The world’s center of mass is changing drastically, beyond even the oft-discussed growing significance of China and India. By 2050, a quarter of all people (and a third of all young people) on the planet will be African. Africa’s median age is half that of China or the United States; its workforce population will surpass China’s and India’s within the next decade, and by the 2040s, Africa will account for two of every five children born globally, on a continent whose area is larger than China, Europe, India, and the United States combined. Beyond population and labor, Africa’s mineral and solar wealth is indispensable to global climate reform and energy supply chains. And mere political economy aside, Africa carries significant moral weight: most prominently, Sudan and the Congo are suffering from catastrophic war and humanitarian crises affecting many tens of millions of people who both warrant and lack global attention (though these disasters too are tied to the global extraction of gold and cobalt).
Africa is not a country, and generalizations are always faulty. But since at least the times of Montesquieu and Maine, Africa has typically been perceived by the North as geographically apart and temporally behind, or thought of only as a reserve of raw fact onto which Northern theory can be applied. By now, however, many are familiar with the “boomerang effect,” where colonial and imperialist ideas, methods, and technologies developed in peripheries, like Africa, eventually circle back to the metropole. In many important ways, the periphery appears to be the future of the center, rather than the other way around. The resulting destabilization of our understanding presents an opportunity to examine the centers and peripheries of our own thinking: to do theory from the South – with all the usual caveats about the slipperiness of “Global North” and “Global South.”
There are majorities at the margins, and majorities matter centrally to those in LPE. What, then, is the “future perfect” of LPE, if the weight of the future – political, economic, and cultural – might be both descriptively and normatively elsewhere? We of course can and should ask what LPE might mean for thinking about Africa. But what might Africa mean for thinking about LPE?
In this post, I put forward some of the stakes of Africa for LPE scholarship, and give three destabilizing examples relating to central LPE concerns: our background narratives of capitalist periods and processes; our assumptions of the links between law and capitalism; and our understanding of, and hope for, progressive development policy as a solution to political economic problems. First, though, it is worthwhile considering why these ideas do not just concern Africans ‘over there,’ and why they instead fundamentally concern all of us, everywhere.
The Law and Political Economy of LPE
Politics, economics, and culture pulse at intersecting scales in time and space, drumming the institutional rhythms through which modern life plays out. The LPE movement has rightly observed that these frames are interrelated: the economy is political, the political is economic, and political economy is culturally mediated (which is precisely why LPE has stakes in contemporary legal culture). To its great credit, LPE has also generally claimed some normative commitment to justice in these three frames: just representation in politics (democracy), just distribution in the economy (substantive equality), and just recognition in culture (anti-racism, anti-sexism, etc.). But, as we know, the problems illuminated by these frames—misrepresentation, misdistribution, and misrecognition in Nancy Fraser’s telling—point directly beyond the methodological nationalism of the modern state as a unit of analysis. From climate to COVID, from supply chains to cyberspace, and from war to migration, contemporary (de)globalization has meant our tightly bordered political and legal institutions are profoundly misaligned with the shifting scales of the international economy.
This presents a challenge for LPE, which has more or less been founded on a shifting mix of analytical rigor, commitment to normative values, and pragmatic policy proposals and legal changes. LPE-ers, correspondingly, typically want to have a correct or useful descriptive analysis, be on the right side of history, and reach tractable solutions to urgent problems. But LPE has its own material conditions – the LPE of LPE, so to speak – with the movement centering on US law schools, building on US legal realism, responding to a strain of law and economics, and immersed in a particular history of Northern law and capitalism. LPE has thus understandably put the accent on pragmatism in US law and policy, with the United States as the primary unit of analysis (parallel LPE work in Europe similarly tends to focus on Europe).
As such, if an LPE claim is made about “law,” or “politics,” or “the economy,” it is not always clear whether the term is shorthand for “Northern law,” or “domestic politics,” or “the US economy,” or if the claim is instead a truly universal and solidaristic one. This refracted microcosm of our misaligned frames creates something of a structural mismatch between LPE’s commitment to sound analysis and global democratic-egalitarian values on the one hand, and the domestic horizons of its theory and policy on the other.
To be clear, this certainly isn’t negligent on the part of the LPE-verse, which has achieved a great deal over the past two decades and set a phenomenal example of what such scholarship can look like. LPE and its antecedents are without a doubt some of the most useful developments of the Global North’s legal cosmology; legal realism, in particular, presents a significant advance on the dizzying formalism found amongst much of the tiny African legal elite. (Full disclosure: as an African myself, I have learned a great deal from LPE in the North, and from the reciprocal support of many Northern friends and mentors in the LPE-verse.) The events of the past few years have indeed drawn LPE’s attention to how the domestic and global are always fundamentally interwoven.
