Wildlife Poaching and Rule of Law Development in Africa

Abstract

Formal legal systems are integral to cultural identity because the law, when truly transparent, play a significant role in the self-formation of a people’s identity. It is through the courts and the reporting of cases that a dialogue can be established between victims (including animals, through the same kind of quasi-representation that human victims of crimes receive) and those who seek to harm them, as well as between courts and legislatures as they seek Kenyan-specific solutions to Kenyan problems. This is not to say that formal legal systems will provide perfect answers to difficult questions such as whether economic security or rule of law should come first. However, such formal legal systems can set up positive feedback loops for a well-intentioned legislature to create varied incentives to protect wild animals, as it also refines the “carrot-and-sticks” mechanisms of dispute resolution to produce a Kenyan specific solution. In order to explore this thesis, I propose a couple of steps. First I will take a look at the scope of the problem to see the issues regarding elephants as part of an overall crisis in economic development in Kenya. I will then look at why an excessively narrow look at economic measures is likely to ignore important non-rational and culturally specific issues embedded in the situation. I will examine the economic theory broadly, and then the failure of economics in making normative decisions from values based on unstated assumptions about efficiency and Gross Domestic Product measures. I am greatly assisted in this regard by the work of Alvin Plantinga and his critique of naturalism, and also by the work of my colleague at Emory, ethicist Cynthia Willet, on the topic of interspecies ethics. Willet’s work shows the theoretical difficulties of ascribing values to the behavior of poachers as both a matter of economics but also as a matter of moral philosophy. I will then argue that there is a context-specific feature to interspecies ethics not unlike that described by Stanley Hauerwas, namely the necessity of a cultural context for a religious community to develop its understanding of itself. I will then return to the role the courts play to explore that role’s value as a tool of economic development, as a way for Kenya to engage in an understanding of itself and its cultural identity, and to create the normative process and structures for creative problem-solving.