What is the future of law and society scholarship when it is cut lose from what legal anthropologist Eve Darian-Smith describes as its two most retrograde assumptions: “one legal system and one society”?  In Laws and Societies in Global Contexts, Darian-Smith limns a vision of sociolegal scholarship that decenters the state and pluralizes legality, especially from nonelite perspectives. It is a beautiful text that I look forward to teaching. Indeed, it is part academic book, part course reader. The chapters are organized around core sociolegal questions such as the relation between law and culture and between law and geography, how legal knowledge is produced, and, ultimately, the role of law in social change. Each section is illustrated with excerpts from some of the best sociolegal scholarship written in the pluralistic tradition.

I see myself as a fellow traveler in Darian-Smith’s project. And so here I want to make two comments—both of which are intended not as criticisms but as shared challenges. The first comment is small and is about law as culture; the second comment is about global governance and, at least for me, is more vexing and enduring.

Culture first. Darian-Smith argues that part of the contribution of sociolegal studies is the reconceptualization of law as a multicultural artifact. In her words: “Outside sociolegal academia, thinking about law as a dynamic cultural process is not typically understood or acknowledged by legislators, legal practitioners, law school instructors, or the wider public. People living in Euro-American legal systems have historically tended to think of law not in terms of its constitutive construction, but in terms of its instrumental efficiency….” (p. 41). This instrumentalization of law is politically dangerous, Darian-Smith explains, because it reflects both a highly statist and highly capitalist means-end rationality—law is a tool to achieve the state’s ends. Indeed, law itself has become a commodity rather than the embodiment of community morality and social meaning. The sociolegal scholar, Darian-Smith however proposes, has an important analytical weapon in her toolkit: an interpretative perspective from which to theorize law and legal systems as products of culture, not simply as functional techniques.

But for sociolegal scholars faced with the growing hegemony of legal instrumentalism, today insisting on the cultural dimensions of law is an important but not sufficient step. I don’t teach in a law and society program but in a law school, preparing professional lawyers for practice. For many of my students as well as for many of my colleagues who are not trained in a sociolegal tradition, insisting on the cultural dimensions of law is no longer particularly revelatory. And here is why: today, we all exist after the turn in law to “social norms.” This is part of the trend that Darian-Smith generally identifies (and thoughtfully criticizes) as new legal realism and empirical legal studies. In the social norm version of this literature, “culture” is everywhere although not in the ways Darian-Smith would recognize or support. This version of culture draws far more on psychology and behavioral economics than it does on anthropology for inspiration.  The basic idea is that legal rules and institutions are unlikely to produce their intended effects unless they are accompanied by a shift in social or cultural norms. In other words, the anthropologist’s idea that law is a product of culture has now come to require attention to how culture drives law. Here culture is entirely instrumentalized—even subject to explicit forms of measuring, benchmarking, and technical intervention.

From a practitioner perspective, probably the best example of this approach is happening in law and development. Pick up a recent development manual on promoting the rule of law and you are likely to see development practitioners being trained to create “rule of law cultures.” Here, for example, is how one USAID-funded project report opens: “Promoting the rule of law involves changing culture as much as it does creating new institutions… Without a widely shared cultural commitment to the idea of the Rule of Law, courts are just buildings, judges just public employees, and constitutions just pieces of paper” (ABA Rule of Law Initiative & Freedom House 2007; for more detail see Cohen 2009). So as sociolegal scholars, we can no longer easily or simply contrast the cultural and functional dimensions of law. We need to ask instead what it means to insist on a cultural perspective for law in a moment when we are surrounded by cultural instrumentalists who are constantly collapsing the functional and cultural dimensions of law—and in my law and development example precisely to promote a rather singular state-centered definition of the rule of law as something that unfolds in hearts and minds as much as in courthouses and codes.