But the aforementioned structural mismatch means that there is continuous work to be done in pushing and reframing the bounds of LPE – not just for the sake of those still outside our frame, but also for our own sake. It is not simply that places like Africa don’t fit much of our theory; it is that Africa shows that much of our theory might, itself, be somewhat unfit. In practice, this prominently affects three of LPE’s central concerns, and turns us to view law, capitalism, and development upside down, from the South.
Narratives and Neoliberalism
First, studying experiences in Africa can problematize our standard stories of the processes and periods that form the background to LPE’s more concrete analyses. As Africa was primarily colonized from the late 1800s onwards – in the period of industrially produced violence – it was able to be governed and its wealth extracted without Northern powers building reliable state bureaucracies or imposing exclusive private property rights. Instead, much of Africa’s indigenous legal tradition was left in place under the system of indirect rule, if rendered consistent with colonial extraction. Formal decolonization after the Second World War, coupled with the structurally skewed international legal order, then left the South in an ongoing state of underdevelopment for the North’s benefit.
This history alone already offers a very different experience of law and political economy than that of progressives and the working class in the North, though the difference is one of degree rather than of kind: In Africa, there are no monist capitalist legal orders backed by effective, rationalized state bureaucracies providing sufficient democratic welfare and domestic regulation – and certainly not any predicated on the systematic extraction of value from other continents lower down the food chain.
These divergent historical narratives extend to our typical account of neoliberalism. By LPE’s standard telling, neoliberalism came along in the latter half of the 20th century to hollow out liberal democracy, roll back the golden age of the welfare state, weaken unions, and render secure workers precarious. Yet Africans and others across the South made gains in democracy, built social welfare programs, strengthened unions, and reduced historical worker precarity during that same neoliberal era. The legal changes resulting from these successes led Ruth Bader Ginsburg to suggest that one particular progressive, post-liberal African constitution – South Africa’s – could be a model for any contemporary constitution-drafting. But there are wider pragmatic implications here too. What lessons of contestation, resistance, perseverance, and reform can the North learn from Africans, if Africans have already learned how to fight and make some gains in these long battles against precarity?
Capitalism and Customary Law
Second, studying the African context can challenge our assumptions about the inherent links between law and capitalism. In typical LPE scholarship, the predominant package of ideas about what law “is” is often equated wholesale with capitalist modernity and the liberal democratic state, with “not law” being similarly equated with “non-capitalism.” African indigenous customary law challenges this one-to-one link. Up to 90% of African disputes are resolved by customary tribunals outside of the formal state structure through customary law – continuously developing legal systems, often unwritten, embedded in communities’ sense of regular behavior and mutual obligation, often reliant on forms of property and contract that do not easily function as code for capital, and yet perpetually reshaped by their interactions with coercive capitalist and colonial contexts.
Yet customary law as a well-established field of study – and as a complex body of law that African communities, lawyers, judges, bureaucrats, and states deal with daily as a legal pluralist reality – is dismissed by fiat by legal institutionalists as just mere custom and not law. Customary law is thus presented as offering little interest to the study of law’s role in capitalism, which is definitionally limited to Northern law and political economy. More than mere semantics, this ideological commitment jeopardizes a proper understanding of how capitalism interacts with legal relations both in Africa and in general. Focusing only on Northern-style law instantly prohibits an understanding of most of the law and political economy of African life.
Consider for instance the analytical framework of “racial capitalism” which, while often shorn of its Southern roots, actually originated with theorists in apartheid South Africa. These theorists argued that segregation maintained – indeed, even supported – “black” reserves operating under state-enforced non-capitalist legal relations, permitting only limited male labor migration to the cities governed by colonial capitalist legal relations. These theorists argued against both liberals and orthodox Marxists who believed that colonial capital would deterministically expand to destroy “primitive” non-capitalist indigenous social relations and sweep away the irrationality of racial segregation.
Instead, they posited that legal and political segregation between “black” native reserves and “white” cities appeared to be sustaining capital, and thus the colonial state, by using “black” women’s non-capitalist social reproductive labor in the reserves (producing for the young, old, and sick) to lower the cost of wages paid to “black” male migrants in the cities, thereby subsidizing capital accumulation. This subsidy could only be achieved outside of capitalist property rights and the market by the state deliberately preserving communal production and distribution for capital’s benefit. On this (here rather simplified) account, apartheid’s dramatic escalation in violent repression was in part a means of forcibly maintaining low wage levels in the face of rising unrest when the reserves’ support functions collapsed through environmental degradation and the weakening of communal social ties.
