REFLECTIONS ON THE ANTHROPOLOGY OF LAW, GOVERNANCE, AND
SOVEREIGNTY IN A BRAVE NEO WORLD
John L. Comaroff
University of Chicago
American Bar Foundation
University of Cape Town
Keynote Lecture: Max Planck Institute for Social Anthropology, Halle, November 2006
"Lawand Governance"
REFLECTIONS ON THE ANTHROPOLOGY OF LAW, GOVERNANCE, AND
SOVEREIGNTY IN A BRAVE NEO WORLD
John Comaroff
I. PROLEGOMENON
A quarter century ago, in what now feels like the Upper Neolithic, Simon Roberts
and I opened Ru/es and Processes, our modest contribution to African jurisprudence,
with a statement that did not win us a lot of friends among our colleagues at the time. "It
is doubtful," we wrote (1981 :3), "whether [legal anthropology] should exist at all." Why?
Not because the comparative study of the law was too insignificant or too marginal to
claim a discursive domain of its own. Quite the contrary: because its subject malter was
too important to be confined to a gulag unto itself. Appropriately theorized, it demanded
a place at the very core of the social sciences, of their empirical horizons, of their epistemic concerns, of their theory-work. Nor we were alone in thinking this. Max Gluckman
was wont to assert that legal anthropology was the root of all anthropology: not only did
much of modernist Western thought owe its understanding of the social to one or another version of contract theory, but it rested on the implicit truth that homo sapiens was,
everywhere, homo jura/iso Gluckman also liked to say that, were apprentice anthropologists to read just one text, there was no question what it should be: Henry Maine's Ancient Law (1919). Anthropology in the Maine-stream, my peers and I used to joke.
Now, an epoch later, this all seems a liltle overdrawn. Comparative law is not
everything; nor, patently, should it be the source of all social theory. But there is reason to believe that legal anthropology warrants a more prominent place at the core of
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the social sciences than ever before: that it is fundamental to making sense of the 21
st
century, of the life and times of our Brave Neo World, a world whose lineaments are
only beginning to make themselves visible, a world for which we do not yet have adequate analytic equipment - a world in which, so to speak, Orwell may not end all that
weil. If the idea of anthropology in the Maine-stream appeared first as farce, it returns
to history a second time in deadly earnest. All this is a way of saying that I shall be concerned here today with two things, in counterpoint: One is show to why it is impossible
to approach the contemporary global order without e10se attention to law; to law in its
many guises, to law especially in its polyvalent, contradictory relation to governance. I
shall argue, in this regard, that the rise of neoliberalism, itself a chapter in the longue
duree of capital, has led to a hyper-extended, oflen counter-intuitive deployment of le-
galities in its social, geographical, governmental, moral, and material reconstruction of
the universe, a process best grasped, and estranged, by a criticallegal anthropology.
My second objective is part programmatic, part problematic: it is to sketch three
potential directions for that legal anthropology, three directions - among many, I stress
- in which it may do both forensic and theory-work at the vanguard of the social sciences.
Before I begin, though, let me digress for just a moment. Much of what I shall say
would have been impossible without the development of the discursive field we now
know as "legal pluralism," a field productively represented by the work of the Project
Group here at the Max Planck Institute. Nolwithstanding the arguments it has attracted
(e.g. Roberts 1998, Merry 1998, Moore 1978), legal pluralism - as an orienting sensibili-
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ty, as a call to reconceptualize the scope of the law, as provocation (von Benda-Beckman 2002:37) - sent a critical wave through our discipline. Intersecting with other scholarly initiatives, it has compelled us all to look anew both at the colonial past and at the
the neomodern present - in particular, at the legal institutions, practices, and processes
to which it has given rise. The question for me now, though, is not what has been accomplished: that has been answered cogently by the von Benda-Beckmans (2006a) and
others. For me, the question is the future. Where do we go from here? As we shall see,
the move from legal pluralism, as orienting gaze, to law and governance, as problematique, turns out to be a highly productive one. Much of what I shall have to say, in this
respect, resonates closely with what Franz has just said.
