This paper grew out of my role as discussant in the Open University Seminar Series of Law and Development. ¹ The task was to comment on a paper by Dr. Klaus Koch (in this issue of the The Cairo Papers). Owing to interesting disparities and point of agreement between that paper and the position taken by Dr. Ahmed Khalifa² concerning how lawyers and anthropologists envision their own roles in development processes vis-à-vis the role of the other, my task expanded to a comparison of these rather mutually exclusive sets of role definitions and conceptions of development in order to extract certain wider implications involved for social science as applied science.

       In the interests of holism and to avoid any suggestion that the search for a role in development is reducible to the problem of resolving the issues between the positions of Dr. Khalifa, the lawyer, and Dr. Koch, the anthropologist, it seemed important to contact those two positions with those held by social scientists who relate socio-economic conditions and changes in national political economies to major global conditions and events (core-periphery analysis). For it will be seen that core-periphery analysis involves not only another conception of development and a critique of other conceptions but also provides an empirically critical basis for alternative development policies. Here lawyers should not take the lead, social science should not accept lawyer-leadership, and also social scientists should be non-prescriptive in their research and advisory roles. (Wallerstein 1974, 1975; Frank 1967, 1978; Amin 1976; Abdel-Khalek 1979; Handoussa 1979).

       When Dr. Khalifa and other lawyers assert leadership in promoting ‘development’ through law, they are saying in effect that their role is prescriptive. The implication is that lawyers would maintain themselves politically between whoever occupies the command posts of power on the one side and social scientists on the other. In prescribing legislation bearing on national goals and human problems, lawyers, ostensibly, would call on social scientists as their ‘experts’ either to advise lawyers of any unwanted consequences of a given measure of law or, after the fact, to conduct impact studies to discover such consequences. Given this political position, lawyers become a screening committee empowered to decide (from a position of non-social science) which of the social scientists are to be ‘experts’. The old saw that many are called but few are chosen applies here. Lawyer leadership implies lawyer monopoly over the prescriptive function.

       When social scientists assert a non-prescriptive role, as Dr. Koch did, they may not be giving over leadership to lawyers especially but are simply leaving it to others - perhaps to non-social scientists or lawyers, and most certainly to those who indisputably hold ultimate authority. The latter, as politicians, define (or borrow) the goals of ‘development’, formulate policies for their achievement, and (perhaps through lawyers) seek counsel from social scientists (selectively) concerning how ‘best ‘ to get the job done. Dr. Koch asserted nothing more than a non-prescriptive role and how such a role might contribute to ‘development’. I am trying here merely to see the political implications when non-prescriptive roles are combined with roles of leadership in the development planning processes. It is clear too that a good many social scientists conduct ‘policy-oriented’ research and prescribe remedial measures that end up on dusty shelves for want of political support. This is so of the third group, mentioned above. who look critically at current, official conceptions and policies of ‘development’ and who formulate alternatives.

       Yet this prescriptive/non-prescriptive division of intellectual labor between lawyers who lead and social scientists who follow, if strictly adhered to, excludes or does not allow for independently formulated policy research. More correctly, when such research is undertaken, and the result is a sound policy recommendation, the probability of implementing derived recommendations through law or other means would be (as it has been) quite low. This is as true for macro studies (Amin, 1979; Frank, 1978; Abdel Khalek, 1979) as it is for small scale policy-oriented research such as Dr. Andrea Rugh’s monograph on Bulaq in Cairo (Cairo Papers, 1979). Being outside the lawyer/social science tandem implies no input into development planning. The question is not an idle one as to whether it is possible to hold an apolitical position as a social scientist and yet have an important input into development processes.

       Ironically enough while working as an auxiliary to power elites either with lawyers or without them is to hold a position of political power relative to those who are outside this tandem; the U.S. Congress (see U.S. Foreign Assistance Act of 1979) and the World Bank, as well as U.S. A.I.D., are as one in their insistence that ‘bottom-up’ action research to encourage popular participation in development need not be political (MacNamara 1972 passim; World Bank 1975, 8-11; A.I.D. 1975, 30ff). With this in mind, I turn to another facet of the problem of role definition. This is the bearing that one’s conception of development has upon the definition of one’s role in development processes.

