The Internationalization of Palace Wars

Lawyers, Economists, and the Contest to Transform Latin American States

Yves Dezalay, Bryant G. Garth

• Editorial: University of Chicago Press
• Año: 2010
• ISBN:
  9780226144276
• Categoría: Law
• Categoría: Law Theory & Practice

How does globalization work? Focusing on Latin America, Yves Dezalay and Bryant G. Garth show that exports of expertise and ideals from the United States to Argentina, Brazil, Chile, and Mexico have played a crucial role in transforming their state forms and economies since World War II.Based on more than 300 extensive interviews with major players in governments, foundations, law firms, universities, and think tanks, Dezalay and Garth examine both the production of northern exports such as neoliberal economics and international human rights law and the ways they are received south of the United States. They find that the content of what is exported and how it fares are profoundly shaped by domestic struggles for power and influence—"palace wars"—in the nations involved. For instance, challenges to the eastern intellectual establishment influenced the Reagan-era export of University of Chicago-style neoliberal economics to Chile, where it enjoyed a warm reception from Pinochet and his allies because they could use it to discredit the previous regime.Innovative and sophisticated, The Internationalization of Palace Wars offers much needed concrete information about the transnational processes that shape our world.

PART ONE

Imperial and Professional Strategies within the Field of State Power

Chapter 1

Introduction

The four countries we studied in Latin America—Argentina, Brazil, Chile, and Mexico—are full participants in a growing global industry promoting the import and export of the “rule of law” (Carothers 1996, 1998, 1999; McClymont and Golub 2000; Metzger 1997; Pistor and Wellons 1999; Quigley 1997; Rose 1998; Widner 2001). In Africa, Asia, Eastern Europe, and Latin America, a burgeoning group of consultants, think tanks, philanthropic foundations, and national and transnational agencies has come to the conclusion that, whatever the problem, an essential part of the solution is an independent and relatively powerful judicial branch. “Good governance” requires the rule of law and a set of institutions to preserve it. One group seeks to promote an independent judiciary, access to the courts, public interest law, and better judicial remedies in order to protect the environment, reduce violence against women, and control police misconduct. Another invokes essentially the same institutional ideals in order to ensure safe streets and to promote the security of financial investments. Even fair elections are supposed to be guaranteed by a strong and independent judiciary. Law is once again, as in the 1960s and 1970s, central to the development agenda.

The “law and development” movement of the 1960s and 1970s similarly set about to export a set of institutions and practices intended to build the rule of law. Some individuals clearly benefited. From the perspective of a generation later, we can see that, for example, those Brazilians who gained access to U.S. legal technologies, U.S. credentials, and U.S. contacts through the programs funded as part of law and development were able to turn these U.S.-based assets into impressive careers as brokers between their home countries and multinational business investors. The efforts to change the status of law in the countries we studied were, however, far less successful. The promised reforms in legal education and legal research did not take place. Law schools continued to be dominated by part-time professors active in politics, litigation, the judiciary, business, or elsewhere. As a result, the “failure” of law and development is now generally conceded (Gardner 1980; Trubek and Galanter 1974).¹

Its critics had pointed out a certain naïveté in the law and development movement, noting that the proponents had optimistically promoted their own agendas without considering how those agendas would interact with state power in the countries targeted for change. It was on the strength of the criticisms that the movement to study “law in context” was built (Garth and Sterling 1998; Twining 1997). Despite this strong base for skepticism, however—which is grounded in an awareness of the importance of social context and the structure of the states in which legal institutions operate—the new wave of law and development, including many of the earlier critics, pays very little attention to that context. There are certainly fervent critics of the efforts to export the rule of law, but they tend to argue that it is merely a question of finding the right approach (Carothers 1998; Hammergren, 1998; Lawyers Committee for Human Rights 1996). This relatively optimistic view operates especially, if paradoxically, among those who focus on legal strategies supposed to help the disadvantaged—those, that is, involved in public interest law, advocacy law, or progressive lawyering, which is termed “the emancipatory pillar” by Boa Santos (Keck and Sikkink 1998; McClymont and Golub 2000; Santos 1995; Sarat and Scheingold 1998). It is their belief that a good legal program will improve the position of the disadvantaged.

