Book Review:” Plunder: When the Rule of Law is Illegal” by Ugo Mattei and Laura Nader
August 29, 2009 by luigi
“Plunder: When the Rule of Law is Illegal” by Ugo Mattei and Laura Nader presents a “narrative history of the imperial adventure rendered in historical and contemporary legal terms“ (Mattei and Nader: p 6) in order to illustrate the unfolding of the “rule of law” ideology in a pattern of continuity with the colonial experience.
Let’s clarify some of the key terms first. In the Introduction, the authors observe how “rule of law” possesses two basic meanings. On the one hand, it refers to the substantive content of a legal system that protects property rights and guarantees contractual obligations. “Rule of law”, however, equally refers to the specific formal features of a legal system which is “impersonal, abstract, and fair, because it is applied blindly to anyone in society” (Mattei and Nader: p 14).
These two meanings which make up the “rule of law ideology” are said to serve an illegal purpose whenever (1) they are used as cover-up rhetoric for the appropriation of resources; (2) they lend themselves to selective application, for the purpose of enforcing “double standards” in the imposition of restraints upon only some international or social constituencies; (3) they prevail over the value of peoples’ self-determination. Of course, this is just an approximate classification, which the authors advance in the Introduction, but which they do not recall later on in the book, as, at their core, all “illegal” uses of the rule of law share a common feature: that of favoring an unjust distribution of resources. This is, ultimately, what Mattei and Nader use as the benchmark for discerning what’s legal from what isn’t, as they deem this distinction to have blurred “in a world in which the rule of law is reduced to a dull rhetoric or to Orwellian double-speak” (Mattei and Nader: p 8)
Central to the understanding of the current uses of the “rule of law” ideology is the notion of “hegemony”, i.e. power imposed by a mixture of force and consent. In colonial times, vesting foreign domination in formal legal structure was necessary in order to lower local resistance and facilitate the extraction of resources needed to facilitate the economic development of colonial powers. Nowadays, hegemony still proceeds through the imposition of law which, however, only rarely occurs by force. More often, reforms needed to support the neo-colonial project are enacted in non-Western countries either through bargaining or through prestige.
In the former case, international institutions such as the IMF and the World Bank implement seemingly “universal” development recipes by requiring the enactment of particular legislation as a condition to issue their loans. In the latter case, instead, intellectual groups provide a coat of “scientific superiority” to Western “rule of law ideology”, thereby favoring its reception on a worldwide scale.
Mattei and Nader, however, find a fundamental flaw in both strategies. In fact, both tend to present particular reforms, involving extensive privatization and the opening up of national markets to international competition, as “technical matters”, divorcing law from the political soul which is needed to make it the actual embodiment of the will of those that are subject to it. As a consequence, Mattei and Nader argue, choices with an inherent neo-liberal political flavor end up being presented as a necessary path to growth and development, without regard to local social complexities that may justify alternative solutions. At their root, these seemingly a-distributive, a-political reforms ultimately affect the distribution of resources, by favoring their allocation to those that are more willing to pay for them:
the ‘willingness to pay’ for a given resource, the yardstick that economists use in order to see whether such a resource is actually in the hands of whoever values it most, is a function of the ‘capacity to pay’ which in turn depends on the amount of resources already available to each of the actors of the transaction. Consequently, the rich are systematically favored when policy is evaluated in terms of efficiency, which explains the enormous increase in the gap between the rich and the poor under neo-liberal globalization
Mattei and Nader: p 49
These strategies, that inevitably end up benefitting multinational corporate actors – those which have been called elsewhere “ipermercatores” – ultimately warrant the following observation:
The rule of law should lose appeal as much from being controlled by political power as by business interests. Nevertheless, only the first distortion, blamed on socialist legality and on other non-Western conceptions, is constructed as lack of the rule of law. The second distortion gets constructed by strong corporate actors as the way things should be, in the name of economic efficiency and market expansion and development.
Mattei and Nader: p. 98
In light of this, the question that Mattei and Nader seek to answer, by discussing a wealth of examples taken from colonial as well as more recent history, is whether it is possible to curb the opportunism inherent in the rule of law ideology “from within”, ie by severing only its “illegal” uses, or whether a more radical re-thinking of legality is needed.
An anatomy of plunder frames a way to understand whether plunder can be cured by the rule of law. Can the path of development be changed by political practices compatible with legality, or can change happen only outside of the current legal order, by means of revolutionary transformations in the political space?
Mattei and Nader: p 24
Eventually, Mattei and Nader seem to lean towards the latter option, after criticizing, through the presentation of a wealth of actual cases both at the international and the US level, the current ideal of the “rule of law” as supporting a pattern of reactive institutions ill-suited to reverse the existing distribution of resources, which is too heavily skewed in favor of corporations and wealthy individuals. This kind of framework, they conclude, “does not compel powerful market actors to internalize their costs” (Mattei and Nader: p 212).
Instead, the authors favor a new paradigm of the rule of law, which they call the “people’s rule of law”. One that keeps into account the position of those at the other end of environmental or social externalities and who, ultimately, pay the price of one-directional corporate expansion. For this to be possible, Mattei and Nader seem to suggest a radical departure from the manner in which “rule of law” is presently translated into actual institutional arrangements (p 215).
When it comes to protecting private property and private initiative, they advocate greater sensibility towards social justice goals, ultimately justified by the observation that
in a world of scarce resources there is a limit to private accumulation to be respected, and the rich … cannot be rich beyond that limit without being responsible for the poor being poor. Trespassing over that substantive limit amounts to plunder, regardless of whether the rule of law, by protecting the bottom line and all externalized costs, enforces such disparities.
Mattei and Nader: p 216
In order to bring about a system where these alternative substantive priorities may find satisfactory implementation, Mattei and Nader seem to advocate a change in the dominant pattern of understanding legal institutions as “facilitators” of the market economy and efficiency, towards a more openly proactive attitude that may serve to confront externalities head-on.
A good starting point, they argue, can be found in those layers of the legal framework that have been spared by “imperial rule of law” ideology, ie “local laws”. By adhering more closely to what the people regard as notions of social justice, these often overlooked sets of rules serve to provide legal redress to needs that are currently overshadowed by “reactive” institutions typical of the imperial rule of law.
After all, it is only in this way, by offering a framework for balancing private and collective interests, that the “rule of law” may translate into a truly impartial and fair legal system, where “big interests and small interests are entitled to equal protection in the eyes of the law.” (Mattei and Nader: p 209).
The road to this visionary change, however, is not an easy one, and is recognized as having to overcome a whole range of discursive practices aimed at legitimizing the dominant conception of the “rule of law”:
If more widely recognized for what it is, plunder may become the target of public opinion and legal challenges. Lifting plunder from below the radar screen is a potential mobilizing force, although there is no guarantee without persistence, networking, imagination, and recognition of the difficulties inherent in deconstructing imperial rule of law, in some places still considered to be a social good.
Mattei and Nader: p 214
In this call for grassroots activism by Mattei and Nader, this book clearly represents an outstanding and successful attempt at unveiling many of the contradictions of the dominant conception of the “rule of law”, while advocating greater attention and respect for local institutional arrangements, rightfully seen as expressions of important ideas of social justice which should not be unquestioningly sacrificed on the altar of corporate efficiency.