that your words form part of a larger set of dialogues that have concrete implications -- and exercise caution to ensure that your words are not misunderstood. Do so not because you should be legally refrained from doing otherwise, but because you should value preventing this kind of misunderstanding for both analytical and ethical reasons.
In the same way that people should be able to criticize the practices of the government of Israel without being perceived as anti-Semitic, criticism of Islamist practices should be allowed without being taken to be anti-Arab (which would be another form of anti-Semitism). In both cases, though, it is worthwhile to take care that your intentions are not misunderstood, because anti-Semitic and anti-Arab thinking continues to cause harm in the world.
Dawkins' defense of his criticism of Islam dripped with self-righteousness as a truth-teller waging war against the plague of political correctness that blighted even his fellow non-believers. Liberal scholars so greatly feared accusations of racism, Dawkins declared, that they chose a weak-willed and deceitful political correctness over speaking truth to religion.
The tone of this colloquy recalled very similar kinds of salvos during the "culture wars" in the U.S., circa the 1980s and 1990s, when the term "political correctness" was coined. At the time, a coalition of the politically conservative and the academically conservative felt that intellectual space in the U.S., whether in universities or in public discourse, was being overtaken by representatives of all manner of minority groups who profited by playing up their historical oppression and parlayed victimhood into various kinds of advantages -- the "race card" was said to have been played to win everything from university admissions to criminal trials.
Again somewhat paradoxically, the decriers of politically-correct, race-card-wielding professional victims themselves claimed an oddly parallel kind of mental victimization, averring that to be called racist is horribly wounding. According to Dawkins in his interview with Boghossian, this fear is enough to cow his colleagues out of fighting injustice caused by Islam.
Here's my problem with this kind of disquisition -- it seems to assume that those who are combating racism or Islamophobia are attempting to act as some kind of thought police, and are concerned with the subjective states of mind of those they deem to be racist.
For me such claims entirely miss the point. Of course, it is hurtful to believe that people in your community, your society, your country, see you as less than human, as not deserving the understanding, compassion, or respect that they would accord themselves. But the greater harm lies not in words but in the actions that have been justified, both historically and today, by the sentiments contained in those words. The real harm lies in the structures of extreme inequity that were built, and that continue to survive, because of those sentiments. Think or say whatever you want about me -- but when you support institutional practices that unfairly exclude and harm me, then we have a problem and rightfully so.
Here's an example of what I mean: Back in the early 2000s, Dawkin's comrade Christopher Hitchens felt himself to be brave in exposing the oppressiveness of Muslim-majority societies in Afghanistan and Iraq. But as a consequence he blindly advocated ill-conceived warfare that has now bankrupted the U.S. economy, caused the deaths of tens of thousands of civilians in those war-torn countries, and created enormous numbers of casualties for U.S. troops, including quite often their emotional trauma of having been called upon to execute an unjust war.
Subsequently Hitchens eventually admitted that the Iraq war was disastrous, though he defended his initial support of it. But the point is that, in insisting on his right to decry Islam, he himself committed the ultimate scholarly sin -- a lack of analytical rigor in scrutinizing the circumstances surrounding the actual declaration and prosecution of war.
See my point yet? Those who fan the flames of Islamophobia support, even if unintentionally, a politics of oppression - one that dehumanizes others and makes the justification of the unjustifiable much easier than it would be otherwise.
Similar controversies swirl around the use of the (tiresomely euphemized) "n" word. For me personally, the reason that, say, the "n" word is harmful isn't because of the state of mind of either the person who says it or the person who hears it. It's because of the historical and current injustices created by the mentality that also created that word. The "n" word signifies a person who is worthless, despicable and against whom any action can and should be taken with impunity. The lynchings that scarred this country happened because people were seen in this way. Anyone who has read or heard of, for example the extremely disturbing jokes about Trayvon Martin during and after George Zimmerman's acquittal for his killing must worry whether that strain of virulent, potentially violent racism persists. (By the way, I disagree with Ta-Nehisi Coates that black folks who urge each other not to use the word must be indulging in hypocritical "respectability politics"; in my opinion the reason not to use the word is that it reinforces internalized racism and self-hatred - it's less about seeming respectable to others and more about respecting yourself.)
To move from linguistic battles to tragically real ones is not always a stretch. Extrajudicial killing can be an expression of these extreme beliefs. And a tool of the current U.S. war on Muslim-majority countries, the armed drones, have posed a major subject of concern as a means of precisely that, according to a recent statement of the UN Special Rapporteur on Extrajudicial Killings.
No one should claim that the actual decision-makers on drones, in the White House or JSOC or wherever, harbor Islamophobic beliefs - there's hardly any way of proving that.
But we should wonder whether totalizing depictions of Islam contribute to dehumanizing the populations that are so affected. I use the term "dehumanizing" because such generalizations don't permit the same nuances that we would intuitively understand for our own case - even critics of Christianity would hardly contest that a world of difference exists between various denominations, not to mention between theology and everyday life.
