The Politics of Rule of Law Reform: From Delegation to Autonomy

Abstract

How can we understand the delegation of power and authority-for example, from a polity to an administrator-in a world of fragmented governance? In this paper, I introduce the practices of contemporary 'rule of law' and 'governance' reform, which reframe this question in politically powerful ways. These practices are increasingly important in development contexts, and beyond. Practitioners begin with the assumption that some sort of administration occurs in the development contexts in which they work. They then focus on how to convene a political community in which to embed-and potentially legitimate-that administration. They thereby reconfigure the question of delegation into one of autonomy-or managing the extent to and ways in which the administrative legal system self-produces. In doing so, I argue that contemporary rule of law practitioners wield constitutional power under the rubric of workaday administrative reform. At the same time, they efface their political accountability.

Law and the political stakes of global crises: Lessons from development practice for a coronavirus world

“…Thus, for legal experimenters, the act of administering is practical. Experimenters build political alliances among social groups to support that act (Desai, 2020).…”

“…In legal experimentation, the view of the law is administrative. Law's autonomy from politics must be continually negotiated (Desai, 2020). The legal experiment is entangled with the specificity of the development problem, as well as the specificity of the legally plural environment.…”

Law and Politics of Rule of Law Performances

“…Rules do not emerge through the exercise of authority (or vice versa); rather, in displacing and effacing their own normative authority, rule of law reformers transform constitutional questions regarding the principles and rules for politics, and the identity of the polity they relate to and emerge from, into the epiphenomena of their ongoing practices. 27 This is a version of law as a product of continual encounters between jurisgenerative groups -but as an ongoing open-ended performance rather than a jurisdictional account of encounters between existing laws. 28 Here, law denies its own domain, constantly renegotiating the boundaries between law and politics.…”

Expert Ignorance

“…For example, a literature on ignorance studies synthesises classic strands of sociology and social theory, which foreground the importance of ignorance for contemporary social and political life, critically assessing the limits of knowledge and expertise in modernity. 38 Chief precursors include Frankfurt School scholars' critique of the will to knowledge as structuring modern society, as well as Beck's analysis of how late capitalism has internalised the limits of knowledge as 'risk', among others. 39 'Ignorance studies' develops this tradition by focusing on the production and circulation of ignorance and meaninglessness as autonomous phenomena, rather than as objects understood through their relationship to knowledge.…”

“…37 They critique each other's sloppy empirical work: they might dismiss it for its lack of contextuality or particularity; however, they might 2.5 disordering rule of law reform also critique its lack of external validity and potential to produce reforms that scale up. 38 They can move between the rule of law as universal and particular, such that any position might be expressed as lacking the other.…”