Saturday, August 19, 2006

Can Cuba Build a Socialist Rule of Law Society Before the Americans Come?

Building a Socialist Rule of Law Society in Cuba?

Cuba’s economic integration within the global economy may provide a method for the development of a rule of law society in Cuba. On April 29, 2006, Cuba joined Venezuela and Bolivia in creating the Alternativa Bolivariana para nuestra America (Bolivarist Alternative for our America or ALBA), a trade agreement meant to serve as a socialist alternative to the Free Trade Area of the Americas and other current forms of regional trade agreements. It was supplemented by a People’s Trade Agreement among the three states meant to start the integration of the economies of the three states. For the moment, the agreements have produced relatively little in terms of aggregate trade and integration. But Bolivia, Venezuela and Cuba have made a start of it. Cuba has been trading its human capital, for example its overproduction of doctors and teachers to Venezuela and Bolivia in exchange for raw materials. More such deals are sure to follow between these countries rich in people and raw goods and in need of development otherwise.

The agreements between Cuba, Bolivia and Venezuela are based on a model of socially oriented trade. This model rejects the deregulated, capital oriented, free movement of private interest via private contract model in favor of a public control oriented, social capital maximization, public law based model. The death of Marxism as a state ideology seems to have permitted its dispersal rather than its elimination from political discourse. Castro reminds us of the orgins of the “marxism recycled” in which the ideas expressed by Castro also serve other groups (P. Van Parjis, Marxism Recycled (1993)). It should come as no surprise that Castro provides at least symbolic support for a large number of leftist and anti-globalization elements of civil society in the West and in developing states. But the ideas articulated by Castro also find significant echo in the positions and rhetoric from a number of public and private sectors, most of which have no formal connection to Marxism, and indeed have constituted some of political Marxism’s greatest enemies. Thus models of cross border trade similar to those memorialized in ALBA have found a significant voice within the organs of the United Nations Human Rights establishment and in the discourse of the Roman Catholic Church.

The groundwork for this model of global economic integration should come as no surprise to the West. Fidel Castro has been quite clear about his desire to construct such an alternative system of globalization since the late 1990s. He has also been quite open about the principles on which such a system ought to be based, and the methodology for its implementation. Consider, for example, the clear statement of the ision for the creation of a system of socialist international integration carefully delineated by Fidel Catro in his 1999 speech in Caracas-- Fidel Castro Ruz, Una revolucion solo puede ser hija de la cultura y sus ideas, Discurso pronunciado por el Presidente del Consejo de Estado de la Républica de Cuba, Fidel Castro Ruz, en la Aula Magna de la Universidad Central de Venezuela, 3 Feb. 1999, . In this speech, consisting of a very detailed attack on the normative basis of economic globalization in which the state plays a supporting role, Castro lays out the foundation for an alternative, state based system of cross border trade. For those foundations, Castro draws on what he describes as principles derived from Bolivar and his efforts in the early 19th century to unite the peoples of Latin America. Whatever the ultimate coherence or value of the trade system proposed, Castro was able to provide an ideological basis for opposition to Western, privatized, market based, economic globalization at a time when the old socialist sector and its fellow travelers where desperate for a plausible state based alternative. And he knew what he was doing. “Rather than a "new financial architecture" for an old and obsolete system, what is called for is to demolish the established financial system down to its very foundations to set up another one that is truly reliable, democratic, equitable and humane conducive to eradicating poverty and saving the world.” Fidel Castro Ruz, address at the First Summit Between Heads of State and Government of Latin America and the Caribbean and the European Union, (June 28-29, 1999).

But the West has, as usual, been too busy demonizing Castro’s speeches as the long winded wheezing of an empty headed Swengali offering snake oil remedies to a gullible public to actually pay attention to what he was saying. It is always dangerous to believe one’s own propaganda. All combatants in great ideological struggles are subject to this temptation. The Americans indulge this at their own peril. The history of American surprises at Cuban efforts is a great case in point. There has hardly been a time when Castro has not been absolutely clear about his intentions, even his targets. Yet time after time, Americans, wedded to their dismissive stance, have been caught unawares, or worse, caught underestimating the ability of the Cubans to even somewhat successfully follow through. The creation of the ALBA is a great case in point. The creation of a socialist rule of law society in Cuba is another. The Americans would be foolish to ignore either in their quest for political purity. Indeed, in this context, it both perverse and ironic that the greatest economic power on earth has been focusing on political change among the Cuban elite, while its greatest political enemy has begun to experiment with the nitty gritty of economic development from the ground up. This sort of role reversal does not bode well for American success in the region.

Whatever model Cuba chooses, that choice represents a substantial change from Cuban policy of the last forty years. More importantly, the choice to pursue an integrationist economic policy, even a so-called integrationist policy, will require the development of a system of consistent, predictable rules, fairly applied for the benefit of citizens and Cuba’s foreign partners as well. Indeed, if, as expected, Cuba is invited to become an associate member of MERCOSUR, the need for rules through which Cuba, and Cuban economic entities, can expect to do sustained business with non-Cubans, and even among themselves, will only grow.

These integrationist agreements, thus, provide an opportunity for Cuba to build a rule of law society from the bottom up. The construction of systems of rules, of legal codes, will be critical both for the success of any integrationist effort and for the development of Cuba. In many ways this effort may be similar to that of China in the 1980s and 1990s. But in many important ways, Cuba’s development will be different. As I suggested in an earlier work, “Chinese Maoism is flexible enough to attempt an accommodation to the new ruling order. For the moment it has been able to finesse the fundamental contradiction of its engagement with globalism by adapting the state’s obligation to own the means of production to global enterprise forms. It has started substituting indirect for direct ownership. It has discovered the ownership value of tight regulation of enterprises. Whether the experiment will be successful, that is, whether Chinese communism can survive globalization, remains to be seen. It has, however, brought a measure of power, stability, and engagement with the rest of the world, which has reinforced rather than subverted Chinese sovereignty.” Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives, and Free Market Globalism, 14 (2) JOURNAL OF TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 337, 413-414 (2004).

Like China, Cuba must begin by adopting the legal language of modern economic globalization, and then molding that language to suit Cuban characteristics, characteristics that are very different from those of China. Cuba has taken the first tentative steps through its engagement with other states in Latin America. It must begin to take the next steps as well—the construction of law codes that provide a rule based framework for interactions between states, economic and social entities in a consistent, fair and predictable manner. There is great irony here, as well as great potential, that Cuba, like China before it, seems willing enough, in a tentative way at least, to exploit. “The West finds the socialist amalgamation of economic and political institutions to be difficult to deal with, and ultimately unacceptable and incompatible with the emerging global trade system. Yet when the state organizes its economic power in corporations and other entities, and vests majority control in those enterprises in state agencies or the military, then the West finds the resulting economic organization acceptable and compatible with global patterns of economic organization. In the latter case, economic power is organized under and speaks the language of corporations and property. In China, state enterprises, now organized as independent corporations, have been heralded as the vanguard of a free enterprise revolution.” Larry Catá Backer, Cuban Corporate Governance at the Crossroads, supra at 441.

The more difficult step, the implementation of systems of enforcement of rule systems may be more difficult to implement domestically. This remains, for example, a paramount problem in China. But China has been able to finesse enforcement through the use of Hong Kong as a venue for enforcement. Perhaps one day Cuba will be able to do the same by permitting contracts to be enforced in Venezuela, or in any of the associated states of MERCOSUR. But for the moment Cuba must take at least the first step on what will be a long road to the construction of rule based systems integration.

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