       Aside from the issue of the locus of leadership and prescriptiveness, the basic idea of development to be seen in Dr. Koch’s presentation is shared by a great many anthropologists, sociologists, and certain political economists. The idea is present also in Dr. Rugh’s Bulaq study mentioned above, namely, that development is a continuing outcome of how ordinary people collectively define and attempt to cope with their needs and wants in context with their value and belief systems and amid all the old and new constraints of rural and urban life. And not a few of these ‘constraints’ are impedimental measures which have come among them as a consequence of top down development programs. Given this conception, development as an official programs are designed to augment the peoples’ efforts to cope with their needs as they are locally defined. Straight-line economic or engineering logic which sees only the GNP as the objective of development can but frustrate and even destroy the impetus for people to contribute in their own prosperity, their own interests in equity, their own interests in equality of justice, their own sense of dignity, their own needs for recognition, sense of belonging, and new experience.

       Ironically enough, while working as an auxiliary to power elites either with lawyers or without them is to hold position of political power relative to those who are outside this tandem; the U.S. Congress (see U.S. Foreign Assistance Act of 19779) and the World Bank, as well as U.S. A.I.D., are as one in their insistence that ‘bottom-up’ action research to encourage popular participation in development need not be political (MacNamara 1972 passim; Wold Bank 1975, 8-11; A.I.D. 1975, 30ff). With this in mind, I turn to another facet of the problem of role definition. This is the bearing that one’s conception of development has upon the definition of one’s role in development processes.

       Aside from the issue of the locus of leadership and prescriptiveness, the basic idea of development to be seen in Dr. Koch’s presentation is shared by a great many anthropologists, sociologists, and certain political economists. The idea is present also in Dr. Rugh’s Bulaq study mentioned above, namely, that development is a continuing outcome of how ordinary people collectively define and attempt to cope with their needs and wants in context with their value and belief systems and amid all the old and new constraints of rural and urban life. And not a few of these ‘constraints’ are impedimental measures which have come among them as a consequence of top down development programs. Given this conception, development as an official enterprise can be effective only to the extent that official programs are designed to augment the peoples’ efforts to cope with their needs as they are locally defined. Straight-line economic or engineering logic which sees only the GNP as the objective of development can but frustrate and even destroy the impetus for people in contribute to their own prosperity, their own interests in equity, their own interests in equality of justice, their own sense of dignity, their own needs for recognition, sense of belonging, and new experience.

       While this conception of development was inferred from what was said by Dr. Koch, it is probably not far off the mark; and given this idea of development, the role of the social scientist becomes one of going among the people, learning how they define their needs and wants in their own value frames, seeing how they cope and fail to cope with these needs and wants and come up with policy recommendations as to how officialdom could assist in the coping process. Another alternative would be to draw the people into augmented self-help projects (as in the new Solar Energy Project at Basaisa Village in Egypt).³ In this research, implementation is simultaneous with the research and action processes. This appears to be a viable alternative to either the lawyer/science tandem or the independent policy-oriented research role.

       Development does not have the same meaning, however, in the lawyer’s frame of reference. ‘Development’ - Dr. Khalifa’s discussions (both in this Seminar Series and in his 1979 statement as a keynoter for Cairo’s Conference on Law and Population)⁴ meant industrialization, and the later was assume to be an unqualified panacea for the eradication of the radically increasing gap between exploding populations and diminishing resources (1976, 9 -12). It would be a mistake, however, to stress only this polar difference between the lawyer and the anthropologist on the meaning of development, for in Dr. Khalifa’s discussion in the Seminar his equation of development with industrialization was attenuated a good deal by his remarks about the manifold social and personal problems attending industrialization, about ‘over criminalization’ in industrial development as an answer to the decline of traditional social controls in the industrial transformation. The point I would make here is not that he is in error to assume that industrialization is the answer to poverty (or even to assume that it is a major concern for makers of policy). Given these errors, he did focus on personal and social troubles involved in rapid change, on problems of conflict between law and traditions, between lawful demands and a traditional consciences. And he was well aware that law, blindly applied, produces retrograde conditions in society.

