My study of intermediaries adds to the emerging research that addresses rule of law development processes through a lens that puts individuals at the centre of analysis. Such analysis can be read as a response to the more common tendency to analyse the
55 I provide a similar argument in Chapter 3 of this thesis, but rather suggest that the packaging and branding of rule of law (Taylor 2016) into a development ‗model‘, that are supported by various ‗technologies‘ (Behrends, Park, and Rottenburg 2014), is suggestive of the difficulty of transplanting Western concepts, norms or ideals without them being translated and mediated (see also Zimmermann 2017).
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rule of law assistance field from the perspective of formal and institutional accounts. A move beyond ‗law on the books‘ (Friedman 1975, Selznick 1969) to the social
interactions between individuals, which constitute de facto agencies, within a space where the law is remade, reformed or created, positioned ‗in the middle [in] society itself … where … the centre of gravity of legal development lies‘ (Ehrlich 1936, lix) is
necessary to provide better insights to rule of law assistance.
I develop this section with a background review of common critiques of rule of law assistance and then outline why and how the study of intermediaries further
knowledge of the field.
1.6.1. Common Critiques of Rule of Law Assistance
The results of rule of law assistance efforts have often been deemed disappointing (Taylor 2009b). The reasons for failure have been explained with reference to the predominant focus on assisting state systems and processes, including the drafting and enacting of laws, training and equipping legal professionals, and enhancing the
efficiency of courts and case managing systems. In 2006 Trubek and Santos argued that development agencies continue to base their rule of law assistance on ‗one basic model
that should be followed by all developing and transition countries‘ (2006, 17).56
Similarly, Upham (2006, 76) suggests that the formalist approaches to rule of law assistance result in law being seen as a technology rather than as part of politics or sociology. Therefore ‗reformers are focusing on the expected result – the formalist rule of law – rather than the new institutions‘ interaction with the social context‘. Channell (2006, 100) argues that the prevailing assumption that laws and the government are
56 Already in 1972, Trubek, one of the law and developments‘ main proponents suggested that the ‗core conception‘ of ‗the relationship between law and development … is more concerned with the exportation of Western systems than with efforts to understand the legal life of the Third World‘ (Trubek 1972, 11).
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important is missing the mark in terms of conducting reform processes that take into account local level processes, actors, and legal plurality.
Peerenboom (2009, 5, 7) emphasises a need to acknowledge the specific context setting when designing rule of law reform and the enduring tendency ‗to treat rule of law and rule of law promotion as a single entity or enterprise, and to rely on generally applicable, and hence overly simple, highly reductive and exceedingly abstract,
international best practices and off-the-shelf rule of law toolkits‘. For the most part, however, legal scholars have provided critiques rather than new approaches for the study of rule of law assistance. Suggestions for genuinely new approaches have instead come from scholars of law and sociology (see e.g., Krygier 2006, 2009a, 2009b).
One shift towards new understandings of the field is found in the literature that
focuses on ‗the people involved‘ in rule of law assistance, which recognizes that they are
important subjects of inquiry (Baylis 2008, 2015, 2014, Simion and Taylor 2015). Following Baylis and the studies presented below that have identified the individuals involved as central for our understanding of ‗success‘ and ‗failure‘ in the field of foreign assisted rule of law reform, I argue that a focus on intermediaries brings in a
sociological understanding of rule of law assistance because it focuses the analysis on individuals responsible for various forms of legal translation and appropriation. A focus on intermediaries sheds light on the importance of local level processes, actors, and legal plurality. Critiques of a legal formalist focus and a lack of recipient perspective can thus be better understood through an exploration of rule of law intermediaries.
1.6.2. Individuals Involved in Rule of Law Assistance
This section provides an overview of the handful of studies that, broadly classified, focus either on lawyers as brokers in transnational settings, locally embedded lawyer
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activists/cause lawyers or the myriad of agents that translate global ideas to local levels within the field of rule of law assistance. As this study also finds, the lines between global and local processes and the roles individuals have that inhabit these spaces often blur.
Dezalay and Garth draw on theoretical insights from sociologist Bourdieu to explore how transnational legal processes interact with national levels through elite and ‗cosmopolitan‘ ‗lawyer brokers‘ who, they argue, become active importers of rule of law
at sites of ‗competition‘ (Dezalay and Garth 1997, 2002, 2010, 2011, 2012).57 They
suggest that there is a need for such focus in order to explain successes and failures in exporting the rule of law (2011, 4). These brokers, they argue, are much more than ‗neutral translators [as] [t]hey use the various forms of capital (social, legal, political, economic) that they have already accumulated to build their credibility (and power) as brokers‘ and may provide ‗the full menu of multiple services as go-between but also as translators and mediators‘ (2011, 5, 260, see also Halliday, Karpik, and Feeley 2007). My study of intermediaries in Myanmar uncovers similar tendencies as intermediaries move between roles that involve mediation, translation and go-between. However, Dezalay and Garth‘s focus on elite lawyers differs from the typical rule of law intermediary I find in Myanmar (see Chapter 2). A focus on elite lawyers does not fit naturally in a setting like Myanmar, where for decades lawyers have been treated as a force of opposition, important to eliminate (Cheesman 2015). Although after 2011 lawyers have more opportunity to access spaces of power, many remain local activists. Munger (Munger 2012b) is sceptical of Dezalay and Garth‘s focus, which he argues influences their understanding of globalisation as a top-down enterprise. Munger‘s response is to focus on the other ‗end‘ which he defines as locally-embedded ‗cause lawyers‘ who use the language and norms of rule of law to instigate and influence social change in their home
57 See also (Kisilowski 2015) for a ‗Bourdieuian‘ analysis of the role of lawyers as rule of law brokers in Poland‘s authoritarian regime.
