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Comparative Law has undergone a series of methodological changes over the last decades which have changed our understanding of the politics, sociology and significance of “area studies” in law.  At the same time, law and the legal profession in Latin America have themselves been changed.  At the 2010 IGLP Workshop, Professor Jorge Esquirol convened a Pro-Seminar on Renewing Latin American Legal Studies which brought together a small group of scholars who were thinking in new ways about law in Latin America to examine these changes and and to sharpen their intervention in the field of Latin American legal studies.

The IGLP recently spoke with Prof. Esquirol about what he sees as the major issues impacting political and economic development in Latin America and the role a ‘re-thinking’ of Latin American legal studies could play in shaping the region in the coming years.

IGLP:  What do you see as the major public issues impacting Latin American societies today?

Jorge Esquirol: Across the region, the very model for political democracy and economic prosperity is in question. The latest wave of new constitutions and constitutional reform demonstrates, if nothing else, that Latin Americans are demanding a renegotiation of the existing societal bargains. For political moderates, gradual implementation of economic and social rights can rightly lead the way. For more radical reformers, greater transformation of the economic order, foreign investment, and liberal democracy needs to take place.

IGLP:  In what direction do you see the region headed in terms of economic policy?

JE: The worldwide recession has not spared Latin America. Trade, foreign investment, and remittances from abroad have all contributed to significant losses in GDP. At the same time, the backlash to 1980’s-90’s neo-liberalism is still unfolding. Two decades of regressive fiscal policies and eroding social welfare have lead to the re-appearance of economic nationalism in the region.

The challenge for policy makers is to provide sustainable economic pay-offs for local communities while deepening internationally-linked chains of production and whole industries. Foreign investment regulation, market-state joint ventures, and greater gains for labor will need to be more squarely on the table. Governments in the region can no longer ignore the demands of their citizens for economic justice.

IGLP: What shape will governments in the region likely take?

JE: A few countries have embraced leftist populism. This “retro” political movement reflects the frustration with representative democracy. The so-called “transitions to democracy” have been less than what was hoped for. Additionally, deepening globalization –with its erosion of national policy space — further limits the array of political decisions within local reach. As a result, broad appeals to nationalism and scattershot charges of foreign imperialism are finding fertile ground.

Other countries have introduced more modest social welfare reforms. As mentioned before, economic and social rights are a centerpiece of this policy. But also, entitlement programs consisting of food aid and outright cash transfers are part of the mix. Additionally, there has been some experimentation with different forms of participative democracy, direct citizen involvement in local law-making, etc.

Another important factor is the rising crime rates in some countries. The spread of organized drug-trafficking, especially in hard-hit Mexico and Guatemala, is a prime example. This is beginning to produce some victories on the right at the polls. In Guatemala, a former military general from that country’s bloody civil war past was recently elected president, apparently in the hopes of tamping down the violence. The security issue has the potential of eclipsing, or at least delaying attention to, other important policy concerns.

IGLP: Are the legal systems in Latin America up to the task of promoting political and economic development?

JE:  Well, national law as a unifying system –or even a tangible set of priorities at any one time — in the body politic is also up for renegotiation. This is not completely a new phenomenon. State law in the region has been under intense pressure for the past half century to deliver greater growth and democracy. Long periods of political and economic upheaval have taken their toll. No less, decades of negative public commentary and condemnatory academic research — critiquing the extraordinary failure of liberal legalism in the region — have not helped.

IGLP:  Can more international development aid help to reinforce these national legal systems?

JE:  International aid can be a two edged sword.

For example, the diagnosis of legal failure, used to justify much international aid, is both a questionable description of law in the region, and yet it is quite effective. It offers a strong rationale for changing the laws, policies, institutions, and the like. However, in Latin America, this background justification for internationally-sponsored reform has become a permanent perception of the operation of law in the region.

Unfairly, some of these shortcomings seen as particular to Latin America are in reality endemic aspects of liberal legalism. Liberal law’s most important strengths, such as neutral decision-making, objectivity, judicial independence and the like, are also its most unattainable features in any satisfactory way by mere human beings. Damagingly, projecting its shortcomings’ particularly onto Latin America has the effect of undermining the very credibility of local law that international aid purports to support.

This is not to say, of course, that significant improvement is not needed in many areas of law in Latin America. However, it is important to separate ideology from diagnosis. International aid and its efforts have not often done that.

IGLP: What does this mean for the future of national legal systems ? Is it better for legal operators in the region to muddle through on their own without much international legal assistance?

JE:  International involvement with national legal systems is unavoidable. And in many cases is much welcome. My own concerns with it relate to the frequent self-defeating effects of the enterprise of internationally-sponsored legal development.