       Still, development and industrialization were inseparable in his thinking, Industrialization was unthinkable without creative enablement laws, and laws of social control. So in this simple logic, with lawyers leading and social scientists cooperating, the personal and social problems and clash of values with laws could be ameliorated. What was not in the lawyer’s brief was the recognition (or certificate) that development is initially and finally a grass roots phenomenon. Hence, for the lawyer, development was a top-down and official undertaking which had to gloss the conflict that programs would generate. Hence, the role of social science, in that view, either to adjust values to laws or to modify laws to accommodate existing values. By inference, neither lawyer nor social scientist would question whether fiscal and long term official policy programs actually meant even economic development for the majority in society. Although neither Khalifa nor Koch mentioned this, it seemed that in the legal view the thing to do, for example, is to accept infitah (open door policy) as a true formula for holistic development and then to apply law and social science expertise to achieve the goals of this policy.

       With regard to the definition of development, and to where it takes place, Khalifa and Koch were diametrically opposed. The former’s was a top-down concept; the latter’s was a bottom-up concept. Each was looking at human values, problems and needs but through opposite ends of the telescope. On the one hand, where values could not augment law and policy measures, they had to change. On the other, it was values which were the basic ingredients of local definitions of needs which Development ought to meet. Beyond this conceptual opposition were serious differences as to the meaning and context of law and legal systems and the only obvious accord between the anthropologist and the lawyer was the mutual conviction that unresearched application of laws and policies create more problems than they were intended to solve. beyond this narrow point of agreement, there appeared no possible way for a lawyer/social scientist team to work together (assuming, of course, that theses positions exhaust the alternatives, and they do not).

       A good many social scientists in anthropology, sociology, economics, political science and political economy disagree not only with the idea that social scientists should take a non-prescriptive role in development but also with the idea that lawyers should take the lead in any prescriptive processes. Small comfort is taken with what is seen as the elitist position assumed by lawyers, and the idea that lawyers are in a better position to prescribe what must be done, first to last, for societal development is received with something akin to revulsion.

       From the perspective of global development historically viewed, what has been the role of lawyers in the ennoblement and coercive legislation which went into the transformation of tribal, precapitalist societies from a situation of development to a situation of increasing wag dependence in the labor recruitment processes in sub-Saharan african some 75 to 80 years ago as each society was dismantled piecemeal with the increasing numbers who were forced by colonialist laws to become totally dependent upon wage labor or who were otherwise forced to remain on reservations (Berg, 1965, passim)? Surely lawyers had an active, not an isolated role in bringing local society development to an absolute halt. What has been the role of lawyers and their legal prescriptions in the history of the military transformation of Amerindian societies in America? In general terms it has been the same (Willhelm, 1969). What, if not the same, role for lawyers took place in the ‘development’ of native Latin American societies in their conversion to wage-labor dependency (Frank, 1978)? And what is the situation there today where nearly every country, based on wage-labor dependency is subject to the laws of a military junta and where each country is itself becoming more impoverished in its increasing economic and political dependency upon the Euro-American network of power under the concept of the open door policy (Frank, 1977)? Has this not always been the role of law in the development of underdevelopment (Amin, 1976)?

       Aware as we are that in one after another third world country there is a vast difference between publicly stated goals of fiscal and long range policies and the latter’s actual functions, what but skepticism could one possibly feel concerning the prospect of a lawyer-defined development and a lawyers’ monopoly over prescribing what must be done to achieve it? Moreover, who is unaware of the intransigence of law as a basic factor in social upheavals leading to development in the form of transformations of land tenure systems and to pursuant inequalities in the social formation? In such historical situations the role of law and some lawyers has scarcely been a force for development except in providing the normative base for the problem-ridden societal edifice whose leaders had explained the wealth of self-serving elites as being ultimately good for all.

       Surely social scientists able to translate fiscal policy accurately into its manifest and latent functions of providing prosperity for the few but not the many would be more than a little dubious about more lawyer-leadership and rather prone to believe that lawyers should not be directly involved in setting the goals of societal development - if equality of wealth and justice are any part of development and not mere kaffara⁴, then has current fiscal and long range policy progressed toward them? Is this the import of Egypt’s law 43 and the laws integral with it - the open door laws of infitah? These laws make foreign investment more attractive, the Egyptian economy more dependent, and the multi-nationals more wealthy. If Abdel-Khalek and others are correct, then this policy here has functions little different from similar policies in Latin America, namely, increased poverty for the masses and increased wealth for the few, together with a depression of the production of native consumer goods (Abdel-Khalek, 1979).

