From Planning to Prototypes: New Ways of Seeing Like a State
| Author | Fleur Johns |
| DOI | http://doi.org/10.1111/1468-2230.12442 |
| Published date | 01 September 2019 |
| Date | 01 September 2019 |
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Modern Law Review
DOI: 10.1111/1468-2230.12442
From Planning to Prototypes: New Ways of Seeing
Like a State
Fleur Johns∗
All states have pursued what James C. Scott characterised as modernist projects of legibility and
simplification: maps, censuses, national economic plans and related legislative programs. Many,
including Scott, have pointed out blindspots embedded in these tools. As such criticism persists,
however, the synoptic style of law and development has changed. Governments, NGOs and
international agencies now aspire to draw upon immense repositories of digital data. Modes of
analysis too have changed. No longer is legibility a precondition for action. Law- and policy-
making are being informed by business development methods that prefer prototypesover plans.
States and international institutions continue to plan, but also seek insight from the release
of minimally viable policy mock-ups. Familiar critiques of law and development work, and
arguments for its reform, have limited purchase on these practices, Scott’s included. Effective
critical intervention in this field today requires careful attention to be paid to these emergent
patterns of practice.
INTRODUCTION
It is a short walk, across one of Jakarta’s busiest intersections, between In-
donesia’s National Development Planning Agency, known as BAPPENAS, and
Pulse Lab Jakarta, a joint initiative of BAPPENAS and the United Nations,
forged in 2012.1This article takes the distance between these two locales, and
∗Professor and Associate Dean of Research, UNSW Law, UNSW Sydney. This article began life as a
public lecture deliveredon 8 February 2017 at the London School of Economics and Political Science
(LSE) while the author was Shimizu Visiting Professor in the LSE Law Department. I am indebted
to Stephen Humphreys for hosting that visit and to Stewart Motha for offering characteristically
insightful commentary on the occasion of that lecture. Thanks are due also to those who responded
to subsequent versions of this article presented in seminars at the University of Sydney Law School
(thanks to Kevin Walton) and UNSW Law (thanks to Andrew Byrnes and Zsofia Korosy). I am
especially grateful for detailed comments provided by Daniel Bodansky, Jonathan Bonnitcha, Ross
Buckley, Caroline Compton, and Rayner Thwaites. Stephen Young provided exemplary research
assistance. The empirical work (interviews and observation) informing this article was carried out
in 2015 and I am grateful to all those who made themselves available for interview, especially to
the staff of Pulse Lab Jakarta. That research work remains ongoing, in collaboration with Caroline
Compton and Wayne Wobcke, with the support of the Australian Governmentthrough the Australian
Research Council’sDiscovery Projects funding scheme (project DP 18010090). The views expressed
here are, however, those of the author and are not necessarily those of the Australian Government,
the Australian Research Council, or Pulse Lab Jakarta.
1 United Nations Global Pulse, ‘Pulse Lab Jakarta’, at https://www.unglobalpulse.org/jakarta
(unless otherwise stated, all URLs were last accessed 23 April 2019); National Development
Planning Agency, ‘Kementerian PPN/Bappenas’, at https://www.bappenas.go.id/en/; Memo-
randum of Understanding between the Minister of National Development Planning Government of the
C2019 The Author.The Moder n Law Review C2019 The Modern Law Review Limited. (2019) 82(5) MLR 833–863
New Ways of Seeing Like a State
the different ways of working in evidence at each of them, as emblematic of
a change – or rather a set of changes – underway in contemporary global
governance, and in law and development practice at all scales. These changes
pose some significant challenges for scholars and practitioners of law and de-
velopment, and for reform-minded scholars of international law. They do so
perhaps especially for scholars working in the critical tradition in international
law, and those who otherwise frame their work as calling into question pre-
vailing frameworks of power. This article tells a story of those changes and
challenges and explores some of their possible ramifications for international
legal scholarship and practice.
While many have been hard at work – critiquing, unpacking, interrogating,
mapping and reimagining techniques and institutions of global governance – the
‘mainstream’ of global governance has changed course.2Practices of governance
in many settings, including in the development context, have taken on a new
valence during the past decade. Those old nemeses (and beloved dancing
partners) of international legal scholarship – the state, inter national institutions
and other vectors of ‘top-down governance’ – have learned some new steps,
picked up some new rhythms and routines.3And in so doing, governments and
international institutions may quite possibly have bluntedor outr un the standard
tools of critical, progressive, and reform-minded international lawyers: among
them, appeals to history, context, language, the grassroots. Not everything is
new of course. And not everything in international lawyers’ critical or reformist
repertoire is obsolete; far from it. Yet there have, nonetheless, been some
important shifts to which attention must be paid, or so this article contends
as it engages in an imaginary walk back and forth between BAPPENAS and
Pulse Lab Jakarta.
To write of taking an ‘imaginary walk’ in a work of legal scholarship is to
signal something about the change on which this article focuses, and the type
of scholarly contribution it aims to make. It is customary for legal scholars to
direct critical attention towards the content or practical effects of international
law and policy, or combinations of the two. Relatively few have spent much
time analysing the styles in which that law and policy are effected in thought,
writing, institutional form, and practice.4Yet style (or pattern) remains an
Republic of Indonesia and the United Nations Resident Coordinator for Indonesia (15 August 2012) (on
file with Author).
2 For a representative instance of critique of this ‘mainstream’, see J. Grugel and N. Piper, Critical
Perspectives on Global Governance: Rights and Regulation in Governing Regimes (London: Routledge,
2007).
3 On old nemeses and dancing partners, see D. W. Kennedy, ‘The Twentieth Century Discipline
of International Law in the United States’ in A. Sarat, B. Garth and R. A. Kagan (eds), Looking
Back at Law’s Century (Ithaca, NY: Cornell University Press, 2002) 386.
4 For some examples of work of the ‘few’ in the international legal field who havecontr ibuted, in
different ways, to argument about and via legal style,see N. Berman, ‘Moder nism, Nationalism,
and the Rhetoric of Reconstruction’, (1992) 4 Yale Journal of Law and the Humanities 351; D.
Kennedy, ‘The International Style in Postwar Law and Policy: John Jackson and the Field of
International Economic Law’ (1995) 10 American University International Law Review 671; H.
Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65 Modern Law Review 377;
M. Del Mar, ‘Metaphor in International Law: Language, Imagination and Normative Inquiry’
(2017) 86 Nordic Journal of International Law (Special Issue: Language and International Law) 170.
834 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(5) MLR 833–863
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