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Sida Liu | The Doomsday Song of Legal Imperialism
2023-12-13 [author] Sida Liu preview:

[author]Sida Liu


The Doomsday Song of Legal Imperialism

Author Sida Liu

Professor, Faculty of Law and Adjunct Professor, Department of Sociology, The University of Hong Kong

Vice President, China Institute for Social-Legal Studies, Shanghai Jiao Tong University

Abstract: Law as Reproduction and Revolution: An Interconnected History is a newly published masterpiece by French and American historians of legal thought, Dezalay and Garth. The book tells the fascinating story of the globalization of the legal profession. However, the paper raises some questions about the theory of the reproduction of the legal elite and the idea of the global expansion of legal imperialism held by the two authors, arguing that the legal field is not only about the competition for power and capital, but also about resistance, culture and the reconstruction of order in the field. The global history of the legal profession will open a new chapter after decolonization.

The global history of the legal profession is a colonial history of imperialism. It begins with the conquest of Europe by the Roman Empire, continues through the long Middle Ages, and crosses the Atlantic in the post-Renaissance age of empire, when the seeds of colonialism were sown in the lands of the New World. And as the superpowers of the New World established world hegemony in the twentieth century, the tentacles of legal imperialism spread across the globe. In Law as Reproduction and Revolution: An Interconnected History, Yves Dezalay and Bryant G. Garth, two sociologists of law from France and the United States, tell a story of the globalization of the legal profession using Bourdieu's theory of field and capital. The protagonists of this story are the legal elites of each country, who have always occupied a pivotal position in the ebb and flow of imperialism, and whose influence in political, economic and social life has been so far-reaching that they have always been reborn, even in the midst of revolutions and bloodshed.

Yet the publication of this book seems so out of place at a time when the discourse of globalization is falling apart. Epidemics and wars have transformed elite lawyers, who used to travel freely between major cities on all continents, from trapeze artists to video anchors, made the day-to-day operations of international law faculties and transnational law firms difficult, and brought to an abrupt end what both authors call the "history of relevance", as well as an unparalleled rise in nationalist and anti-elite sentiment. It is, of course, absurd to talk about the "end of history", as this book shows that the elite of the legal profession seems to be an undefeatable force, always resurrecting itself in the ebb and flow of political and social change in Europe, the United States and Asia. But this has continued for hundreds of years to Europe and the United States as the centre of the expansion of the world's imperialist legal history, has come to a turning point in history? Will it be replaced by a new global legal history?

Before answering this question about the future, let us follow Dezalay and Garth's train of thought back to medieval and Renaissance continental Europe. The twelfth-century University of Bologna in Italy is often regarded as the birthplace of Western legal education, and the initiation of legal education here was closely linked to the rise of Catholic ecclesiastical law. Following the Gregorian Reform, which established the papacy and the celibacy of the priesthood, ecclesiastical law scholars developed a complete system of ecclesiastical law through the revival and interpretation of Roman law, which provided a powerful tool for the domination of medieval European societies. Harold J. Berman, in his famous book Law and Revolution, referred to the system of ecclesiastical law derived from this turning point in history as the first modern legal system in the West, while in the view of Dezalay and Garth, in addition to the development of the law itself, it was equally important that with the rise of ecclesiastical law led to the formation of an elite legal profession, whereby university-trained lawyers in ecclesiastical law gained elite status in both the state and religious spheres, and accumulated much cosmopolitancapital in the "transfrontier" exchanges between the continental city-states and the Holy See. In this particular historical space and time, the formation of the legal field was embedded in the power fields of religion and the State.

The history of Europe in the centuries since has witnessed the flux of this elite group between the university, the state and the emerging capitalist market. In continental countries such as Germany, France, and Italy, legal education largely continued the classic Bologna model, where the professional training of lawyers was based on university education, which gave law professors a dominant position in an increasingly autonomous legal scene. Across the Channel in England, although the development of the common law was also influenced by ecclesiastical law and the Bologna model, the emergence of the legal profession did not depend on legal education at elite universities such as Cambridge and Oxford, but rather on the formation of a distinctive system of "Inns of Court". Most of the members of these Inns of Court came from the squire class of the British society, and also included some emerging bourgeoisie, and the "barristers" trained from the Inns of Court naturally became the spokespersons of these two social elite groups. Dezalay and Garth argue that the history of the legal profession, both in the UK and in continental Europe, has been characterized by the same phenomenon, namely the declining influence of "academic capital" and the increasing importance of "family capital" for lawyers. As "brokers" and "capital converters" between the state and the market, the reproduction of the legal elite is not a process of equal education and practice for all, but a process of capital conversion in which the descendants of upper-class families are trained to become professionals through elite legal education and legal practice.