To say just a little more about this: some general acceptance of law – shortcomings and all — is a necessary dimension for the functioning of any legal system. State law in the region has had some significant challenges in fulfilling this role. A not insignificant part of this is the discredit heaped on it by political projects which have as their goal changing or decentering the state.

The strong push for “development,” global best practices, and the like need not — but in effect has — diminished state law, the alternative policies and experimentation the latter may advance, and the national sovereignty it represents. Additionally, the growing popularity of identity politics – in somewhat like effect — promotes alternative legal orders and their equal recognition at the national level. Both of these forces have posed significant challenges to the credibility of state law in the region.

I should say – to be clear — that legal pluralism need not undermine state law. Indeed, in Bolivia and Ecuador for example, it may turn out to actually reinforce it with an agenda of internal legal pluralism. The new constitutions there promote plurinational legal institutions and legal culture. These would require a new fusion of the traditional state apparatus to accommodate the different world views and organizational preferences of the multiple and distinct ethnic and racial communities in countries of the region.

IGLP:  What does this mean for the effectiveness of national legal systems in the region?

JE:  Troublingly, under the current set of dominant perceptions, whatever experiment in legal re-ordering Latin American nations may undertake, the weakened perception of state law as a social system may automatically undermine any significant chances for success – or at least its broad acceptance.

IGLP: In your estimation, how can these issues best be addressed? What role can the academic community play?

JE: Yes, well, I do believe that an important dimension of democracy is exercised through legal debate and law-making at the national and local levels. Law can be the record of a society’s most important commitments and its most elevated goals. It is the province not only of legislators, judges, and lawyers. It is widely dependent on a class of legal commentators, critics, scholars, academics, and informed citizens.

This ambit of debate and discussion serves many purposes. It provides a running dialogue on the desirability, adequacy, effects and the like of the actual laws. It also provides information for society on alternatives, foreign models, international prescriptions and so on. With enough depth, a national legal intellectual community will represent different viewpoints and engage in a robust culture of intellectual inquiry. Leadership and expertise in this sector is an important need for modern societies.

From the perspective of international aid specifically, this sector of the legal profession at the national level offers a meaningful cohort of interlocutors. These can more effectively respond to proposed cargo cult reform packages, imperious foreign experts, or impossible to resist internationally-sponsored legal reforms.

IGLP: In this era of doubt about the utility of legal scholarship or even a professional legal academy, how can a Latin American legal academy or Latin America related legal scholarship serve the important goals of economic and political development?

JE: It turns out that advanced legal expertise is an important aspect of the rule of law. It is not merely a luxury for wealthy societies. It is a necessity in terms of explaining, debating, defending a society’s system of laws and policies inscribed in them. Indeed, promoting the national rule of law is an important element of sovereignty. It is served by a dedicated class of individuals that can contribute to societal discussions and disagreements about political priorities, policy deliberation, institutional re-design, and specific legal reforms best suited to implement them.

Moroever, in a globalized world, with its pressure for greater uniformity, important precepts generated by the local will of peoples are harder to defend and reinforce. Even at a national level, local legal imperatives require a community that can articulate their strengths, legitimacy of alternative arrangements, force of local political support and the like. Amplifying the voice of local law is not only a project of sub-national groups or ethnic legal pluralism. It is also an important task for national communities, especially those considered less powerful at the international level. Attending to this important product of political societies is a necessary aspect of social stability, human dignity, and mutual respect.

IGLP: What is the state of the legal academy in Latin America?

JE: Latin America has a long tradition of legal education. There are many law schools and lawyers. All countries in the region have been extensively open to developments in law from abroad. Indeed, many have assembled their national legal systems in relation to the most cutting edge developments in legal history in the West over the past two centuries.

Very excitingly, over the past two decades law schools in Latin America have also begun to invest more in full time faculty and enhancing the international studies of their faculty and students. Law schools are hiring more full time faculty members. They are also investing in sending their faculty abroad for advanced degrees to the U.S. and Europe. Several schools have started masters and doctoral programs to generate more homegrown legal experts. Additionally, many countries have an increasingly vibrant and robust engagement at the level of legal discourse.

IGLP: Is there a role for the international legal community in these developments?

JE: Definitely, the global legal academy can play a very constructive role in this arena. By sharing our knowledge of the workings of law, the most cutting edge theoretical debates, and the possibilities and limitations of law as a mode of social organization, the legal academy in the West/global North has much to contribute.

By the same token, it has much to learn. Beyond merely skills training, or an opportunity to enforce any particular orthodoxy, the deepening of a Latin American legal academic community offers a breath of fresh air for transnational legal studies. Re-orienting legal area studies may be one of its principal by-products.