This optimism, from our point of view, is part of the social context that must be explained. The participants in these efforts to export a socially progressive or otherwise reformist agenda tend to be characterized by a partial blindness that is structurally determined by who they are and their strong conviction about that role. The blindness also relates to the fact that, while the United States has stepped into the shoes of the European imperial powers, U.S. power comes in part from an anti-imperialism long dressed in benevolent ideals (Smith 1994). There are reasons, therefore, for the literature on the new law and development to be overly optimistic and to minimize again the attention given to social context and to the structures of state power. The literature tends not to recognize that, even if “successful” in the sense of gaining a local foothold, fundamental differences in the role of legal education and, more generally, the place of law in the state will ensure that any practical social impact of public interest law, for example, will not be elsewhere what it might be in the United States.

Rather than condemning the new law and development or insisting that it must always fail, we wish to renew attention to what the existing critics and the proponents tend to neglect: the place of law in specific national contexts to which law is exported or imported. The failures so apparent in the earlier law and development movement—and now in the new one—make it obvious that law cannot be considered merely a matter of technology to be acquired off the shelf as the best or most efficient practice. Our ambition in this book begins with this basic critical insight. We hope, in addition, to go beyond reminding everyone what they knew a generation ago. We aspire to develop a positive social analysis of how law relates to the field of state power and its reproduction and transformation over time.

Such an analysis must begin by recognizing that law is at the core of the processes that structure, produce, and reproduce the field of power. More concretely, the key to the position of law is its relationship to two sets of more or less closely connected institutions—the faculty of law and the state. The faculties of law serve central roles in the reproduction of knowledge, governing elites, and the hierarchies among elites and expertises. Efforts to transform the faculties of law, such as that represented by the law and development movements, inevitably touch the relatively fragile fabric of power, legitimacy, and domination embedded in the basic structures of those faculties. In order to understand what happens with legal exports, therefore, it is necessary to study in depth how law is constructed, the power equilibriums it embodies, and the position of law in the reproduction of power.

Framed in this manner, it is clear that the problem of legal export and import should be seen both as internationally significant and as an internal domestic matter of some importance to the countries involved. For example, the fragile equilibrium behind the Brazilian state has been repeatedly challenged over the course of the twentieth century, both from inside and from outside the law. The law was challenged, in part, because a relatively conservative group of law graduates cloaked in legal legitimacy claimed to represent Brazilian society and social forces. Outsiders from and newcomers to the establishment were constantly challenging that position, helping to promote varying degrees of turmoil in national politics and governance. As part of that challenge and the responses to it, Brazilians could turn to imports from outside, but they would do so only if the imports suited their own local strategies. The success of the import therefore is inevitably tied to domestic palace wars and to the international competition to export state expertises.

The role of law and development—today and a generation ago—thus requires an examination of a combination of internal and external forces—not just internal and external to the law but national and international forces as well. A focus on law inevitably invokes the international in any event, since law has always been a vehicle for colonial politics. Lawyers have prospered as compradors serving to connect the local and the international—speaking alternatively for one side and then the other. The countries that we study in this book—all with strong legal traditions derived from colonialism—reveal the long and close historical relationship between the national and international. The reproduction of the local elite has been legitimated and constructed through international borrowing—represented for many decades by elite voyages to Paris or Coimbra for a legal doctorate that would assure a high position back home. A European education reinforced the colonial relationships even while it provided a basis to challenge colonialism—at least partly.

