The Rule of Law and Economic Development: Global Scripts, Vernacular Translations

• Author: Ritu Birla
• Pages: 399-416

The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.

© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.

Introduction

With their intrepid trajectories of finance and new itineraries of labor, contempo-

rary formations of capital have remapped the globe, producing new debates on the

meaning and practice of economic development. Now more than ever, law is at the

heart of these debates. Posed as both a tool and as the very ground for social and

economic transformation, the problem of law opens questions about development

as freedom and as conquest. Two overarching thematics have structured modern

law and economic development discourses, which can be dated back to the

nineteenth century. First, they have long been informed by a state‐versus‐market

distinction. From the perspective of legal scholars, the question was whether the law

should be perceived as a tool of government to proactively regulate the economy

(this instrumental approach has been deemed a “consequentialist” understanding of

law), or whether law is best respected in its majesty as a logic to be read on its own

terms (a “formalist” approach), as a framework which both buttresses and leaves

economy to its own workings (Duncan Kennedy 2006). At the same time, more

recent discussions on development, keen to attend to the contexts and value‐systems

of different societies, presuppose a distinction between economy and culture. Such

discourses ask: Does culture enable or disable economic development, and what role

do law and governance play in producing tensions between, or aligning, the two

realms (Birla 2009: 8)?

However, contemporary configurations of capital and labor call us to challenge

these often repeated binaries – state vs. market, economic modernization vs. cultural

preservation. The current conditions of globalization challenge the very coherence

of the concepts of state, economy and culture as they operate in development policy.

The Rule of Law and Economic

Development

Global Scripts, Vernacular Translations

Ritu Birla

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400 Ritu Birla

Governing, for example, can happen throug h non‐state actors, whether voluntary

civil society groups or drug smugglers, and the economy can consist of informal

networks (for example, among street vendors, bazaar merchants, and slum‐dwellers)

that are personalized and articulated in specific idioms and practices, and embedded

amid formal economic networks (Fafchamps 2006; Granovetter 1985). In such

circumstances, modern institutions work alongside and with what seem to be traces

of older, “traditional” worlds of social and economic organization. Formations like

these challenge the evolutionary logic and stage‐based temporizing of development

discourse itself (a classic of which is Rostow 1960): modernization has not meant t he

disappearance of forms of social and economic organization that preceded it. A law

and society approach is especially relevant for reading the globe and its many worlds

through such contexts. Law and society methods draw attent ion to the range of

meanings and practices of law, to the variety of normative orders, and so to the

translation from located contexts to universalizing, global systems of regulation

(Birla 2010a). In this spirit, this chapter is informed by a broad interest in reading

languages of law and economy, from global scripts to their vernacular translations.

This analysis first offers a basic genealogy of law and development discourse in

order to contextualize the shift from early “liberal legalism” projects to the more

current “rule of law and economic development” interventions. Charting the terms

of these shifting discourses, it emphasizes that these developmentalist narratives

presuppose a spatial and temporal center of global pro cesses – primarily the United

States – and so necessarily articulate a politics of global mapping. The ter rain of law

and development studies and of policy exposes the many (often overlapping) ways

in which the globe is imagined: from the bilateral globality of the Cold War and the

First and Third Worlds, to the post‐Fordist international division of labor, “the rise

of Asia,” and the integration of global financial markets. In order to consider the role

of law in defining what we understand as “global” as distinguished from what is

considered “local” (which can translate to peripheral, or less advanced, or indeed

anachronistic enough to be preserved as “heritage”), law and society approaches

must be attentive to the worlds that constitute any given version and narrative of the

globe (Spivak 2012).1

As I will highlight, scholars of law and development have charted a United

States‐centered genealogy from state‐based projects in the 1950s and 1960s to the

neoliberal “Washington Consensus” of the 1980s and 1990s, to more recent forms

of governance development that seek to address social and cultural concerns and

pose the rule of law as the very aim of development. Despite distinct differences in

the political theory and ideological ground of development projects – from state‐

based to market‐based models – law plays a key role across this extensive terrain.

Legal scholars have taken note of this common thread, specifying that law and

development projects have promoted distinct forms of law, most basically, state‐

based public law as opposed to private law directed at for tifying contracts (Trubek

and Santos 2006). But they have been less interested in thinking of law more

broadly, as a powerful script that maps the globe, societies and social relations

economically, as markets.