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. 

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.