       The question, for whom is development, is hardly out of order in view of these studies: and the trickle-down theory of conservative economists is unacceptable in view of the data provided by Abdel-Khalek and others. This question did not arise explicitly in either of the initial presentations reviewed generally here and in particular below. But the need for research on the question of the actual functions of current laws and policies for development holistically, together with the formulation of new policies and reforms is certainly being increasingly recognized (Amin, 1976; Handoussa, 1979). The hard data being provided in these studies does not support the theory of greater prosperity for all in the open door policy. What comes through is the fact that third-world, dependent countries are contributing substantially to the wealth of Euro-American nations and trans-national consortiums. An open door lets things out as easily as it lets things in.

       In a manner of speaking, the whole question of social science versus lawyer-leadership is academic because major political decisions regarding fiscal and long range policy goals, domestic and foreign, and the means for attaining them are made independently of one’s area of professional specialization (although admittedly the chances of influencing these decisions appear greater with a law degree in the portfolio, especially when on’s public posture accords well with official rhetoric on development). What we may be dealing with on the leader/follower issue is a household squabble, sibling rivalry in the tent, because it is the camp which makes the decisions.


A LAWYER’S BRIEF

       In his opening address to the Open University Seminar on Law and Development, Dr. Khalifa portrayed himself as a lawyer who had become interested in the social sciences to the extent that a good many of his colleagues in law had come to view him as not quite belonging to their fraternity. He had, in fact, become so interested in the subject-matter of social science that his first major work carefully weighted the social factors involved in the tendency in the legal profession to promote ‘over-criminalization’ as societies continued their industrial progress through science. He had broken out of his isolation in the legal profession and into his serious studies of social problems to understand how law could be applied in new ways to further societal development and to help meet the needs of society’s membership.

       His theme partly restates his earlier position. As a keynote speaker at Egypt’s Symposium on Law and Population, Cairo, 7-10 December, 1976, Dr. Khalifa despaired that lawyers had been long isolated from the scene in which social change takes place, long installed from the problems which social scientists had studies. Lawyers in isolation had too long been unaware of the people’s unmet needs in society. During this isolation, he said, the role of law in development was “limited to the written texts”, and because of this, human interests were weighed only according to the legal rule (1976, 10-11). By 1976, however, with so very many lawyers present as participants in his Symposium on Law and Population, lawyers were no longer isolated, and Dr. Khalifa’s earlier position of not quite belonging to the legal fraternity had become effaced. To his credit there were as many social scientists present as there were lawyers - though most of the former worked in agencies headed by lawyers. To his credit also, he observed that law could do as much to impede progress as it could to further it, and he called on social scientists to assist in the process of making better laws through social research.

       In the present Seminar at AUC, he elaborated on his 1976 statement - setting forth a moral principle, though hardly an empirical one to the effect that the contribution of penal law should be played down and other types of law, positive law, calling for imaginative, creative social policy based on social research should be played up if something called development is to take place in society. In citing his earlier thesis on ‘over-criminalization’ he was in part calling for ‘depenalization’, as Dr. Koch did also (with qualifications), while also calling for laws to enable the people to improve themselves.

       Lawyers then are seen as late arrivals who should assume leadership over social scientists if mere change is to become development. Dr. Khalifa defended this claim on implicit and explicit grounds. Explicitly he remarked that law is sacred, that it is the oldest institution of man’s history, and that lawyers who know it best constitute the oldest profession. Of course, there are older professions; law was preceded by custom; most lawyers are so highly specialized now that few of them know their place in history or what forces go into the transformation of mediative to adjudicative systems in the course of ‘development’; and if law is sacred, then the law of every tyrant in history should make saints of them all. Despite the counterfactual nature of his explicit argument, the main point to make is that none of these statements bear on the issue of why lawyers should lead in the development field.

       His implicit justification deserves more attention. It rests on his early distinction between mere change and development. The implication is that change began to become development when lawyers broke out of their isolated condition, began examining people’s problems in relation to social systems, and then took seriously the research findings of social scientists. In touch with law books, not people, andy law risked a retrograde outcome, and with this both the lawyer and the legal anthropologist agreed. In touch with people and their problems but with no access to legislation, social scientists were without means to implement what research indicated should be done. Hence, change continued but development did not.