CARDINAL POINTERS:
MAPPING THE ANTHROPOLOGY OF LAW AND GOVERNANCE
I begin with the most general of my cardinal directions. For want of a better signpost,
since it will take us down several intertwined pathways, let us refer to it as
1. THE FETISHISM OF THE LAW
The modernist nation-state, I hardly need say here, has always been erected on
a scaffolding of legalities. Nor only the modernist nation-state. In classical Greece,
Hanna Arendt (1998:194-5) reminds us, "the laws [were]like the wall around the city."
Since the downing of the wall that marked the end of the Cold War, law - specifically,
that aspect of the law held to underpin social order - has been yet further fetishized;
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even as, in many parts of the world, ever higher walls are erected to protect the
propertied from lawlessness. Note that, in speaking of fetishism, I refer to the process of
displacement whereby an abstraction - in this case, "the law" - is objectified, ascribed a
life-force of its own, and attributed the capacity to configure a world of relations in its
own image.
Striking, in this regard, is the number of new national constitutions written since
1989: a hundred and five, and rising. Also striking is the millennial belief in their capacity to conjure up equitable, ethically-founded polities. And social order. As Bruce Ackerman (1997:2,5) puts it, "faith in [them] is sweeping the world," largely because their promulgation marks a radical break with the past, with its embarrassments, its nightmares,
its torments. In much of the global south, moreover, these national constitutions have
become the paradigm for a wide range of lower order analogues. In South Africa,
everyone is acquiring them: chiefdoms, churches, NGO's taxi drivers, even street gangs.
As salient as the
content.
quantum of national new constitutions,
however, is a change in their
This, David Schneiderman (2000) argues, is owed to agiobai shift in "constitu-
tional design" from astate capitalist to a neoliberal model - itself the product of an epochal transformation in the relationship between the economics and politics of capitalism.
And, I might add, of a re-visioning of the relationship between law and governance.
Thus, whereas the constitutions promulgated after World War 11 stressed parliamentary
sovereignty, executive discretion, bureaucratic authority, and cultural homogeneity,
recent ones focus, if unevenly, on the primacy of civil and political rights, the freedoms
of the citizen, the limitations of state power, the tolerance of difference, and the rule of
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law.
Even when both the spirit and the letter of that law are violated, distended, purloined; even as more regimes are quick to suspend it in the name of exception, to ignore
its sovereignty, to franchise it out, or to bend it to their will.
But there is more to the fetishism of the law than an enchanted faith in constitutionalism. A "cu/ture of legality" seems to be infusing everyday life, becoming part and parcel of the obsession with order that haunts most nation-states nowadays; not least, as
Taljana Thelen observes, in the post-Soviet world. The term itself - "culture of legality" underwrites a new dtizenship education program in Mexico. It is also describes the object of agame invented in Sicily, mythic home of northern banditry; the game is called
Legalopoli. Even the Vatican is using it. In 1998, Jubilaeum carried an essay entitled "A
Strong Moral Conscience for a Culture of Legality." It said that we have entered an age
in which humanity knows itself by virtue of its rights. R-i-g-h-t-s. In fact, this age appears
to be one in which the !wo kinds of rite/right conjoin in parallel significance as never before: faith and the law, arguably, are the twin fixations of this-worldly being at the new
millennium. Ours is the epoch not of theodicy or theocracy, but of theo-Iegality. Pace
Karl Schmitl, it is not about political theology that we ought to be fretling. It is /egal theology. Nor is this true only of the Judaeo-Christian world. Witness Bertram Turners account of the Salafiyya movement in Morocco, which propagates areturn to the roots of
lega/lslam; or the successful efforts of ulama in Pakistan to have the national courts
recognize orthodox Muslim practices as intellectual property, sensu stricto.
It certainly does seem as though humanity knows itself more than ever before by
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virtue of its rights. Or, at least, more of humanity knows itself in these terms: vide the
planetary explosion of human rights advocacy; vide the burgeoning impact of transnationallegal processes; vide, also, the spread of law-oriented NGOs, especially in the
global south, which today includes many inner cities and outer ruralities of the global
north. The civilizing missions of the new century, these NGOs - which ply the intersection between the public and the private - encourage citizens everywhere to deal with
their problems by legal means; again, Bertram Tumers account of law in Morocco
provides a vivid example. In the upshot, even those who break the law appear ever
more litigious. In South Africa, which has a law train that traverses the country giving
free counsel, a plumber recently convicted of drunk driving sued the state for imprisoning him when, by rights, it should have had him in rehabilitation. And alumni of the liberation struggle, members of the Umkhonto weSizwe Veterans Association, are battling in
court over the assets of the organization. In times past, this intra-ANC conflict would
have been fought by political means. But then, in times past, Umkhonto would not have
been a thoroughly neoliberal organization, as much an investment company as a commons for ex-guerillas.
