When I was in Australia in January 2020 (before 2020 travel was stopped) I spoke at the Development Policy Centre at ANU Annual Australasian Aid Conference organized (in part) by my friend Stephen Howes.
My topic, which is a subject I am grappling with and trying to come up with a better way of modeling and expressing, is “pre-mature load bearing.” This is probably the worst named of the concepts from my 2017 book Building State Capability with Matthew Andrews and Michael Woolcock (the notion of “isomorphic mimicry”–which is not original to us–is much catchier). Pre-mature load bearing is the idea that if one puts too much weight too soon on a not fully constructed bridge, or a not fully cured broken bone–or on a weak organization–the result in a collapse. We propose the idea of pre-mature load bearing as one way of explaining why, even after decades and decades of development efforts to “build institutions” or “create good governance” or “improve public sector management” the organizations of the state in many many countries remain weak.
In this presentation I discuss the possibility (with some mild evidence) that it is precisely the pressure to adopt “best practice” laws, regulations, policies, and programs in countries with weak public sector organizations (and weak background systems in which those organizations live) that actually leads to terrible outcomes. The “theory of change” often (implicitly) adopted is that “better laws drive better practices.” This (again implicitly) assumes a dynamic between laws and practices that is uniform–so small improvements in laws produce small improvements in practices and big improvements in laws produce big improvements in practices.
However, we are all aware of many everyday phenomena in which dynamics are non-linear (though of course we don’t explicitly think of them that way). For instance, we all know that if we want to move a steel object with a magnet we have to keep the magnet close. Small movements in the magnet produce small movements in the object but big suddent movements in the magnet won’t move the object. The force of magnetism declines with distance and non-linearly.
The example I use in the talk (which is in the slides) is a rubber band. If you put a rubber band around your fingers connecting your left hand and right hand then if you move your right hand it creates a force on your left hand. As your right hand gets further and further away the pressure on your left had to move gets larger and larger. But if you move your right hand too far from your left the rubber band snaps and there is no more pressure on your left.
My hypothesis is that it is possible that “good law destroys the rule of law.” That is, organizations have a set of capabilities that are embedded in their actual practices. Many countries are under pressure to and are otherwise politically attracted to making big pronouncements that adopt “best practice” laws and regulations (in taxation, in environmental regulation, in land use permits, in basic education). They assume that they can achieve Denmark’s (or Canada or Australia or etc.) practices by adopting Denmark’s de jure policies (laws, regulations, etc.). However, it is possible if the practices are too far from the existing organizational capability these new laws create too much pressure on the agents of the organization to deviate from the de jure. If this is the case then the de jure and de facto diverge and the left hand might know what the right hand is doing, but doesn’t really care. Once one gets into these negative dynamics of “pre-mature load bearing” then the “good” (but not achievable) laws actually make organizational practices worse and create pressures that prevent incremental improvements in practices.
This of course feeds the idea of “strategic incrementalism” that the way one gets to good laws is by first getting to good practices–and then enshrining these already accepted and (mostly) followed de facto “good enough” practices into the de jure policies.
Of course it is hard to get good evidence on the gap between the law and practice (as making this gap invisible is a very large part of what organizations do: bureaucracies often exist to fail without blame. But some co-authors and I can show some empirical results in a paper that suggest that countries with weak organizations for enforcement that make de jure regulations (about building permits) stronger actually end up with weaker de facto compliance.
Here are the slides. I also did a podcast Good Will Hunters with Rachel Mason Nunn, I was episode 67, so this is a pretty long-running series. Also, this is a variant on a talk I have earlier at Center for International Development’s conference of which there is a video. Also a version of this talk I have at a conference “From Politics to Power” at Manchester University. The advantage of that video is that explains the pictures of the cat named Duke, which is a funny, and instructive, story.