This analytical framework for the reproduction of the legal elite, based on Bourdieu's social theory and the history of the development of the legal profession in Europe, is a research path that the two authors have maintained throughout their nearly thirty-year collaboration. Their fieldwork, which began with international commercial arbitration and covered a dozen countries in Latin America and Asia, has resulted in three books on the globalization of the legal profession. And this book, Law as Reproduction and Revolution, is Dezalay and Garth's late-in-life finale and the culmination of this theory of elite reproduction. While both theory and experience originated in Europe, the protagonist of this colonial history of imperialism is the United States across the Atlantic, although this protagonist makes a belated appearance.

Before turning their attention to the United States, the two authors begin by briefly exploring the colonial histories of several European empires around the world and the impact of these colonial histories on the legal and ruling orders of colonized countries in Asia, Africa and Latin America. The British Empire was undoubtedly the most adept at exporting legal systems to its colonies, whether it was India or South Africa, Hong Kong, China, or Singapore, and everywhere it went it inherited a series of institutional arrangements based on English common law, and most of the elites of the legal professions in these colonies had been educated in England itself. By contrast, French and German legal exports to the colonies were much less favourable. This, according to Dezalay and Garth, was largely due to the marginal position of law in the colonial governance of these two empires. Of course, as representatives of civil law systems, the German and French legal systems still indirectly influenced the legal profession in many Asian countries through Japan. Spain's vast empire in Latin America, on the other hand, was somewhere in between, and although legal education in the colonies started late, after centuries of colonial history, it was deeply embedded in the bloodline of elite families in Latin American countries ——many of the children of these families received an elite legal education in Europe or the United States but did not engage in legal practice, but entered politics and business, and directly intervened in the country's economic development policies and political and social changes. By the time the American empire began to dominate the world in the mid-twentieth century, the global map of legal imperialism seemed to have been carved up.

Just as the legal revolution in Europe originated at the University of Bologna, the legal revolution in the United States began at the University ——in the form of the case method of teaching pioneered by Christopher Columbus Langdell at Harvard Law School. Drawing on Langdell's family background and life history, Dezalay and Garth argue that this method of legal education he advocated was closely related to his own relatively humble family origins and his dissatisfaction with the courts and bar associations in New York City during his practice at a Wall Street law firm. As a result, the legal education reforms that Langdell introduced after his appointment as dean of Harvard Law School in 1870 were based on academic merit rather than family capital, and were, in a sense, a struggle against "a system controlled by gentlemen”. In the late nineteenth century in the United States, industrialization and urbanization of the social context of Wall Street's new business law firms became an important ally of Langdell's reforms. These firms, which mainly provided non-litigation services to large corporations, combined family capital with academic achievement, and provided employment opportunities for graduates of Yale, Harvard, and other top law schools, who came from ordinary families. By the turn of the twentieth century, this elite alliance between law schools and business law firms was so strong that it remained at the top end of the American legal profession for more than a hundred years afterward.

As U.S. imperialism rose in prominence in the twentieth-century world order, U.S. law schools and law firms became internationalized and played an important role in both diplomacy and business. Dezalay and Garth point out that the expansionist philosophy of U.S. imperialism differed from that of the European empires of the Old World in that it was not about territorial expansion, but rather the building of a "legalistic empire" that would guarantee U.S. economic and political influence on a global scale with concepts such as the "rule of law" and "rights". In the imperial competition in the early twentieth century , U.S. jurists and lawyers did not gain an advantageous position over their European counterparts, but after World War II, the United States established its hegemony in the Western world, and the civil rights movement in the country was also in full swing, and the legal elite began to clearly differentiate into liberals and conservatives, and both camps actively consolidate their domestic position by expanding their international influence. As a result, the power struggle in the legal arena extended from the United States to the rest of the world, and "law and development" projects sprang up under the auspices of various foundations, which, in the name of "modernizing" the rule of law, pursued a kind of US-led "moral imperialism" around the world. Most of the participants in these programs are students and teachers at US elite law schools. At the same time, U.S. business law firms also began to follow U.S. companies in the 1970s to expand aggressively around the world, but the earliest group of "pioneers" in the wave of globalization of the legal profession were not the most elite New York Wall Street firms but Baker & McKenzie, and other firms headquartered in other cities, such as Chicago, whose internationalization gave these firms the symbolic capital they needed to compete with New York's elite firms on the US domestic legal scene.

