2 - Ignorance and the Practice of Rule of Law Reform

Summary

This chapter presents the field of rule of law reform as the context for the study of expert ignorance. It argues that, for some rule of law experts, the rule of law is underdetermined in a radical way. Analysing the scholarly and practitioner literature on rule of law reform, it shows that this position is meaningfully widespread in the field. It contrasts this view with that prevailing in the literature on rule of law reform, which imagines that rule of law experts seek to derive their authority from their knowledge about how to do rule of law reform, leading to effects like the poor transplantation of laws and institutions. I also introduce some of the stylistic and methodological problems this question raises and point to my responses: fictionalised and plurivocal reflections on my rule of law reform work. This entails a particular form of authorial presence that reflects who I understand a rule of law reformer to be – someone who can tell enough of a story to bring the reader along while fragmenting, shifting, and making fragile the story, the author, and her authority.

O gracious duke,

Harp not on that, nor do not banish reason

For inequality; but let your reason serve

To make the truth appear where it seems hid,

And hide the false seems true.

—Measure for Measure, V. i. 73–77

2.1 Introduction: Thomasistic Critique

In 2011, Chantal Thomas published an article in the Cornell Law Review entitled ‘Law and Neoclassical Economic Development in Theory and Practice: Toward an Institutionalist Critique of Institutionalism’.¹ The article traces the evolution of thought and practices about law’s role in economic development from the post-war period to the neoliberal moment. In particular, Thomas traces the rise and fall of old and new economic institutionalism in development thinking (or the move from ‘modernization to neoclassicism’),² the ideas about law embedded in each paradigm, and the practices of legal and institutional reform the paradigms engendered (the basis for her ‘institutionalist’ critique of the work of the World Bank and European Bank for Reconstruction and Development).

Methodologically, the article is a series of thoughtful analyses of a variety of texts, with a heavy emphasis on scholarly writing about development, a secondary emphasis on International Financial Institutions’ (IFIs’) accounts of themselves, and a tertiary use of grey literature.³ Together, these analyses produce a plausible account of a particular contemporary conceptual articulation of rule of law reform (new institutional economics (NIE)-inflected), an account of its historical evolution, and a slightly thinner account of its deployment in a particular form of contemporary practice.

Its contribution is rich. It argues that the NIE went hand-in-hand with the emergence of the Washington Consensus (unlike late-1990s critiques of the Consensus, which argued that it did not have a robust account of institutions)⁴ and that the policy turn in the 1990s to a ‘governance’ agenda, heavy on anti-corruption rhetoric and measures, marked the consolidation rather than the revision of the Consensus.⁵ In Thomas’ telling, efforts to articulate a ‘post-Washington Consensus’ based on the insight that ‘institutions matter’ – and thus ‘context matters’ – are not ‘post-’ at all. They are really ways of reinforcing the neoclassical view of development in their attenuated understanding of what constitutes institutions and contexts. Development agencies, despite their efforts to move beyond one-size-fits-all and transplantation-based modes of legal and institutional reform, are stuck reproducing those same old ways of working. In a neat move, Thomas turns an institutionalist way of thinking back on the World Bank. She suggests that the Bank cannot renovate its ways of doing reform because of information and bargaining asymmetries between different factions at the Bank, and a prevailing set of neoclassical mental models among staff that the Bank is not well-equipped to shift.⁶

In this chapter, I use it for slightly different purposes than its exposition of the logics of institutional reform. It stands for a concise and effective example of a dominant genre of critical writing on rule of law reform. And in this chapter, I argue that this genre, for all its diversity, rests on a common trope of the rule of law expert: she tries to produce more or less authoritative maps of and interpretive frameworks for the rule of law in order to guide action. I go on to show the limits of this genre. Using the example of rule of law reform at the World Bank, I show how these studies cannot account for reformers’ efforts to unmake, and not just make, meaning out of the rule of law. Furthermore, reformers’ ability to deny that they know what the rule of law is and how to do it – whether mere rhetoric or not – has effects. I show that reformers defang and co-opt critique while shaping how the World Bank talks about, organises, and funds rule of law reform.

I go on to offer some initial steps towards constructing an alternative critical position on rule of law reform that takes these efforts to deny the rule of law’s form and content as the key problem to be explained. I then close the chapter with some reflections on the importance of form and style when writing about this sort of expert as a means of introducing the subsequent chapters of the book that describe rule of law reform work as expert ignorance.

2.2 Genres of Critique of Rule of Law Reform

I begin with what I am calling a dominant genre of critical writing on rule of law reform. It begins with the idea that reformers have a particular vision of the relationship between knowledge and action that entails, in some way (global, universal) knowledge disciplining (local, particular) action. Thus, rule of law reforms and reformers tend to imagine the object of reform as ‘lacking’ the rule of law or as marked by ‘deficit and dysfunction’.⁷ The dominant genre goes on to argue that this lack or deficit is articulated by reformers’ efforts to measure the laws and institutions of a place against a normative-technical standard.