For atheists, the underlying belief in a higher power is going to be misguided whatever its intensity, but the analytical slippage arises when the argument moves from criticizing the inherent logic of any religious faith, and towards characterizing a specific religious faith as necessarily entailing socially harmful practices.
So, yes, I do think it behooves critics of Islam to choose their words carefully in order to make sure they are not misunderstood as claiming, for example, that all Muslims are religious extremists or that Islam must be interpreted in a certain way. For these scholars who pride themselves on clarity of thought, the imperative to speak precisely should hardly be a bother. And it is not too much of a stretch to caution that, when wars are fought and civilians are subsequently killed on the implicit basis of such misperceptions, communicating with precision is not only a matter of scholastic pride but possibly of life or death.
These three men share a commitment to atheism and, somewhat paradoxically, are rather evangelical about it, each authoring widely read tomes denouncing all things religious.
Boghossian's conversation with Dawkins inevitably turned to Islam (on which Dawkins' comments have frequently proven controversial) and that's what I'm writing about today. Dawkin's discourse on the subject struck me at times as willful bordering on obtuse, and endangered him with metamorphosing from rapier wit to oblivious twit... And here's why.
Of course atheists, and for that matter Muslims, and anyone else, should be free to criticize Islam. But when you do so, understand that your words form part of a larger set of dialogues that have concrete implications -- and exercise caution to ensure that your words are not misunderstood. Do so not because you should be legally refrained from doing otherwise, but because you should value preventing this kind of misunderstanding for both analytical and ethical reasons.
In the same way that people should be able to criticize the practices of the government of Israel without being perceived as anti-Semitic, criticism of Islamist practices should be allowed without being taken to be anti-Arab (which would be another form of anti-Semitism). In both cases, though, it is worthwhile to take care that your intentions are not misunderstood, because anti-Semitic and anti-Arab thinking continues to cause harm in the world.
Dawkins' defense of his criticism of Islam dripped with self-righteousness as a truth-teller waging war against the plague of political correctness that blighted even his fellow non-believers. Liberal scholars so greatly feared accusations of racism, Dawkins declared, that they chose a weak-willed and deceitful political correctness over speaking truth to religion.
The tone of this colloquy recalled very similar kinds of salvos during the "culture wars" in the U.S., circa the 1980s and 1990s, when the term "political correctness" was coined. At the time, a coalition of the politically conservative and the academically conservative felt that intellectual space in the U.S., whether in universities or in public discourse, was being overtaken by representatives of all manner of minority groups who profited by playing up their historical oppression and parlayed victimhood into various kinds of advantages -- the "race card" was said to have been played to win everything from university admissions to criminal trials.
Again somewhat paradoxically, the decriers of politically-correct, race-card-wielding professional victims themselves claimed an oddly parallel kind of mental victimization, averring that to be called racist is horribly wounding. According to Dawkins in his interview with Boghossian, this fear is enough to cow his colleagues out of fighting injustice caused by Islam.
Here's my problem with this kind of disquisition -- it seems to assume that those who are combating racism or Islamophobia are attempting to act as some kind of thought police, and are concerned with the subjective states of mind of those they deem to be racist.
For me such claims entirely miss the point. Of course, it is hurtful to believe that people in your community, your society, your country, see you as less than human, as not deserving the understanding, compassion, or respect that they would accord themselves. But the greater harm lies not in words but in the actions that have been justified, both historically and today, by the sentiments contained in those words. The real harm lies in the structures of extreme inequity that were built, and that continue to survive, because of those sentiments. Think or say whatever you want about me -- but when you support institutional practices that unfairly exclude and harm me, then we have a problem and rightfully so.
Here's an example of what I mean: Back in the early 2000s, Dawkin's comrade Christopher Hitchens felt himself to be brave in exposing the oppressiveness of Muslim-majority societies in Afghanistan and Iraq. But as a consequence he blindly advocated ill-conceived warfare that has now bankrupted the U.S. economy, caused the deaths of tens of thousands of civilians in those war-torn countries, and created enormous numbers of casualties for U.S. troops, including quite often their emotional trauma of having been called upon to execute an unjust war.
Subsequently Hitchens eventually admitted that the Iraq war was disastrous, though he defended his initial support of it. But the point is that, in insisting on his right to decry Islam, he himself committed the ultimate scholarly sin -- a lack of analytical rigor in scrutinizing the circumstances surrounding the actual declaration and prosecution of war.
See my point yet? Those who fan the flames of Islamophobia support, even if unintentionally, a politics of oppression - one that dehumanizes others and makes the justification of the unjustifiable much easier than it would be otherwise.
