Comparative dimensions of law and development.

Author:Chodosh, Hiram E.
Position:Law and Development: Problems, Perspectives, and Prospects - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

Beyond the precise relationship of law and development as distinctive and interdependent social phenomena, an investigation of how best to achieve development through law is profoundly comparative. Reform interventions carry two, often implicit, comparative dimensions. First, reforms are inspired by perceptions of success elsewhere (legal models in more "developed" societies). Second, reforms presuppose a comparison of the status quo and (with the help of the designed intervention) a different (more "developed") future. When examined more closely, the comparisons embedded in reform may not fully grasp the complexity of the social phenomena they describe and seek to alter. Explication of the implicit causalities--key institutional features and legal provisions that create a just society--is more conveniently avoided, but not without consequence. The failure to explicate comparisons in reform serves to discourage, if not entirely prevent, accountability for the consequences of the proposals.

The modest thesis here posits that disappointment with law and development reforms may be in part attributable to frequently implicit and flimsy comparisons across national experience and time. I will illustrate the comparative challenges by confronting the common apples/ oranges objection and identifying some key features of helpful comparisons. Second, I will outline the common ways in which weak comparisons limit the success of reform interventions, including poor empirical understanding, inarticulate aims and institutional and behavioral theories, and an under-appreciation of the dilemmas that reformers face at every turn. Finally, I briefly conclude that greater attention to comparative methodology (including anti-dilemma strategies) might help to improve our efforts to understand and improve upon efforts in law and development.

CONFRONTING THE APPLES/ORANGES OBJECTION

In justice reform, law and development and more general reflections on the success or failure of nation-states, skeptics often express resistance to a posited comparison with the retort: "that is apples and oranges!" As I have pointed out elsewhere, this response implies, first, that apples and oranges are incomparable, and, second, that the incomparability of apples and oranges is itself comparable to the incomparability of the two objects in the primary comparison. The reasoning carries three weaknesses.

First, the reasoning is paradoxical because the conclusion that two objects are...

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