The next step in the story is to uncover that standard through a study of reform and reformers. The standard is understood in the context of broader critiques of development, including its linear epistemologies biased towards universalising knowledge, embedded in institutions that are concerned with best practices, project time cycles, and risk and political aversion; all of these are in some ways related to histories of colonialism and modernisation.⁸ Alternatives that scholars propose to this putative mainstream tend to embrace epistemological complexity, alternative modes of claim-making, and nuanced sociological realities of development practitioners.

These scholarly accounts run the gamut from ideology critique, to anthropologies of development, to sociologies of knowledge. Clearly, they differ. Yet they all share a commitment to a particular view of expertise: that expert work involves producing authoritative maps and/or interpretive frameworks about the world that then guide action. Whether expert authority masks ideological priors, theoretical commitments, socio-political power, or the micro-politics of actor networks, scholars try to take the context of authority into account. Whether expert authority has effects through its (distorted) representation of the world or its performative production of it, scholars’ interventions consist of showing how expertise makes its map meet the terrain.

I do not offer a full survey here of the critical literatures with which I am engaging. Table 2.1 offers a brief typology of some that I have most frequently encountered in work on rule of law reform. The typology indicates the ‘contextual analytic’, or background assumption, through which the scholar pinpoints the conditions of possibility or nature of reformers’ structure and agency; the methods by which the scholar uncovers the specific context of the reformer; the politics of reform; and the agents of reform in their account. Of the six I identify, ‘critical discourse’, ‘social organisation’, and ‘practices’ are the most common methods by which I have found scholars depict the social production of expert authority.

Table 2.1 Generic characteristics of some different contemporary modes of critiquing rule of law reform

Knowledge and action are a product of … (contextual analytic)	Evidence, data	Ideas, ideology, imagination	Discourse, assertion, argument	Social and institutional organisation	Practice(s), action(s)	Charisma
The task of the critic is … (method of articulating context)	Critiquing methods, data adequacy	Sensitive and informed reading	Discourse analysis; genealogy; mapping of argument and assertion through time; etc.	Sociological analysis of organisation of knowledge and/or experts, and their historical and material conditions (e.g. Empire)	Observing specific practices and their immediate effects in constituting knowable objects and relating them to other things	Knowing the charismatic power-holder (biography, sycophancy, etc.)
Reform happens by … (giving effect to the contextual analytic)	Inductive refinement of the rule of law as a social-scientific concept	Encounters between ideas	Diffusion; expert struggle; etc.	Changes in the underlying material or sociopolitical dynamics of experts or knowledge	Translation, circulation, practices of assembly, performative acts, etc.	Acts of will
The agents who relate knowledge and action are … (agent of reform)	Empirically inclined researchers	Anyone who can shift ideas	Discourse; the winners of arguments or assertions; etc.	Socially authorised or legitimate experts; expertise	Anything within the network, participating in the production of the object, etc.	Charismatic actors

Source: Author

Common across all these avenues of critique is the assumed ‘thinginess’⁹ of, or ontological stability of knowledge and action about, the rule of law: the notion that the rule of law is capable of existing as a cohesive project or plan that can then be mapped, interpreted, translated, or deviated from. To be sure, Thomas and others recognise the flexibility of definitions of the rule of law, but in their argument, that flexibility is part of the work of producing the rule of law’s thinginess. It provides some politically charged ambiguity of knowledge, and discretion of action, about the rule of law that can be instrumentalised for good or ill by different actors.¹⁰ But at the end of the day, that ambiguity is circumscribed by – and indeed might enrol people into – the very real backstage forces that set the horizons of knowledge and action, producing rule of law reform efforts. If the rule of law does not seem like a ‘thing’ at first glance – for example, if it appears to be a muddle or ‘hodge-podge’¹¹ – it is the scholar’s task to take more of the reform’s context into account until she can explain how that muddle is actually a series of things – ideas, networks, social or bureaucratic struggles, and so on.

***

I think that the genre of critique I map above overstates its case. Reformers are not necessarily constructive or authoritative. And insofar as the rule of law is an object of development policymaking, it is less determined than this genre suggests, in important ways. For this reason, in this manuscript, I do not offer a definition of what constitutes rule of law reform and then explore what lies beneath it. Nor do I offer a looser definition of rule of law reform such that I have a starting point to explore the specifics of how it comes to be an object in the world. I focus instead on how rule of law reform might be understood as more or less ‘thingy’ or plastic, not simply by studying how the rule of law is assembled or composed but by studying what reformers claim to (not) know and actually (not) do about the rule of law.

In this section, I examine texts by rule of law reformers about their enterprise. I point out that many reformers continually remark on the indeterminacy of what they know and do about the rule of law – even as they then go on to try to reconstruct a relationship between knowledge and action. I subsequently consider counterpoints to my interpretation and suggest that a more robust critique of rule of law reform might be founded on a study of reforms and reformers who see the rule of law as highly plastic.