IGLP: How do you see legal areas studies on Latin America changing?

JE: Analysis of the political and economic situation in Latin Ameirca has been for some time plagued by a large amount of defeatism. Insufficient prosperity and thin democracies have been its main expression. But the pessimism of area studies extends to almost any social system in the region. All the dysfunction seems to be inter-linked. Focusing on any single aspect quickly appears doomed by the overwhelming failures of some other related sector.

Indeed, much academic study of Latin America by well meaning scholars and observers often leads to a vicious circle of despair. Part of the problem is that we need more nuanced, more refined tools if we are to get out of these conundrums of thinking.

More direct contact with Latin American scholars could transform the agenda. It could lead to more horizontal engagement on the questions that are relevant in Latin America and in the global North.

IGLP: What do you see as responsible for this form that Latin American legal studies has taken?

JE: As practiced in the English speaking world, Latin American legal studies is a subfield of area studies led by legal comparativists and economic development scholars. The work-product of these fields is highly relevant for they serve as the background for decisions by states and international institutions on development aid, conditions for international funding, foreign policy, as well as the general understanding of Latin America and Latin Americans by English-language speakers.

In the past, the main literature in the field of Latin American legal studies has taken one of two dominant forms: either (1) it dismisses official law all together as irrelevant in the face of outside social forces and systems which are said to more aptly explain societal phenomena; or (2) official law is examined and analyzed through an ideological lens searching for dysfunction, under the assumption of Latin American law’s necessary role in producing economic underdevelopment and democratic deficits. As such, the writing in English on Latin American Law follows mostly in either the “law and society” or the “law and development” type perspectives. While much of this scholarship is quite useful and sheds significant light on development in Latin America., it also leaves out a significant part of the picture. Indeed, this omission often leads to a disappointingly predictable “Orientalizing” structure that results in negative diagnoses of the problem of “law” in Latin America from a neocolonial and hegemonic perspective.

Common to both these main approaches is that they dismiss the politics of law underlying law-making and legal interpretation in the various Latin American countries. While, of course, law in all contexts can be said to penetrate imperfectly throughout all of society or that it is mainly a game for the rich and the elite. Ignoring the importance of state law, law-making, and constitutional interpretation demonstrates a significant gap in our understanding of the stakes in Latin American legal systems. Surely, information about other social systems, legal pluralism, and the context of law are all important endeavors. In the case of Latin American legal studies however these have been emphasized at the expense of much if any analytical work on the official law.

In fact, the term “Latin American Law” – given content by comparative legal studies and social sciences and ultimately common popular reference — reflects the skewed nature of Latin American legal studies in English language scholarship. In some instances, the generalization may capture contemporaneous developments or similar events in more than one Latin American country. More often, however, the term’s insufficiency and inaccuracy is amply noted even though it remains in the text. It continues to serve as a convenient way to fit a number of loosely connected topics under a relatively neat construct. Indeed, if the term were just an organizational tool, one could imagine the category includes almost any topic connected to law and other related fields. In reality, however, the term has acquired a more limited, dominant understanding. Its use chiefly denotes the ultimate meanings produced by Latin American legal scholarship described above – irrelevance and dysfunction.

IGLP: How do you see this changing?

JE: A number of scholars are leading the way with a varied mix of projects related to this topic. They are located both in Latin America and elsewhere. They write in areas of constitutional law, economic development, family law, contract law, and a variety of other fields. A main point distinguishing them is that their work bridges the gap between local political discussions and transnational policy debate. Drawing on the most advanced legal thinking, these scholars share a renewed interest in issues of state law and transnational legal reform. In the aftermath of the global economic crisis, re-centering state law, national institutions, and local modes of regulation is central to re-thinking the grid of transnational economic relations. As such, they are able to bring together questions of policy choices and the geo-politics of transnational law reform in their work.

IGLP: How has IGLP contributed to this project?

JE: IGLP has begun to help bring some of these scholars together for the very first time. While most people in the field know each other or know of each other, not everyone working along these same lines has had the benefit of interacting directly.

So, I would say IGLP has foremost helped with moral support to pursue this project of convening people. It has provided an invaluable venue. And, of course, all these initiatives need funding, if only to bring people together. Over the years, the Graduate Program at Harvard Law School has been the site for three “re-thinking” Latin American legal studies conferences. Now, IGLP has hosted a new series of these meetings first in November 2010 and then at a four day Pro-Seminar during the Institute’s annual summer workshop in June 2011. The group is expanding and hopes to continue its work at a conference to be hosted by Tulane Law School in February 2012.