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RULES AND REBELS: DISCOURSE, DOMESTIC POLITICS, AND THE DIFFUSION OF LAW A Dissertation Presented to the Faculty of the Graduate School of Cornell University In Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy by Benjamin Turner Brake January 2011 © 2011 Benjamin Turner Brake RULES AND REBELS: DISCOURSE, DOMESTIC POLITICS, AND THE DIFFUSION OF LAW Benjamin Turner Brake, Ph. D. Cornell University 2011 This dissertation examines the role of discourse and domestic structure in the diffusion of norms and the conditions under which the policy recommendations of transnational advocates transplant to the domestic law of a target state. In particular, it examines contemporary episodes of transnational pressure that either succeeded or failed to bring a country’s legal commitments more closely in line with the constitutive and regulative norms of international society. This research challenges mainstream international relations literature on the subject, which relies on either a rationalist logic of norm diffusion or the constructivist logic of norm localization. In addition, this work expands beyond sociological institutionalist literature that leaves largely unexamined the agency of domestic actors in the promotion and resistance of normative change. Instead, I explore the communicative interactions among transnational actors, domestic reformers, and domestic reactionaries (so-called “legal nationalist rebels”) to show that normative change is determined not only by coercion or emulation, but also by the discursive practices of these actors. Through a study of legal development in a civil law state—China—and common law state—South Africa—this dissertation demonstrates that transnational discourse can both create and block channels for the diffusion of ideas about best practices, legitimacy, and perceptions of policy problems. More specifically, it addresses the problematic conflation between discourse and norms by incorporating insights from communication theory and social psychology research. By speaking interchangeably of “grafting onto a norm” and “appealing to resonant discourses,” norm localization theorists often ignore the observation that the more strongly held a belief or deeply engrained a practice, the less an actor can articulate his or her reasons for holding that belief or engaging in that practice. It follows that entrenched beliefs and practices are especially vulnerable to discursive challenge, whereas contested practices are more likely to have already generated an active discourse that can be readily employed in their defense. The vulnerability of deeply entrenched norms thus suggests that transnational advocates and their domestic counterparts may not be as bound by “local values,” as some scholars have suggested, and are instead capable of affecting legal rules previously thought too entrenched for reform. BIOGRAPHICAL SKETCH Benjamin Turner Brake was born in the United Kingdom to an American mother, Dianne, and an English father, Terence. Ben, his parents, and his two big brothers—Sam and Morgan—then moved to the United States and settled in Princeton, New Jersey. As a student at Vassar College, where he received a B.A. in Political Science in 2000, Ben studied advanced Chinese, earning the Man-Sheng Chen Scholarly Award for Chinese Studies. Ben then returned to the United Kingdom to earn an M.S.c. in Asian Politics with highest honors at the School of Oriental and African Studies. After graduation, Ben worked until 2004 as a research associate at the Council on Foreign Relations in New York City. Later that same year, he began graduate school in the Government Department of Cornell University. In 2007 Ben received an M.A. in Government and enrolled in the J.D. program at Cornell Law School. In 2008, Ben married his beloved Government Department classmate, Julie Ajinkya. In 2010, Ben graduated cum laude from Cornell Law School and received a Ph.D. in Government. Following his Ph.D., Ben and Julie moved to Washington, D.C. where Ben joined the U.S. Department of State. iii For my Julie. iv ACKNOWLEDGMENTS There is something to be said for seeking a joint JD/PhD; that something is the terrific cast of scholars one meets along the way. By far, my most consequential meeting occurred during my second year. It was then, when I was sure I didn’t have the stamina for both degrees, that I met my wife, Julie. The joy of being near her, as well as her articulate advocacy for the merits of graduate study, swiftly did away with any doubts I had about staying in either program. Her patience with my work and her incredible intellect, moreover, ensured that I excelled in both. Any understanding of either law or political science that I have been able to attain is due only to her incredible ability to listen to my poor explanation of a concept and to repeat it back to me in far sharper form. If she weren’t there for that, far more errors and poor ideas would appear on the pages that follow. It was also not until my second year that I met Peter Katzenstein, without whom my joint degree would not have been possible, let alone pleasant. Already familiar with his outstanding scholarship and of his reputation as an invaluable advisor, I signed up as a teaching assistant for his Introduction to International Relations with the hope of learning the basics of a discipline that was still eluding me. That beginner class, and his terrific instruction, was enough to sustain me through five more years of advanced study. His openness to different ideas and careful consideration of each served as a model for my graduate work in both law and political science. My subsequent experiences of researching and writing with Peter have been enough to sustain me for a lifetime of academic work. His bold thinking and prolific production continue to push me beyond expectations I’ve set for myself. Finally, his generous praise and support greatly eased the rigors of pursuing a joint JD/PhD. At times, one of my greatest motivations to continue was a desire to satisfy v his insatiable curiosity in matters of the law. My second year at Cornell was also my first opportunity to work with Allen Carlson and to rekindle my interest in China. Starved of China studies throughout my first year, Allen kindly took me on as a teaching assistant for his terrific course, China and the World. After hearing Allen explain the intrigue of Chinese politics, and attempting to do so myself during my interactions with the students, I was convinced again of the importance and excitement of China studies. His intervention salvaged my interest in China and is single-handedly responsible for its appearance in this work. His later interventions during the drafting stage are responsible for its appearance being far more insightful and free of embarrassing errors than it would otherwise have been. It was not until later that I met Andrew Mertha. Andy’s keen eye for how political actors actually act, and for how political scientists can best study them, was essential to elevating this quality of this work. His enviable knowledge and challenging criticisms forced many changes through many drafts. These challenges, though, turned many of the project’s weakest points into its strongest. As I move to become a participant-observer in the American bureaucratic system, I hope I learn to understand the U.S. bureaucracy half as well as Andy understands its Chinese counterpart. My time in law school has been equally full of inspiring professors and formative experiences. In addition to the invaluable support of Deans Stewart Schwab and Anne Lukingbeal, my interest in and commitment to the law was stoked by great public interest lawyers like Andrea Mooney and legal scholars like Theodore Eisenberg and Mitchel Lasser. Prof. Lasser offered terrific contributions to the project in his Comparative Law Colloquium. Indeed, any theory I’ve been able to construct owes as much to him and his class as it does to international relations theory. vi I am also grateful to those students with whom I shared ideas and doubts. Steven Nelson, most especially, always made himself available and always treated even my ideas with respect, even when it wasn’t due. I will be forever grateful for the patience he took to explain not only some of the more difficult aspects of political economy, but also some of the more difficult aspects of Prince. My dual degree and this project were supported by several fellowships, including support from the Smith Richardson Foundation, a Foreign Language and Area Studies fellowship, and funding from the Einaudi Center for International Studies. I could not have continued in the program without the generous support of the Peace Studies Program and from the substantial support and guidance of Judith Reppy and Matthew Evangelista. Through the Program, those two terrific scholars and inspiring advocates strengthened my desire to turn political scholarship into positive political outcomes. In addition, my financial and intellectual resources were immeasurably improved by the support of Peter Katzenstein and the generosity of the Walter Carpenter Chair. Finally, my greatest debt is to my family. I owe my pursuit of a PhD, let alone its completion, to my wonderful parents and my beloved brothers. Each, through their kind words, made me believe that I truly could do anything; each, through their deeds, showed me what hard work, in the company of love, could accomplish. These lessons have only been reinforced by the addition of Raj, Milind, and Monica Ajinkya