Similar controversies swirl around the use of the (tiresomely euphemized) "n" word. For me personally, the reason that, say, the "n" word is harmful isn't because of the state of mind of either the person who says it or the person who hears it. It's because of the historical and current injustices created by the mentality that also created that word. The "n" word signifies a person who is worthless, despicable and against whom any action can and should be taken with impunity. The lynchings that scarred this country happened because people were seen in this way. Anyone who has read or heard of, for example the extremely disturbing jokes about Trayvon Martin during and after George Zimmerman's acquittal for his killing must worry whether that strain of virulent, potentially violent racism persists. (By the way, I disagree with Ta-Nehisi Coates that black folks who urge each other not to use the word must be indulging in hypocritical "respectability politics"; in my opinion the reason not to use the word is that it reinforces internalized racism and self-hatred - it's less about seeming respectable to others and more about respecting yourself.)
To move from linguistic battles to tragically real ones is not always a stretch. Extrajudicial killing can be an expression of these extreme beliefs. And a tool of the current U.S. war on Muslim-majority countries, the armed drones, have posed a major subject of concern as a means of precisely that, according to a recent statement of the UN Special Rapporteur on Extrajudicial Killings.
No one should claim that the actual decision-makers on drones, in the White House or JSOC or wherever, harbor Islamophobic beliefs - there's hardly any way of proving that.
But we should wonder whether totalizing depictions of Islam contribute to dehumanizing the populations that are so affected. I use the term "dehumanizing" because such generalizations don't permit the same nuances that we would intuitively understand for our own case - even critics of Christianity would hardly contest that a world of difference exists between various denominations, not to mention between theology and everyday life.
For atheists, the underlying belief in a higher power is going to be misguided whatever its intensity, but the analytical slippage arises when the argument moves from criticizing the inherent logic of any religious faith, and towards characterizing a specific religious faith as necessarily entailing socially harmful practices.
So, yes, I do think it behooves critics of Islam to choose their words carefully in order to make sure they are not misunderstood as claiming, for example, that all Muslims are religious extremists or that Islam must be interpreted in a certain way. For these scholars who pride themselves on clarity of thought, the imperative to speak precisely should hardly be a bother. And it is not too much of a stretch to caution that, when wars are fought and civilians are subsequently killed on the implicit basis of such misperceptions, communicating with precision is not only a matter of scholastic pride but possibly of life or death.
Tuesday, November 5, 2013
My recent news-update post, at the excellent Interdisciplinary Project on Human Trafficking website led by Janie Chuang from American University, talks about the new human trafficking courts in NY state.
What to make of the growing anti-trafficking infrastructure? Without question, the vulnerability of people who either have been trafficked, or are susceptible, demands a sustained and effective policy response nationally and internationally. And yet I'm not sure that ramping up police enforcement activities is the way to do it. I worry that anti-trafficking initiatives legitimate a larger growth of the carceral, penal dimensions of government. I worry about unintended consequences of a punitive approach.
Anti-trafficking policy is now divided into "prosecution, protection and prevention," and I'd much rather see more emphasis on the last two of those three goals. In particular, I'd support reforms in labor and immigration laws that reduce the vulnerability of people to trafficking in the first place. Along those lines, one danger of anti-trafficking as a high-visibility policy is that it may well be distracting attention from "ordinary" abusive migrant labor, even though the latter undoubtedly represents the more frequent occurrence.
The problem of trafficking is multifaceted and the solutions are equally so, and so I don't condemn anti-trafficking but rather would caution that it be applied with rigorous attention to the interests of the "victims," as opposed to those of the state or of law enforcement.
For example, I am critical of anti-trafficking laws that cause victims to be repatriated to their home countries or, alternatively, required them testify against their traffickers in order to obtain residency in the US: either of these scenarios arguably amplify the victims' vulnerability.
I'll be discussing anti-trafficking law in an upcoming lecture for Cornell's International Law/ International Relations colloquium series; in 2006 I co-authored an article with Janet Halley, Hila Shamir and Prabha Kotiswaran in which I described the emergence of the current anti-trafficking framework and critiqued some of its "blind spots."
What to make of the growing anti-trafficking infrastructure? Without question, the vulnerability of people who either have been trafficked, or are susceptible, demands a sustained and effective policy response nationally and internationally. And yet I'm not sure that ramping up police enforcement activities is the way to do it. I worry that anti-trafficking initiatives legitimate a larger growth of the carceral, penal dimensions of government. I worry about unintended consequences of a punitive approach.
Anti-trafficking policy is now divided into "prosecution, protection and prevention," and I'd much rather see more emphasis on the last two of those three goals. In particular, I'd support reforms in labor and immigration laws that reduce the vulnerability of people to trafficking in the first place. Along those lines, one danger of anti-trafficking as a high-visibility policy is that it may well be distracting attention from "ordinary" abusive migrant labor, even though the latter undoubtedly represents the more frequent occurrence.
