Friday, February 20, 2009

Kevin Davis on "Can Lawyers Change the World?"

A fortnight ago, on Tuesday 3rd February to be precise, Professor Kevin Davis of NYU gave his inaugural lecture as Beller Family Professor of Business Law, entitled “Law, Lawyers, and Global Development: Can Lawyers Change the World?”. The lecture is of real interest from a global administrative law perspective, for two important reasons. Firstly, Professor Davis himself is a central (if sometimes skeptical) figure within the project, a regular participant in the many workshops that NYU has sponsored in various parts of the world, and he will be leading a major research project within the IILJ on “Financing Development”, which will contain a significant GAL component. Secondly, and of more immediate importance to this particular post, the content of this fascinating lecture can be read as posing some key challenges to the desirability of the GAL project as a whole. A video of the lecture is now available here.

In this post, then, I want to begin by outlining the substance of Professor Davis’ talk, before going on to offer some critical reflections from a GAL perspective. The very first thing I want to do, however, is to extend my warmest congratulations to Professor Davis on his inauguration as Beller Family Professor of Business Law: I’m very much looking forward to his contributions – to the global administrative law project in particular – over the coming months and years, in the field of development finance and beyond; they will, I have no doubt, be of the very highest – and constructively provocative – quality.

Law and lawyers: good or bad for development?
Davis set the scene with a few observations about the desirability of lawyers for economic development, noting that some economists have, in the past, even argued that there is a negative correlation between the number of lawyers in a country and its level of development. In opposition to this, he sketched what is by now by far the majority view – that legal institutions, and the lawyers that man them, can and do make a positive difference in encouraging economic development. He was also keen to stress, however, that there are two different arguments concerning the positive difference that lawyers can make: one at the “retail” level, in which lawyers assist on a case-by-case, client-by-client basis; and the other at the “wholesale” level, in which lawyers can bring about broader, systemic change in legal orders in an effort to secure the conditions necessary for economic development and growth. This second argument he traces back to the Nobel prize-winning economist Douglass North for his work on linking the rise of Western Europe to the institution of effective regimes of property rights and contract enforcement. (We could perhaps go back even further, however; claims of this sort seem central to Marxist thought, and something very similar to this argument – albeit, perhaps, expressed in a different vocabulary – had already been worked through in 1924 by the Soviet legal theorist Evgeny Pashukanis, in his book on The General Theory of Law and Marxism). These different levels of optimism about the potential role of lawyers assumes some significance later on.

Davis accepted the basic thrust of this position – that law and lawyers can have a positive impact upon development – but immediately looked to problematise a claim that, to him, many accept far too easily as a corollary: the idea that there is thus a universal, “one size fits all” template for the “effective” legal/judicial system, and that this simply needs to be transplanted into whichever country in the world is experiencing developmental difficulties for these to vanish. The bulk of the rest of the lecture was devoted to criticizing three different “universalist approaches” – in terms, however, that were clearly intended to move beyond the examples he gave and apply to all “one size fits all” legal reform projects. One point that did link each of the approaches that Davis discussed here, however, is that they all rely, to some degree, on empirical, social scientific data collection and “measurement” in making their claim to be desirable templates for universal law reform; the extent to which this might impact upon his conclusions is something to which I will return briefly below.

Davis suggested three main obstacles or objections to any universalist approach to global legal reform. The first is the normative claim that different people, different societies have radically divergent values, and that the law can be calibrated in different ways in order to further different goals. The first objection, then, is that universalist endeavours simply ignore value pluralism. Secondly, Davis pointed to the importance of local substitutes for what are (perceived to be) important legal reforms, meaning that scarce resources might be better applied elsewhere. Lastly, he also signaled the crucial role that certain complements can play – elements that may, if not present in the target society, actually function to undermine the goals that the reforms in question were intended to further.

Three universalist approaches
Davis then went on to outline, and critique, three different “universalist’ law reform positions that have been suggested recently. The first, and least sophisticated, of these was what he referred to as the “common law” approach: the claim, based upon “the work of a very prominent group of economists at a number of Ivy League schools who have written a very influential, widely-cited set of papers that they summarized in a recent survey article this year”, that countries that adopt a common law system score better on many of the key indices of development (such as levels of investor protection, lower government regulation, less corruption, better labour markets and judicial systems, etc.) than did their civil law counterparts. This is then used in support of proposals for pretty wholesale systemic reforms.