Second, I found Darian-Smith’s insistence on a global sociolegal perspective both inspiring and tricky. The basic idea is that law and legal systems at all levels should be read though a lens that includes “the increasing forces of globalizing cultural, political, and economic interactions” (p. 5).  Significantly, this global perspective is distinct from a comparative approach that focuses on national legal systems and is distinct from an international approach that looks at international law and international organizations in relation to nation states. Key examples of a global perspective are writings on legal pluralism that recognize a diverse range of legal actors such as NGOs, regional bodies, and corporations; that include within state legal systems, such as family courts, nonstate forms of customary law; and that analyze how seemingly domestic state practices can only be fully explained when understood as a product of global political, economic, and cultural forces that operate within and beyond national jurisdictions. All this seems really right. But Darian-Smith does not call only for a global analytical perspective to bear on legal knowledge and its biases and alternatives. She argues that in order to achieve a more inclusive legal pluralism, we should take seriously—and participate in—the aspirations of global governance. Global governance mechanisms, she explains, “are decentralized and diffuse” and include “national governments, international organizations, as well as a wide range of non-state actors” in problem-solving at a global scale (p. 41).

It’s a will to power I admire. But what I find tricky—and pose as a question for all of us who share Darian-Smith’s pluralistic governance ambitions—is how to represent the normative valence given to the global versus the local or other levels, scales, and spaces. Or to put the question differently, what does engaging in projects of global governance do to practices of resistance and power? Darian-Smith calls for “new spaces of legality that embody different legal concepts, logics, symbols, aesthetics, metaphors, and meanings…. within and beyond the framing parameters of national jurisdictions” (p. 11). I take it that part of Darian-Smith’s decentering project is to insist on the normative equivalence (or at least normative importance) of non-state legal actors at all scales. Indeed, she argues that “although some sociolegal scholars are increasingly acknowledging different ways of relating to property and territory, such as homeless people’s relation to public space … these alternative spatial-legal interrelations are typically seen as marginal or powerless against the dominant authority of national geographies” (p. 179). That is, I take it that against this marginalization, Darian-Smith supports a rather radical transvaluation of legal values that does not depend on the dominance of state authority. At the same time, however, she argues that “localized and alternative concepts of justice” (p. 382) should, as far as possible, be scaled up and made into a general framework: ordinary people, for example, must be “allowed to participate in shaping appropriate global responses” to problems (p. 54). Global governance mechanisms, in other words, offer their own, albeit more inclusive, forms of re-centering.

So I wonder whether Darian-Smith’s desire for transvaluation—a desire that I share—is complicated, albeit perhaps in productive ways, by a focus on global governance rather than simply plural legalities. Much conventional legal scholarship adopts a centrist view of power that—even as it moves away from the state executive or legislature, perhaps to the global “network”—reproduces dominant binaries: for example a global versus local hierarchy. The challenge, then, is can we adopt an alternative global sociolegal perspective in which it is not the case that the global more than the local, the large more than small, the transnational more than the state will be seen as sites of meaningful change?

Conventional privileging of the global is, as feminist geographers J.K. Gibson-Graham (2002) have observed, also rather common today on the radical left. Prominent critics of neoliberal globalization—for example, Michael Hart and Antonio Negri (2000)—imagine counter-hegemonic power as large-scale or global power. They argue for forms of resistance that are as networked and as great in scale and spatial extensiveness as multinational capital. No wonder, then, to return to Darian-Smith’s example, that a study of how homeless people in a particular location are reconfiguring public space appears marginal and impotent. Localities are seen as contained and ultimately controlled by global systems and global logics and therefore unable to transform these systems (Gibson-Graham 2002).

I turn here to Gibson-Graham for help because this is precisely the vision of social and economic change shaped by a global/local binary that they are writing against. Although their project focuses on national and global capitalism rather than law, their call for diverse economies echoes Darian-Smith’s call for diverse or plural legalities. But their focus is on the personal and the communal rather than institutional. “We are enticed,” they argue, “to think not about how the world is subjected to globalization (and the global capitalist economy) but how we are subjected to the discourse of globalization and the identities (and narratives) it dictates for us” (pp. 35-36). That is, they call for a program of resubjectification. In their words: “It seems to us that a politics of the local (an antiglobalization politics that is not simply ‘grassroots globalization’) will go nowhere without subjects who can experience themselves as free from capitalist globalization” (p. 36). As a model to revalue the local as a site of global politics they turn to feminism. That is, they turn to political practices such as discussions in homes and villages that transformed families, discourses, and livelihoods. “The upscaling or globalization of a feminist politics,” they write, “did not necessarily involve formal organization, coordinated actions, and alliances (although some of these followed upon the ‘second wave’). Indeed, the movement has remained largely discursive, often personal, un or under-resourced yet continually revitalizing and transformative” (p. 35). Whether this is an enduring description of feminism—and especially of legal feminism today—is open to debate (see Halley n.d.). But the point I wish to stress is that for Gibson-Graham, feminism offers a heuristic model for social change—and the model they use for economic change—that refuses to claim powerlessness in the local and the small.