       This implicit argument for lawyer-leadership, despite the fact that some lawyers have never been isolated, makes sense, but it makes sense only in a system where access to legislation is rather tightly screened. In some political systems one need not go through a battery of lawyers to influence or to introduce new legislation. Where access to legislation is screened, where lawyer-legislators need not represent a constituency in the public, no one, neither lawyers nor social scientists, may freely grab the handle of development without the officially correct credentials, the proper frame of reference, the legitimated philosophy and rhetoric of development. It would appear then than one’s politics, and not social science research, shall determine what is ‘mere change’ and what is ‘development’. Yet, this attitude is American, after all, and to over-stress it would be to fail to recognize the earnest efforts of people like Dr. Khalifa to bring lawyers to social science, and social scientists to law.

       Still, throughout the third world today, we do recognize that official conceptions of development shift around in the winds of doctrine as one regime after another appears and vanishes. Surely, if social science is to promote ‘development’, then development cannot be one thing today, another thing tomorrow - one set of goals and means in one decade and the opposite ones in the next - unless of course social science is a more euphemism for paid-for expertise.

       Who doubts that the ‘experts’ of the 1960’s are not now encamped with ‘the new expertise’ in social science which Dr. Luke Lee mentioned in his keynote address before the members of the Symposium on Law and Population in 1976 ( 1976, 13-16)? What become of the old expertise and its rhetoric about development? Is social science ever to be characterized by this ‘Miramar effect’⁵, this ushering in and ushering out of grand plans for development together with the particular social scientists who gave them life service? If social science abandons grand plans for development, to avoid the politicalization of social science, what alternatives are there for promoting development through law? A partial answer is given in the paper by Dr. Klaus Koch.


LEGAL ANTHROPOLOGY: A POSITION WITHOUT PORTFOLIO

       Emphasizing that legal anthropology is not a prescriptive discipline Dr. Koch states boldly that a legal anthropologist studies everything which a lawyer knows nothing about. Failing to recognize Dr. Khalifa’s point that lawyers have broken out of their isolation and no longer confine themselves to dusty statutes in their interest in the relation of personal and social problems to socio-cultural systems, Dr. Koch characterizes lawyers as confined to studying statutes, arguing what law ‘is’, drafting bills that become laws, acting as judges, prosecuting and defending cases, and administering law. It is true that lawyers do these things but to imply that this is all they do, thus resorting to types, is rather surprising f rom a social scientist.

       Yet, it is probably true that an indeterminate, perhaps large, proportion of lawyers still fit this image, and in contrast to them Dr. Koch’s image of the legal anthropologist is quite valid. The narrowed professional in law, publicly certified and examined, concerned only about tenure and career, would have neither time nor motivation, it would seem, for the work of the legal anthropologist: the study of systems of justice holistically, historically, and cross-culturally -- with reference not strictly to what laws and customs formally specify for conduct but with reference to how disputes are actually dealt with in socio-cultural systems where group and personal interests may not agree with group and personal values. Here it is more of a question how customs and laws are used in dispute settlement than it is a question of what these norms specify ideally for conduct.

       Apart from his brief treatment of what anthropologists vs. lawyers do, Dr. Koch focusses on two priorities for promoting development through law: The necessity of studying dispute-settlement systems cross-culturally and in context with the wider sets of social relations and values in which they are embedded (and here to note any possible conflict between local systems and larger national systems of law and law enforcement which often disrupt local social relations and impede local processes of meeting daily needs): the necessity of careful studies of the increasing problems of access to justice which are consequential to the largely unplanned transformation of societies from tribal/peasant types to colonial and national complexes. It will be noted, in passing, that despite the remarkable differences between this presentation and Dr. Khalifa’s, there are also points of agreement which might become a viable basis for a division of labor between lawyer and social scientist in promoting development - though not without qualification.

