In her article, Culture Change, published in the Virginia Journal of International Law, Professor Lan Cao argues that scholars in law and development have failed to understand that law is peripheral, not central, to the development problem of poor countries. She maintains, controversially, that culture matters to law and development. Her corresponding proposal that culture be critically examined and evaluated runs counter to the tradition of public and private international law. She poses the key question that has thus far remained unasked by law and development scholars: after so many years of drafting new laws to spur development, why is the field still characterized by failure?
Part III of the Article is excerpted below. For the full Article, please click here.
At the risk of over generalizing, most law and development scholars come from an international law tradition that is, in the United States at least, part of a liberal framework of cosmopolitanism.104 Unlike the nationalist whose primary identification is with his or her nation, the cosmopolitan’s “allegiance is to the worldwide community of human beings.”105 The cosmopolitan tends to hold to a vision that accepts, even celebrates, the diversity of social and political systems in the world, taking pleasure in the existence and the products of peoples and places other than our own homes. Thus, what is distinctive about cosmopolitans is that we display our concern for our fellow humans without demanding of them that they become like ourselves.106
Law and development scholars steeped in the international cosmopolitan tradition are passionate about alleviating poverty in poor countries but reluctant to tinker with or condemn norms or cultural attributes that impede economic progress.
After Vietnam, as skepticism about American power and motives rose, so did “loss of faith in liberal legalism as a picture of United States society” or “doubts about the universality or desirability of the American experience.”107 Indeed, law and development scholars became vocal in their charges that the movement was ethnocentric and naïve,108 and as some adopted the perspective of the critical legal studies movement (CLS), denounced the liberal legal paradigm they had favored as “inherently problematic.”109
Thus, there are two strands in law and development: first, an international cosmopolitanism that celebrates cultural diversity and loathes to criticize or be perceived as criticizing any particular culture, and second, a CLS inclination that is both appropriately critical of the failed promises of the liberal law and development model and also devoid of practical alternatives. Add to this mix an awareness among these scholars of colonial history and the concomitant Orientalist tradition of defining the colonizing West as the privileged “self” against which the colonized Orient (or Third World), the “other,” is to be contrasted against and improved upon.110
For the West, the Orient, according to the noted scholar Edward Said, is not a geography but a European creation and Orientalism the “enormously systematic discipline by which European culture was able to manage, even produce, the Orient politically, sociologically, militarily, ideologically, scientifically, and imaginatively during the post-Enlightenment period.”111 Notable Western scholars have engaged in Orientalism, suggesting, for example, that the Orient (and its equivalent) is frozen in time and incapable of progress or change,112 whereas by implication the West is dynamic and progressive. For change to occur, the impetus must come from Europe, even if via the shock of colonial en-counter.113 Similar denunciations include the charge that the “Orient” (China in particular) is incomprehensible (or inscrutable),114 illogical and developmentally stunted,115 with “laws”116 that are equally static and unchangeable.117 Assuming modernization is even possible under those circumstances, it would have to culminate in a Europeanized one.118
Given the awareness among most law and development scholars of this history, it is no wonder that many are uncomfortable with the project they have embarked upon as privileged subjects, often Western-educated experts, working to develop or modernize the object of their project, the primitive Third World. Indeed, there may very well be a whiff of Orientalism in the very objectives and assumptions of law and development itself. Referring to China specifically, although his observations are equally applicable to other developing countries, the historian Paul Cohen noted that there is a tendency for the West to play “Beauty to China’s Beast, transforming by its kiss the torpor of centuries, releasing with its magical power the potential for ‘development’ that must otherwise remain forever locked up.”119
My proposal to go beyond law and modernizing law to culture and culture change will undoubtedly smack some of Orientalism. If even legal liberalism — instituting laws to support a liberal market society — may be suspect for some law and development scholars, then certainly “cultural liberalism” promoting cultural attributes that would facilitate the establishment of a liberal market society would be as well, or even more so.120
