Law and Globalization from Below: Towards a Cosmopolitan Legality

Vol. 16 No. 3 (March, 2006) pp.264-267

LAW AND GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN LEGALITY, by Bonaventura de Sousa Santos and César A. Rodríguez-Garavito (eds). Cambridge: Cambridge University Press, 2005. 440pp. Hardback. £55.00/$95.00. ISBN: 0521845408. Paperback. £24.99/$45.00. ISBN: 0521607353.

Reviewed by Benedict Sheehy, School of Law, University of Newcastle, NSW, Australia. Email: Benedict.Sheehy [at] newcastle.edu.au

LAW AND GLOBALIZATION FROM BELOW is a collection of deeply insightful and challenging essays. The essays are written from a socio-legal perspective and all include case studies from around the world, with a primary focus on the developing world. This case study approach makes the book much more than a mere theoretical critique of the existing dominance of neo-liberal governments and governance. It gives the book substance, permitting exemplars of direct, largely effective, actually instance of challenge.

The editors, Bonaventura de Sousa Santos and César A. Rodríguez-Garavito,set out their political concerns in the opening paragraph:

The beginning of the new millennium has witnessed a groundswell of proposals for the transformation or replacement of the national and international legal institutions underpinning hegemonic, neoliberal globalization. Put forth by variegated counter hegemonic movements and organization and articulated through translational networks, these proposals challenge our sociological and legal imagination and belie the fatalistic ideology that ‘there is no alternative’ to neoliberal institutions. (p.1)

The editors note that the majority of studies on globalization have adopted the top-down model of globalization, which ironically is a problem. Top-down globalization analysis, the editors advise, focuses on “the diffusion of economic and legal models from the global North to the global South” (p.1). As an antidote and alternative to this approach, the essays in this collection are focused on “bottom up” globalization, with an emphasis on alternative frameworks, examining local reactions to hegemonic globalization and the international and legal aspects of and responses to such reactions.

De Sousa Santos and Rodríguez-Garavito note the development of a number of discrete movements, each challenging the neoliberal model and each with discrete characteristics, either taking on or taking in both municipal and international law, or more often straddling the two approaches and switching between them as strategically necessary. As well, the editors observe that switching between legal and political approaches has been a necessary and integral means of challenging the neoliberal hegemony.

These various strategies have been necessary, as the traditional top-down analysis, which follows on a governance approach, tends to re-marginalize and silence for a second time those generally [*265] shut out of legal and economic discussions of governance. The recognition of this subtle but important distinction leads to de Sousa Santos’ cumbersome descriptive phrase “subaltern cosmopolitan legality,” which is “a perspective or an approach rather than . . . a theory. . . . To our mind, the plurality of efforts at counter-hegemonic globalization cannot be encompassed by an overarching theory. . . . [T]he potential contribution of our approach lies in its distinctive bottom-up perspective . . . rather than in a set of fixed substantive claims . . . . [that] cannot be subsumed in a rigid general framework” (p.13).

The fourteen essays that make up the rest of the book bear out this thesis admirably. Each of the essays examines a grassroots response to a heavy-handed effort of some powerful private, public or international institution to further suppress or disenfranchise some already disadvantaged group, and the group’s innovative and largely successful response. The level of interaction with local actors in these struggles and the researchers’ intimate knowledge of the specific cases provide readers with remarkable access, in many cases to first-hand knowledge and description of situations around the world that would otherwise be wholly inaccessible.

The analyses range from responses to multinational corporations’ efforts to oppress workers through sweatshops, denying drugs to HIV/AIDS sufferers, state interactions with illegal immigrants in the US, interactions among various movements in India dealing with land rights of tribal peoples, and Brazilian efforts to deal with the same issue. Other essays include matters of participatory budgeting, again in Brazil, and struggles in Colombia.

The book is neither an anti-neo-liberal manifesto, nor an activist manual, nor polished marketing of alternative approaches to challenging neo-liberal globalization. Rather, the essays are a collection of well-written, thoroughly researched, and brilliantly thought out pieces examining specific responses to local problems in the face of large, hegemonic adversity. The essays are mostly written in clear accessible language. They are dry-eyed, although sympathetic analysis of successes, failures, and on-going challenges.

As the editors indicate, there is little in terms of generalizable method or institutions; however, there is considerable contribution to developing potential solutions. Indeed, the selection of case studies, illustrating the broad range of approaches and solutions offered by bottom-up globalizations, is a real strength of the work.

There is little discussion of socio-legal theory or analytical approaches. Nor is there a consistent or persistently dominant method—at least beyond a general commitment to case analysis. It is not clear whether this methodological approach was intentional; however, as the book is not a exposition or critique of theory, this does not detract from the book’s value.

More particularly, almost all of the essays are sharp and lively, and they engage the reader through well-selected [*266] cases. De Sousa Santos’ own writing tends to be dense and wordy. The unfortunate result may be that his important chapters (Introductory, Second and Thirteenth) serve as obstacles to the uninitiated. It is particularly lamentable that one of his chapters (albeit co-authored) forms the introduction. In addition, the two chapters of which he is sole author are longer than the others. Certainly, he is the driving force behind the work, and his contributions are important and substantial; still his style detracts from his otherwise fine contribution.

A few other essays deserve particular comment. Rodriguez-Garavito’s analysis of the switching preferences for hard and soft law among the contestants in the sweatshop fight is illuminating. He sheds light on the otherwise curious shifting sands of activist approaches to law. The law’s dual nature as both beneficial and detrimental to activists is also addressed in Rajagopal’s interesting and thorough review of the Narmada Valley struggle in India.

In addition, the Rodriguez-Garavito and Arenas chapter draws attention to the on-going struggle of local movements after “victory” and offers reasonable explanation of international NGO behaviour in abandoning such movements. While international activists must pull out and pursue other worthy causes, the local populace may find itself facing yet more battles on the same issue.

Shamir’s analysis of the Corporate Social Responsibility movement is also enlightening. Without getting lost in the details of widely-ranging views within the movement, he provides a clear, concise outline of the debate and a sharp critique of the politics involved. Shamir also offers a critical analysis of subversion by carefully coordinated corporate actors.

Larson’s review of the Texan colonias (illegal villages or slums populated by Latin Americans) is certainly a contribution that stands in its own right. She demonstrates how Latinos living on the fringes of US society have been able to smudge the line between legality and illegality and engage in successful legal efforts to create improved living situations. Her essay is particularly interesting because it deals with the tension between powerful politicians and top-down efforts at control in a developed country, and the weak illegal resident underclass forcing a bottom-up solution. It is the only chapter dealing with a case occurring in an Anglo country—something of interest and importance to a book written in English.

Houtzager’s chapter on the landless peasant movement in Brazil offers a fine explanation of the combination and coordination of legal and illegal activities. Illegal occupations were part of the strategy but drew attention of the authorities, and hence a legal focus on certain leaders. Yet, lawyers dedicated to the cause have proven instrumental in achieving specific justice in several cases.

Finally, Pureza’s chapter contrasting the development and uses of international law under the UN’s Common Heritage and the International Criminal Court is [*267] enlightening, as he teases out the tensions between the two types and uses of international law.

All in all, this book is a very readable, highly informative, critical resource for those looking at the politics of law, alternatives to the neo-liberal vision of globalization, and activism.

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