The problem of trafficking is multifaceted and the solutions are equally so, and so I don't condemn anti-trafficking but rather would caution that it be applied with rigorous attention to the interests of the "victims," as opposed to those of the state or of law enforcement.
For example, I am critical of anti-trafficking laws that cause victims to be repatriated to their home countries or, alternatively, required them testify against their traffickers in order to obtain residency in the US: either of these scenarios arguably amplify the victims' vulnerability.
I'll be discussing anti-trafficking law in an upcoming lecture for Cornell's International Law/ International Relations colloquium series; in 2006 I co-authored an article with Janet Halley, Hila Shamir and Prabha Kotiswaran in which I described the emergence of the current anti-trafficking framework and critiqued some of its "blind spots."
Monday, October 28, 2013
Legacies of Dred Scott? Citizenship, Social Meaning and the "Birthers"
Now that the film "12 Years a Slave" based on the 19th-century memoir has been released to critical acclaim and good box office returns, I wonder whether we'll see a bit more dialogue on how the present continues to shape the past, despite our much-pined-after ideal of post-racialism....
After all, that great political expert (OK not so much, but one could legitimately say the lauded (or larded!) pop-culture queen) Paula Deen informed us recently how her family mourned the loss of the "help" they had had on their antebellum plantation, and further opined that "it will take a long, long time" for "prejudice" to end.
Another prime candidate for historical consciousness-raising in recent years has been the so-called "birther movement" -- the claim that U.S. President Barack Obama was not born in the United States. After Obama released the official long-form certificate recording his 1961 birth in Hawaii, birtherism initially spiked, but then, thankfully, declined rapidly among both the population at large and conservative Republicans, so that even amongst the latter only 16% held the birther view according to the last Washington Post poll I consulted on this.
My point about historical consciousness-raising isn't the need to dispute the birther claim on the facts, since the facts seem clear and the claim discredited -- but, rather, to gain historical awareness of how deeply that claim resounded the racialized past.
For example, only occasionally remarked upon during the birther kerfuffle was the striking resemblance of the birthers' arguments to the basic premise of the Dred Scott case, the infamous pre-Civil War opinion which found that persons of African descent could not claim U.S. citizenship.
Justice Taney surely thought he was simply stating the obvious (I'd use the phrase "calling a spade a spade" but that probably wouldn't be good here!) in his reasoning:
"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing....
"The question before us is whether the class of persons described in the plea [viz., 'whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves'] compose a portion of this people...?
"We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States."
(60 U.S., at 404, emphasis added)
The 14th Amendment to the Constitution that followed the Civil War obviously reversed this point as a matter of law, but the question remains how much cultural residue of this earlier proclamation of the law of the land has stuck fast to the fabric out of which nation's politics are fashioned.
To quote that favored son of the South, William Faulkner:
"The past is never dead. It's not even past."
After all, that great political expert (OK not so much, but one could legitimately say the lauded (or larded!) pop-culture queen) Paula Deen informed us recently how her family mourned the loss of the "help" they had had on their antebellum plantation, and further opined that "it will take a long, long time" for "prejudice" to end.
Another prime candidate for historical consciousness-raising in recent years has been the so-called "birther movement" -- the claim that U.S. President Barack Obama was not born in the United States. After Obama released the official long-form certificate recording his 1961 birth in Hawaii, birtherism initially spiked, but then, thankfully, declined rapidly among both the population at large and conservative Republicans, so that even amongst the latter only 16% held the birther view according to the last Washington Post poll I consulted on this.
My point about historical consciousness-raising isn't the need to dispute the birther claim on the facts, since the facts seem clear and the claim discredited -- but, rather, to gain historical awareness of how deeply that claim resounded the racialized past.
For example, only occasionally remarked upon during the birther kerfuffle was the striking resemblance of the birthers' arguments to the basic premise of the Dred Scott case, the infamous pre-Civil War opinion which found that persons of African descent could not claim U.S. citizenship.
Justice Taney surely thought he was simply stating the obvious (I'd use the phrase "calling a spade a spade" but that probably wouldn't be good here!) in his reasoning:
"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing....
"The question before us is whether the class of persons described in the plea [viz., 'whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves'] compose a portion of this people...?
"We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States."
(60 U.S., at 404, emphasis added)
The 14th Amendment to the Constitution that followed the Civil War obviously reversed this point as a matter of law, but the question remains how much cultural residue of this earlier proclamation of the law of the land has stuck fast to the fabric out of which nation's politics are fashioned.
To quote that favored son of the South, William Faulkner:
"The past is never dead. It's not even past."
Getting back to blogging...
Phew, I've been
away for quite awhile! Here's to getting back on track!