But let us begin not by reading texts, but in medias res: my first day at the World Bank, in 2009.¹²

Soft shards filter through the glass ceiling of the World Bank’s sterile atrium. I cannot shake a persistent, low-level narcissistic excitement that someone here read my piece on local communities and mining companies and wanted to know more. I am somewhat displeased at my own pleasure. My master’s thesis had traipsed from inbox to inbox until it ended up on the screen of Jackie Campbell,¹³ a Counsel in the World Bank’s Legal Department who worked on rule of law reform. She emailed me, asking about my work on the impacts of mining on indigenous groups, and my critique of the fondness of development agencies and human rights practitioners for legal formalism. I was surprised by her curiosity and apparent openness to my critique.

I suggested meeting up, thinking that it would be pleasant to talk about my own work – and of course, because I would soon need a job. But I also went with some scepticism. During university, I had been armed with ideas about development planners – lawyers in particular – as technocratic, apolitical, and neoliberal. At the same time, I had been taught to be savvy. Thanks to Alvaro Santos, I was sensitive to the idea that World Bank rule of law people – like Jackie – were not technocratic cyphers. They knew that they were really doing political work and used different definitions of the rule of law to fight strategically with each other in support of their particular ends.

I planned to be open to what Jackie had to say; I also planned to hold onto a bit of anthropological reserve. At the very least, I could gain a bit of insight into who these World Bank rule of law people were, and leave the conversation with some intellectual trophies pilfered from the belly of the beast to bring back to my master’s professors.

Jackie proved to be a bespectacled Canadian. She shook my hand and bought me a tea. We sat down to chat at a once-white Bakelite table. She spoke in hushed words, slowly drumming her fingers. We exchanged pleasantries and background notes and then discussed what interested her about her work. We moved on.

She is excited about my research. She tells me how she shares similar ideas, in particular how law has its limits. At the World Bank, she tries to channel some money to mitigate the social impacts of mining. She is wary of lawyers and economists in other departments of the Bank – in the name of working on the rule of law and justice, they draft policies and documents in consultation with experts, politicians, and local civil society groups. These documents promote legal institutions that support the rights of women and the marginalised, environmental protection, and property rights. They also have almost no bearing on local realities in the places where she worked. She wants to ‘knock law off its pedestal’. Local power and politics are everything – for only on that basis could one work out and try to tackle some of the power imbalances between mining companies and communities. Her fingers beat an up-tempo, staccato rhythm.

Jackie’s work involves trying to build a convincing evidence base about local lives to undermine best practices about law and legal institutions. I am surprised – even thrown off balance. There is something heady and seductive about a department within the World Bank thoughtfully pushing back against its excesses, injecting a politicised counterweight into its neoliberal technocracy. By the end of the hour, she mentions a live project she is managing. She is looking to get the right person on board to do some upcoming research and to express in a clear and simple fashion some of the critical ideas we have just been discussing.¹⁴

During that meeting, for Jackie, law was politics, and the rule of law was local realities. The rule of law was not a policy or body of knowledge to be (imperfectly) implemented. It expressed how she and her colleagues chose to engage with the intense political battles between development experts over the institutions that govern people’s lives. The rule of law dissolved into a set of present and future skirmishes rather than any particular view held by reformers on the rule of law itself.

2.3 The Anxious Rule of Law Reformer

This view is far from unusual among rule of law reformers. However, it is often expressed as a set of anxieties on their part about the viability of their own enterprise. Take Kratochwil’s lament about the difficulties of even studying rule of law ‘professionals’:

The initial bewilderment caused by this brief historical reflection [on the meaning of the rule of law] has some methodological implications. It casts doubt on the viability of our usual means of clarifying the meaning of concepts, that is of ascertaining to which events, objects or actions this term ‘refers.’¹⁵

For Kratochwil, we cannot work out who we are studying or what they are doing because both the scholar and professional are shrouded in conceptual confusion.

This idea finds echoes in Thomas Carothers’ famous lament for rule of law reform, its coherence, and its aspirations: ‘[The rule of law] is not a field if one considers a requirement for such a designation to include a well-grounded rationale, a clear understanding of the essential problem, a proven analytic method, and an understanding of results achieved’.¹⁶ Or take Brian Tamanaha, another grandee of law and development studies:

Many who write on law and development appear to consider it a ‘field.’… Conceiving of law and development as a field, I will argue, is a conceptual mistake that perpetuates confusion. The multitude of countries around the world targeted for law and development projects differ radically from one another. No uniquely unifying basis exists upon which to construct a ‘field’; there is no way to draw conceptual boundaries to delimit it.¹⁷

For Perry-Kessaris, the challenge is not the absence of conceptual clarity but of the formal organisation or rule of law – or law and development – people:

