71 Pages Posted: 7 Jun 2006
Date Written: June 2006
Since September 11, 2001, law and development - exporting markets and rule of law to developing and transitional countries - has become part of the official National Security Strategy of the United States.
Development not only has a powerful human rights component - countries that have reached a certain level of economic development are more likely to have a good human rights record. But in the post-September 11 world, development is also a national security issue, a crucial component in the fight against terrorism.
This effort is doomed to fail unless it addresses culture. But the standard law and development assistance menu remains intransigently law-centered, even though law is, I argue, peripheral, not central, to the development problem of poor countries. Yet, law and development scholars have not asked this question: after so many years of drafting laws and more laws, why is the field consistently characterized by failure?
Law and development must move beyond law and the technical dimensions of the rule of law. As slippery and complex a concept as culture may be and as controversial as the notion of culture change undoubtedly is, especially if externally influenced or induced, I argue that we must ask whether certain cultural attributes are an impediment to that society's economic development. Law and development must address even deeply embedded cultural practices and beliefs. Examples include specific practices: India's caste system, which not only violates human rights norms but is also economically inefficient; restrictions on education for girls; the prohibition on charging interest because it is an essential part of the Islamic way of life; personalistic and group-focused relationships and patterns of authority that discourage individual wealth accumulation, especially by those not from the ruling elites. There are others.
The Article examines how international law, public and private, has marginalized culture and argues that despite this history, law and development, which inherits the international law tradition, must actively engage culture issues when cultural lock-in is a contributing cause of continuing poverty. A significant portion of the Article responds to opposition that my proposal is likely to generate, primarily on cultural self-determination grounds. The rest of the Article explores culture change projects that are currently pursued as well as those that have historically been undertaken, for example, by Japan, in the 1800s to catch up with the West.
Some of the questions I explore include how culturally-based choices can be altered by governments, individuals, non-governmental organizations and development agencies; how the social meaning of an undesirable practice, refusing education for girls, for example, can be changed; the methods that may be useful, whether it be education, information, persuasion, coercion, or the provision of economic incentives; the institutional arrangements, such as public-private partnerships, that would accomplish the desired objectives.
Although law does have an expressive function and thus certain laws make certain statements which could in turn influence social norms and culture (for example, the passage of the civil rights laws in the United States had an influence on cultural norms between whites and African Americans), this capacity to affect preferences and beliefs through law is questionable in countries where the rule of law is itself weak. For those countries, I argue that law is insufficient and culture change will be needed. The Article contains both a normative defense of the proposal and a prescriptive framework in which culture change may be accomplished.
Keywords: development, culture, national security, economics, law
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