Indeed, until recently, even in disciplines other than international relations and international law, culture is irrelevant or marginalized: it can be described, compared, and appreciated, but not critically appraised. For example, culture is a non-issue in economics because economists generally believe that the right economic policy will produce the desired economic result without regard to culture. Moreover, culture is an un-comfortable realm for economists to operate in, perhaps because “it presents definitional problems, is difficult to quantify, and operates in a highly complex context with psychological, institutional, political, geo-graphic, and other factors.”121 By contrast, anthropologists study cultures but are often unwilling to evaluate cultural norms and practices of another society.122 As a noted sociologist observed, “In the humanities and liberal circles generally, a rigid orthodoxy now prevails that can be summarized as follows: Culture is a symbolic system to be interpreted, understood, discussed, delineated, respected, and celebrated as the distinctive product of a particular group of people, of equal worth with all other such products. But it should never be used to explain anything about the people who produced it.”123
Other reasons why cultural explanations may be disfavored in certain intellectual circles include concerns about cultural determinism,124 that is, relying on culture as an “overdetermining”125 factor, the possible misuse of culture “by reactionary analysts and public figures” as a way to “blame the victim”126 or to avoid examining structural causes of poverty,127 and the desire to promote cultural diversity and ethnic pride.128 Thus, the following statement is an accurate description of the ambiguous role ascribed to culture: “We all realize that before we resort to culture today to explain the differences in economic progress or political attitudes among nations and ethnic groups, we prefer to find other explanations.”129
Despite a general reluctance to study and appraise culture, increasingly, it is being recognized in one way or another as an important factor in economic development and in related areas.130 In fact, some have asserted that culture plays a primary role, “culture makes almost all the difference. Witness the enterprise of expatriate minorities—the Chinese in East and Southeast Asia, Indians in East Africa, Lebanese in West Africa, Jews and Calvinists throughout much of Europe, and on and on.”131 Others acknowledge the link between cultural influences and economic success132 even as they caution that a cultural exploration must be balanced and examined “within a broad framework,”133 so that we neither neglect culture nor privilege it “in stationary and isolated terms.”134
104. See Kennedy, supra note 77, at 23 (“International law in the United States after 1945 provided a congenial intellectual home for a large number of immigrants, among them European and Jewish refugees, whose American patriotism was cosmopolitan rather than jingoistic and who have been among the field’s strongest intellectual leaders.”); id. at 11 (“Legal internationalists in the United States for most of the last 50 years have linked their status to the reputational ups and downs of a broadly liberal cosmopolitanism….”); Slaughter Burley, supra note 96, at 585; see also supra notes 78–81 and accompanying text.
105. Martha C. Nussbaum, Patriotism and Cosmopolitanism, in FOR LOVE OF COUNTRY 4 (Joshua Cohen ed., 1996).
106. Kwame Anthony Appiah, The University in an Age of Globalization, Lecture at the Princeton-Oxford Conference on Globalization at Oxford University (June 2002), quoted in
Anne-Marie Slaughter Burley, The International Dimension of the Law School Curriculum, 22 PENN ST. INT’L L. REV. 417, 419 n.4 (2004).
107. Trubek & Galanter, supra note 10, at 1089.
108. Id. at 1080.
109. Id. at 1099. For a critique of this shift in law and development, see Brian Z. Tamanaha, Law and Development, 898 AM. J. INT’L L. 470, 474–75 (1995).
110. EDWARD SAID, ORIENTALISM (1978); see also Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 HARV. INT’L L.J. 201, 210 (2001) (describing the “impulse to universalize Eurocentric norms and values by repudiating, demonizing, and ‘othering’ that which is different and non-European”). Note that Orientalism is not limited to the “Orient” but extends to other locales as well. DIPESH CHAKRABARTY, PROVINCIALIZING EUROPE: POSTCOLONIAL THOUGHT AND HISTORICAL DIFFERENCE 27 (2000) (“‘Europe’ remains the sovereign, theoretical subject of all histories, including the ones we call ‘Indian,’ ‘Chinese,’ ‘Kenyan,’ and so on.”).
111. SAID, supra note 110, at 3. Note that although the United States usually equates East Asia (China, Japan, for example) with the “Orient,” Said’s use of the word “Orient” is derived from a European understanding of the word and thus focuses on the Middle East.
