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Thinking with Culture in Law and Development Buffalo Law Review Volume 57 Number 2 Article 4 4-1-2009 Thinking with Culture in Law and Development Amy J. Cohen The Ohio State University Moritz College of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Law and Society Commons Recommended Citation Amy J. Cohen, Thinking with Culture in Law and Development, 57 Buff. L. Rev. 511 (2009). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol57/iss2/4 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. Thinking with Culture in Law and Development AMY J. COHENt INTRODUCTION This Article considers a renewed emphasis on culture within law and development scholarship and practice- what I term the "turn to culture." In the 1980s and 1990s, rule-of-law projects, comprising a multi-billion dollar development effort devoted to strengthening legal institutions abroad, produced many disappointing results.' In the wake of sobering assessments of the effects of these t Assistant Professor of Law, The Ohio State University Moritz College of Law. I wish to thank Martha Chamallas, Ellen Deason, Garry Jenkins, Julieta Lemaitre, Lauren Leve, Michelle McKinley, Debby Merritt, Alvaro Santos, Marc Spindelman, Donald Tobin, and Annecoos Wiersema for engaging comments and conversation, and to thank Catherine Atkins for research assistance. This Article also benefited from airings in various forms at the "Global Law in Comparative Perspective" Conference at Harvard Law School in 2007, the Global Law Workshop at Duke Law School in 2008, the "After Empire" Conference at Brown University in 2008, the "New Perspectives on Law and Development" Conference at the Universidad de los Andes Faculty of Law in 2008, the Law & Society Conference in 2008, and the American Ethnological Society Conference in 2008. Finally, I am especially grateful to Peter Fitzpatrick for his written comments at a Law & Society panel, Genevieve Lakier for sharing her original and unpublished fieldwork, and Janet Halley and Ilana Gershon for their generosity and time. 1. Numerous legal scholars have documented the surge of rule-of-law promotion efforts by international aid agencies, government institutions, and philanthropic foundations, as well as their shortcomings in practice. See Bryant G. Garth, Building Strong and Independent Judiciaries Through the New Law and Development: Behind the Paradox of Consensus Programs and Perpetually Disappointing Results, 52 DEPAUL L. REV. 383 (2002); see also THOMAS CAROTHERS, AIDING DEMOCRACY ABROAD: THE LEARNING CURVE 163-65, 170-76 (1999); Thomas Carothers, The Rule of Law Revival, FOREIGN AFF., Mar.-Apr. 1998, at 95 (1998); Jacques deLisle, Lex Americana?: United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond, 20 U. PA. J. INT'L ECON. L. 179, 180-81 (1999). 512 BUFFALO LAW REVIEW [Vol. 5 7 projects, a number of committed law professors proposed turning away from the purely institutional or technical elements of rule-of-law promotion and towards an exploration of the cultural and ideological forces underpinning social change. More specifically, they invited law and development scholars and practitioners to consider whether changing local cultures could contribute to achieving development and the rule of law. In this Article, I assess what I call neocultural interventionist proposals to promote the rule of law,2 both in academic publications, and their growing uptake in development policy. 4 Neocultural interventionists argue that transplanted laws, rules, and institutions are unlikely to produce their intended social effects in divergent social contexts or, for that matter, to produce any effects at all. And they suggest changing the hearts and minds of ordinary people in order to make these institutional reforms more determinate and effective. They therefore aspire to contextualize what they aptly describe as flawed approaches to law reform-approaches that pay insufficient attention to the individual culture-bearers who are law's users. Both academic and programmatic versions of this project agree that development programs should inculcate a "rule of law culture" not only among legal elites but in the everyday users of the legal system: "culture" must change so that it perpetuates a readiness to turn to law and legal institutions for solutions to conflict, an expectation that law will be decisive, consistent, and fair, and a willingness to abide by legal outcomes even when they fall short of what 2. I use the term "neo" in neocultural to suggest that contemporary proposals for culture change interventions represent both a new form of law and development practice and a renewal of older approaches to development that associate transformations in individual consciousness with modernization and social change. See, e.g., Chantal Thomas, Max Weber, Talcott Parsons and the Sociology of Legal Reform: A Reassessment with Implications for Law and Development, 15 MINN. J. INT'L L. 383 (2006). 3. See JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS, CAN MIGHT MAKE RIGHTS? BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS 310-46 (2006); Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the "Rule of Law," 101 MICH. L. REV. 2275 (2003); Lan Cao, Culture Change, 47 VA J. INT'L L. 357 (2007); Jane Stromseth, Post-Conflict Rule of Law Building: The Need for a Multi-Layered, Synergistic Approach, 49 WM. & MARY L. REV. 1443, 1450-60 (2008); see also infra note 94. 4. See infra notes 95-100. 2009] THINKING WITH CULTURE 513 might be imagined possible through violence. Development professionals should, neocultural interventionists propose, install these ideas in ordinary individuals by directly teaching and promoting them. The predicted benefit is an increase in reliance on and compliance with the legal system. I do not challenge these development ideals. Instead, I question the particular conceptualizations of culture that underlie them, and I explore the potential consequences of deploying these conceptualizations of culture as the basis of new development projects. Neocultural interventionists first configure culture as a mental domain. They think that culture is the values and beliefs that individuals in the field have about law and development-I call this culture as consciousness. They presuppose that local culture, in this sense, may be indifferent to the rule of law, and that it can be changed by their interventions to be permeated by a rule-of-law consciousness. I suggest that this conceptualization of culture as consciousness can produce significant limitations and forms of misrecognition: it can encourage development professionals to diagnose various problems of failed law as problems of failed consciousness; to (mis)identify actual people as lacking adequate legal consciousness; and to envision a relatively straightforward relationship between changing consciousnesses and changing behavior, when the desires people articulate and the practices they enact are far more paradoxical, contradictory, and contentious than this analysis would allow. Neocultural interventionists also configure culture as a behavioral domain. They reason that conscious values and beliefs can produce a set of self-disciplining rules that shape individuals' behavior, their social relations, and their social practices in reasonably (although not uniformly) predictable ways. I call this culture as lawlike rules. Culture, in this second sense, is a grid of prescriptions guiding behavior. This imagines culture to be like law: culture is the set of lawlike rules that condition people to have respect for and comply with the rules of law themselves. I suggest this conceptualization of culture-constructed as the metalaw of law, if you will-is unlikely to remedy the indeterminacies and ineffectiveness of programs to promote the rule of law. Instead, it is likely to generate a new set of problems, or rather, revive old problems in new forms. 514 BUFFALO LAW REVIEW [Vol. 57 Anthropologists, who have long warned against using culture as a prescriptive tool of social change, are much more familiar with the limitations of both these conceptualizations of culture than lawyers. 5 And it is to anthropologists that I turn in this Article for help in articulating them. I ask here: what cautions do they offer, and how do their ethnographically grounded accounts of culture suggest that lawyers should approach culture change projects? As we shall see, ethnographic analyses of development challenges suggest that local populations may be highly receptive to law but put law to surprising uses directly contrary to the rule-of-law agenda; they can set law against itself; they can use obedience to law and the legitimacy it bestows to sharpen conflict, promote local unrest, and mobilize violent social struggles. To understand what any "turn to culture" actually may have to grapple with, it may therefore be useful to complicate considerably the neocultural interventionist's picture not only of culture but also of law. This Article, then, does not seek to pursue the familiar criticism of development interventions for imposing western 5. Many anthropologists have expressed caution about whether and how the concept of culture can
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