This dynamic interplay between rural and urban, capitalist and non-capitalist, race and class and gender, and customary and colonial law under a single democratic state continues apace today, albeit with significant shifts under neoliberal globalization. The confluence of customary and Northern-style law has real social reproductive stakes even in capitalist cities, and similar dynamics have been described outside of Africa too (for example, in China). The point is this: we rightly do not dismiss the relations underpinning gendered care and social reproduction in the Northern home as irrelevant to a complete understanding of law and capitalism; why treat the relations of Africans and indigenous African law confronting capitalist modernity any differently? A narrow focus on Northern-style law leaves racial capitalism hidden outside the frame. And pragmatically, again, the political economy of customary law, and its ties to environmentalism and basic needs, show it to be a meaningful site of contestation of capitalist expansion – often even in Northern-style courts – with potential lessons to be learned for struggles in the North.
Development and its Discontents
Third, Africa shows us that the traditional Northern reliance on technocratic “development” is far from an easy solution to Africa’s problems, and so might not be a universal solution to human problems in general. Poverty and inequality are not merely the natural state of humankind, but are a political creation of dispossession and the modern market; they therefore call for political solutions, rather than simply technical ones. Uncoordinated Northern donor-led efforts at development and reform across many decades in Africa have primarily led to an ever more complex normative palimpsest of bureaucracy far from the high modernist ideals of the contemporary Northern state. James Ferguson famously argued that development is an “anti-politics machine,” a discourse and process that shuts down politics and ratifies the building of non-democratic state apparatuses in Africa while leaving little economic benefit in its wake.
African people have pushed back on this technocratic march. Prominent court cases in Africa have turned on plaintiffs claiming cultural rights against development for the sake of maintaining non-capitalist relations and production. The communities’ analyses of the law and political economy of their situation, in their own words, may read like any LPE-er’s dream, the difference being that they are resisting capitalism before it fully lands, not after.
These shortcomings certainly raise real questions about what to do in African states. Is it necessary and/or preferable to thoroughly and forcefully impose a market economy regime, top-down Northern-style rule of law, and a Northern-style liberal democratic welfare state on top of all the indigenous forms of life that are already being lived there? Yet this policy debate is precisely where the real action lies. It shows us that – if we aren’t careful – even LPE’s progressive vision for the future of the North might not only be quietly dependent on, or consistent with, a continued regressive future in Africa, but it might also not be a workable nor normatively justifiable universal progressive future for humanity more broadly, any more than modernization theory once was.
Is the domestic progressive dream of LPE in the North possible without extracting the Congo’s cobalt through conflict and cheap labor? Can it be built without re-colonizing Africa – more fully, this time – through “development” that erases indigenous culture and law, imposes thoroughgoing Northern property and contract relations, and constructs a Northern-style strong state bureaucracy and welfare system? Is a new New Deal a universal and solidaristic democratic future, or a highly provincial one predicated on ongoing coercion elsewhere?
In short, can there be a global or Northern LPE “way out” that does not also first go through LPE in Africa? This isn’t our first rodeo, here: the slippery interaction between law and political economic modernity in development studies – and especially the flawed progressive notion that places like Africa can and should simply “catch up” to the North by parachuting in Northern legal or economic institutions – was in significant part the origin story of Critical Legal Studies in the United States. LPE would thus indeed benefit from recovering some insights from CLS; not merely for the pursuit of high theoretical foundations, but because of what is taught to us by the practical legal and political economic reality of a significant proportion of the world’s population.
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Together, these ideas show the central analytical, normative and pragmatic importance of thinking across borders even, and especially, in fields as heavily bordered as law. This shift is about having the right analysis: law, the state, and the economy factually do not work the same way everywhere, and they might not even work in the North the way we assume they do. This shift is about doing justice: we can’t reach good democratic solutions if we don’t see particular sources or fields of legal-political-economic knowledge as interesting, legitimate, important, or necessary, merely on the basis of their cultural or regional origin or concern. And this shift is pragmatic: we risk hitting the same policy dead-ends time and again as long as we don’t have a workable understanding of the realities, struggles, and victories of majorities elsewhere.
We would, all of us everywhere, benefit from generally maintaining, increasing, and learning from collaborations with movements and lawyers across both the North and South, and from continuing to work with and support international scholars, students, and others in the spaces in between. In the meantime, instead of thinking of Africa and the South as “there” and “then,” we could already learn a very great deal from thinking of them as here, and now.