       That is, both agree that social science should be non-prescriptive, that laws created in a vacuum of knowledge about people may have unanticipated consequences which spell the failure of such laws to accomplish their intended objectives. But here the similarity ends. Dr. Koch, I infer, would have legislation be an outcome of development that is already going on - assisting that development, not hampering it. only then, reciprocally, would legislation enable more development in local communities or groups. This approach does not deny the possibility of treating ills as hypotheses - seeing through social research what the probable consequences of such a bill would be if made into law, and determining whether or not the stated ends or functions of such a law would be manifest in effect. But if I understand Dr. Koch’s position correctly about the non-prescriptive nature of legal anthropology, then the impetus for such a procedure would have to come from legislators. Then, it would be up to the legal anthropologist and/or sociologist whether or not to respond with an impact study. In any event, the contractual character of this division of labor is clear. MOreover, I suspect that a non-prescriptive legal anthropology would not presume to implement policy oriented research, financed or not, unless the impetus came first from policy makers and the precise contractual terms could be agreed to. I am a bit puzzled, however, whether this claim about the non-prescriptive character of legal anthropology is really in the nature of the discipline or is actually a matter of personal choice. However, we are not dealing here with a confrontational approach, and so the likelihood that legal anthropology will produce or help producer another Miramar is rather slight.

       While Dr. Koch’s approach was said to be non-prescriptive, his overall presentation suggests the contrary; for prescriptions are clearly to be seen in his work, namely: people should have access to justice; ‘over criminalization’ should be subdued; punishment should not be the sole means of settling disputes; there should be more legally recognized community mediation systems for dispute settlement which would be akin to a buffer between the state’s adjudicative system (or part of it) and the individual members of national society. Also, laws should not be imposed from the top down into the community, and no law should be passed without first seeing whether it helps meet the needs of the people as the latter define them. These are prescriptions. They tell what is to be done, what ought to avoided or played down. They are not prescriptions of how to do it or how to avoid what ought not be done. Perhaps then a non-prescriptive social scientist prescribes what but not how, unless contracted to do so?

       These prescriptions are remarkable anthropological in the older, romantic tradition of anthropology - a tradition which antedates social science but which nonetheless helped to make social science possible, much less ethnocentric and more anti-prejudicial in its stand against the implications of t ems like ‘savages’, ‘civilized world’, ‘backward societies’, ‘irrational’ and ‘underdeveloped’ societies. In place of these terms this tradition gave us ‘folk’, ‘secular’, ‘developing societies’, ‘irrational’, and in this there appears to have grown a reverse set of value judgments, a kind of repugnance for the referents of such terms as ‘rationality’, ‘developed’ or ‘over-develope’ countries, ‘bureaucracy’, and the like. Where all this is leading social science, I am not quite sure, but there does not appear to be as much love for adjudicative and punitive systems in the nation-state in Dr.. Koch’s presentation as there is for tribal/peasant systems which are stateless and in which mediative or negotiative systems are extant.

       Throughout his paper runs a dichotomy between justice by mediation and negotiation and justice by adjudication. The first is a system found typically in tribal and peasant societies and on the administrative fringes of countries dominated by colonialism and is found in part in adjudicative systems as, for example, in plea bargaining. The second, adjudication, is prevalent in colonial and national settings but is absent from stateless society.

       Mediative justice, in my own frame of reference, is based on the principle of collective or shared responsibility, and actors in such systems are disinterested in establishing individual accountability or ‘guilt’ and punishability. Such systems appear when disputes arise and disappear when they are settled, and collectively they form several parts or structures: (1) collective retaliation (blood feuds) on behalf of a wronged member and collective defense of a member presumed by one group to have wronged another kindred (hence collective responsibility). (2) mediation and negotiation structures from both sides of the dispute to determined who has the right of retaliation and/or an indemnity (blood money); (3) arbitration conducted sometimes by a single individual agreed to by both sets of of disputants in order to terminate the dispute and restore workable relations between them.

       Adjudicative justice is based on the principle of individual responsibility and personal accountability without reference to restoring honorable social relations between disputants and their reference groups. Its setting is a society in which citizen is juridically more important than kinsman. Unlike mediative or negotiative justice, the adjudicative system is an arm of the permanent state. It is permanently bureaucratic and is interlaced with punitive, legislative and executive bureaucracies receiving complaints and ‘offenders’ individually for individual treatment. It exists for the establishment of guilt based on evidence and testimony.

       As societies transform from tribal/peasant, to colonial and/or national complexes parallel changes take place in the transformation of systems of justice. But a central concern of Koch’s paper was not to present this idea as a general theory of evolution of systems of justice but rather, in part, to advocate the development of mediative or negotiative systems within societies where adjudicative systems have established already a clear monopoly. Or at least this was my definite impression.

