FROM FRANCE.INC TO THE PUBLIC-PRIVATE STATE

The release of the French edition of the book (France and Vauchez Reference France and Vauchez2017) coincided with a major political crisis in French politics: the unexpected ascent to power of a newcomer, Emmanuel Macron, who had never run a single campaign or been democratically elected. Symbolically, one of Macron’s first political moves was to adopt a legislation aimed at “moralizing” politics in a context mired by a succession of political scandals.Footnote ¹ A French audience might have been prompted to add their volume to the polemic on the capture of the public good by private interests in France (see Jauvert Reference Jauvert2018). Certainly, sensitivity to the public-private divide is a French obsession. A US audience encountering the translation of the book in 2020 might have been drawn to store it in the “so-what?” shelf of area studies as no more than an “extreme case” of the neoliberal wave unfurling the world over—one that simply illustrates the globalization of revolving doors as the structural variable of the US “hollow core” state under the pull of neoliberalism (Heinz et al. Reference Heinz, Laumann, Nelson and Salisbury1997).

Yet this action would overlook the core political argument of Vauchez and France, which they unpack in the fourth part of the volume. What matters is not so much the blurring between the public and the private. Terms like “public,” “private,” “influence,” “lobbying,” “intermediation,” and “corruption” are simultaneously what semiologists would call signified and signifiers. Using them as heuristic categories of classification without uncovering their social usages opens “the risk of taking over (or being taken over by) a thought of the state, that is, of applying to the state categories of thought produced and guaranteed by the state and hence to misrecognize its most profound truth” (Bourdieu Reference Bourdieu1993, 51). Rather, what matters is to trace the structural dynamics of this blurring and what they produce, socially, economically, and politically.

Interestingly, as a translation, Vauchez and France’s study responds to two blind spots that permeate the sociology of the legal profession in both France and the United States. The first is the state. Calls for the “return of the state” or the “fight against corruption” have fuelled political and legal reforms internationally and nationally in the past couple of decades—from Brazil to the backlash against investment arbitration’s perceived bias in favor of businesses. Much work has been done to trace the neoliberal remaking of the state. However there continues to be a need, as Vauchez and France (Reference Vauchez and Pierre2020, 6) argue, to “look for the state in places where scholars have not been used to finding it—in the field of law itself.” In this goal, the edited volume by A. Claire Cutler and Thomas Dietz (Reference Cutler and Dietz2017) published in 2017 provides, for instance, a welcome response as it explores the role played by private contracts in transnational governance. It also illustrates a still common trap: that of invoking implicitly a “golden age” of the state—as if the nexus between the public and the private retained an objective reality despite its wavering heuristic capacity.

The second blind spot is the role played by the legal profession in the neoliberal turn. There have been ample studies on the close articulation between the progressive penetration of new public management and the repositioning of the state as regulator, be it through domestic legislation or externally induced structural adjustment programs. However the role played by corporate lawyers in producing these public-private transactions in the shadow of the regulatory state remains a blind spot. In France, the demise of the République des avocats following the Second World War could be related to a twofold move—both scholarly and professional—fostered by the dismissal, or confinement, of legal scholarship (and, with it, legal sociology) in a position that is ancillary to the new administrative science of the state.

Effectively, corporate lawyers remain a blind spot in French legal sociology, while the historical distancing of the bar from business contributed to positioning Paris as a “beach head” that facilitated the expansion and diffusion of the “Wall Street” model of the multinational corporate law firm from the 1980s into continental Europe (Y. Dezalay Reference Dezalay1992). On the other hand, the US sociology of the legal profession largely hinges on a narrative of legal professions and law firms that positions the latter as distinct from the state. For example, Terence Halliday, Lucien Karpik, and Malcolm Feeley’s (Reference Halliday, Karpik and Feeley2012) legal complex is positioned as an ally or opponent to the state, while Tanina Rostain and Milton Regan’s (2014) tax shelter industry is depicted as playing a rat race both against competitors and state regulators.

