The Limits of Law and Development

Neoliberalism, Governance and Social Justice

Sam Adelman, Abdul Paliwala, Sam Adelman, Abdul Paliwala

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781351403788
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The book examines the well-established field of 'law and development' and asks whether the concept of development and discourses on law and development have outlived their usefulness.

The contributors ask whether instead of these amorphous and contested concepts we should focus upon social injustices such as patriarchy, impoverishment, human rights violations, the exploitation of indigenous peoples, and global heating? If we abandoned the idea of development, would we end up adopting another, equally problematic term to replace a concept which, for all its flaws, serves as a commonly understood shorthand? The contributors analyse the links between conventional academic approaches to law and development, neoliberal governance and activism through historical and contemporary case studies.

The book will be of interest to students and scholars of development, international law, international economic law, governance and politics and international relations.

Part I

Theoretical perspectives on development and law

Chapter 1

Beyond law and development?

Sam Adelman and Abdul Paliwala

Introduction

‘Or alternatively, is it the case that development really did die, but there was no funeral and no burial … and from the rotting corpse all kinds of pests are currently crawling?’ (Esteva et al., 2013: vi) We live in a period of multiple crises. Promises to alleviate poverty – for example in the Millennium Development Goals – remain distant while the gap between rich and poor within and between states continues to widen (Brian, 2015; Pogge, 2002). The postwar liberal international order based upon human rights, democracy and the rule of law is under sustained attack from authoritarian, nationalist and populist regimes in the global North and South.¹ Digitalisation is abused to implement surveillance societies by states and social media companies, while automation and artificial intelligence (AI) threaten millions of jobs worldwide (Lyon, 2001; Morozov, 2012; Zuboff, 2019; Ragnedda, 2017). Ecological destruction, global heating and biodiversity loss in the Sixth Great Extinction pose existential threats to all species (Kolbert, 2014; Chapter 3, this volume). These trends call into question the relevance of existing discourses on law and development² in the context of these crises. The title of this volume and its forthcoming companion imply a need to move beyond law and development, not least because of the profound challenges posed in the Anthropocene (Chapter 3, this volume). Law and development discourses have been subjected to thoroughgoing critiques since they emerged in conjunction after the Second World War – most notably in David Trubek and Marc Galanter’s anguished ‘Scholars in Self-Estrangement’ (1974). Progressive critiques have focused on the depredations of growth, extraction, industrialisation and modernisation and the ways in which the Bretton Woods financial and economic institutions have sought to ameliorate the negative impacts of development through ‘human’ and ‘sustainable’ development, and the capabilities approach. These shifts have persistently failed to address the structural inequalities in the global framework resulting from colonisation of development by the development industry: the international financial institutions (IFIs)³ and other global development institutions, non-governmental development organisations, aid agencies, transnational corporations, private lenders, and global markets (Korten, 2015). Progressive critics have challenged the idea of development itself and called for alternatives such as postdevelopment or alternatives to development.

This chapter considers the underlying problems in successive hegemonic development discourses and critically examines alternative forms of and alternatives to development and postdevelopment. We suggest that law and development concepts and discourses – orthodox, reformist or critical – create a risk of shifting our gaze away from concrete social injustices because they are preoccupied with models of development, institutions and economic and political factors such as growth and governance. For this reason, we argue that new imaginaries that focus on harms and injustices are required.

Four key themes

Any new imaginary must engage with the interconnected, underlying concerns that have characterised successive dominant development discourses. First, there is a need to confront the historical political, economic and discursive domination of the global North forged under colonialism and imperialism. Despite the emergence of formally equal sovereign states following decolonisation, Northern domination was perpetuated through its control of international political and economic institutions and global markets (Hoogvelt, 2001) until coming under challenge from rising powers such as China and India towards the end of the 20th century. Second, there is a need to overturn teleological Eurocentric ideas of progress, the concomitant notion that Western modernity prefigures the future of the global South, and the fetishisation of economic growth at the expense of ecological sustainability. Third, private property and possessive individualism exercise a powerful hold on development discourses and legal systems across the globe despite challenges from relational feminist and subaltern perspectives in the global South. Fourth, we need to explain and challenge the continuing hegemony of neoliberal globalisation since the last quarter of the 20th century despite the destruction it has wrought in North and South. Neoliberalism is symbolised by homo economicus: the putative profit-seeking, efficiency-maximising rational actor whose counterparts are the abstract legal subject (apotheosised in the corporate form) and the Anthropos capable of altering the geology of the planet. All these factors are under challenge, but they continue to frame development discourses incapable of resolving the multiple overlapping crises confronting humanity.