[D]o we – practitioners and academics at the intersection of law and development – have an ABC, an index or a map for our field? If we do, it has not yet, to my knowledge, been articulated. We address the same well-trodden paths, circling around issues such as the rule of law … But we do not have a systematic way of classifying our discussions [citation omitted] … Might we not be more effective if we were better organised?¹⁸

For Kleinfeld, writing a serious enough review of rule of law reform to be named one of Foreign Affairs’ best foreign policy books of 2012, the problem is epistemological: ‘the field of rule-of-law reform has remained in conceptual infancy, unaware of its own history, and as the saying goes, bound to repeat it’.¹⁹

These authors, exploring rule of law reform in practice, are at best ambivalent about the thinginess of the rule of law. The rule of law cannot be a set of formal policies to be implemented if no one knows what it is or how to do it. In their overviews of rule of law reform, these authors suggest that the content of rule of law reform is vacuous and that the form is marked by ‘the absence of a shared … set of reference points’.²⁰

In turn, a veritable cottage industry of dirges has sprung up, decrying the inadequacies of reform efforts while remarking on the persistent allure of building the rule of law. By contrast, some, deploying the same diagnosis of indeterminate content and inadequate form, see that diagnosis as a marker of the success and potential sophistication of rule of law reform. In inaugurating The Hague Journal on the Rule of Law, the first journal dedicated to the rule of law and rule of law reform, Randall Peerenboom argued:

As the field has expanded, so have definitions of rule of law and the normative goals that rule of law is supposed to serve[…] It is time to give up the quest for a consensus definition or conception of rule of law and to accept that it is used by many different actors in different ways for different purposes. But rather than seeing this as a disadvantage, we should turn this into an advantage by using the different definitions and ways of measuring rule of law to shed light on more specific questions.²¹

This approach is reminiscent of Jackie’s desire to knock law off its pedestal and instead focus on the concrete realities of local power and politics through the language of law.

This contextual plasticity of rule of law reform and its reformers can be seen in programmatic form in policy work from the World Bank. Take the Bank’s flagship World Development Report (WDR) from 2017. WDRs are supposed to set research agendas for the Bank and other development institutions, spark friendly and critical commentary from academics, and solidify ideologies that development agencies then operationalise. The WDR 2017 focuses on governance and law.²² It builds an account of the rule of law that has power as its core problematic: how law can constitute, enable, and constrain the exercise of power in ways conducive to some vision of development. Per the report, law is little more than ‘a device that provides a particular language, structure, and formality for ordering’ power.²³

In its final chapter, ‘International Influence: Governance in an Interconnected World’, the Report refuses to articulate a vision of how knowledge and action – or policy and implementation – are organised and rule-bound in ways that would generate a vision of the rule of law in practice.²⁴ As the title suggests, the chapter engages with the role of global actors in producing and shaping power. Their role manifests in what might otherwise appear to be self-contained local or national bargaining processes that decide what policies should be implemented. ‘[I]nternational actors enter directly into the policy arena … Foreign states, multinational corporations, development agencies, or transnational [NGOs] can gain a seat at the domestic bargaining table … [or] shape the arena in which policy making and contestation occur by creating alternative spaces in which actors can bargain’.²⁵ However, it also points out that ‘[t]ransnational networks of technical experts can play an important role in changing preferences and internalizing new norms through the diffusion of evidence and authoritative expertise’.²⁶ The rule of law, then, becomes little more than a way of talking about concrete power arrangements in concrete contexts, in ways that incorporate the power effects of global experts themselves.²⁷ The WDR 2017 thus does not stabilise, or give form or content to, the rule of law. Programmatically, the rule of law entails ever-more detailed ways of expressing where and how power arrangements might produce, and be managed by, norms and rules – including the role of experts in producing them.

The upshot for critics, I argue, is twofold. First, the rule of law, as an object, project, or programme of reform, is less determined than scholars might think. The rule of law could instead be understood as a suspended set of debates over what the rule of law is, embedded in a way of talking and thinking about power. Second, and as a result of the first, it may be plausible to argue that in certain circumstances rule of law reformers imagine the rule of law as ‘thingy’ – and that reformers’ self-denying words are merely rhetorical. But reformers now talk about their reform in such a way that moments of overdetermination may reflect a (misguided, or perhaps strategic) intervention in specific power arrangements in a specific reform context, rather than a statement of policy to be implemented, or a set of ideas about the rule of law that emerges out of commonalities in practice.²⁸ Money and projects do not necessarily proceed from an idea about what the rule of law is – whether clear or a hodge-podge. Rather, they proceed alongside its suspension.

