PoLAR: Political and Legal Anthropology Review
*152 PLUNDER: WHEN THE RULE OF LAW IS ILLEGAL UGO MATTEI AND LAURA NADER (WI-LEY-BLACKWELL PUBLISHERS, 2008)
LUMS - Lahore
Copyright © 2010 by American Anthropological Association; Livia Holden
In Plunder: When the Rule of Law is Illegal, Ugo Mattei and Laura Nader argue that the rule of law has legitimized the plunder of colonized countries in the past *153 and nowadays justifies the ongoing plunder in the Third World to the advantage of Euro-American power. For this reason the rule of law is illegal. The ancillary idea of the book is that the rule of law features one bright and one dark side. The dominant image of the rule of law does not fully acknowledge its dark side (p. 5). The bright side is receding because of the absence of a political soul (idem). According to the authors there are two possible solutions: (1) empowering the bright side of the rule of law and thus ending inequalities or (2) since the rule of law cannot be reformed, starting a revolution that only can “disentangle it from the lethal hug of plunder” (p. 7). This provocative message is hammered out through historical examples of plunder interwoven with reflections on the theoretical development of the legitimacy of plunder. The book concludes with a theoretical sketch of the potential development of a truly legitimate rule of law.
Chapter 1, “Plunder and the Rule of Law,” proposes a history of the concept of rule of law, stressing its conser-vative rather than libertarian connotation for having always being close to the interests of the dominant elite (pp. 12-13). The rule of law was elaborated for the protection of trade against governmental taking and, drawing on the doctrine of “natural law,” became an instrument intended to be above the government in order to avoid tyranny. The rule of law, according to the said formulation, should act to limit the power of the state. Nevertheless the rule of law, or the purported absence of it in the Third World, has been used to foster the colonial project of oppression and plunder, especially by the American power.
Opening on the case of Argentina, the second chapter, “Neo-Liberalism: Economic Engine of Plunder,” exem-plifies neo-liberalism as a system for building efficient markets governed by the rule of law. Neo-Liberalism, argue the authors, is a theory and a praxis reacting against the concept of the welfare state which, by redistributing wealth to protect the weakest elements of society, becomes inefficient due also to its expensive bureaucratic apparatus. Thus, neo-liberalism sees welfare's stress on collectivity as a restriction on property rights and individual freedom. Mattei and Nader describe how major American corporations have endangered the savings of the investor in Argentina and elsewhere using high-risk bonds. Three instruments are pointed out as being crucial to the Argentinian case: (1) the use of offshore trust (out of the reach of organism monitoring the deals), (2) the blockage of exchange (one pesos = one dollar), and (3) the rhetoric of the emerging economy of Argentina (p. 42).
Mattei and Nader continue by explaining how Milton Keynes' key institutions (International Monetary Organization and World Bank) which were initially elaborated within a welfare state perspective, have been fully restructured by neo-liberalism after the Cold War. Hence the International Monetary Organization and World Bank acquired the legitimacy to act as global legislators and, by this very move, transformed the law from a political artifact into a neutral technology (p. 45). By the same token the Structural Adjustment Program and the Comprehensive Development Framework “are essentially the contractual agreement by which developing countries give up economic and legal sovereignty in consideration for financing” (p. 56).
*154 Chapter 3, “Before Neo-Liberalism: A Story of Western Plunder,” traces the historical foundation of American Rule of Law by highlighting its European roots: the British ideas of the independent judiciary, the French values of universalism and individualism of human rights, and the German emphasis of legal professionalism within a perspective of social engineering. In this chapter Mattei and Nader argue that law, and especially the allegation of its lack in the Third World, has been central to the colonial and post-colonial process of plunder. Similarly, the theory of lack has justified also the hegemony of the East-Coast universities in providing worldwide legal training which has been exported worldwide at the service of neo-liberal economics (p. 74). Despite originally not belonging to the formal legal setting, Alternative Dispute Resolution and International Dispute Settlement, for their role in the diffusion of American values of efficiency and pragmatism, are included in the study of the relation between the rule of law and plunder. As a mean of coercive harmony they have served the interests of colonizers by suppressing through the harmony-ideology, conflicts and resistance that, paradoxically, the official law would have allowed.
Chapter 4, “Plunder of Ideas and the Providers of Legitimacy,” sheds lights into the many ways hegemonic ideology has perpetuated plunder. In colonial times it was the case of catholic missions. Nowadays scholars lecture abroad supported by international programs such as Fulbright and often propagate views coherent with imperialism. Too often, argue the authors of this book, intellectual property lawyers, economists, and anthropologists provide theoretical legitimacy to plunder by acritically subscribing to a positivism according to which law is nothing but an abstract system and is therefore unaccountable for the oppression it can command (p. 93). The reader may be surprised to see the anthropologist put at the same level of the lawyer and the economist as a supporter of plunder. According to Mattei and Nader, the apparent neutrality of anthropologists as scientists make them share the responsibility of plunder with lawyers and economists. American anthropology, during its three main ideological phases (evolutionary, liberal reform, and military industrial period), always provided ideological support for state practice (p. 100). Dissident anthropologists were marginalized. The Arabic and Islamic world have been little documented and simplistically labeled as a world zone. Thus the colonization of Iraq and Afghanistan is virtually undocumented because of the collusion between state power and anthropologists that, subscribing to Weber's legal Orientalism, deny legitimacy to Qadi's justice: from terra nullius to lex nullius in order to legitimate invasion and plunder (p. 110).