112. Hegel, for example, declared that: "Early do we see China advancing to the condition in which it is found at this day, for as the contrast between objective existence and subjective freedom of movement within it, is still wanting, every change is excluded, and the fixedness of character which recurs perpetually takes the place of what we should call the truly historical." GEORG WILHELM HEGEL, THE PHILOSOPHY OF HISTORY 116 (J. Sibree trans., Dover 1956). Weber too wrote that “Chinese intellectual life remained completely static, and despite seemingly favorable conditions modern capitalism simply did not appear.” MAX WEBER, THE RELIGION OF CHINA 55 (Hans H. Gerth trans., Free Press 1951). Marx made a similar observation about China: Its “isolation having come to a violent end by the medium of England, dissolution must follow as surely as that of any mummy carefully preserved in a hermetically sealed coffin, whenever it is brought into contact with the open air.” KARL MARX, MARX ON CHINA, 1853–1860: ARTICLES FROM THE NEW YORK DAILY TRIBUNE 4 (Dona Torr ed., 1951). Maine also described “the East” as static: in “those great and unexplored regions which we vaguely term the East…the distinction between the Present and the Past disappears.” HENRY SUMNER MAINE, VILLAGE COMMUNITIES IN THE EAST AND WEST 7 (John Murray, 2d ed. 1872). Nietzsche described China as a “country in which large-scale dissatisfaction and the capacity for change have become extinct centuries ago.” FRIEDRICH NIETZSCHE, THE GAY SCIENCE 99 (Walter Kaufmann trans., Random House 1974) (1887); see also Edward H. Parker, The Principles of Chinese Law and Equity, 22 L.Q. REV. 190, 209 (1906) (stating that China is nothing more than a “monotonous history”).
113. Karl Marx, The Future Results of British Rule in India, in THE MARX-ENGELS READER 659 (Robert C. Tucker ed., 1978) (describing the two functions of colonial rule, “one destructive, the other generating, the annihilation of old Asiatic society, and the lying of the material foundations of Western society in Asia”).
114. Foucault wrote the following of China: “at the other extremity of the earth we inhabit, a culture devoted entirely to the ordering of space, but one that does not distribute the multiplicity of existing things into any of the categories that make it possible for us to name, speak, and think.” MICHEL FOUCAULT, THE ORDER OF THINGS, at xix (1993). Hegel described China as “a dull half-conscious brooding spirit.” HEGEL, supra note 112, at 142.
115. WEBER, supra note 112, at 125 (charging that the Chinese writing system, by ideographic or pictorial representation, has led to unfortunate results: “The power of logos, of defining and reasoning, has not been accessible to the Chinese,” so that “[t]he very concept of logic [has] remained absolutely alien” to them.).
116. For an examination of how the West has characterized Chinese law as “not law,” see Teemu Ruskola, Legal Orientalism, 101 MICH. L. REV. 179 (2002).
117. Edward Harper Parker, Comparative Chinese Family Law, 8 CHINA REV. 67, 69 (1879) (stating that to study Chinese law is to study “a living past, and converse with fossil men”).
118. HEGEL, supra note 112, at 116 (“The history of the world travels from East to West, for Europe is absolutely the end of History, Asia the beginning.”).
119. PAUL A. COHEN, DISCOVERING HISTORY IN CHINA: AMERICAN HISTORICAL WRITINGS ON THE RECENT CHINESE PAST 151 (1984).
120. Promoting culture change may even be viewed as forcing Western culture on others while simultaneously denying that this is in fact the agenda. See RUTH BENEDICT, PATTERNS OF CULTURE 6 (1952) (The “world-wide…diffusion of [Western culture] has protected us as man had never been protected before from having to take seriously the civilizations of other peoples; it has given to our culture a massive universality that we have long ceased to account for historically, and which we read off rather as necessary and inevitable.”).
121. Lawrence E. Harrison, Introduction: Why Culture Matters, in CULTURE MATTERS, supra note 3, at xxv.
122. See, e.g., Richard A. Shweder, Moral Maps, “First World” Conceits, and the New Evangelists, in CULTURE MATTERS, supra note 3, at 160 (“[T]he assertion that ‘culture matters’ is a way of saying that some cultures are impoverished or backward, whereas others are enriched or advanced.”). In a similar vein, in 1947, the Executive Board of the American Anthropological Association declined to endorse the United Nations Universal Declaration of Human Rights be-cause it viewed the Declaration as ethnocentric. Huntington, supra note 69, at xxvi.