2.4 Counterpoints

There are four counterpoints to my account above. The first two are methodological. First, documents such as a WDR – and the litany of reflections that remark on the plasticity of rule of law reform – represent an increasingly sophisticated rhetorical device that shows a surface-level self-awareness on the part of rule of law reformers about their overdetermined practice. A strong version of this critique would argue that such rhetoric changes very little in terms of what reformers do. It simply serves to justify their actions, inoculate them against critiques, and distract others from hidden background structures of domination.²⁹ A more nuanced version would argue that the rhetoric is a manifestation of a doubled structure to their expertise; for example, experts recognise the limits, or even the indeterminacy, or their own expertise, even as they continue to use and inhabit it. In both views, the scholarly or critical task would be to dig ever deeper into the vocabulary, ideas, social worlds, and practices of reformers, using a range of methodological strategies to come up with reality behind the surface. For the strong critic, the purpose would be to debunk the rhetoric. For the nuanced critic, the purpose would be to explain how deep the doubt goes, from where the commitment to act comes, and so on.

The second critique is similar: I have developed the same flaw as the critics, relying overly on text and not enough on practices. In this view, reformers’ efforts to write about the plasticity of what they do are well-intentioned and perhaps even reformist. Yet in practice, rule of law reform adheres to patterns, routines, frameworks and best practices. After all, reformers don’t just act at random – they must continue in these patterns for a reason.

I respond in more detail to these two counterpoints in my later methodological and stylistic discussions. For now, I want to argue that studies of rule of law reform should not assume that there must be some ‘there’ there, behind reformers’ denials of the form and content of reforms, as long as one looks hard enough. I am suggesting that scholars should not begin with the question of whether reformers’ self-critique is rhetorical or meaningful. Reformers should instead be understood as producing shared conditions of ignorance about what the rule of law is – and thus who rule of law experts are, whether to take them seriously and why. Neither I nor they are arguing that the rule of law can be absolutely anything at all; however, I am suggesting that we should examine the effects of the argument that it might, on the structures of expertise that it produces, and the worldly effects it generates.

Moreover, as already noted and detailed further below, rule of law reformers have internalised how to make allegations of their own bad faith, hopeless faith, or charity, themselves. This form of enquiry thus not only asks the wrong questions but also in doing so contributes to the reproduction of that which the scholar seeks to hold up to scrutiny. I am arguing that scholars should instead begin by trying to understand the effects of reformers’ capacity for radical self-critique.

The third and fourth counterpoints are contextual. Third, rule of law reformers’ articulation of their work as highly plastic may be a recent phenomenon. Thomas’ critique may have been an apt summary of NIE-inflected law and development thinking for its time, after which the phenomena I observe take place. I discuss the temporality of rule of law reformers’ self-denial in Chapter 6. However, literature expressing anxiety about the lack of content or organisation to rule of law reform goes back at least to the early 2000s, while Peerenboom’s claim that self-denial is a feature and not a bug of rule of law reformers’ expertise was made back in 2009.

Fourth, my account of rule of law reform is not mutually exclusive to critics’ accounts of rule of law reform. They can exist side-by-side, with some reformers seized of the thinginess of the rule of law and others its plasticity. This is the tack taken by several contemporary studies of rule of law reform at both the practical and conceptual levels.³⁰ They argue that reformers concerned with plasticity are part of a broader social, practical, or intellectual collective of rule of law reformers. Some reformers in particular institutional or practical milieus adopt a professional position marked by their belief in the plasticity of the rule of law, just as other rule of law reformers believe that rule of law reform is a matter of transitional justice, or a check on arbitrary power, or legal empowerment programmes, and so on. In this view, over time, and through interactions between reformers, some loose consensuses about the rule of law will emerge, evolve, and adapt.

On the face of it, the fourth counterpoint is subject to similar methodological challenges to the first two counterpoints: to know the universe of rule of law reformers, the scholar must take some view on what the rule of law and its expert are. However, I believe that a version of this counterpoint is promising. We might adopt a partial gaze, examining rule of law reform from the perspective of self-denying reformers, mapping their relationship with other reformers, and capturing how their effects on rule of law reform and development more broadly.

2.5 Disordering Rule of Law Reform

How might we instead understand rule of law reform through self-denying reformers? I reconstruct the critical dimensions of Thomas’ argument and scrutinise her moves from the perspective of these reformers. I then argue that those moves are already part of the professional existence and identity of rule of law reformers – they help reformers move between universal and particular understandings of the form and content of their expertise. This movement, and its effects on rule of law reforms as well as on development more broadly, are politically salient objects of study.