To this, Davis opposed his three-pronged critical apparatus. The normative problem is that this approach is massively reductive in terms of radical differences over what societies want, and what developmental ends a legal system should further (he also pointed out, interestingly, that despite these intermediate findings, the works that he outlined previously had been unable to find evidence of a causal connection between the common law and levels of economic development itself). More fundamentally, he also noted that there may be some “intrinsic” ends that societies feel a civil law system furthers that are external – and superior – to its ability to promote development or otherwise. As an example of this, he discussed recent movements in the Caribbean to renounce the jurisdiction of the UK Privy Council, and instead to establish some form of Caribbean Court of Justice for hearing final appeals from courts in the region – despite the fact that the Privy Council brings with it all of the experience and expertise of one of the oldest common law jurisdictions in the world. This was summed up in the view of one commentator in terms of “self government being better than good government”. (Davis suggested that this is “paradoxical”, although I’m not entirely sure I see why. Certainly, if we accept the plausible proposition that self government and good government are two independent but valid normative goals, then any apparent paradox disappears – it is simply a statement of relative weighting).

The common law-fits-all approach also fails in terms of substitutes and complements. On the former, Davis notes simply that, even if there is a causal link between development and the common law, then many developed civil law countries have clearly found more than adequate causal substitutes. As to complements, Davis simply points out that, given the crucial role of judges in the common law system, transplanting it to any country that does not have the key complement of an independent and effective judiciary is likely to be profoundly counter-productive.

The second of the universalist approaches that Davis discussed was that offered by the World Bank’s Doing Business project (which made explicit use of the “one-size-fits-all” claim). That project involved an extremely broad data collection exercise in which the ease with which certain key economic transactions (property transfers, debt collection, etc.) could be conducted. Countries were then ranked along these lines, and encouraged to improve their positions in the relevant rankings. These rankings could then play a role in funding decisions of the Bank and other organizations, and as such can have a real impact.

Despite taking a more sophisticated, “functional” approach, Davis argued that this also fell foul of his three objections. Firstly, it is quite clear that (very) reasonable people might disagree with many of the Banks assertions as to what is desirable in a legal system (Davis took, as one example among many, the Bank’s belief that secured creditors should be able to enforce their rights as easily as possible, and take precedence over all others). As to substitutes, Davis told the story of a Ugandan lawyer’s reaction to the Bank’s finding that it took 30 days to set up a business in her country. This was certainly true in terms of formal rules; however, the informal network of lawyers was dense enough that, in almost all cases, it was unlikely to take more than 2-3 days wherever a local lawyer was involved. This, he argued, meant that there was a workable, informal solution that meant that scarce development resources would be better targeted elsewhere. Lastly, on the issue of necessary complements, Davis talked of the US in Afghanistan, and their “success” in reducing the time needed to start a business to 9 days. However, to actually become operational, it still took over a year, as all of the corruption had simply been shifted to the licensing phase. Thus, without the complement of an effective licensing system, the initial reform was effectively empty.

Lastly, Davis turned to what he termed a “procedural” universalist approach, although this was more based on a particular social science methodology than what we normally think of as proceduralism from a legal perspective (again, a point to which I will return below). This is the argument that no legal reform should be implemented without a fully controlled and randomised trial, of the same sort used for drugs (this is the example in which the social science slant of Davis’ choices, although present in all three, is most readily prominent). So, for any proposed reform in any given society, a controlled experiment should be run on a proportion of the relevant actors in that society before it can be legitimately extended to the society as a whole, and the results measured and evaluated in an objective manner.

Leaving aside the technical issues involved (e.g. is it even possible to “control” an experiment of this sort to the degree necessary?), Davis argued that this approach again fails to overcome his three hurdles. Firstly, although it doesn’t predetermine any substantive outcome, but rather a procedure to be followed, there are still normative concerns. For example, what are the ethics of using those in the treatment group as guinea pigs, particularly if those guinea pigs fear it may harm them? In terms of the other two obstacles, Davis argued that there may be more cost-effective ways of testing the proposed reform than through experiments of this type; particularly as, given the difficulties involved in designing, running and interpreting the results of such experiments, a crucial complement is to have a community of experts capable of doing so.

