This thesis asks whether Amartya Sen's idea of "development as freedom" is inconsistent with certain theoretical insights of American legal realism. Specifically, it examines whether Sen's apparent optimism with respect to free markets is undermined by Robert Hale's arguments about the ubiquity of coercion in economic relations and law's implication in the distribution of resources and power in society. It also asks whether taking the expansion of "freedom" as the object of development ignores the Hohfeldian insight that designing particular legal rules is a legislative act that creates winners and losers and is the site of political struggle and conflicting visions. Along the way to answering these questions, it looks at Sen's ethical framework for decision- making (or "theory of justice"), as set forth in Development as Freedom and other texts. This involves in-depth analysis of Sen's engagement with utilitarianism, welfare economics, libertarianism, and Rawls's theory of Justice, and an explanation of how he critiques and modifies these political and ethical theories.
This thesis concludes that the political legal realist critiques of Sen's work ultimately miss the mark, largely because his evaluative framework does not compel any particular social arrangements or distributive outcomes. Sen's development theory can be viewed as a theory of values- a way of framing discussions, debates, and democratic decision making processes- rather than a formula compelling particular results. Far from being inconsistent with key insights of the legal realists, this perspective might be conceived as precisely the kind of "critical theory of values" that Felix Cohen enigmatically called for over seventy years ago.
This thesis also seeks to correct a potential misconception of the relationship between Sen's theory of development and the post-Washington Consensus policy agendas of the International Financial Institutions. It concludes that no fair reading can establish that IFI policies - including their continuing attachment to particular market-centered, institutional forms- are compelled or even explained by Sen's evaluative framework. On the contrary, Sen's theory of development provides fruitful avenues for critique of the technocratic rhetoric of "good governance" and "best practices" found in current law and development discourse.
Date of Award
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Committee Member 1
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Library of Congress Subject Heading 1
Sen, Amartya Kumar.
Library of Congress Subject Heading 2
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(2007).Post-realist law and development: Amartya Sen's critical theory of values [Thesis, the American University in Cairo]. AUC Knowledge Fountain.
Bayard, Samuel Maverick. Post-realist law and development: Amartya Sen's critical theory of values. 2007. American University in Cairo, Thesis. AUC Knowledge Fountain.
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