Stuff that has been
published since 2011:
A chapter,
"The Death of Doha? Forensics of Democratic Governance, DistributiveJustice, and Development in the WTO," in Chi Carmody, Frank Garcia, andJohn Linarelli eds.,GLOBAL JUSTICE IN INTERNATIONALECONOMIC LAW(CambridgeUniversity Press)(2012). This was originally given as a keynote address for one
of the ASIL International Legal Theory Interest Group's meetings. The paper can
be downloaded from SSRN and the whole book is also out with Cambridge UP.
Also, an
introductory chapter to a volume of the World Bank Legal Review which I
co-edited, on Legal Innovation and Empowerment...
... and lots of
drafts on international migration at the moment, see the following posted on
SSRN earlier this year:
and
....
Stay tuned for the
magnum opus (or at least medium opus) on migration, hopefully in 2014...
Wednesday, May 25, 2011
New Article: A Critical Intellectual History of Law and Neoclassical Development
I'm happy to report that my article, Law and Neoclassical Development in Theory and Practice: Toward an Institutionalist Critique of Institutionalism, has been published by the Cornell Law Review. A copy can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1844715.
This article contributed to a symposium on The Future of Legal Theory initiated by my colleague Jeff Rachlinski. My hope for the article was to investigate the role that economic theory, and in particular various stripes of neoclassical economic theory -- from neoclassical general equilibrium theory to the new institutional economics -- has played in shaping development policy related to legal reform.
Here is my abstract from the conference:
Institutionalism propounds a particular set of theoretical assumptions about the role of law in economic growth. In unpacking the development of those assumptions, this Essay adopts a model of intellectual history based on the Kuhnian argument that scientific knowledge evolves through key historical moments that establish theoretical paradigms. These paradigms are replaced only when awareness in the field of anomalies — problems that the existing theoretical paradigm cannot solve — presents a crisis for that paradigm that coincides with the emergence of an "alternate candidate."
The paradigm shift in law and development was enabled by dynamics in both the academy and the field. In the academy, the emergence of neoclassicism as an alternate candidate coincided with an internal intellectual crisis arising from the limitations of Keynesianism and, in development economics, statism. This shift was mirrored in the field by the emergence of neoclassicism as a political movement that engendered accompanying changes in the personnel and policy of the development institutions. As such, theory and practice in law and development were linked and mutually reinforcing in describing the arc from modernization to neoclassicism.
In adapting a historiographic method to its purposes, this Essay seeks to contribute to economic as well as legal histories of neoclassicism. In doing so, it seeks to specify how influential theories of law in development grew out of a highly idealized conceptual framework wedded to a particular economic policy agenda. Improving law and development discourse will require addressing the theoretical and practical particularities stemming from the field’s genealogical origins. In that spirit, this essay offers a critical intellectual history of the rise of neoclassical law and development in theory and practice.
Part I describes the origination and diffusion of neoclassical law and development from the academy to “the field.” Stemming from Coasian analysis of the relationship between institutional environment and microeconomic behavior, neoclassical law and development emerged out of the elaboration of that analysis into a series of prescriptions against macroeconomic governmental controls on trade and investment -- the “New Political Economy” (NPE) -- and for the establishment of legal institutions to enforce property rights and support commerce -- the “New Institutional Economics” (NIE). Bound up with Anglo-American political movements, the ideational constructs NPE and NIE “took power” when those movements did, as evidenced by the “rule of law revival” in development policy from the early 90s to the present day.
Part II evaluates the neoclassical law and development model in terms of its relationship to policy and empirical evidence. The thesis that institutional quality determines economic growth suffers from a series of troubling flaws. One problem is the analytical vagueness of the asserted causal relationship: how does institutional quality improve economic growth? The range of possible answers (enforcement of property rights, effective judiciary systems, democratic participation) impedes the formulation of effective development policy. Beyond this vagueness is the uncertainty that causality even exists: empirical studies have so far been unable to prove it. Finally, even if one could be confident that one knew what “institutional quality” meant, and confident that it would indeed cause economic growth, a number of issues apparently pervasive in the field of development policy – neoclassical or otherwise -- would still inhibit the success of any reform program: these problems include the manipulation of programming by entrenched interests in both the donor and beneficiary countries, the inability to design contextually responsive and informed programs in the face of the continued temptation to implement “one-size-fits-all” directives, and the lack of effective self-evaluation and long-term assessment in programming choices reducing prospects for improvement of development “knowledge” over time.
These impediments resemble the kinds of obstacles that the eminent institutional economist Douglass North would identify as transaction costs to institutional efficiency. The prolongation of law and development programs that are demonstrably ineffective (according to veterans of the field such as Thomas Carothers and Linn Hammergren) suggests precisely the kind of suboptimal path dependence that North identified as a barrier to economic growth in the developing world.
In other words, as Part III argues, there appears to be a need for an institutionalist analysis of “institutionalism” in the field of development. Although the neoclassical law and development policy matrix was intended to improve institutional quality in poor countries, it appears that the institutions of development policy themselves – the formal and informal “rules of the game” that shape organizational and individual behavior in the field - may need to be examined if the underlying project is to find success.