To respond to this twofold blind spot, Vauchez and France (Reference Vauchez and Pierre2020) deploy a seductive and efficient research strategy. They underline the need to trace simultaneously the parallel and in many ways overlapping transformations within the political field, the economic sector, and the legal field to map out the constellation of actors, organizations, and forms of knowledge that circulate across the public-private fault line of the “regulatory state.” To do so, their empirical focus is on those “which are the hands-down champions in this new cross-border game: its experts—namely, corporate lawyers” (8). Vauchez and France’s empirical strategy of “collective biography”—following the paths opened by Yves Dezalay and Bryant Garth (Reference Dezalay and Garth2002)—pursues the twofold aim of mapping the total social space in which these agents navigate and gaining a sense of how categories of the state are transformed in this process.

Their use of Bourdieu’s field theory proves especially relevant to approach the minefield of the public-private divide. As noted by Gil Eyal (Reference Eyal and Gorski2013, 158), “[o]ne of the crucial contributions of the concept of field is that it requires us to stop thinking in terms of entities, proper names, concrete individuals, and things and begin grasping all of these as bundles of relations.” But Bourdieu’s theoretical toolbox stops short of the spaces between fields—that is, those “interstitial fields that develop in-between more historically consolidated ones whether at the national or transnational level” (Vauchez and France Reference Vauchez and Pierre2020, 11).

What happens if field theory is applied to track down not only the public-private fault line but also its specific gravitational pull or field effect—that is, its capacity to transform the properties of those professionals, policies, or modes of governance that traverse it? In his work on the role played by lawyers as an “intermediary” elite in the expansion of the European Union (EU) as a polity, Vauchez (Reference Vauchez2008) drew the hypothesis of a “weak” European legal field to account for the paramount role played by law in the EU polity. Thomas Medvetz (Reference Medvetz2012) deployed a similar strategy to explain the pull exercised by think tanks in the United States both on US politics and academe, as I did too to question the protracted weakness of the International Criminal Court despite the strength of a “common sense” on accountability for atrocity crimes (S. Dezalay Reference Dezalay2016). In all three sets of studies, the “weak” field functions like a hollow core—strengthened, despite its weak autonomy, by the circulation of agents whose main resources are drawn from adjacent, more established fields.

FROM COMPRADORS TO PRIVATE PRODUCERS OF THE STATE

Vauchez and France’s (Reference Vauchez and Pierre2020) findings on the “Paris corporate-state bar” reveal something different. The “regulatory” state that emerged from the 1980s was certainly redeployed under the umbrella of the law as the umpire of markets, but this action also fostered the expansion of an intermediary space across the public sphere and private interests that developed not so much against state encroachments but, rather, in symbiosis, through an imbrication and codependency between the public sector and private economic actors. Foremost, the flow of former civil servants and politicians toward corporate law firms does not simply serve to leverage access to public regulators: their “public” capital is also converted and reverts back into the political field.

The neoliberal turn (including the liberalization of the French legal profession itself in 1990) and financialization fostered an aggiornamento of the profession—specifically, the corporate bar, which mapped onto both the expansion of a “private business of public affairs” and the redeployment of the state through the public regulation of business. In this process, the figure of the “corporate lawyer” emerged in the shadow of the state: while the “‘public fabric of private markets’ profoundly modified the structure of economic competition … the major economic and financial operations of corporations … are now also largely legal battles, conducted simultaneously before a variety of public institutions” (Vauchez and France Reference Vauchez and Pierre2020, 25–26). While the reach of the regulatory state has become a central stake of economic competition, “the proximity between corporate law firms and political, administrative, and judicial authorities has become a prime field for competition between firms, [which] have developed full-blown strategies to build a reputation of “public-ness” (34).