       In the advocacy of mediation and negotiation over adjudicative and punitive systems I was aware of a bias I shared, and while it is one thing to prescribe more negotiative and less punitive justice, it would seem an impossible task to indicate how to do so or to implement such changes durably in contemporary societies in their rush towards ‘modernity’ via westernization. Where is the ‘community’ in large ultra-urban complexes? if spatial and social mobility preclude any lasting communities in modern’ societies, then where are the social roots for sustaining mediation and justice by negotiation in such highly mobile and ultra complex societal systems? Further, in studying the role that statesmen, law and lawyers have already played in the transformation of tribal/peasant into state/citizen, first in the West and now in the third world, the conclusion seems inescapable that what was accomplished was an undercutting of the very foundations of collective or negotiative justice. My impression that Dr. Koch was advocating mediation as a means of development in lieu of more criminalization in the promotion of greater access to justice may have been mistaken. if so, I stand corrected, but the advocacy of this was central to the positions taken by a good many anthropologists in the meeting of March 1979 of the Association of Criminal Justice Sciences in Cincinnati. It was a hotly heated issue and its antagonists included such widely diverse groups as lawyers, public administrators, police, political economists. Three factions were evident: those advocating a confrontation model; those advocating in-community negotiative systems; those advocating either more police and criminal laws or else more police with a higher education.

       Dr. Koch’s presentation did not revolve entirely around the above point. Much of it pertain to a theme presented also by Dr. Khalifa: namely, how social scientists in their research can assist in the passage of laws which do not work at cross-purposes with the on-going social systems.

       Dr. Koch, in discussing why laws fail to achieve their given objectives (or why they produce more unwanted consequence than was anticipated) adopts a Mertonionian-like approach⁶. While he seemed to favor decriminalization, he was cautious about passing any law in a vacuum of knowledge about the effects of the law on people. He quotes an instance in which moving public drunkenness under the civil law to allow detoxification measures a chance decriminalized the act, but the experiment was a failure despite the statistics indicating success. Arrest had all but ceased, but police refused to convey drunks to the detoxification centers. They received credits for promotion only on the amount of arrests made. had lawyers factored this into their equation and provided means for conveying alcoholics to the centers, then perhaps the objective of the act of decriminalization would have succeeded. In Mertonion terms, ignorance of micro systems meant the failure of manifest functions and the success of latent dysfunctions. The unwanted consequences of the law far outweighed the intended ones. There is a role then for social research in creation of new laws or in the modification of old ones.

       About a year ago, it was rumored that a bill was about to become law which would incriminate all those who drove donkey carts on the streets of Cairo. The intended consequences, presumably, was to reduce congestion in the city streets. Fortunately the bill was not passed. Had it become law then the probable results would have been one or more of the following: (a) early enforcement resulting in massive arrests of donkey cart operators would result in a severe breakdown of the city’s solid waste disposal system operated by the Zabaline (el-Hakim, 1977); should disrupt systems by which many thousands of peasants convey agricultural produce to the urban market; public antagonism and justified discontent over the loss of livelihood would ensue; (b) later, arrests would cease; law enforcement would perhaps give way to incessant confrontations between drivers and police or to an enlargement of the bakshish system. in the event of a long, persistent effort to enforce such a law (which seems unlikely here), then the costs for public and private sector waste disposal would likely multiply by an enormous figure for the city would then have to do the jo with ‘modern’ disposal equipment. Here again, the uninformed passage of a law would touch off far more problems than it would solve.

       It seems here that there re two role dimensions for social science in these examples. one is to treat bills as hypotheses before the fact of law. This calls for social research at the grass roots for any aspect of socio-cultural or value systems which would touch off latent dysfunctions should the law be passed. The second is less savory: after-the-fact research to investigate the consequences of such a law which would require that the law should (a) stand as it is, (b) be modified, (c) be supplemented by programs or policies to solve problems the law created, (b) be retracted. All of this assumes of course that these activities will be amply funded, that lawyers and legislators will cooperate with social scientists toward this end, and that there are enough social scientists with this interest and orientation to undertake these operations on a more or less steady basis.