The paradigm shift in law and development was enabled by dynamics in both the academy and the field. In the academy, the emergence of neoclassicism as an alternate candidate coincided with an internal intellectual crisis arising from the limitations of Keynesianism and, in development economics, statism. This shift was mirrored in the field by the emergence of neoclassicism as a political movement that engendered accompanying changes in the personnel and policy of the development institutions. As such, theory and practice in law and development were linked and mutually reinforcing in describing the arc from modernization to neoclassicism.
In adapting a historiographic method to its purposes, this Essay seeks to contribute to economic as well as legal histories of neoclassicism. In doing so, it seeks to specify how influential theories of law in development grew out of a highly idealized conceptual framework wedded to a particular economic policy agenda. Improving law and development discourse will require addressing the theoretical and practical particularities stemming from the field’s genealogical origins. In that spirit, this essay offers a critical intellectual history of the rise of neoclassical law and development in theory and practice.
Part I describes the origination and diffusion of neoclassical law and development from the academy to “the field.” Stemming from Coasian analysis of the relationship between institutional environment and microeconomic behavior, neoclassical law and development emerged out of the elaboration of that analysis into a series of prescriptions against macroeconomic governmental controls on trade and investment -- the “New Political Economy” (NPE) -- and for the establishment of legal institutions to enforce property rights and support commerce -- the “New Institutional Economics” (NIE). Bound up with Anglo-American political movements, the ideational constructs NPE and NIE “took power” when those movements did, as evidenced by the “rule of law revival” in development policy from the early 90s to the present day.
Part II evaluates the neoclassical law and development model in terms of its relationship to policy and empirical evidence. The thesis that institutional quality determines economic growth suffers from a series of troubling flaws. One problem is the analytical vagueness of the asserted causal relationship: how does institutional quality improve economic growth? The range of possible answers (enforcement of property rights, effective judiciary systems, democratic participation) impedes the formulation of effective development policy. Beyond this vagueness is the uncertainty that causality even exists: empirical studies have so far been unable to prove it. Finally, even if one could be confident that one knew what “institutional quality” meant, and confident that it would indeed cause economic growth, a number of issues apparently pervasive in the field of development policy – neoclassical or otherwise -- would still inhibit the success of any reform program: these problems include the manipulation of programming by entrenched interests in both the donor and beneficiary countries, the inability to design contextually responsive and informed programs in the face of the continued temptation to implement “one-size-fits-all” directives, and the lack of effective self-evaluation and long-term assessment in programming choices reducing prospects for improvement of development “knowledge” over time.
These impediments resemble the kinds of obstacles that the eminent institutional economist Douglass North would identify as transaction costs to institutional efficiency. The prolongation of law and development programs that are demonstrably ineffective (according to veterans of the field such as Thomas Carothers and Linn Hammergren) suggests precisely the kind of suboptimal path dependence that North identified as a barrier to economic growth in the developing world.
In other words, as Part III argues, there appears to be a need for an institutionalist analysis of “institutionalism” in the field of development. Although the neoclassical law and development policy matrix was intended to improve institutional quality in poor countries, it appears that the institutions of development policy themselves – the formal and informal “rules of the game” that shape organizational and individual behavior in the field - may need to be examined if the underlying project is to find success.
Sunday, May 15, 2011
Artistic Expression in (Re)framing Afghanistan - Panel Comments
May 5-7, 2011, I attended a multidisciplinary conference, Engaging Afghanistan, which brought together academics, artists and journalists to discuss contemporary modes of discourse about Afghanistan. The organizers, Shiva Balaghi and Michael Kennedy, presided over the meeting brilliantly, and their model is one that with any luck will be replicated. Ideally, academics conduct close and rigorous examinations of narrowly drawn questions; artists interrogate and destabilize prevailing narratives and emphasize critical autonomy (to use Iftikhar Dadi’s phrase) as the ethically correct posture for interpreting our world; journalists uncover and translate ideas and facts into narratives that circulate in the broader public. Engaging Afghanistan provided a forum in which the roles of all three in influencing policy could be explored.
Shiva asked me to comment on the last panel, Visual Culture & Framing Afghanistan-Pakistan, which presented the work of three vibrant and relevant artists:
- Wazhmah Osman, director of the documentary Postcards from Tora Bora
- Iftikhar Dadi, Cornell professor and creator with Elizabeth Dadi of the series "They Made History" and "Clash of Civilizations"
- Maryam Ghani, creator of Kabul Reconstructions and its archival lexicon for Afghanistan
My thoughts about these artists in the context of the conference took three directions:
- First, the role of the artist in contributing to public discourse, and with that the connection between law and development, a field in which I work, and the arts;
- Second, one of the narratives arising out of some aspects of this work, of displacement and disruption of the people of Afghanistan; and
– Third, the questionable power of personal narrative, particularly in Western encounters with Afghanistan, and the role of the artist in redirecting that power.