The global effect of all this is such that it is not unusual an more to hear the Eurolanguage of jurisprudence in the Amazon or Aboriginal Australia. Or among the poor of
Mumbai, Madagascar, Cape Town, or Trench Town. Even in places where trafficking
outside the law is as common as trafficking within it - Nigeria, Russia, Zimbabwe - the
self-imaginings of citizenship, and actions taken in its name, tend to be infused with that
language. Any number of examples spring to mind. I shan't pursue them, though, since
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we shall hear of many over the next three days. For now, I want to stress that it is not
just rights, interests, identities, and injuries that have become saturated with legality. Politics itselfis migrating to the courts. Conflicts once joined in parliaments, by means of
street protests, media campaigns, strikes, boycotts, blockades tend more and more to
find their way to the judiciary; note Julia Eckert's observation that, in India, the "use of
the law" now "complements or replaces" other species of counter-politics. Put another
way, class struggles are giving way to class actions: people drawn together by material
predicament, culture, race, sexual preference, residence, faith, and habits of consumption become legal persons as their common plaints turn them into plaintiffs with common
identities. Citizens, subjects, governments, congregations, chiefdoms, communities, and
corporations Iitigate against one another in an ever mutating kaleidoscope - changing
"constellations," legal pluralism might call it - often at the intersections of tort law,
human rights law, constitutionallaw, the criminallaw, and, sometimes, religious law;
apposite, here, is the case of the village and the cement factory recently documented by
the von Benda-Beckmans. Again, we shall hear of others. Even democracy has been judicialized: before the 2003 Argentinian election, the bench was asked to decide Iiterally
hundreds of disputes. No need to mention, of course, that the American presidential
election of 2002 was exported to the courts, thereby aborting the democratic process;
this in the imperium that imposes its political theology on the rest of the planet.
For their part, states are having to defend themselves against unprecedented
sorts of things. And against unprecedented sorts of plaintiff. The legal struggle between
the ANC and AIDS sufferers in South Africa is legend. But, as we all know, there are ma-
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ny others. Like that of the Brazilian government which, in 2000, was ordered to pay
damages, by its own high court, for the death and suffering of Panara Indians. Or Nicaragua, which was held to account a year earlier by the Inter-American Court for violating
the territory of Tingni Indians by granting a timber concession to a Korean company.
Suits of this species - which exemplify Eckert's (2006) "Iegalism from below" - are often abetted by advocacy groups under the "Lilliput Strategy," orchestrated by the World Social Forum, which is dedicated to combating global neoliberalism. In them, and this is my
point, the law connects political means to political ends. At times, it is aimed at capital itself. In 2002, Pluspetrol was sued by the Inter-Ethnic Association of the Amazon; it had
to compensate for polluting the Maranon River. At times, too, legalities are directed
against unexpected sites of authority - in a manner, I might add, that mocks the
Foucaultian notion of capillary biopower. Thus 16,000 graduates of Indian schools recently filed suits in Canada against the Anglican, Presbyterian, and Catholic Churches, alleging physical, sexual, and cultural abuse. All of those cases won. But many fail. Thus the
Ogoni lost a claim against Shell for its complicity in killing those opposed to its presence
in Nigeria. Patently, the law offen comes down on the side of business - which also
flexes its musdes as far as possible to ereate a deregulated environment conducive to its
workings.
In sum, while the law has always been a battle-ground, it appears to be ever more
so; ever more, those who can seek out legal jurisdictions and justifications on the basis
of which to attack capital, the state, and their enemies, real or imagined - extending, in
the process, what has long been known as "forum shopping." Note, here, the increasing
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appeal to the Alien Torts Act in the USA, which allows those who have suffered wrongs
at the hands of American parties abroad to take their suits to federal courts. Their efforts
have enjoyed some suceess; unsurprisingly, mega-corporations have responded by
trying to have the Act repealed, and by offering as an alternative "corporate sodal responsibility," and "soft law" - Le. self-regulation and mediation - a topic that Bill Maurer
will take up in his paper. A luta continua. But what this means is that the political
geography of planet earth is no longer sufficed by the kind of thing we learned at school,
the kind of thing that began with Kant and von Humboldt. The cartography of our times
transects the order of nation-states with another, equally significant set of coordinates:
the jurisdictional axes of effective collective action. Indeed, an urgent task of legal anthropology, which will have to await another occasion, is to establish the epistemic basis
for thi s new geography.
