ABSTRACT
The current enthusiasm for the rule of law must be understood in the context of the globalization of the market economy. One reason for the great interest in exporting and importing the rule of law is a belief that global capitalism can be facilitated by the adoption of a global language. On one side, those who are already fluent in the legal language of globalization-for example, large corporate law firms, investment banks, and business consultants-are anxious to expand the domain in which they can operate with their own tools and approaches-in other words, to extend their hegemony. On the other side, those who long operated outside that language and the rules of the game that it contemplates, for example South Korean and Japanese conglomerates-the chaebols and the keiretsu-may seek access to the same language and tools in order to compete effectively in the terrain of global capitalism. The process of legalizing business competition in this manner tends to focus on the development of corporate and commercial law, but there is also a widespread belief among rule-of-law proponents that reform in one arena-in particular, corporate law-will spill over into others-in particular, state governance. Even if pushed to a great extent by the transnational commercial side, the rule of law will come to the state and the domestic economy. This volume focuses on processes central to building the position of law in the
state and in the economy. Our focus, however, is on aspects of the process typically neglected in the rule-of-law literature. We highlight the role of lawyers as brokers who constantly renegotiate the interchange between social relations and what is considered to be law. Their central role in the negotiation process is also a profitable one. Like financial brokers or bankers, they are not just neutral translators. They use the various forms of capital (social, legal, political, economic) that they have already accumulated to build their credibility (and power) as brokers. This profitable role serves further to expand their own portfolio of capital-for instance, helping a client or serving a governmental leader can add to professional notoriety and expand relational capital (or even financial capital, e.g., Silicon Valley lawyers accumulating wealth as did railroad lawyers in earlier times (Kostal 1994)). Our focus on processes behind the law is not new in the field of law and society
(Moore 1978; Comaroff and Roberts 1986). Indeed, if there is one well-established
finding from a long body of research in this tradition, it is that law and society are deeply intertwined. Law is embedded in social relations, and social relations mobilize and contribute to the construction of legal and quasi-legal processes and structures (Moore 1978). The boundary between law and social relations, as this literature shows, is fluid and constantly changing. The literature promoting the rule of law, however, for the most part reifies the
boundary between law and social relations. An extreme version of this approach in the literature is the growing movement to rank countries according to how they measure on a rule-of-law index. The World Justice Project of the American Bar Association is one high-profile example of a new initiative seeking to rank countries objectively on an index measuring the rule of law (www.worldjustice project.org/sites/default/files/The%20Rule%20of%20Law%20Index%20Version %202.0.pdf). The ABA project, typical of such ventures, focuses on such factors as the independence and impartiality of the judiciary. Progress in building the rule of law is assessed by looking strictly at the law side of the supposed boundary between law and society. The descriptive and prescriptive literature on the “judicialization of politics”
(e.g., Hirschl 2006) takes essentially the same one-sided approach. It tends to equate progress on the rule of law with an expanded role of courts, especially Supreme Courts and their equivalents. The idea informing this approach is that if more of politics is taken over by courts, the law as a body of neutral principles will gain a more important role in a particular society. The “legalization” of politics is defined as a larger role for courts. Yet this literature typically ignores the way that courts may be used. For example, the instrumental political use of the courts by dominant political actors in countries such as Malaysia (where Prime Minister Mahathir used the courts to imprison his political rival Anwar), Singapore (where Lee Kwan Yew used litigation and the courts to eliminate one after another of potential opposition politicians) (Dezalay and Garth 2010), or Argentina (where political parties have long used the courts to punish their enemies) (Dezalay and Garth 2002), does not equate to the progress of law. There are also more subtle ways that politicians who happen to be lawyers use the law and legal procedures tactically, exemplified in the construction of the European Union (Cohen 2010) and indeed throughout the history of Italy (Malatesta, this volume). The use of courts and legal procedures does not necessarily indicate progress in achieving the rule of law. The focus only on the so-called role of the courts, as the legal process literature pointed out more than three decades ago, misses the social context in which they operate. More importantly, from our perspective, the focus on the courts misses two
key elements: lawyers invest in politics in order to build their capital of social relations and their credibility/legitimacy. They also do it in order to represent the political interests of the privileged social groups from which they or their clients are recruited. On the other side, however, many proponents of rule-of-law reform tend
to emphasize only the social context and in particular the need to strengthen
non-governmental organizations (NGOs) and more generally civil society (Golub 2006). According to the first United Nations report on rule-of-law activities, for example (United Nations 2009), “The point of departure for effective efforts is assisting national stakeholders with the development of national strategies and plans on the rule of law.” The idea here is that empowered local and international stakeholders will automatically translate their activity into the strengthening of law and legal processes. What is missing from this equation is the process of translation-including, for example, the role of lawyers as activists and moral entrepreneurs combining access to media resources and the law as part of a political strategy, or the role of international corporate lawyers serving as brokers between multinational corporations and domestic state or private companies. The chapters in this volume highlight the relatively neglected role of lawyers
as brokers-converting social, political and economic resources into legal processes and, vice versa, thus accumulating these various forms of legal capital that they can mobilize in social and economic interactions. Lawyers profit politically and economically by constantly renegotiating that interchange. Typically missing in the studies of and recipes for the promotion of the rule of law-even when focused on “stakeholders” and “civil society” instead of simply “the courts” or the “rule of law”—is an empirical examination of the actual people and processes rather than the abstract categories of judge, court, civil society, stakeholder, and the like. More generally, what law is in any given society depends on the social capital embedded in the law. The best way to see that relationship is to focus on the specific processes that relate to the active role of the lawyer as broker. It is commonly recognized that lawyers act as brokers between different
interests. The interests are typically understood, however, as more or less given economic, political, or social interests. It is easy to see, for example, that lawyers translate the economic interests of a particular business or the political claims of a particular group into legal arguments-or that lawyers mediate between two different groups seeking to resolve a dispute. Our description of the role of the lawyer as broker is more complex because it
takes into account the various phases of the processes through which lawyers themselves first invest their own social capital (or more precisely the social and economic capital inherited from their families) in order to acquire expertise in legal knowledge; then use this mix of legal capital and social capital (family name and friendships cultivated in law faculties) in a diversified practice of law serving to expand their relational capital (through government practice or new clients or preferably both) at the same time as their specific legal expertise (as litigators, deal makers or learned practitioners). It is precisely because lawyers have this diversified portfolio of capital (including
legal, political, relational, academic) that they can constantly renegotiate the changing and porous boundary between social relations and legitimate legal processes. This constant readjustment is essential to adapt the legal corpus to new political, social or economic contexts, and thus avoid the risk of obsolescence or competition from other technologies of power, regulation and governance.