This colonial relationship continues to exist, but the relative power of Europe has declined. Law is now involved in a competition between Europe and the United States, with the United States gaining influence. As in the past, furthermore, leading global powers, including the United States, tend to export not just specific approaches or products but also their internal fights and the strategies used to fight those fights. In the period since the end of World War II, therefore, Cold War policy in the United States and the internal conflicts resulting from it have been closely linked to U.S. international strategies generally. These Cold War strategies included strong scholarly as well as idealistic dimensions—as can be seen in the title of Walt Rostow's The Stages of Economic Growth: An Anti-Communist Manifesto, published in 1960. Economic theory based at the Massachusetts Institute of Technology was formulated and mobilized as part of the fight against communism. This approach, which provided a key role for intellectual production, can also be seen in the Alliance for Progress, the programs of USAID and the Ford Foundation, the law and development movement, liberal economics, the human rights movement, and elsewhere. These export programs have been heavily implicated in recent Latin American transformations and are our focus in the book.

These topics necessarily result in a rather complicated and multidimensional story involving national and international dimensions, law and other kinds of expertise that challenge law, and the changing role of the state. The post-World War II period that we cover, moreover, is one of major transition, from strong states focused on economic development to states predominately organized according to neoliberal economic policies. This period also encompasses major shifts from authoritarian politics to contested and relatively open elections. The challenge is to find a way to make sense of both these major transformations and the complex factors and relationships connected to and connecting law and the state.

Our research strategy has two main components. The first takes as a starting point the finding that law is so integral to local “palace wars” that it can be used to gain entry into larger questions. In other words, we use the law, legal actors, and legal institutions as points of access to local struggles. Once preliminary research has been undertaken, we can use those findings to decode and go beyond the story of law. We emphasize, therefore, that law provides a point of entry but only an entry. Instead of putting law at the center of our story, as do accounts of judicial reform or particular legal institutions or organizations, our method aims to use law to produce a work more akin to comparative politics. In order to understand law better, it is necessary to look outside the law.

The concept of international strategies—the second component—provides a means to study the relationship between global influences and state transformations. International strategies refer to the ways that national actors seek to use foreign capital, such as resources, degrees, contacts, legitimacy, and expertises—which we pluralize in order to highlight the competing forms and technologies—to build their power at home. Examples of international strategies used to fight local palace wars include the use of Chicago economics by the Pinochet government and its allies to discredit the government they replaced and the use of international human rights law by the opponents of Chile to discredit Pinochet's regime. Foreign expertise is used, that is, to fight against opponents for control over state power.

We employ this approach for two basic reasons, one theoretical and one practical. The theoretical rationale is that law, and more generally the state, is always shaped by interactions and competition between states. The international competition therefore leads naturally into the construction of the national field of state power. This international dimension of national stories, with relatively few exceptions (e.g., Smith 1996), is also typically neglected in area studies and even in comparative politics.

The practical justification is that international relations is in one way or another the point of entry for everyone who seeks to study issues involving the transformation of the state. The literature itself, including area studies as it developed after World War II, is a tool, a by-product, and the result of international strategies including the Cold War (Chomsky 1997). The literature necessarily leads into battles about the field of state power. International strategies, moreover, are often learned strategies. To begin with, scholarly capital in the form of books and articles serves as a kind of currency that can be used to validate the credentials of those seeking to invest internationally (as shown also in Dezalay and Garth 1996b). Equally important, scholarship functions as a weapon in international competition: descriptions that purport to define reality can be used to influence politics and political legitimacy. Finally, learned practitioners play a major role in international transformations not only as academics but also as lawyers and consultants of one form or another. A number of aspects of international relations and the scholarship around it therefore point to the battles that take place around the states.

Our point of entry has its own dangers. There is a temptation to decontextualize the international strategies into such categories as “epistemic communities” or “advocacy networks,” which highlight only the international character of the actors. A related temptation is to take as given the ideals of science produced in the north to create these cosmopolitan communities and ask only about how those in the south came to share those “preferences”—for example, asking how southern economists converted to U.S. approaches to economic transformation; the construction of the preferences of the elites in the United States is ignored or simply taken for granted. This silence, which relates again to the tendency of the exporters not to question their own universals, is particularly important in the world of international strategies, since international strategies are typically played out in a space where the borders and categories are blurred.