Let me return, though, to the judicialization of politics.
It is not only the politics of the present that are being judidalized. The past, too, is
being fought out in court. As Anja Peleikis and Judith Beyer have shown for Lithuania
and Kyrgyzstan, history enters the law in diverse ways, often insinuating itself into the
cultural underpinnings of everyday jurisprudence, into its ways and means, its
materialities and motivations. But I mean here something yet more specific: the struggle
actually to repossess and reposition the past. Just as IBM is facing a gypsy suit in
Switzerland for its lethai role in the Nazi holocaust, so Britain is having to answer for atrocities in its African empire: for having killed localleaders at whim, for having alienated land from one people to another, and other such illegalities. By these means is co-
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lonialism itself rendered criminal. Hauled before a judge, history is made to break its
silences, to submit to the scales of justice at the behest of those who suffered it. And to
be reduced to a cash equivalent, payable as the tender of damage, dispossession, loss,
trauma. What imperialism is being indicted for, above all , is lawfare: the use of penal
powers, administrative procedures, states of emergency, mandates and warrants to
discipline its subjects by means of violence made legible by its own sovereign word. And
to commit its own kind of kleptocracy.
As a species of political displacement, lawfare - the resort to legal instruments, to
the violence inherent in the law, to commit acts of political coercion, even erasure becomes most visible when those who act in the name of the state conjure with legalities
to act against its citizens. Outside the USA, the most infamous instance right now,
perhaps, is Zimbabwe, where the Mugabe regime consistently passes laws to justify the
coercive silencing of its critics. Operation Murambafsvina, which forced dissidents out of
urban areas under the banner of "slum dearance," took this to unprecedented depths.
Murambafsvina, said the authorities, was merely an application of existing statutes to
raze dangerous "illegal structures." Lawfare may be Iimited or it may reduce people to
"bare life." And it may mutate into necropolitics. Typically, it seeks to launder power in a
wash of legitimacy as it is deployed to strengthen the sinews of state or enlarge the
capillaries of capital, all under the sign of governance. Hence Benjamin's thesis thatthe
law originates in violence and lives by violent means; that the legal and the lethai
animate one another. Of course, in 1919, when he wrote his critique, Benjamin could not
have envisaged the possibility - of which Eckert reminds us memorably in writing of India
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- that lawfare might also become a weapon of the weak, turning authority back on itself
by commissioning courts to make claims for resources, recognition, voice, integrity, sovereignty.
But this still does not lay to rest the key questions: Why the fetishism of legalities?
And what are its wider implications?
Modernist nationhood - as legal pluralism reminds us - seems to be undergoing a
tectonic shift: the ideal of cultural homogeneity, always more aspiration than achievement, is giving way to a recognition of greater heterogeneity, a move marked almost everywhere by nervous xenophobia - a move dosely linked to the rise of neoliberalism, to its
impact on population flows, on the dispersion of cultural practices, on new geographies
of production and accumulation. And heterogeneity begets more law. Why? For one
thing, because legal instruments appear, I stress appear, to offer a means of
commensuration: a repertoire of standardized terms and practices that, Iike money in the
realm of economics, permit the negotiation of values and interests aeross otherwise
intransitive Iines of difference. Hence the planetary flight into a constitutionalism that
explicitly embraces heterodoxy in highly individualistic, universalistic Bills of Rights, even
where states are paying less of those bills. Hence the effort to make human rights into an
ever more global, ever more authoritative discourse. Hence the extension of the model of
the market to ever more domains of everyday existence - and, to close an epistemic
drcle, to legal theory itself. Hence the displacement of so much politics into jurisprudence.