Chapter 5, “Constructing the Condition of Plunder,” describes the need of oil as the force driving the US in wars. Starting from the 1950s there was a wave of nationalization of oil among Arab countries due to pan-Arab movement and the creation of OPEC. According to Mattei and Nader, the Iraqi war was nothing but an unlawful appropriation of resources legitimized by the exportation of law and democracy. Thus, Islam is defined as a fundamentally different vision of society, development and morality. However Islamic law features means of legitimacy that are typical of non-Western societies (p. 122). In Somalia and Afghanistan, Islam has interpenetrated pre-Islamic customary law in similar ways. Legal imperialism manifests itself through the imposition of laws that are felt (by local elite) to be *155 replacing a purported lack of law or representing a better law than the ones already in place. Mattei and Nader analyze examples of a double standard: human right abuse perpetrated in the Third World by local authorities can legitimize military intervention, whereas similar abuses perpetrated in Western countries go unnoticed. Similarly also, human right violations are not grounds for intervention in some places as Tibet, Chechnya or Palestine, while in others it justifies war and invasion.
Chapter 6, “International Imperial Law,” describes how law courts guarantee that the unequal distribution of wealth obtained with plunder stays unchallenged. According to the authors, neo-liberal policies and organizations such as the WTO have reduced the redistributive power of the state, while the US judiciary has extended its influence well beyond its territorial jurisdiction, thanks also to the support provided by local élites. Human rights laws and principles of good governance open the way to the application of the law that favors only the strong actors. One of the fundamental features of US law is its high degree of decentralization as well as its theoretical and practical possibility to expand its jurisdiction outside its political boundaries. The relation between law, politics and economics is such that the corporate dominated market investment in elections provides, as a return, a law that better suits corporate needs. This economic model of law is extended also to litigation and adjudication processes. This vision of law is incompatible not only with Islamic jurisprudence and socialist legality, but also with the notion of welfare state in many European countries (p. 148). None of these legal systems have the prestige and therefore the hegemony of the American one. Hence international law, born for the protection of rights against the sovereign state, has become a way to legalize war and destruction.
In Chapter 7, “Hegemony and Plunder: Dismantling Legality in the US,” the authors note increasing worldwide skepticism about the US rule of law following the erosion of the independence of the judiciary. The authors include in the notion of plunder the limitation of individual liberties that followed 9/11. The legal model that now tends to shift the power to the executive is making redundant the rule of law itself. At the same time, US media underplays the grassroots resistance by municipalities, local government, and civil associations. The notion of antipatriot has been used to criticize and constrain all those who contested the government's choices. Academics and their opinions are also scrutinized and often depicted as anti-American. Only a few intellectual such as Chomsky, Zinn, and Vidal publicly challenge the government's decisions and the US image of legitimacy -- on the other hand anthropologists and lawyers keep silent (pp. 179-191).
Chapter 8, “Beyond an Illegal Rule of Law,” concludes that the rule of law did not counter the plunder from colonial and postcolonial power; instead it enforced the disparity between the powerful and the rich on one side, and the poor and the weak on the other. The primacy given to private property by the law works against any proper redistribution of wealth. The question is: “Can the law be used to disgorge the loot by displaying some coun-ter-hegemonic potential?” (p. 199). In local legal traditions that evolve upon acknowledging injustice, we can find a way to judge the illegality of the Western rule of law. They form the core of “what is and should be legal” (p. 202). Examples show that everywhere in the world local laws, traditional or *156 not, have been used to counterbalance the effects of massive plunder on intellectual as well on material resources. NGOs sometimes are accomplices of political and economic powers but sometimes are on the people's side. Only in a legal conception grounded in principles different from the ones legitimizing systematic plunder can be found a counter to the economic domination that Western countries established. Among the taboos to be demystified is the idea that the rule of law is necessary and desirable.
Even if the originality of this book goes hand in hand with the silence of many intellectuals vis-à-vis hegemonic ideologies and propaganda, its message remains crucial and urgent. It is the opinion of this reviewer that greater accuracy with historical comparisons and bibliographical sources of information as well as more caution with unila-teral political positioning may have added value to this already valuable book. As lecturer in international human rights and anthropology, I recommend this book for undergraduate and postgraduate programs. Furthermore its accessible style makes it compelling reading for the wider public.
33 PoLAR: Pol. & Legal Anthropology Rev. 152