In addition to a couple dozen interviews, the authors built a biographical database of 217 profiles of top civil servants and politicians who became lawyers between 1990 and 2015, focusing specifically on Paris and the Hauts-de-Seine bars where all the leading law firms are concentrated. These 217 “defectors” who lend their “public-ness” symbolic capital to law firms are identified as an “elite of the elite” as they predominantly built their careers out of the elite platform of the French civil service: Sciences-Po, the École nationale d’administration, and ministry cabinets. More than a circulation enabling proximity with the political field, meanwhile, the symbolic capital of “publicness” is itself reinvested and renegotiated by the alma mater of the French state as a symbolic bank: the Conseil d’État. Repositioned as the umpire of the competing interests circulating within this public-private sphere, the Conseil d’État itself institutionalizes the circulation of civil servants by homologating their departure into the private sphere not simply as “pantouflage” (the French equivalent of revolving doors from the public sphere to the private sector) but also as a private defense of public interests. These findings underscore the “structural banality” of Emmanuel Macron’s trajectory as a “representative agent of the field of public-private brokerage” (Vauchez and France Reference Vauchez and Pierre2020, 156). To boot, the ongoing reform of the École nationale d’administration, which has been promoted by the Macron presidency, ostensibly, to bring civil servants closer to their constituents, also aims at opening the elite ladder to the state to agents drawn from the private sector, including corporate lawyers.

THE EMPEROR’S LATE CAPITALISM CLOTHES

In an empirical study on corporate lawyers involved in the negotiation of mining, infrastructure, and telecommunication contracts between foreign investors and francophone African states (S. Dezalay Reference Dezalay2020), I identified Paris as a core location for this professional marketplace, which is dominated by French, male, corporate lawyers operating within US and UK multinational corporate law firms. As a market described scathingly by a respondent as being dominated by the “good” (the World Bank), the “bad” (African states), and the “ugly” (corporate lawyers), which developed in the shadows of the affairisme of the “Françafrique”—that is, the neocolonial symbiosis between France and its former African colonies—the assertion by corporate lawyers operating within this market that they were “serving the state” by fostering development resonated with Vauchez and France’s (Reference Vauchez and Pierre2020) findings, while ringing a sour bell of “same same, but different.”

Structural adjustment programs in the global South have certainly been shown to have contributed to promoting private contracts as a primary engine of relations between African states and foreign investors by fostering a redeployment of the state through privatization and the indirect discharge of state functions to private actors (see Hibou Reference Hibou1999), but in a way that consolidated colonial gate-keeping politics (Cooper Reference Cooper2014). Meanwhile, the position of Paris as a “beach-head” for the expansion of US-led corporate legal globalization from the 1980s—and the diffusion of the Wall Street model into continental Europe—helped explain the prominence of US and UK multinational corporate law firms within this marketplace. But Vauchez and France’s (Reference Vauchez and Pierre2020) findings only partially explain the prominence of French male lawyers within this market.

It is perhaps here where one can best see not only the strength of Vauchez and France’s (Reference Vauchez and Pierre2020) study as a research agenda but also its limits as a case study. A core driver, indeed, in the structure of this market was found in the position of Paris as a former imperial core. Borrowing the know-how of French corporate lawyers facilitated access for law firms without an imperial past to postcolonial African state elites, while allowing for a symbolic displacement away from the stigmata of the Françafrique. Conversely, this fleshed out the interconnectedness between the big bang of the French legal field from the 1980s and imperial legacies: the expansion of the Paris business bar under the pull of the European single market benefited from the continuation of economic, political, legal, and, foremost, social links between the métropole and its former colonies. These insights prompt me to argue that the heuristic value of Vauchez and France’s (Reference Vauchez and Pierre2020) study as a research agenda will be strengthened by repositioning the French trajectory within interconnected histories of imperial pasts and their revival in the present phase of capitalism. The stake is not only, as Bourdieu (Reference Bourdieu2012) prompted in his posthumous Sur l’État, to comparatively trace the symbiotic relationship between the transformation of national fields of state power and legal fields. But it is also to unpack the interconnected and multi-scalar drivers of the renegotiation of the “public interest” in late capitalism.