In practice, much of Gibson-Graham’s work involves constructing projects and narratives about people who, under contemporary neoliberal conditions, are building diverse market and nonmarket economies through mutual aid, solidarity, and self-help. It strikes me that this shares much in common with some of the best work on legal pluralism that offers lived experiences of alternative forms of justice and diverse forms of legality. These are efforts to create alternative forms of legal ordering that operate within statist and capitalist legal regimes without necessarily upending them.

Valuing these efforts could involve cultivating what Darian-Smith calls a global sociolegal perspective. In fact, I am certain she would argue that it should: the modifier “global,” she makes clear, “doesn’t just mean big” but rather describes particular kinds of legal interactions that can occur at “all spatial scales” (Darian-Smith 2013, p. 525). The challenge left open-ended in the book is how to transform this global perspective into affirmative projects of governance. That is, can we argue not only for the inclusion of diverse and marginalized voices in national and transnational legal and political institutions? Can we also understand how people subject themselves to nonstate forms of law and regulation—and find forms of power and resistance in so doing—as forms of global governance in their own right? Doing so may mean adopting a different perspective on what Darian-Smith identifies as “a looming crisis in the legitimacy of Western legality” (pp. 14-15). For example, she is troubled that in the Occupy movement, unlike the civil rights movement, “law is not typically embraced for its emancipatory potential or seen as a strategy by which to resist or change the status quo” (p. 15). But many Occupy groups were intensely legalistic; they used formal and general rules to govern decisions from how to allocate group resources to how to resolve ideological conflict about questions of nonviolence. Indeed, to the extent their procedures stayed faithful to their anarchist roots, I would describe Occupy groups not as examples of anti- or non-legalism but rather as examples of anti-statist legalism or alternative or plural legalities (Cohen 2013).

That said, as an answer to the crisis of Western legality, I suspect Darian-Smith would not find this description fully satisfying. And the truth is that I don’t either because I share her desire to see law “as a site of hope for righting global injustices” (p. 17). The call to “right global injustices” tempts us—or perhaps I should say it tempts me—to cast law at national and transnational scales, albeit in ways, as Darian-Smith rightly argues, that are more inclusive and participatory and less tethered to pre-set jurisdictional and territorial bounds. Against this temptation, it is constant, iterative, and sometimes demoralizing labor to imagine alternative, fragmented, small-scale, and diverse legalities as their own paths to (global) social change. So this is simply to say, as a reader, I experienced scalar tensions woven throughout this remarkable and very important book. These are tensions that I do not think are easily resolvable and indeed are perhaps even intrinsic to maintaining a commitment to using law as a tool of resistance and change. Law comes with deeply institutionalized large-scale imaginaries that stubbornly persist even as we try to free law from the state.

 

References

ABA Rule of Law Initiative & Freedomhouse, Inc. 2007. Rule of Law in Timor-Leste.

Cohen, Amy J., 2013.  “On Being Anti-Imperial: Consensus-Building, Anarchism, and ADR.” Law, Culture, and the Humanities 9 (2): 243-260.

____ 2009. “Thinking with Culture in Law and Development.”  Buffalo Law Review 57 (2): 511-586 .

Darian-Smith, Eve, 2013. “Locating a Global Perspective.” Transnational Legal Theory 4(4): 524-526.

Halley, Janet. n.d. “Describing and Assessing Governance Feminism.” In Janet Halley, Prabha Kotiswaran, Rachel Rebouché, Hila Shamir, eds. Governance Feminism: An Introduction. Minneapolis: Minnesota University Press.

Hardt, Michael and Antonio Negri. 2000. Empire. Cambridge, MA: Harvard University Press.

Gibson-Graham, J.K. 2002. “Beyond Global vs. Local: Economic Politics Outside the Binary Frame.”  In Andrew Herod and Melissa W. Wright, eds., Geographies of Power: Placing Scale. Oxford: Blackwell Publishers: 25-60.