On the basis of the foregoing, Davis drew two conclusions – one pessimistic, and the other more optimistic (if fairly heavily circumscribed). The former is that “one-size-fits-all” approaches to law reform have to be abandoned; the universalist approaches simply cannot respond adequately to the three contextualist objections that he raised. Rather, solutions to problems have to be tailored to the context in which they are to be applied, meaning that, in his own words, “most of us in this room have relatively little to offer, at least in our capacity as lawyers, to the poor countries of the world because we know our own system”. So what, if anything, can lawyers do? In essence, what Davis is (relatively) optimistic about is their capacity to assist in a support role: helping to ensure that those with knowledge of the local conditions have the expertise (e.g. through information sharing) and the voice to bring about the required changes and to ensure those in power act in good faith. Lastly, he recalled the importance of working simply one case at a time, one client at a time – even if this only means encouraging clients to take contextual issues into consideration.

Some critical reflections
One of the questions posed to Professor Davis at the end of his lecture concerned just how far he intended his “contextualist” argument to apply: whether it was limited to the three – fairly controversial – examples of “one-size-fits-all” global norm generation that he had directly addressed, or whether instead it was a more general argument, applicable with equal force to, for example, the normative activity of the UN (be it in terms of treaties, standards, model laws, etc.). Davis’ response surprised me, at least:

I think I’m actually a pretty radical contextualist, so I would intend to cover those dimensions... Logicially, the argument would extend to any effort to have the same laws – and especially the same words – applied to every country; and so, if the claim is that that’s the best you can do for those countries, then I think that... that can’t be right. Now, if you’re saying as a pragmatic matter that this is the only way to achieve any sort of reform, that might be a different story... But if you want to argue that that’s going to generate good law, then I think that’s going to be a difficult argument to sustain. There’s also going to be a question of the legitimacy of these global actors, and the legitimacy of the products of their activities, when typically developing countries have a lot of trouble participating in those fora, having their voices heard. There aren’t many fora that matter, I don’t think, in which developing countries are happy with the amount of voice that they have... so I’m not particularly comfortable with the one-size-fits-all solutions that emanate from bodies other than the World Bank [either].

It is in many ways difficult to imagine a broader attack on the normative bases of the global administrative law project than that offered in this short passage. Crucially, it casts doubt on both “coordinates” of the project (which – in my view – are interacting dialectically in order to produce the whole). To recap this argument very briefly, we have seen empirical GAL scholarship split along two lines: those that examine the administrative law of global administrative bodies (the extranational coordinate, focusing on global subjects); and those that study the existence of global administrative law norms for national administrative actors (the domestic coordinate, focusing on global sources). In his response to the questioner, Davis effectively called into question both of these.

Firstly, his response to this particular question means that the entire lecture can be read as an attack on the desirability of global administrative law’s domestic coordinate (or, in the terms suggested in the original framing paper, on the element of “distributed administration” in global administrative law), which is largely about the development and implementation of a one-size-fits all set of administrative law rules that can be applied from sector to sector. The clearest example of this is perhaps the Aarhus Convention on environmental decision-making; however, it is in many ways the driving logic behind this entire section of the field, and can be witnessed in some of the administrative law provisions of the WTO agreements, in some of the pronouncements of the WTO’s Appellate Body, and also in much of the administrative law-type normative output of global administrative bodies themselves.

This tripartite distinction between the different global sources of GAL – treaties, judicial decisions and global administrative norm generation – is also important in the light of the second claim that Davis made pertaining to the legitimacy of the global processes that generate the one-size-fits-all proposals that he criticizes. The key question is, to what extent can increasing the legitimacy of the global source serve to overcome Davis’ contextualist objections? Might it be argued, for example, that treaties remain legitimate global sources of domestic administrative law given the required state mediation by an act of national ratification? Or that a legitimate global court might legitimately develop standards in this field? Is the function of Davis second point above – concerning the participation of developing countries in global administrative bodies – to undermine the power of the first, “radically contextualist” one? If so, we might suggest that the extranational coordinate of GAL – which aims precisely to increase voice and decrease disregard of marginalized interests in such bodies – could function to rescue the legitimacy of the domestic coordinate in a pleasingly circular fashion. All we need to do is increase accountability of and participation in these bodies and their one-size-fits-all approach to domestic administrative law reforms becomes legitimate.