But there is something else at work too. Another well-recognized feature of the
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neoliberal turn has been the outsourcing by government of many of its conventional operations, including those integral to the management of "bare Iife." The Weberian bureaucratic state has mutated into a rather different beast: astate that is not just a corporate
management enterprise - although, as Ranciere says, it certainly is that - but one whose
prindpal regulatorywork lies in franchising and licendng, not least in the realm of
policing and warfare. Where the modernist state undertook the redistribution of private
wealth for public ends, the neoliberal state redistributes public wealth into private hands.
Bureaucracies do retain some of their old functions, of course. But most regimes have reduced their administrative reach, entrusting ever more to the market - and devolving
ever more responsibility to dtizens as individuals, communities, or c1asses of consumer.
This has a number of corollaries, variably feit across the world. One is that, with states
no longer serving as sole guarantor of the security of citizens - with many shrinking their
policing operations and relinquishing their monopoly over the means of violence - populations tend to become more fearful about the prospect of disorder, more anxious about
criminal violence, real or imagined. Of which more later. A second corollary is that, with
the outsourcing of government, counter-politics tends to be criminalized; this because it
is treated not as the expression of democratic dissent, but as illicit action against the property, persons, and prerogatives of those who act, contractually, in the name of authority
- and hence as sUbject to prosecution. Which, in turn, quickens the resort to lawfare on
all sides. A third corollary is that, with the sacrifice of the originary ideal of leviathan, of a
moral and material commonweal, to the idols of self-regulation, self-protection, and selfinterest, the court - one institution still securely under the purview of the state, the one
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ostensibly capable of commensuration - beeomes autopie site to which human ageney
believes it may turn, or threaten to turn, in order to pursue a widening horizon of ends.
Put all this together and the fetishism of the law seems over-determined. Not only
is publie life beeoming more legalistie, but so, in regulating their own affairs and in dealing with others, are sub- and transnational "communities": eultural eommunities, eorporate communities, residential communities, communities of faith or interest. (Sometimes, as in India, these communities appropriate the law of the state unto themselves which, Eckert notes, dissolves legal pluralism into judieial pluralism; sometimes, as Pirie
shows for Tibetan pastoralists in China, they assert autonomy in speeifie, eulturallydefined domains, but leave others, often those involving criminal violence, to
government. And sometimes, as we shall see, they seek juridical independenee.) Nor is it
only the communities of civil society that are saturated with legality. So are its eriminal
undersides. In the US, South Africa, Brazil, Russia, and elsewhere, "gangs" of various
scale, i.e. organized erime, mimic both the state and the market. Many provide their "taxpaying" elients with the polieing and proteetion that government either has stopped supplying or has outsourced to the private sector; some have shadow judiciaries to try offenders against the persons, property, and social orders over whieh they exert sovereignty.
In South Afri ca, reeall, a number have constitutions. Several are structured as franchises.
A few even offer "alternative citizenship" to their members. CharIes Tilly once noted that
the modern state operates much like organized erime. These days, organized crime is
operating ever more like the modernist state. Concretely, I mean; notjust, as Derrida
once suggested, in the manner of a specter.
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In the process of becoming ever more legalistic, communities of all kinds,
including outlaw communities, appear increasingly to evince a will to sovereignty; by
sovereignty I mean the exercise of controi over the lives, deaths, and conditions of existence of those who fall within its purview - and the extension over them of the jurisdiction
of some kind of law. "Lawmaking," said Walter Benjamin, "is power making." But "power
fis] the principal of all. ..lawmaking." In sum, to transform itself into sovereign authority,
power demands an architecture of legalities. Or their simulacra. Perhaps because of
changes in the relationship between law and governance in the age of neoliberalism,
perhaps because so many of the operations of the bureaucratic state now live within the
realm of the market, perhaps because the outsourcing of state power has stretched so
deep into the management of "bare life" - in short, because we live in a wortd at once
post-Weberian and post-Foucaultian - more and more non-state institutions, from
corporations through cultural communities and churches to criminal organizations, are asserting sovereignty of greater or lesser scale. Modernist political theory, of course,
allows only one sovereignty to any nation, a vertically integrated one invested in the
state. Increasingly, though, polities consist in a horizontal tapestry of partial
sovereignties: sovereignties over terrains and their inhabitants, over people conjoined in
faith or culture, over transactional spheres, networks of relations, regimes of property
and, often, combinations of these things; sovereignties at war or peace with each other;
sovereignties longer or shorter lived, protected by more or less violence. Under such
conditions, the sociat world tends to be imagined as an archipelago of zones of civility of "walled" spaces of legality, to return to Arendt and classical Greece - under one or
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another sovereign jurisdiction; civil zones joined by fragile corridors of tenuous safety in
environments otherwise presumed to be, Iiterally, out of control - inhabited by criminals,
warlords, druglords, immigrants, and other alien non-persons -with the mediating reach
of the state over the whole being distinctly uneven.
