Plunder: When the Rule of Law is Illegal

by Ugo Mattei

Plunder examines the dark side of the Rule of Law and explores how it has been used as a powerful political weapon by Western countries in order to legitimize plunder – the practice of violent extraction by stronger political actors victimizing weaker ones.

Genres: Law, Politics

296 pages, Hardcover

First published February 1, 2008

About the author

A broadly published scholar in the comparative study of law and political institutions. He lives between Turin, Italy and Berkeley, California."

Reviews

[Rafael Zucolotto · Rating 3 out of 5]

‘O reformador que trata de reorganizar, pela mera força, as circunstâncias que surgem das forças da mesma natureza humana - é como dar coices contra as próprias esporas, um gesto inútil de vida e de energia.’ - Mabel Collins

‘The reformer who attempts to reorganize, by mere force, the circumstances that arise from the forces of the same human nature’ - is like hoofing his/her own spurs, an useless waste of life and energy.’ - Mabel Collins.

Apresenta com clareza as injustiças cristalizadas por meio da transnacionalização do direito, como arma econômica de uma ‘nova colonização.’
Constantemente antitético, contudo, a repetição de premissas argumentativas (com variações factuais, p.ex. copyrights e dominação cultural; enviesamento antropológico; submissão do direito à economia/Richard Posner, etc.) deixa a impressão de uma síntese subdesenvolvida, embora existente enquanto correções pontuais ao ‘sistema’.

Há um livro mais direto e generalista, ‘The Gollem, What you should know about Science - Harry M Collins’, que se sai mais verticalmente, a partir do conceito de ‘paradigmas científicos’ de Thomas Kuhn, ante os vícios colaterais da análise historiográfica.

Não obstante, a tese da ‘terra nullius’ como passível de apropriação - melhor desenvolvida no livro, ‘The Ecology of Law’, do mesmo autor, Ugo Mattei, em parceria com Fritjof Capra - é um primor no resgate das instituições de Direito Romano como gênese da noção de propriedade dos tempos atuais.

3.5/5

[Tommy · Rating 3 out of 5]

Starts off overly rhetorical and goes over typical post-colonial theory stuff but chapter 6 and 7 are more worthwhile.

The origins of this act [Article III of the Constitution] remain somewhat obscure and for almost 200 years it lay practically dormant. But the statute suddenly came to life in the case of Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), in which the court held that the act complained of – torture of a Paraguayan citizen by a Paraguayan official – violated the “law of nations” and that, according to Article III of the US Constitution, the law of nations was directly incorporated into federal common law. Thus, the embryonic but clear potential for US courts of law to vindicate wrongs committed throughout the world, and thereby protect the natural rights of the individual, was given expression. Such violations of natural rights conflicting with clearly established norms of international law can happen and do happen everywhere in the world, and in theory, then, transform the United States into a forum for all the world’s grievances.
Beginning in 1996, the impressive explosion of Holocaust-related litigation provided worldwide visibility to this phenomenon. Indeed, European lawyers representing a large number of Europe-based corporations active in insurance, banking, and industry, or even European state entities (Austria, the Vatican, etc.), sued in the USA, are today involved in one capacity or another in litigation on both coasts of the United States concerning hundreds of claims based on facts of more than a half century ago. Because of the distance in time and space of the Holocaust from the United States, and because of the nature of judicial challenge to actions carried out under shadows of foreign law and politics, the Holocaust litigation is the most extreme and emblematic episode of a worldwide trend in international litigation in which US courts promote themselves as de facto judges of world history. How that is possible needs some explanation.
This posture of the US courts is now resented as a major phenomenon of legal imperialism, because of the way in which it imposes American standards not only of substantive law (which are, with respect to these appalling events, in any case largely shared by every nation in the world) but also of procedure and of legal culture. As a paradox, while offering judicial remedies against extreme episodes of historical plunder, US courts play a major role in the construction of the American legal hegemony (globally diffused as the reactive project) that legalizes current plunder.
A variety of technical factors explain why US courts attract both foreign plaintiffs and defendants to litigate in America. Such factors explain much of the way in which the US notion of rule of law has been transformed into a global conception, so they are well worth a brief description.
Even at the earliest stages of litigation, plaintiffs will ask the court to allow them some “discovery.” Discovery, in the lawyer’s lingo, is the judicially supervised activity through which lawyers can obtain information from their adversarial counterpart. Discovery includes collection of any remotely relevant documents and interrogation by aggressive lawyers of the parties and their witnesses, who are obliged to respond. The stunning reach of US discovery is one of the most important factors explaining the present hegemony of US law in worldwide litigation. American-style discovery, often experienced by defendants as a “fishing expedition,” is traditionally much resented outside of the USA because it is intrusive and practically incompatible with the presumption of innocence. In this view, American-style procedure shows the hypocrisy of a system that advertises abroad the presumption of innocence as a fundamental aspect of the rule of law, then leaving defendants (both civil and criminal) in its courts at the mercy of the overwhelming power of their opponents. In such an adversarial model, only wealthy and powerful defendants can effectively defend themselves against prosecutors or powerful plaintiff ’s firms, by “investing” enough money in legal professionals.
However, even if proved innocent, they will never recover such legal expenses, and, if guilty but wealthy, they might outspend the plaintiff and win the case: a “market for justice” highly functional to the legalization of corporate plunder.
This economic factor alone explains why poor foreign defendants (e.g. suspect Latin American or African torturers) almost invariably default in US courts, while wealthy corporations successfully resist. The former cases, highly advertised, contribute to the empowerment of the international human rights movement and NGOs exporting US notions of rule of law, while the latter allows for legalization of plunder. Once again, plunder and the rule of law walk hand in hand in maintaining the hegemonic status quo based on the prestige of US judiciary.
...
Besides discovery, other difficulties exist, so that suits in US courts put high financial burdens and sometimes unfair pressure on defendants who might well be innocent. To begin with, the system of attorney’s compensation, at least in tort cases, is very attractive for plaintiffs and their attorneys, as witnessed by the impressive wealth of plaintiffs’ firms. Plaintiffs’ attorneys are usually compensated on a contingency fee basis, which means that they are only paid in case of victory with a very substantial percentage (usually more than 30%) of the “prize” recovered. Defense attorneys, on the other hand, are typically compensated on an hourly basis, which is less lucrative compared to plaintiff cases ending in a windfall, but constitutes a more certain form of compensation. For the plaintiff, such as the “class” of Holocaust survivors in the San Francisco case, suing in a US court is a “risk-free, no cash advance” enterprise. This would simply be impossible in any other jurisdiction due to restrictions in the availability of contingency fee agreements. Legal systems other than the one in the United States fear the entrepreneurial spirit of attorneys so they try to limit the possibility of attorneys organizing as a “business enterprise” by advancing the costs of litigation in the hope of substantial returns.