Moving from one country to another, it is difficult to evaluate such resources as family backgrounds, the prestige of schools, and the titles of various nationally held positions. The terminology is frequently not the same, even when the words are expressed in the same language, and those with the same name may occupy very different social positions. A judge or a professor in one country, for example, may have little in common with presumed counterparts in different countries. It is even more difficult to assess affiliations such as the head of an institute or human rights organization, or the value of national capital such as a family name or a relationship formed at school. This context, which provides some of the opportunity (and risk) of international strategies, also makes it difficult for scholars to make sense of actors and preferences.

Our focus on international strategies therefore emphasizes the national fields of power in which they are embedded. We cannot look at importers and exporters without seeing how their strategies are shaped and determined by their positions in the national fields of the north and the south. International strategies are not ends in themselves. They reshape and redefine the national fields of state power according to agendas of both the north and the south. The focus on international strategies, therefore, leads toward an understanding of the construction and redefinition of the state—and the hegemonic processes and new universals that are so important in that transformation.

International strategies, finally, tend to be highly class determined. The cosmopolitan families who speak English well enough and have sufficient material resources to take advantage of opportunities in the United States, for example, are not just average families. The people who follow these strategies are typically individuals who have some inherited resources and a disposition to take advantage of foreign opportunities. Those who study changes associated with “globalization” tend to neglect this aspect of the agents who bring the change. It is important to ask who gets the advanced degrees in the United States, who is invited to key international conferences, and generally who speaks on behalf of the south in the north (and of course, vice versa).

Our research, to summarize briefly, seeks to contribute to an explanation of the way in which the field of state power has been reproduced and transformed in the decades since the end of World War II. During this period, international strategies have been an important but almost completely neglected component of this process. Using law as a point of entry and international strategies as our major research tool, our ambition is to shed new light on processes of social construction of law and the state.

Research Strategy

We rely heavily on lengthy personal interviews, which follow a strategy that can be characterized as relational biography. We especially seek out the brokers, courtiers, and learned compradors who are key actors in the import and export of expertises. A major risk of listening to these individuals tell their stories is the temptation simply to accept their view of the world if it fits our own views and strategies. The first step in our research strategy, which comes from reflexive sociology, is designed to minimize that risk. It is essential to find ways to understand who these individuals are and where they come from in order to see the relationship between what they say and their own strategic positions. Biography provides a way to learn how their points of view and strategies define their possibilities, who their competitors are, and what capital they can mobilize. Following Bourdieu (1993; 1996a) and our prior work (Dezalay and Garth 1996b), we use biographical accounts of individual choices and career strategies to reveal the hierarchical structures and institutions in which the individuals and groups operate. Biography also makes it possible to gain some knowledge about family capital, which is rarely discussed by scholars but is highly relevant to international strategies.

In addition, this method helps to overcome the artificial segmentation that prevents an understanding of relationships and influences that cut across existing categories and institutions. This approach therefore overcomes some of the limitations of the new institutionalism and of more focused sociologies of professions or elites that, with a few exceptions (e.g., the work of Roderic Camp 1980; 1989), do not consider the field of power. Tracing the careers of particular individuals makes it obvious, for example, that the world of foundations and that of human rights nongovernmental organizations (NGOs) have always been very closely related; how the World Bank interacts with local situations through concrete networks and careers moving back and forth between the bank and national government; and how corporate law firms or advocacy organizations modeled on those in the United States are brought to new terrains.

Biographies link categories that have been constructed, in part, to hide connections. A focus that takes for granted existing divisions between “professions” or between “institutions” neglects the way that particular professions and institutions are constructed and legitimated. In contrast, the emphasis on careers and biographies allows researchers to see how institutions and professions are made and gain legitimacy out of various kinds of professional and social capital.

Put another way, the purpose of individual interviews focused on biography is to reveal the collective biography of relatively autonomous fields. From this perspective, the individuals...