       There is still another possible role for social scientists (especially anthropologists, sociologists and social psychologists having an interest her). I speak of policy oriented action research and/or simply policy directed research involving in situ ethnographic studies to determine how people define and try to cope with their needs in their relations with one another. The end result would be policy recommendations for local implementation. The main question here is: what usually happens o these recommendations, and who in power would want to take that seriously?

       While these are examples of roles that some social scientists could assume, working in tandem with lawyers and others, a host of questions arise in connection with the prospects and implications of such roles for social science and objectivity. how, for example, would policy disputes be terminated - by the status differentials between lawyers and social scientists or by reference to the demonstrated variables that ought to have an impact on policy? Should social scientists work exclusively in the business of patching up the effects of mindless laws after the fact by after-the-fact research? Should they entertain every new bill that arises from whatever source as an hypothesis to be tested in situ by means of local ethnographic studies? If all these bills and laws form a policy pattern, and the pattern is one designed to promote only the interests to the upper classes, thus promoting differential development in society generally, is it our proper job, knowing this, to entertain every law of the pattern as being favorable to the overall development of the society in question? If the answer to these questions is affirmative, from the point of view of social scientists interested in development as prosperity and justice for all, then the answer to the same question would be negative from the point of view of a great many first, second and third-world lawyers today who do not disagree with Dr. Luke Lee, Executive Secretary of the International Advisory Committee on population and Law, who was keynote speaker in Cairo’s 1976 symposium on Law and Population (Lee. 1976, 13-16).

       Taking his cue from Kurt Waldheim, and echoing the declarations of the World Population Plan of Action adopted by the World Population Conference held in Bucharest, 1974, Lee acknowledged that law should not be applied in isolation from society and from social scientists who have studied it. Thus, he said, “matters of population must be seen in conjunction with many other factors - including health, education, employment, food supplies, housing, and environment.”

       In this fashion Lee, himself a lawyer, gave official recognition to social scientists as having an important part in reforming and coordinating laws affecting social problems as listed above. In doing so, Lee did not refer to social scientists per se but rather vaguely to ‘the new expertise’ among them as having an important part to play. In his orientation, these were to be called upon when development planning is undertaken, and the question how this new expertise is to be used in such planning was answered anecdotally.

       Observing that social scientists specialized in different ways and that none of them can see the whole, “Each one of these professions,” he said, “though competent in its own field, would approach the problem . . . in the manner of the proverbial story about the four blind men describing an elephant, each insisting that his version of the elephant is the correct one.” Inferentially, only those who can see the elephant should have the leading role in law and development. Lee asked, “Who then can best undertake this task of reviewing, coordination and reforming laws which directly affect population?” Who,in short, are not blind?

       “The answer,”, he said, “is, of course, the lawyers.” Apparently neither blindness nor selective perception is apart of the legal profession, or so, anecdotally, we ae given to believe. What Lee and others like him seem to be calling for are non-prescriptive experts who will accept, or at least not openly question, policy goals affecting development. For the goals of development, and the major fiscal policy patterns and existing laws for the achievement of such goals appear to be off-limits for social scientists. Whoever investigates the actual functions of current policy patterns, whoever points up any disparities as may exist between intended and actual consequences of these policy patterns will not likely be from among those who comprise the new expertise, and if there is ample reason to disagree with this new expertise, with the lawyers who sponsor it, who officialdom would care?

       What happened to the old expertise? Is it waiting in the wings? Or, did it have its day and vanish with the political shifts that mark these times of political upheaval? What then should be the role of social scientists and lawyers? If social scientists and lawyers should come to some agreement on this question, would it really make a difference insofar as ‘development’ is concerned? Would not differential development, nationally and internationally, continue without us? Is it true, as Dr. Khalifa said, that one of the main problems involved in development is ‘over criminalization’, or is it that ‘over criminalization’ is a misnomer for differential criminalization which seems invariably to run apace with differential development? I leave these questions as I think of them - open and with my biases apparent.

       Social science cannot exist as science without access to the data. If the gateways to it are closed or screened, then it can make no contribution in the field of development planning. If goals as stated lead to the opposite of their stated intent, then goals congruent with such intent should be prescribed, not proscribed, provided of course that equality in prosperity and justice is what is meant by development.

FOOTNOTES

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