As noted, Thomas articulates for the reader the incoherence of the rule of law as imagined by the World Bank and other IFIs. She implies that this incoherence is functional, masking the real operations of a set of neoclassical ideas about institutions, which she argues have a strong, if not immediately apparent, hold on the relationship between theory and practice:

For those progressively-minded proponents of ‘the social’ in the more recent, Sen-inflected development reforms, […] such goals end up being incorporated in only a superficial way. [T]heoretical incoherence leads to programmatic incoherence which, due to its low testability, further entrenches theoretical incoherence[…] This variety in theoretical perspectives is not just an academic question; it also leads to different policy and programming choices.³¹

Thomas accuses rule of law reformers of creating incoherence through sloppiness, which serves to muddy the waters of reform without diverting the neoclassical stream. They suffer from sloppy thinking, as evinced by their poor and eclectic engagement with theory (for which Thomas points to Santos’ characterisation of rule of law thinking at the Bank as a ‘hodge-podge’ on the one hand, and to the NIE’s fetishisation of property rights protection on the other).³² They suffer from sloppy scholarship, overloading their conceptual frameworks through reliance on just one or two sources: ‘[Two key papers on law and development at the Bank] ultimately base the assertion of the causal relationship between institutional quality and economic output on a single study published by the American Economic Review in 2001’.³³ And they suffer from sloppy empirics: ‘One potential empirical weakness [of these key papers] lies in the soundness of the data and therefore of the asserted correlation. Specifically, the data are based entirely on surveys and therefore on subjective perceptions … This methodology opens up the possibility that preconceptions and biases regarding different levels of corruption in different countries or regions will simply become self-reinforcing’.³⁴

These critiques are not new to rule of law reformers. Indeed, they critique each other’s sloppy thinking and scholarship. Thomas refers to the World Bank’s Doing Business reports and the stream of legal origins literature as examples of reformers’ poor theory (and poor scholarship). So too did then-Bank economists Hallward-Driemeier and Pritchett, in the same year as Thomas.³⁵ More generally, as noted above, reformers can talk about the whole enterprise of rule of law reform as marked by radical under-conceptualisation as well as overly assertive heuristics. Reformers can critique those who talk about the rule of law in terms of text and discourse for being inattentive to practice and its sociology,³⁶ and vice versa.³⁷ They critique each other’s sloppy empirical work: they might dismiss it for its lack of contextuality or particularity; however, they might 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.

The point is not simply to offer a criticism of Thomas’ efforts; rather, it is to reiterate that a view of rule of law reform as constituted by this enduring movement between universal and particular is in tension with critical takes on rule of law reform such as hers. These takes use a contextual analytic to stabilise how the particular and universal are linked – from node to network, or idea to ideology, and so on. The contextual analytic may be broadened or made more labile (say, through the use of fuzzy sets or inhabiting a role as insider-outsider). For example, in studies of other expert-produced phenomena, such as security, anaemia, and atherosclerosis, science studies scholars have suggested that their objects of study are more than one (i.e., not universal), but fewer than many (i.e., not simply an agglomeration of particularities).³⁹ Experts’ practices and speech acts constitute these phenomena and make them hang together dynamically through time, as an assemblage, a network, an attitude, and so on. The content of the phenomenon emerges from the form that the accumulated practices take.

In rule of law reform, however, both the form and the content of reform and reformers are subject to the movement between the many and the one. Take efforts to recruit rule of law reformers. One of the functions of recruitment documents is to expediently state what a rule of law reformer is – the agency she has and the structures and strictures within which she works. A recruiter for the European Union noted the following:

Sometimes I don’t understand what rule of law connection the position has, and sometimes they want a rule of law/Human Rights/gender person; sometimes they just put so much in the job description—like if they try to fit everything in … For some missions and actors, rule of law is only the police, so they always look for police officers.⁴⁰

For those providing the job description, in the first instance by putting ‘so much in’ it, they produce and rely on a capacious idea of the rule of law. This gives them a great deal of discretion in hiring. In the second instance, they provide a narrow definition (the rule of law as police), limiting the pool of applicants they can consider and thus restricting discretion in hiring. Both options lead to the desired result of hiring who they want but with different stories about discretion or agency that stem directly from radically different articulations of the rule of law.

***

Some years, and several institutions, after my first day at the World Bank, another colleague described the process of finding a new job as a rule of law reformer. Greg⁴¹ had worked at a multilateral development bank, and then at a think tank which subsequently decided to scale back its rule of law work. He found the job search anxiety-inducing:

Finding a [rule of law] job is emotionally quite hard. It leaves me feeling unmoored, which makes me anxious. It would be easier if I had a calling card [like economists, or other specialists]. But [in rule of law reform] I have to tell a different story of what I bring to the table to different people. I need to line each card up so they fall into place. I don’t want anyone to say ‘no’ [to my application] and collapse the whole thing. But at the same time, other people who have their calling cards are moving quickly, so I don’t want to get left behind … [It’s not enough to say] ‘we’re all lawyers’. [Project managers] don’t want lawyers! […] There’s not just an unalloyed demand for our skills. We have to go out and present [them each time].

Here, Greg expressed concern with the substance, or ‘calling card’, of his work. He also expressed concern with the form of his skills – he could not just present himself as a lawyer but had to come up with a form for his calling card for each interview or professional encounter. He reflected that those who have a defined calling card can move quickly; however, he did not want to overdetermine the form and content of his expertise for fear of being rejected.

