As Latin America emerges from decades of structural ‘reform’, one structure has not changed very much: the yawning gap between the haves and the have-nots. To many, this may not be surprising. The long tradition of dependency and structuralist analyses pointed to the uncanny ability for inequality to reproduce itself. But what has not been systematically studied is the role that state policies have played in reproducing the stubborn social order, especially in the modern period, when liberal principles of governance were supposed to have thwarted the old privilege-enforcing system of monarchy and aristocracy. To the extent that scholars have raised questions about state policy, the presumption has been that the elites managed to turn liberal states into instruments for their durability. This has not left much room for thinking about ideology, and even less about the role of political rules, because they make little effective difference to the social structure.
These are the subjects of Roberto Gargarella's important book. The Legal Foundations of Inequality explores the ideological bases of politics in the United States and Latin America as a way of figuring out how the state shaped social relations by creating the ground rules for legal claims-making.
Gargarella's is a normative narrative, a recovery of the past in order to intervene in the present. The book's underlying argument is that the break with empires, starting in 1776, unleashed a radical model of politics whose advocates claimed that all people were born equal and were entitled to be self-governing. These beliefs energised the fervour to bring down monarchies and empires, but they also challenged those who were pleased to see the old regime go but less pleased to see the masses filling town halls and sending delegates to constitutional conventions. The result was a reaction to moral populism, direct democracy and the idyll of an agrarian republic – a reaction that buried dreams of radical constitutionalism, whose history ‘is the history of failure’ (p. 49). Therein lay the source of dashed hopes for a more egalitarian order and the rise of constitutional counterpoints which aimed to stabilise the republics through various degrees of exclusion. While Americans created constitutional systems, this process involved the deliberate rejection of some alternatives. If nothing else, this book is a reminder that the history of the making of an order is also a process of choosing – often violently – what it will not be.
The Americas was not of a piece, however. The pendulum swing from radicalism to reaction was more dramatic in Latin America. What this meant, according to Gargarella, was that social conflicts tended to take place beyond the political arena, and often tended to become more violent. This had important implications for the kind of constitutionalism championed by conservatives, who were in favour of strong, controlling and ordering states – especially ruled by puissant executives – that would curb radicals' claims. Radicals, for their part, responded more trenchantly with decentralising plots and fights for local autonomy, often with millennial campaigns (which, it should be added, are not part of Gargarella's story; there is no social history of politics in this volume, for those who might be looking for it). In the United States, conversely, radicals did manage to gain some institutional influence and presence, which meant they had to be taken more seriously within the systems to come.
Ultimately, though, the reactionaries – ‘conservatives’ – were unsuccessful at imposing their will. Their moral perfectionism chafed with societies swimming in – as they saw it – venality. Their values clashed with foreign influences. Their rejection of the principle of individual autonomy ran into problems with those who wanted defensible personal property rights – but it was especially the view of a society that was rife with ‘vice’ that made conservatives so hostile to basic democratic norms. Thus they could not solve their regimes' lack of legitimacy. In general, conservatives were stronger in Latin America than in the United States, in part because the violent radical threat was greater, and in part because of inherited centralist, executive-dominating traditions that could be reimagined. By contrast, in the United States there was too little support for centralist, intrusive presidential systems. In all cases, however, conservatives, who rejected the notion of basic equality, were a force to be reckoned with.
The compromise between two unsustainable models, radical and conservative, was liberalism – its principles of individual sovereignty and equilibrium of powers could be adapted to the exclusionary precepts of conservatives, while the accent on individual autonomy could echo older radicalism. This was enough for a historic settlement whose compromises included a high tolerance for fraud, curbs on suffrage and restrictions on conditions for holding public office, which worked because sovereignty had been shifted from ‘the people’ to ‘reason’ (p. 167). The triumphal liberalism was not one that left much room for the ideas of self-government which had once animated the revolutions that made liberalism possible. To return to the comparison, the syncretism between conservatism and liberalism was more pronounced in Latin America, where hyper-presidential systems and debasing of rights corroded the institutional base of the state and thus made for more turbulence, less legitimacy and more exclusion, than in the United States, where the greater institutionalisation of radicalism meant more respect for underlying rights.
In Gargarella's tale, it was less the colonial social and economic inheritance than the intellectual and political legacies of the age of revolutions that marked the incomplete formation of egalitarian legal orders – and without an egalitarian constitutional order, most efforts at social and economic equalisation floundered on a rule of law that upheld privilege and legalised unequal opportunity. Gargarella's final, suggestive chapter thus explores some principles of a return to a radical legal agenda that was ‘disinherited’ (p. 215) by nineteenth-century constitutionalists.
This bold, sweeping book ultimately has to leave out a lot of detail and nuance to sustain the clarity of its narrative. Its great virtues, putting the Americas together as a region with a shared heritage of revolution, less divided by language or ethnicity and covering a long time span, can't help but cause it to miss details and difference. Many historians will quarrel with the image of ‘failure’ of radical movements in Latin America, as if the tradition of resistance died out without an institutional trace. Others will find the accent on conservative-leaning Latin American elites versus a more liberal United States at odds with the resilience of conservatism in many parts of Anglo-America, like Canada and Jamaica, not to mention the US south. These are perhaps unavoidable given the kind of lumping together that Gargarella pursues.
More contentious is the genre itself. The normative narrative, motivated by a search for modern-day alternatives that are rooted in memory in order to legitimate them, means making the past much more familiar to us and our terms. While many of us may sympathise (as I do) with Gargarella's proposals for the present, his historic method to gird them means that the past is written with conceptual references of our own day and thus runs the risk of misunderstanding the meaning of older, other words. ‘Radicals’ of the 1800s, for instance, were often far less individualist and much more communitarian than this story suggests. Some were opposed to constitutions holus-bolus. This issue is important because there was a much larger vocabulary of politics and struggle over representation in the revolutionary era than can be compressed into our categories of liberal, conservative, or radical, and the lines between them were much more ambiguous than they later became. While these labels may be familiar to us, they would seem strange, or have different valences than Gargarella ascribes to them, to contemporaries. Some rallied to different emotive concepts, like republic, monarchy and self-rule (as opposed to self-representation). To describe Bolívar as a ‘conservative’ is at the very least anachronistic, and what is one to make of the syncretic systems like Brazil's or Canada's, where monarchy, empire, liberty and freedom could be amalgamated in different ways, but which are whitewashed out of this story about ‘the Americas’?
While Gargarella's book is very important and should be a touchstone for debate about constitutional options, its history is forced to write out elements of the past that do not march in the same direction towards the present.