[Eugene Kernes · Rating 3 out of 5]

Wealth taken by coercion or manipulating information is plunder. It is supposed used to be illegal, but power nations have legalized the use of plunder. Powerful ideology helps legitimize plunder. During the Crusades, plundering the Arab cities was considered legitimate under their ideology. For the recent U.S., Neoliberalism has been the ideology that legitimizes plunder. The rule of law was meant to limit state intervention, but now it is a legitimizing factor.

Those who plunder can rationalize the legitimacy of their actions and consider themselves law-abiding even as it is contrary to history. This rationalization is enabled by false comparisons of what they have and what others do not. When providing support to does who do not have, the plunderer benefits via policies and the terms of support shortly after delivery, at the expense of the people after a few years. For example, financial institutions underwrite debt are rewarded with fees, but not punished when that debt is packaged in creative forms causing massive hardship on the people.

Legal intervention, or legal activism, help support plunder. Providing a top-down approach to many of the word problems exacerbates those problems, but the interventionists are not held accountable. International law is ambiguous creating selective justifications. Plundering nations which are not culturally aligned. Helping one countries problem while not helping other countries with the same problem or even at the expense of others. Made worse by the hypocritic policies which bind others to policies while the nations that dictates the terms would not accept the same policies such as protecting their own industries while imposing other country’s industries to compete in the open market.

Much of the book is an attack on Neoliberalism and favoring Keynesian. Their description of Neoliberalism is a huge caricature and contradictory. Their antagonist is Hayek with the Austrian school view of government as a corrupting force. The problem is that Hayek’s academic career can be as describing ‘plunder’. As the authors proclaim that Neoliberal policies are against a welfare state, they do not mention that Hayek was supportive of a basic income. Much of the claims they make such as Neoliberalism emphasizing individual choice are taken from a negative connotation while in the authors concluding chapter, they want an active citizenship emphasizing individual choice. While blaming Neoliberal policies, they seem not express that those policies are actually Keynesian. Under their description, Keynesian policies are usually supposed to provide, while Keynesian policies are actually countercyclical. In times of distress, the government should provide assistance while take the assistance away after distress. The authors blame Neoliberalism on the taking away of the assistance. The Keynesian policies the authors want as described in the conclusion can easily be considered plunder. The blame they place seems to be justification for their prescribed policies.

This book is well written but the example could have been better developed. Many issues are touched on briefly making their lesson not readily accessible. Even when going into depth for some examples, they are embedded with other examples. Transitions between the issues explained need work. The benefit of this book is proving a variety of ways with the legal institutions legalize plunder such as creating a market for justice. A market for justice is evident in the U.S. as the guilty can invest money to win the case while the innocent will not recuperate the legal expense.

[Ira · Rating 3 out of 5]

I enjoyed this tirade against the double standards and hypocrisy of western powers on the global arena. Despite its militant objectives, it is lucidly written and draws on a wide range of examples from around the world. It also digresses into social or political theory at points, with moments of reflection on the creation of meta-narratives (about the economy as much as anthropology), that are not so wide of the mark. Provocative and engaging, easy to read and digest.

[Robin · Rating 5 out of 5]

Excellent debunking of an incessant & mindless conservative as well as liberal intellectual rhetoric.

[!Tæmbuŝu]

KOBOBOOKS

[Kyle · Rating 5 out of 5]

I now want to start a revolution.