Pleasing though this is, and plausible to an extent, I suspect that Professor Davis would find it a far from satisfying conclusion, for a number of different reasons. Firstly, it would only even purport to overcome the “normative” element of his objections; those relating to substitutes and complements would still remain. Secondly, there would be (very) plausible grounds to argue that often the acts of governments do not approximate particularly well to the collective will or values of those they purport to represent. The playing field of international politics cannot be levelled simply by a requirement of national ratification, or by the introduction of a formal right of participation or two; and this doesn’t even speak to the important issues of corruption or capture by vested interests. Thirdly, to accept this point would be to undermine what I took to be the central argument that Davis was making: that good solutions (in both normative and effectiveness terms) to concrete governance problems must of necessity reflect the particular circumstances and context in which they have arisen.

What hope for justifying global administrative law in this context? Here, I want to make a single tentative suggestion: that it is when faced with Davis three sets of contextualist objections – relating to the importance of values, substitutes and complements – that global administrative law distinguishes itself from all other “global law” projects. I can’t develop this in any real detail here, but I would go about forming a GAL-defence to Davis’ concerns along the following lines:

1) GAL (much like Davis’ “experimental” variant of universalism) does not seek to predetermine substantive outcomes, but focuses rather on the procedures by which such outcomes are obtained. Unlike that experimentalism, however, GAL is not limited to a particular type of scientific procedure (although, as I have argued elsewhere, there is no reason why it cannot be calibrated also to that end); to the contrary, it can be used to secure the conditions in which marginalized voices can be heard, and genuine local will-formation, genuinely reflecting local values, becomes possible.

2) This means, in turn, that we may be able to defend GAL (in the abstract at least – I’m talking here of potential, how this will cash out in any given context is of course a matter of real concern, to be contested anew in each new situation) as representing a universal (or at least universalisable) set of substitutes and complements; or, at least, in the case of the former, providing the conditions within which we can be relatively sure that the local substitutes that exist do not degenerate from informal workaround into institutionalised corruption

I suspect that my second claim here might benefit from a little further clarification and elaboration. Put simply, I am (tentatively) suggesting that, at its best, GAL in the domestic coordinate (that is, “one-size-fits-all” rules on accountability, transparency and participation for particular sectors of domestic administrative activity) can help to create the conditions in which 1) local, contextual will formation, that reflects more than simply the interests of the dominant local players, might be possible; 2) effective local particularities can be supported largely as is, while ate the same time reducing the possibility that they themselves will simply reflect, or come to reflect, local power relations; and 3) we can begin to reconcile a genuine concern for radically divergent values with the ever-present risk of mistaking local domination for local culture. To take some of the examples relied upon by Davis himself: an effective set of administrative law complements relating to transparency and accountability would have overcome the difficulty faced in Afghanistan, in which a successful reform simply relocated corruption to a different stage in the process of starting up a business; and – as one questioner suggested at the end of the lecture – a set of procedural guarantees would also ensure that access to the informal network of lawyers in Uganda that represented the local substitute there would be available to all on equal terms, and would be less open to other forms of patronage or abuse.

I want to conclude, however, with two more general – if related – reflections on Professor Davis’ lecture. The first relates to his choice of the three “universalist” approaches for discussion. As I noted above, all three are striking for their “scientific” bias – the idea that the governance of human affairs is something that can be properly universalized not because we all share the same values, but because “good governance” is in some sense objectively verifiable and quantifiable. While Davis presents these as “influential”, however (and they undoubtedly are so from an economics perspective), within the discipline of international law they appear, to me at least, to be fairly marginal positions (the exception here may be the World Bank’s “doing business” index, which has some real governance bite, but even that does not reflect the mainstream of international legal scholarship). The reason for this, I suspect, is that all three approaches are premised upon two basic assumptions that have few adherents amongst international lawyers: firstly, that they most important elements of human governance are in principle quantifiable (although this is a proposition that may be gaining some ground); and secondly, that “good governance” (of the particular type they identify) is in some sense objective – that is, it stands beyond local values as a universal good. In this sense, it is not surprising that Davis is able to level persuasive contextual normative concerns at each, as they are premised upon a theory that simply (and to my mind unpersuasively) rejects the relevance of values to their own approach. In this regard, his normative concerns, to some degree at least, risk talking past, rather than speaking to, the fundamentals of each approach.