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arenas in the confined setting of Thailand‘s authoritarian rule (see also Munger 2012a, Cheesman and Kyaw Min San 2014)
Both Munger and Dezalay and Garth start from their respective ‗ends‘ – the ‗global‘ or the ‗local‘ – and such dichotomies are problematic because they may isolate those spaces as ‗encapsulated societies‘. In a sense they recognise processes in the ‗middle‘ but still often glue together (and ‗black-box‘) relationships, however these are characterised. For example, as this thesis finds, ‗local‘ views and understandings, in the case of development assistance, are often a distorted understanding of the intermediary or ‗middle‘ view. This thesis focuses on the processes in the ‗middle‘, rather than at the ‗local‘ (Bosch 2016, Nicholson and Low 2013) or ‗international‘ levels.
Professor of land law and development, Manji (2006) draws on Latour‘s sociology of science to study the work of lawyers in the political enterprise of land reform in Africa. Network theory enhances her analysis of how the ‗global‘ connects to ‗local‘ through a ‗juridical link‘ enabled by donors (2006, 65-73). She thus emphasises that there are significant activities happening in the space between the global and local where ‗legal professionals‘ use their ―entrepreneurial activities‖ to put law at the centre place of land reform‘ (2006, 73, 82). Zürn, Nollkaemper, and Peerenboom (2012) set out to analyse rule of law ‗dynamics‘ as they build on Halliday and Carruthers‘ (2006) work to ‗bring together the normative perspective of law with the analytical perspectives of social sciences‘ (2012, 3). Following Zürn et al., rule of law ‗dynamics‘ involve the promoter perspective (rule of law promotion), the recipient perspective (‗conversion‘), and a link between the two (‗diffusion‘) (2012, 4-5). However, a detailed analysis of the link between promotion and reception, such as Manji provides, is lacking. Like Manji‘s and also Halliday and Carruther‘s scholarship (2007) a key contribution of my study of rule of law intermediaries are the lessons we can learn about processes of diffusion that take place during attempts to adapt global norms to the national context, because
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intermediaries remake ‗transnational ideas in local terms‘ and ‗negotiate the middle in a field of power and opportunity‘ (Merry 2006a, 42).
Writing about the rule of law assistance field, Hammerslev (2006), like Dezalay and Garth, draws on Bourdieu to examine how agents behind the American Bar Association‘s Central European and Eurasian Law Initiative (CEELI) managed to influence legal change in Bulgaria after the Cold War. He shows how the national legal ‗field‘ was transformed as a result of individuals using their political and social capital to introduce foreign ideas ‗into … national battles‘ by drawing on ‗the international capital gained from the international investments in the national fields‘ (2006, 75). Hammerslev finds that ‗global principles‘ were ‗imported … by people working as … brokers of these ideas‘ (2006, 75). According to Hammerslev, the foreign intervener of his study, CEELI, deliberately worked with people at the local level ‗who were able to take power away from the previous regime‘ and with people who agreed on the priorities of the development of law‘ (2006, 75). I find a similar pattern in my study of rule of law
intermediaries in Myanmar after political transition.58
Gillespie (2004) frames the actors in his study of rule of law reform in Vietnam as ‗agents for change‘ and argues that any account of law reform must include a
discussion about the individuals responsible for the state-society relationships that the change seek to improve. I agree that a framing of individuals as ‗agents for change‘ is useful for our understanding of why certain global ideas gain traction at local levels (see also Finnemore and Sikkink‘s (1998) analysis of ‗norm entrepreneurs‘). However, such framing is incomplete for purposes of gaining a better understanding of the challenges that the foreign import of ‗ideas‘ experience in the rule of law assistance field.
58 As I further illustrate in Chapter 4, for example, foreign actors that were present in Myanmar during authoritarian rule viewed their work there as one of preparing such ‗change agents‘ by introducing ‗foreign ideas‘ for when transition was one day to come. In Myanmar‘s nationalistic setting, however, the links with foreign actors were not seen solely in a positive light by surrounding actors, who were themselves influenced by decades of authoritarian politics that included the promotion of nationalism. I address this theme in more detail in Chapter 7.
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Gillespie‘s finding that ‗elite level legal and economic technocrats working in central ministries are responsible for importing borrowed law and adapting it to Vietnamese conditions‘ may well be a contrast to, what he suggests, is a tendency to ‗treat legal ideas as technical fragments unconstrained by cultural borders [with] an unwavering
conviction in the instrumental power of law to engineer social change‘ (2004, 163). However, Gillespie does not reveal much about the actual challenges of translation and the conflicts that these ‗agents‘ need to navigate as foreign actors pressure staff in central ministries who are equally pressured by their minister. In their exploration of court-oriented reforms in Vietnam, Nicholson and Low (2013, 7) also find that local donor employees act as ‗interlocutors‘ between foreign donors and state actors and thus provide ‗insights into what does and does not work‘. Although these ‗interlocutors‘ are not put at the centre of their analysis, their study contributes to their increased
recognition of individual agents as important for furthering understanding of rule of law assistance.