Living the freedom to keep moving one’s expertise between universal and particular can be heady. For Greg, it was seductive to imagine having unalloyed demand for his skills even though the formal signifiers of his value (e.g., his qualifications as a lawyer) could be seen as unhelpful. At the same time, this movement destabilises the sense of belonging that comes with a clear division between an ‘inside’ and ‘outside’ to an expert community.

Greg was in a state of individualised anxiety, ‘unmoored’ from the anchor of a profession or expertise. This sentiment is not a generic disenchantment with the inability of his expertise to live up to its promises. He was already aware of that fact. Instead, as with my first day at the Bank, there is seduction, anxiety, and political power in being able to collapse and reconfigure the form and content of one’s own expertise in an effort to articulate them in relationship to broader institutional structures in development that one partially perceives. Is the rule of law reformer’s endeavour neo-colonial? Sure, she says … sometimes.⁴² And sometimes, she brackets big structural questions to get specific things done, all the while asserting full knowledge of the implications and recognising the potential need to resile from the inevitable marginalisation she produces.⁴³ In doing so, new colleagues are brought in – from ‘authentic’ locals to savvy global political players, and vice versa – and old ones marginalised.

The problematic of rule of law reform for which I am arguing is thus more than just producing an account of its overdetermination, of its underdetermination, or of its collapse. It is an inquiry into how the spectre of the meaninglessness of the rule of law – invoked as a part of exercising rule of law expertise – shapes the construction of rule of law reformers and the rule of law itself.

2.6 A Note on Style and Form

Trying to conduct such an inquiry, however, begs a methodological question: how can a scholar take the reformers’ assertions about the radical contingency of the rule of law seriously, as well as the fact that they do real things in the world, without asserting a contextual or meta-framework for analysis? As Wood suggests, this produces a methodological ‘theatre of difficulty’.⁴⁴ I step into this theatre first through the form and style of my accounts of rule of law reform.

In subsequent chapters of this monograph, I write about rule of law reform by reflecting on and lightly fictionalising a decade of my own experience as a rule of law reformer and governance reformer. I have worked in East and West Africa as well as at the global level. I have moved between institutions and roles, working as a staff member, a consultant, and a researcher at the World Bank, the UN, the UK’s then-Department for International Development (DFID), and several think tanks and NGOs in the Global North.

My experience is undoubtedly partial. It is Northern – although it contains several long stints ‘in the field’ (and living in areas outside Southern cities – one of the many vernacular markers of experiential authenticity rule of law reformers use in the particular economy of their field). It is governmental – although it has entailed working alongside grassroots movements (note how prepositions become another weapon in the expert struggle for authenticity) as well as with or over legislators, state agencies, Chieftains, and any number of public authorities. It is institutional – although much of it was spent establishing networks, communities, and relationships that might operate as a counterweight to those steering the ship of supra-state towards the rocks of socially and politically decontextual reform. It has been biased towards efforts to produce order in the world – although as I show in subsequent chapters, much of my work entailed unmaking and complicating others’ efforts to govern.

Reflective modes of academic writing are tricky. At their worst, they are narcissistic and self-indulgent – or their cousin, journalistic voyeurism.⁴⁵ At their best, they offer partial insight into partial things, reproducing and reinforcing the partiality of insight, thing, and the entanglement between the two.⁴⁶ As a genre, reflective writing builds a tension between the authority of academic prose and the doubly subjective act of reflecting on the self in the world. Its effect is to call into question objectivity and to put into motion authority through authorially representing the acting self.

In the context of rule of law reform, I see no other way to recount it. Reformers themselves question the very basis of their objectivity and authority. It would be misleading, not to mention clunky in the extreme, to explore the functioning of their ignorance by treating them as a field site, selecting cases, designing research protocols, conducting interviews, and making claims bounded by the admonishments of internal and external validity. Instead, I draw on the totality of my experiences as a rule of law reformer. At the same time, my particular reflective mode is not an effort to recount the exact nature of my relationship to the object under scrutiny, the better for the reader to see it with – what Latour calls ‘meta-reflexivity’.⁴⁷ It is instead the only effective way of recounting an object that denies its own existence while still having real-world effects.

This requires a particular type of authorial presence – one that can tell enough of a story to bring the reader along while fragmenting and making fragile the story, the author, and her authority. Rooted as the story is in my memories of and notes from the past, it could be described as Ricœurian, in the sense that it both relies on and destabilises the authority of historical narration. ‘The typical formulation of [historical] testimony proceeds from this passing: I was there’, a ‘mode of truth belonging to historical knowledge’, which, while on the surface complete and authoritative, in fact ‘consists in the play between [historical] indeterminacy and its suppression’.⁴⁸ The task of reading history – and of historiography – is to treat encounters with written (or writing) history as a process of reflection on that space ‘between the self-transcending powers of the imagination and the always limiting character of perspectival, fragmented experience’.⁴⁹ And happily for my performance studies-inflected approach, Ricœur imagines these reflections through a dramatic sensibility, influenced by theories of action (as seen in the reception of Ricœur by theatre and performance scholars).⁵⁰