123. Orlando Patterson, Taking Culture Seriously: A Framework and an Afro-American Illustration, in CULTURE MATTERS, supra note 3, at 202–03.
124. Sen, supra note 5, at 46–50 (criticizing cultural comparisons between Ghana and South Korea as an example of cultural determinism because such comparisons often ignore other differences: class, politics, the educational system, the relationship Korea had with Japan and the United States, etc.); id. at 38 (criticizing the belief by some that “the fates of countries are effectively sealed by the nature of their respective cultures”) (emphasis in original).
125. Patterson, supra note 123, at 203. This means relying on a “simplistic or untenable conception of culture” and using it “in a crudely deterministic way” to explain certain groups’ problems, so that culture is viewed as “a fixed, explanatory black box invoked to explain anything and everything about the group.” Id. In contrast, Professor Sen favors a different approach, “[c]ultural interrelations within a broad framework,” in which “culture, seen in a dynamic and interactive way, is one important influence among many others.” Sen, supra note 5, at 52, 55.
126. Patterson, supra note 123, at 204. Professor Patterson rejects the argument that cultural explanations amount to blaming the victim. If a person who has low self-esteem and behaves in self-defeating ways as a result of having been abused is told by someone to go to a psychologist to seek therapy, “[i]t would be absurd to accuse that person of blaming the victim. Yet this is exactly what happens when a sympathetic analysis is condemned for even hinting that some Afro-American problems may be the tragic consequences of their cultural adaptation to an abusive past.” Id.
127. Id.; see also Rao & Walton, supra note 91, at 10.
128. Patterson, supra note 123, at 204.
129. Nathan Glazer, Disaggregating Culture, in CULTURE MATTERS, supra note 3, at 220.
130. Multi-country studies have revealed cultural or regional differences in rights observation. See Layna Mosley & Saika Uno, Racing to the Bottom or Climbing to the Top? Foreign Direct Investment and Human Rights, Paper Presented at the Annual Meeting of The American Political Science Association, Boston, Aug. 28–Sept. 1, 2002, http://apsaproceedings.cup.org/Site/ papers/045/045008WayLucan.pdf (finding a correlation between regions and labor rights, with the Asian and Pacific regions not as supportive of labor rights as Europe, though more protective than the Middle East, North Africa and Latin America). There is also a differentiation as to women’s rights, see Clair Apodaca, Measuring Women’s Economic and Social Rights Achievement, 20 HUM. RTS. Q. 139, 163–65 (1998) (showing that regional differences in women’s rights may be explained by “culturally specific attitudes towards women’s status, developed under differing historical and economic conditions.”); and rule of law and good governance, see Amir Licht et al., Culture Rules: The Foundations of Rule of Law and Other Norms of Governance (November 22, 2004) (showing linkage between culture and adherence to good governance norms, with cultures that emphasize individual autonomy and egalitarianism scoring better generally).
131. David Landes, Culture Makes Almost All the Difference, in CULTURE MATTERS, supra note 3, at 2. See generally DAVID S. LANDES, THE WEALTH AND POVERTY OF NATIONS (1999). I have elsewhere examined the market dominance of certain ethnic groups, some recent immigrants in the United States and other countries, and other historical “middlemen minorities” throughout the world. See Lan Cao, The Diaspora of Ethnic Economies: Beyond the Pale? 44 WM. & MARY L. REV. 1521 (2003); see also AMY CHUA, WORLD ON FIRE (2003) (describing the market dominance of ethnic minorities such as the Chinese in Southeast Asia, the Jews in Russia, and the Ibos in Africa). For a review of Chua’s book, see Lan Cao, The Ethnic Question in Law and Development, 102 MICH. L. REV. 1044 (2004).
132. Sen, supra note 5, at 40.
133. Id. at 52.
134. Id. Professor Sen warned against seeing culture as all-determining, cautioning that Max Weber had claimed that Confucianism did not promote rational instrumentalism and was unsuit-able for an industrial economy. Id. at 48.