Abstract
Much policy debate, like the academic discussion designed to shape it, reflects on the practical challenge of how to build the rule of law in formerly authoritarian and/or clientelistic settings. This collection attempts to analyse this process from a more scientific perspective, using tools from Pierre Bourdieu's structural sociology.
The editors’ useful introduction explains this approach. The first section – containing essays on Venezuela, China and Italy – then applies it to the classic puzzle of the force of law. Following Bourdieu's move ‘from law to legal field’, the authors reject the popular notion that the law derives normative power from its content. Instead, they argue that law is a symbolic good which acquires autonomy from other social fields when powerful actors ‘invest’ in it. Conversely, as Ethan Michelson argues impressively for the case of China, lawyers who ‘invest’ in politics by mobilising their personal contacts may actually increase law's social legitimacy. Some tough conclusions inevitably follow for interventions conceived around rigid distinctions of law and politics. There are also some potentially stimulating theoretical implications. Where law has often been conceived as an instrument for shifting the basis of society from status to contract, these essays place social distinctions, and personal connections, at its very heart.
The second section – with case studies of Argentina, Chile, Bulgaria and Columbia – tackles the question of law's diffusion. The essays concede to (some) realists and functionalists that the standardising of market arrangements since 1989 may explain much of the rule of law's new prominence. But they insist that lawyers’ privileged social positions have enabled them to ‘broker’ these (internally contested) transnational processes. Social capital acquired in international, and especially US domestic arenas, has enabled them to profit from new national orders.
The final section analyses some East Asian conceptual and practical challenges to rule of law orthodoxies. The contributors, however, often adopt positions at odds with those developed earlier. They talk, for instance, of ‘modernization theories’ (p. 240) and law's ‘essential functions’ (p. 231). More sustained engagement with such competing explanations, both here and elsewhere, might perhaps have made this a more rewarding volume. Important work in constructivism and world polity sociology, for example, is hardly alluded to. It also seems somewhat unfair to allege that Ran Hirschl's realist interpretation of the ‘judicialisation of politics’ neglects the ‘politicisation of the law’ (p. 2, p. 7), a topic about which he has written at some length. Nevertheless, as a challenge to some prevailing wisdom, and as a development of an increasingly rich tradition of socio-legal research, this collection retains considerable value.