When trying to write about and reflect on expert ignorance, however, those Ricœurian tensions are not hidden in the processes of archive and testimony, there to be recovered. They are on full display: for if I do not and did not know what the rule of law is and how to do it, how could I know whether I am producing a complete picture of the rule of law reforms I have participated in, fully accounting for their complexity and the complex agency and structural constraints of my own position? My accounts of rule of law reform are thus shifting and provisional. They draw on my recollection of my experiences, notes that I took as part of my work (e.g., to produce reports about the meetings I sat in on or fieldwork I conducted for development projects), and notes that I scribbled to myself – often in the margins of official documents – reflecting on what I was seeing. This book does not thus claim to contribute a novel empirical base – an archive, a body of interviews, a survey, and so on – that enriches our stock of knowledge about rule of law reform.⁵¹ Instead, I invite and enjoin the reader to encounter the ‘empirical’ material in the text in a shifting, fragmented, and partial light.

This is not simply a post hoc textual strategy of recounting my experiences such that form follows the substance of my argument about expert ignorance. It destabilises the distinction between past experience and present reflection, thereby recognising that I had a reflective consciousness even as I participated in rule of law reform.⁵² The questions I explore in this manuscript, and the broader phenomenon of expert ignorance that I analyse, were not developed through the hidden workings of an academic or analytic consciousness injected, double-agent-like, into my work as a rule of law reformer. As I discussed earlier in this chapter, from my first day as a rule of law reformer, I was struck by how self-reflexive my colleagues were. They did not use ignorance defensively, as a disenchanted means to stay one step ahead of their critics; rather, they used it productively, to find a practical, social, and ethical position as a sophisticated and complexity-sensitive actor within the broader endeavour of development. They, and I, have embraced an academic mien and mentality at some moments and distanced ourselves from it at others. My ideas in this manuscript have thus taken shape through my participation as a rule of law reformer and have in turn shaped the practice of rule of law reform to some extent. This is neither a methodological bug nor a feature of myself as a special informant about this field to the world. Most of my colleagues shared this multiplicity of consciousness (although fewer tend to write about it). The manuscript should thus be understood as part of an ongoing set of conversations with rule of law reformers. These reformers appear as characters in the margins of the manuscript, commenting on my interpretation of their ideas through Microsoft Word comment bubbles, mainly in the next chapter.

My use of plurivocity is in the tradition of producing texts as encounters, in contradistinction to texts as unities. The purpose is to show reformers’ subjecthood and objecthood in motion, initiated by ignorant experts’ efforts at self-denial, my own included. ‘As a living, socio-ideological concrete thing, as heteroglot opinion, language, for the individual consciousness, lies on the borderline between oneself and the other. The word in language is half someone else’s’.⁵³ My tales of rule of law reform are thus ‘populated – overpopulated – with the intentions of others’.⁵⁴ I am engaged in a ventriloquist’s act, albeit one whose multiple voices surpass my ability to control them. These voices gesture to dialogue, even if it is attenuated through the reader’s suspicion or my limitations as a writer.⁵⁵ ‘Taylor’, the copyeditor of this text, also appears, commenting on the form of my interpretation, and opening it, too, to dialogue.

The next chapter delves into a specific, fictionalised account of my work on a rule of law reform project. Fictionalising the project is a means of exemplifying provisionality, plurivocity, and partiality. My specific use of fiction simultaneously employs and destabilises an authorial voice – providing enough verisimilitude to allow the reader to explore the effects of polyphony,⁵⁶ without being drawn into an effort to contextualise the authorial voice and the adequacy of her description of the Real.

I write the project as three different sociological accounts: a mapping of the social organisation of experts; a discourse analysis; and an ethnography of practices. They are mutually complementary in detail and contradictory in their accounts of the context of reformers. The cumulative effect is not to produce an authoritative account of the project as a sociological formation. Rather, it produces an account of movement between these different visions of reformers’ structure and agency. And it is this movement that I intend the reader to come to know, rather than an account of the specifics of a rule of law reform project. For as I argue in subsequent chapters, reformers themselves are concerned with turning institutional fictions into institutional facts – by which they mean they seek to move between different accounts of reformers’ structure and agency until they find ones that stick enough to take a decision or get something done.

My specific approach to fictionalising the project is to blend actual and stylised accounts of my experiences. Greg, Jackie, and the other characters described in these pages are amalgamations of people I have worked with and experiences I have had through the years. This blend is an ethical posture in favour of my colleagues and interlocutors. It is also a methodological posture. Genre and fact – form and content – are mutually sticky. Stylising them allows them to remain in the background so I can focus on the movements between structure and agency as well as the spatio-temporal and identarian waves they leave in their wake. I clearly signal stylised facts in the text and stick to a rule: any direct quotes come from my notes. Doing so is an effort to be honestly partial, and – in my use of stylisation and fictionalised accounts – partially honest.