It is clear that the globalization of the legal profession in the United States in the post-World War II period was closely linked to the political and economic expansion of imperialism. Equally importantly, the global competition of the American legal elite was based on domestic social changes and the market competition and political struggles that these social changes triggered. In this sense, the historical process of legal globalization actually reflects the domestic political and social demands of several major colonial powers, both in the nineteenth century, dominated by Britain and France, and in the twentieth century, dominated by the United States. So what exactly has been the impact of the global legal expansion of the United States over the past few decades on other countries and regions?

In the third part of the book, Dezalay and Garth tell the story of the transition from "law and development" to "the neo-liberal revolution" using several Asian cases, including India, South Korea, Japan, and China (including Hong Kong and the mainland). As in Europe and the United States, the protagonists of this story are the elite groups of the legal profession, especially the elite law schools and business law firms. In India, for example, where the total number of lawyers is in the millions and even exceeds that of the United States, the authors' focus, in addition to the Ford Foundation's funding of legal education and public interest law, has been on the role of the Anglo-American educated legal elite in the creation of a national system of law schools and of the Jindal Global Law School, which has trained lawyers in foreign law. The reforms of legal education in Japan and South Korea at the beginning of the twenty-first century, though with different results, were clearly influenced by the U.S. model of post-graduate legal education based on the Master of Laws (J.D.) degree, and alliances similar to the U.S. alliance between elite law schools and business law firms are clearly visible in these two East Asian countries. Even in their discussion of China's legal development, Dezalay and Garth are concerned with the role of older legal elites such as Shen Junru, Qian Duansheng, Han Depei, Shen Zongling, Gong Xiangrui, Wang Tieya, and Rui Mu, as well as the more internationalized top law schools such as Peking University, in the renaissance of legal education and the legal profession in China's reform and opening up era. In the view of the two authors, no matter how different the cultural and political environments are between different countries, the logic of the reproduction of legal elites is almost the same, whether in twelfth-century Europe, nineteenth-century United States, or Asian countries in the early twenty-first century.

However, this excessive pursuit of universality also happens to be the book's greatest weakness. For while the elite of the legal profession are traceable in different temporal and social contexts spanning millennia, their life histories, work experiences and political leanings are very different. Not everyone from a privileged family background will become a foreign business lawyer, nor will everyone with a Western legal education dominate the legal profession and state institutions in developing countries, and the legal profession in the twenty-first century is no longer socially stratified and pluralistic in the same way as it was in the twelfth century, when it was a small group of legal elites dependent on the church and the university in Bologna. The legal elite, which has accumulated a great deal of "family capital" and "academic capital", is also likely to stand against the market or the state and fight for the rights of ordinary people or the public interest. The political destiny of the legal profession is not only to act as an "intermediary" and "capital converter" between the state and the market, but also to be the creator and promoter of systemic or cultural change, as exemplified by the history of the development of the legal profession in the United States since the civil rights movement. The evolution of a country's legal history is not only driven by a few elite legal professionals. Whether in the United States, South Korea or India, many ordinary lawyers who lack family or academic capital have also left their own marks in political and social change, which may come from the fortuitous opportunity of a certain moment in history, or may also originate from the unremitting endeavors of a certain person or group of people who have worked tirelessly day in and day out for decades.

Dezalay and Garth's exclusion of the conceptual and ideological differences of the legal man from this story of elite reproduction exemplifies one of the problems inherent in Bourdieu's social theory, which they embrace, which is the reduction of flesh-and-blood human beings with emotions and beliefs to "agents" who have only habitus and capital. The main purpose of the struggle for power in a field is to gain dominance and domination over others, whether the field is legal, political, artistic or other. In this sense, the two authors' approach is in fact similar to the idea of imperialist global expansion, that is, starting from the power struggle between the legal elites in the "core" countries of the world system, such as Europe and the United States, and gradually expanding to the developing countries that are in the "periphery" of the system, ultimately bringing all countries into the same system of elite reproduction.