Northern domination

Colonisation denied sovereignty and self-determination in order to facilitate exploitation, expropriation and oppression. The conferment of formal sovereignty under postcolonialism was accompanied by different forms of subordination to Western hegemonic states, global markets and the international economic institutions, and the dogmas of neoliberal globalisation (Quijano, 2007; Anghie, 2005). Development discourses usually prescribe how states ought to develop while brushing over enduring constraints arising from their colonial or imperial histories. ‘Sovereign’ postcolonial states were made responsible for their development on terms dictated by the global North through skewed international law and the changing conditionalities of the WTO, IMF, the World Bank and a myriad other institutions controlled by the North. The ostensibly participatory language of the World Bank’s erstwhile Poverty Reduction Strategy Papers and its current Country Partnership Frameworks or the OECD Paris Declaration on Aid Effectiveness (2005) camouflage their intimate disciplinary and biopolitical controls (Tan, 2011). Yet the very complexity of these disciplinary demands makes them practically difficult to implement and may enable authoritarian illiberal and corrupt regimes to obviate them (Craig and Porter, 2006: 158). McCourt’s (2018) study of Sri Lanka and Cote d’Ivoire suggests that only lip-service is paid to countries’ priorities. Furthermore, the IFI’s fear of poor governance is used to limit state power by promoting direct engagement by civil society organisations in governance mechanisms (Eichenauer and Reinsberg, 2017). A different but equally problematic idea of development underpins China’s development aid and its Belt and Road strategy. While it constitutes an enormously impressive counterbalance to Northern aid approaches, especially in not requiring conditionalities, it subordinates human rights and the rule of law and provides a template for authoritarian regimes from Zimbabwe to Sudan and Myanmar (Biukovic, 2014; Naim, 2007; Strange et al., 2017).

Growth, progress, modernity and ecological catastrophe

Development conceived as progress through economic growth became a Western doxa when development was discovered after the Second World War and viewed as the only way to reduce poverty and promote social justice and nation-building (Escobar, 1995/2012: 24). Hegemonic ideas of progress and modernisation underpinned extractive, growth-driven development, which was extremely uneven and heedless of the negative impacts of environmental degradation on the material conditions required for all economic activity (Sachs, 2010; Raworth, 2017; Chapter 3, this volume). These flaws are replicated in the contemporary manifestation of developmental hegemony, the oxymoronic concept of sustainable development and the Sustainable Development Goals in 2015 (Adelman, 2018). As we argue below, the so-called Global Goals are old wine in new, green, neoliberal bottles when radical transformation is required to avert ecological catastrophe.

Individualism versus relationality

From colonialism to neoliberalism, Western developmentalism has privileged possessive individualism in the form of the rational economic man or entrepreneur (Duffield, 2008). It has drawn negative contrasts with traditionalism, communitarianism, collectivism and socialism, which ineluctably lead to economic failure and explain the relative success of Northern countries (Inglehart and Oyserman, 2004). Furthermore, it emphasised connected notions of rigid rights of property and contract. In contrast, neoliberal dominance has been attacked by discourses inspired by gender justice, subalternism and indigenous cultural values which emphasise the ethics of relationality, interdependence and care (Held, 2006; Gudynas, 2013; Tronto, 1993). Relationality places emphasis on fluid shaping and re-shaping of human practices through reciprocal relations between and among individuals and groups rather than through rigid rights and identities (Bourdieu and Wacquant, 1992: 224–35). Care adds an ethical dimension to relationality by suggesting that people inter-relate with one another, and their environment in a complex ‘caring’ life-sustaining web to live as well as possible (Tronto, 2013: 103). A further dimension is added to this by group rights and activities in which durable cooperative institutions are organised and governed by the resource users themselves (Ostrom, 1990).

The contradictions intrinsic to development were reflected in the protection by Britain of women in the Raj against practices such as suttee immolation while entrenching patriarchal domination (Loomba, 1993). Since the 1980s, development initiatives have emphasised women’s rights but remain two-faced. Women’s rights and participation in society, politics and the economy are promoted but their anchoring in neoliberal ideology means that there is no overall reduction in gender injustices. Southern women have opposed simple transplantations of Northern liberal feminism in asserting that the intersection between global and local patriarchal relations produces distinct forms of oppression in the global South. This chimes with feminist critiques of individualist socio-economic relations at the expense of alternative ethics of relationality and care (Robinson, 2011; Stewart, 2011).

A further challenge to Northern law and development discourses is directed at its wilful ignorance, orientalisation and misrepresentation of Southern subaltern voices characterised by Boaventura de Sousa Santos (2007) as ‘abyssal thinking’ and by Walter Mignolo (2012: ix) as ‘monoculture of the mind’. Enrique Dussel (2003: 47) calls for a ‘philosophy of liberation’ as a counter-discourse, ‘a critical philosophy born in the periphery (from the perspective of victims, the excluded), which has the intention of being relevant on a global scale’.

Peter Fitzpatrick (1992) exposed the othering of non-European laws and customs through denial, denigration and the invention of the uncivilised, indolent native that underpinned the myth of civilised modern Western law, paradoxically through the denial of law to the savage, particularly property law, enabling European colonisers to expropriate their lands while placing the right to property at the centre of international law (Anghie, 2005). Law and development discourses have perpetuated these Northern epistemologies by insisting that the South must adopt Western institutions of law and justice as preconditions for development. Repeated failures have led to declarations of death of Northern development approaches, which nevertheless persist in zombie forms (Gudynas, 2013; Tamanaha, 2011).

In the colonies, the unfettered export of grain led to disasters such as the 16 million deaths in successive famines in India between 1875 and 1914 (Co...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of contributors
• Preface
• Introduction
• Part I Theoretical perspectives on development and law
• Part II The academy and social activism
• Part III Global governance and justice
• Index