The relationship between the arts and law-and-development
Ashraf Ghani opened our discussion by pointing to the rule of law as an overarching goal in the construction and delivery of justice in Afghanistan. This question has been taken up in our conversation subsequently through focusing on "constructive engagements in the public sphere," and "democratic possibilities and Afghanistan."
Artistic production, it seems to me, plays an important supporting or facilitating role in bringing about the rule of law – if (and I emphasize the if, since I and my colleagues have criticized simplistic conceptions of the rule of law elsewhere) by the rule of law we essentially mean a system of government which is accountable to the governed. If so, then artistic expression that speaks truth to power becomes an important part of that accountability equation – a form of constructive engagement in the public sphere that potentially has many implications beyond its own terms of engagement to affect and enlarge public discourse.
In other words, the production of art can be viewed as an elevated kind of civic practice. Here I find common cause with the philosopher James Tully, who in a recent work, Public Philosophy in a New Key, asserts that democracy should exist outside formal representative processes, and reliance on those institutions alone to produce social justice will fail. Tully calls for what he calls "cooperative citizenship": on the theory that official institutions and channels of citizenship are limited and only intermittently accessible, cooperative citizenship begins “’here and now,’ in any and all relationships of governance in which we find ourselves in our everyday activities across public and private spheres.” [James Tully, The Crisis of Global Citizenship, Radical Politics Today, July 2009, p.17]
The means by which artists question and expose aspects of their experience of contemporary governance contributes to a public discourse not solely dependent on the limitations of formal institutions. This should be true everywhere, and it may be particularly true the more problematic the formal institutions are in a given context. This argument of course assumes that artists have the fredom to express their perspectives, so that another key aspect of the relationship between law, development and art is to ensure that legal rules and institutions operate to protect artistic expression. Artists can express points of view, and critiques of the status quo, that might not be permitted in formal channels.
For example, in my field of law and development, one challenge for scholars is the issue of informality and informalization in developing world economies, particularly in its megalopolises. This is an issue that implicates the failures of modernization strategies, the politics of growth, and the role of domestic and international institutions. Yet much remains to be done in scholarship on economic informality.
In my view scholarly thinking about this issue is enriched by the Egyptian artist Lara Baladi's piercing work called Borg El-Amal – the Tower of Hope. This work focused on Cairo’s “red city” of informal housing as a way of thinking about the failures of modernization and the state in delivering basic quality of life to the residents there. Even more so in retrospect, Baladi’s meditation on the lack of hope in Egypt as embodied by the straits of survival in which many Cairo residents found themselves contributes a unique and acute perspective to the frustration with the regime that of course ultimately initated its downfall in unprecedented national mobilization to achieve the departure of former Egyptian President Hosni Mubarak.
Work such as Baladi's, as well as that of the artists present at this conference, can draw attention to social problems, and critiques of governance, in a fresh light. As such, they contribute to our understanding of challenges for justice and the rule of law in a given context.
For this conference, at issue are both governance and failures thereof in Afghanistan and the region, and under international law. It becomes immediately clear that artists can enlarge what Keith Brown called “empathy work” in a discussion about militarization, the U.S., and Afghanistan. That panel drew attention to the striking disparity between the empathy work for US military forces and efforts in Afghanistan and the people of Afghanistan. As Shiva Balaghi also pointed out, representations of the war in Afghanistan, whether for or against it, tend to focus on the experiences of U.S. soldiers.
Artistic interventions can help to correct that disparity and perhaps enlarge the public sense of the costs of the war in terms of shedding light on the displacement and harm caused by the conflict for the people of Afghanistan, as powerfully expressed in Wazhmah Osman’s "Postcards from Tora Bora." Mariam Ghani's work, by attempting to record what has been destroyed by the conflict, of course also speaks to this central theme of displacement. The work of Elizabeth and Iftikhar Dadi, though more playful, also addresses the uprootedness of culture, and the ways in which identities are syncretic of multiple places.
Displacement and Social Death
Thinking about this theme of displacement put me in mind of Orlando Patterson’s influential work, Slavery and Social Death, which examines how the creation of the slave both results from and reinforces his social death. The slave is “violently uprooted, desocialized and depersonalized” in a process of “social negation.” [p.38, Orlando Patterson, Slavery and Social Death: A Comparative Study, 1982.]
This concept of social death might also help to name the experience of refugees and others displaced as a consequence of violent conflict. This transposition may be more than incidental – as Patterson points out, in antiquity persons displaced by war and conflict would typically have been enslaved by their victors, so that the figure of the slave is one of the captured enemy and the internalized outsider. [Id., p.41] In other words, displaced persons in contemporary conflicts are precisely those who may have been enslaved in prior eras.