This theoretical perspective, which might be called "legal imperialism", is particularly evident in the discussion of Hong Kong in chapter seven. Dezalay and Garth refer to Hong Kong as an "open market" and a "colonial transit" that is particularly conducive to the globalization of elite law schools and commercial law firms. In their theory, Hong Kong is clearly on the periphery of the globalization of the legal profession, and its local law schools and lawyers have been profoundly influenced and shaped by the colonialism of common law jurisdictions such as the United Kingdom, the United States, Canada and Australia. Although they do acknowledge that the influence of corporations, financial capital and law firms from Mainland China in Hong Kong's legal profession has been gradually increasing in the two decades or so since Hong Kong's return to China in 1997, they merely regard these transformations as nothing more than the substitution of one new world hegemony for another, and they have not altered Hong Kong's peripheral position in the colonial system of legal imperialism. In the view of the two authors, there is no essential difference between Hong Kong's three law schools, and only the offspring of non-elite families stay in local law schools rather than study in the UK and the US ——even though Hong Kong's law schools compete globally with other prestigious law schools for teaching and research talent, and seldom hire students who have graduated from local schools. This reliance on foreign elite talent with a background of studying and working in the UK and the US is also clearly visible in Hong Kong's international law firms, where lawyers with both a Mainland Chinese background and a UK or US law degree are more likely to be favorably placed in recruitment and promotion than local Hong Kong lawyers, given that Mainland Chinese firms have gradually become a major client base for these firms in recent years.

Thus, under the logic of elite reproduction of legal imperialism, the legal profession in Hong Kong is almost destined to be in a "subordinate position between the academic capitals of China and the West", and the local law schools and law firms in Hong Kong will never be able to gain a dominant position in the development of the legal profession. The point is, however, that the legal profession in Hong Kong at the beginning of the twenty-first century is undergoing a profound transformation, the colonial history of imperialism has come to an end, and the road to decolonization, though long, is irreversible. Both law schools and law firms will experience a shift from common law to Hong Kong and Chinese law, and this shift will also allow the local legal profession in Hong Kong to gain greater autonomy and gradually reduce its dependence on Anglo-American law degrees and Western legal talent. In time, both local Hong Kong legal talents and legal talents from the Mainland will play a greater role in legal education and legal practice, thus forming a new elite group of the legal profession. This elite group will gradually be freed from the ideological constraints of Anglo-American legal imperialism in the process of decolonization, but will still be a group with highly internationalized professional skills and global competitiveness.

More importantly, the current shift in the legal profession in Hong Kong is just one example of the global decline of the colonial history of legal imperialism, and a similar process of decolonization has been observed in many developing countries on the Asian, African and Latin American continents, such as India, Brazil, South Africa and Indonesia. While Anglo-American law degrees and experience in international law firms continue to have a particular value and appeal to the legal elite in these countries, in the wake of the UK's "Brexit", the "decoupling" of the US and China, and the disintegration of the neo-liberal world political order, the US-led reproduction of the global legal elite depicted by Dezalay and Garth increasingly resembles the institutional and cultural legacy of the mid-to-late twentieth century and fails to adequately account for the radically new problems and challenges facing the development of the legal profession in countries around the world today.

It is in this sense that this book, Law as Reproduction and Revolution, is more like an apocalyptic song of legal imperialism, with the nostalgia of the twilight colonialist and the superiority of the West in the face of the world pervading the lines, and will the elite of the legal profession of the various countries that the two authors write about still be playing the next movement of this history of imperialist colonization in the never-ending process of reproduction? Or have some of them stopped enjoying the aura of elite law schools and the glamour of foreign business lawyers, preferring instead to explore different directions in the torrent of national and world history? After all, the revolution in law has never been limited to the renewal of knowledge and the conversion of capital as emphasized by Dezalay and Garth, but contains multiple connotations of violence, revolt, culture clash and the reconstruction of order. Indeed, even along Bourdieu's theoretical path, elite reproduction is only one facet of the many power struggles in the legal field, and cannot reflect, let alone replace, the life histories of individuals and groups in other positions in the field. The so-called decolonization is precisely to break away from this Western-centred perspective, which conceals the essence of colonialism with the shell of elitism, and to take seriously the different patterns of the legal profession in each developing country, and to discover from them various empirical phenomena and theoretical logics beyond the reproduction of elites.

Law as Reproduction and Revolution: An Interconnected HistoryBryant G.GarthYves DezalayUniversity of California Press, 2022

The original article was published in Reading Magazine, Issue 3, 2023, with thanks to Professor Liu Sida and WeChat public account "Reading Magazine" for the authorization to publish it.

Assistant Editor: Yang Shuhui

Responsible Editor: Tam Baijun

Reviewed by: Ji Weidong

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