Related to this, and on a more philosophical note, is my second concern. By attacking only these – what we might term “objective universalist” – one-size-fits-all approaches, there is a sense in which Davis makes his own task a little easier than it might otherwise have been. For while his contextualist (relativist) concerns seem to undermine the whole approach of each of his three examples (largely because they are based upon a different set of theoretical premises), their effect is much less radically destructive to some other global law approaches – as I think he implicitly recognized by including his second set of considerations, relating to the legitimacy of global bodies as currently constituted, in his response to the question on the broader applicability of his critique to, say, UN lawmaking. The implication being that, as suggested above, a more legitimate global body would make more legitimate – universal – laws.

When we move to these less extreme examples of global norms to be universally applied within domestic settings (less extreme in that they are not premised upon the neutrality, apoliticality or objectivity of their own claims), we begin to see that the debate is not properly one of universality versus contextualism, but rather – as always – of where to draw the line in any particular case. Only the crudest of normative relativists even attempt to claim that all localism everywhere must be respected in their entirety (and in my view lapse into philosophical incoherence in the attempt to do so); and very few today subscribe to the (in some ways) opposite position – that there is one normatively correct way of doing things, and that we know what it is. I suspect that Professor Davis, despite his claims of radical contextualism, would not fall into the former category: that is, I suspect that he would not argue that every and any local custom must be accepted (and indeed implicitly encouraged) by local law reforms. It is interesting to note in this regard Davis’ response to the question regarding the risk that informal workarounds become simple opportunities for corruption and abuse: he argued that it is for local communities to decide how much corruption in public authorities is tolerable. Quite apart from the practical difficulties of operationalising such a claim (how can the feedback mechanisms of a deeply corrupt political system be trusted to give an accurate account of local feeling?), I wonder just how far he would be prepared to push this: should a donor country or institution really – for normative reasons – have no say whatsoever in whether money goes to corrupt officials or not?

All of this speaks, to my mind, of the rhetorical (broadly conceived) limitations of framing an issue as complex as this in terms of a debate between universalism v. contextualism, or even generalism v. particularism. In practice, particularly since the advent of human rights, (almost) everybody accepts that there is the need for both universal and contextual norms, for the general and the particular: the debate is only really ever over the best balance of these things in any given context; and the criticism is not that something is “universal” per se, but rather that it is not contextual enough. Answering these questions, however, requires a set of argumentative resources that simply are not provided – at all – by the rhetorical framework of the universal/ contextual dichotomy. In this sense, the arguments offered by Davis cannot serve, beyond the three examples he uses (and others, if similarly-premised), to debunk all attempts at “one-size-fits-all” lawmaking. Rather, they provide us with one – extremely useful – half of a way of articulating the problems faced by attempts to formulate legitimate “global” law of this sort; problems that the global administrative law project itself – perhaps uniquely – provides significant resources for addressing.

Professor Davis was kind enough to clarify for me his point about the phrase "self-government is better than good government" being paradoxical: has taken me a while to realize why I might have been the only person in the room who found the statement 'self government is better than good government' so intriguing. It is basically because I have an idiosyncratic interpretation of the term 'good government.' It stems from the fact that in Canadian constitutional parlance 'peace, order and good government' is often characterized more like an ideal than as a merely 'good' form of government. [Here is a Wikipedia entry that may give you a sense of what I had in mind] Consequently, I read the statement to mean something like 'self government is better than ideal government.' This may not quite qualify as a paradox, but it is a bit more interesting than the assertion that 'self government is better than ok government.' I should add, however, that upon reflection I am unsure whether even the author of the statement shared my understanding of the term "good government."

1 comment:

Personal Injury Attorney Houston said...

Yes, lawyers can really change the world, at least the legal system.