Today, slavery is of course no longer an acceptable form of managing persons displaced by conflict. Yet even in the absence of subjugation by slavery that may have accompanied such displacement at one time, substantial harm arises from violent upheaval. Removal in such contexts results in the loss of an embedded context for people’s “actual located life-plans,” as Annie Stilz argues in a forthcoming work [p.20, Anna Stilz, "Territorial Occupancy and the Wrong of Removal," manuscript].
Following Arendt, the experience of stateless peoples thus reveals the extent to which social life still attaches to the state. [Hannah Arendt, "The Decline of the Nation-State and the End of the Rights of Man," in The Origins of Totalitarianism 267-304 (1968).] The devastation resulting from the loss of protection by a state reveals the thinness of international human rights law's ideal of a humanity transcendent of particular political orders, and the thickness of situated reality still dependent on institutions of the state. Despite the many ways in which human life does transcend and resist state boundaries, those boundaries continue to exert great influence over laws and institutions and the social resources they distribute.
If violent removal results in a form of social death for refugees and displaced persons, then memory and memorialization of the past can be seen as a reconstitution of civic identity and social meaning, an act of resistance against its erasure by conflict, a negation of the negation. If forgetting is equated to oblivion – and in the Greek “lethe” itself means forgetfulness or oblivion, alluding to the underworld river in Greek myth which, when crossed, would cause those who had died to forget their lives on earth – then remembering is a way to reclaim the self and to reject the social death that displacement creates both externally – through social depersonalization and marginalization – and internally – through the necessary adjustment and assimilation to new life in a new land.
Yet the work of these three artists is not only bittersweet. Humor slyly peeks out through this work, a life-affirming way of dealing with the absurd. This is perhaps most visible in Iftikhar Dadi’s exuberant pop-culture light-boxes, which also examine the ways in which identity is constructed through accretion of fragmented cultural juxtapositions and transpositions. Dadi’s work can also be seen as a challenge to the nation-state narrative, asking instead how people relate to particular localities, which can be positioned as municipal, national or transnational in multiple vectors of globalization. Humor also allows Dadi as well as the others to destabilize a purely victimizing narrative – to look for both resilience and complexity in the histories of people and places.
Yet should the power of narrative be uncritically embraced? This brought me to my third point, about the varying range and effects of artistic narrative in political contexts.
The Politics of Politicizing Narrative
Yesterday, Vazira Zamindar and Zubeda Jalalzai spoke rivetingly of the history of Western travel memoirs of which Three Cups of Tea is just the latest version. The story of travel writing in Afghanistan seems counterintuitive in that it contrasts with the more familiar style of encounter, described by Timothy Mitchell in Colonizing Egypt. Mitchell argues that the colonial encounter coincided in the West with the rise of modern concepts of objective knowledge. As a consequence, objective knowledge of a place became an essential tool in its conquest – hence the importance of the scholar in the colonial mission, as evidenced by Napoleon’s Savants who produced the Description d’Egypte, and so on. By contrast to these systematic data-gathering endeavors, the travel narratives of Westerners in Afghanistan point to a foregrounding of the subjective, highly personal account as a form of Western engagement with Afghanistan. In these texts, Zamindar and Jalalzai argue, Afghanistan figures as wild and eternally mysterious.
This juxtaposition may support the poststructuralist theoretical connection between knowledge and power. In this subtextual relationship, the Western failure to dominate Afghanistan – the way in which it is ungovernable – would equate to a failure to know Afghanistan. Rather than a failure of the observer / colonizer, which failure would undermine Western claims to hegemony, however, this failure to know would be attributed to a failure to be knowable. The wild, mysterious, rough and ungovernable essence of Afghanistan would explain its resistance to objective conquest through scientistic knowledge. All that would be possible would be fleeting romantic encounters. In sum, the romanticization and mystery of the travel narratives' Afghanistan reinforces an idea of its unknowability, which justifies and explains in turn its apparent ungovernability by the West.
If the subjectivity of memoir is the dominant form of Western representations of Afghanistan, then what becomes of the politics of representation? The subversive or counterhegemonic turn, which typically in poststructuralist theory insists on the decentering of knowledge and its inherent subjectivity, might in this case want to question the subjective personal lens. If that is true, however, then can artistic expression somehow be criticized as unwittingly reinforcing a dominant narrative of Afghanistan’s objective unknowability?
This question raises the broader, longstanding issue of whether artistic production can or should be pressed into service of a larger political goal. Yet the tension between art and politics is, I think, largely neutralized by the singularity of artistic vision. The artistic intervention is meant first and foremost to represent an individual perspective – not larger ontological claims about knowability but rather an interrogation of the world through the artist’s eyes. These kinds of artistic interventions can be distinguished from the Afghanistan travel narratives in that they call on us as viewers to continue to question and to interrogate. By insisting on that act of interrogation, and in provoking the viewer to do the same, the arts can contribute to a more engaged form of citizenship that is important for justice both at home and elsewhere.
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