If vertical and horizontal sovereignties are archetypical ends of an imaginary continuum, the states of the global north tend to be associated more with the former, those of
the south, with the lalter. But the global north seems to be edging southward. Russia has
found as much with Chechnya and Tatarstan, two notable, if very different, instances of
centrifugal sovereignty; so has Great Britain with the devolution of its Celtic fringe; also
the US, where Native Americans are claiming ever more autonomy under the sign of exception, where mega-churches are asserting ever more regulatory control over the lives
of their congregants, and where inner cities, increasingly seen as a problem of human
waste-management by the state, are the exclusionary domain of underworld syndicates.
And these are only the most dramatic instances of a thoroughgoing, often dispersed process. The more general point? That sovereignty - as Agamben, Arendt, Bataille, and
Benjamin understood - is the root construct, the encompassing algorithm, on which the
unfolding, labile relationship between law and governance is wrought. How it is
exercised, by whom, in what name, and with what effect; how it interpellates itself in the
state, the market, civil society, faith, identity, even criminality; how it constructs a geography of jurisdictions and a cartography of violence; in these things lie the present and future of the Brave Neo World, of its social character, of its political life, of its architecture,
of its ethics, even of its aesthetics. It is toward a confrontation with this clutch of
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problems, towards interrogating the nature of sovereignty, I believe, that legal pluralism,
as an orienting sensibility, has been edging. Which is why, perhaps, the next initiative of
the Project Group here will address Law and Governance. A great deal hangs on it.
This first cardinal direction leads directly to my other two: one will explore the impact of sovereign claims made in the name, specifically, of culture and faith on the liberal
nation-state, on its epistemic foundations, on citizenship within it, on its legal construction. The other will interrogate what Jean Comaroff and I have come to refer to as the criminal anthropology of the Brave Neo World. But before I move on, I should Iike to stress
that several things we have passed by rather quickly demand more attention from legal
anthropology. Some are obvious: I have only scratched the surfaces of the problems of
sovereignty, of constitutionalism, and of the fetishism of the law. The triangulation of
these three axes mundi - and its concomitant, the counterpoint between the judicialization of politics and the criminalization of dissent - may turn out to be as consequential to
our understanding of the neoliberal age as, say, the process of rationalization was to
Webers analysis of modemity, or the commodity to Marx's reading of capitalism; both,
interestingly, were also concerned alike with enchantment and commensuration. Indeed,
what I have called legal theology, theo-Iegality, the twenty-first century mutation of
Schmitt's political theology, is, I would suggest, a critical grail to be followed, to whatever
theoretical end-point it leads. So, I believe, is the mapping of a new jurisdictional geography through which to make sense of the unfolding logic of collective action in the world.
All of these questions are profoundly the sUbject of a legal anthropology that, as I said at
the outset, ought to playa key part in the project of theorizing the twenty-first century.
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But let me move off in my second direction. Let us signpost it as
2. D1FFERENCE, ID·OLOGY, AND THE LIMITS OF L1BERALlSM
The turn toward legal self-imaginings on the part of communities of diverse kinds,
like the changing cartography of sovereignty, is, I reiterate, not just uneven. It is visibly
polymorphous. So, too, is the relationship between sovereignties and the sorts of legality
on which they base themselves. Some operate with shadow juridical orders that replicate
those of the state, some stress their alterity, some resort to modes of regulation that are
only tenuously law-like, some strive for very Iimited autonomy. [[From the vantage of the
human beings who inhabit it, alandscape of horizontal sovereignties - of intersecting
fields of power, law, and governance - poses problems and possibilities of social navigation: of strategy, security, and opportunity, of constraint, risk, even life-and-death.)) For
their part, states tend to regard such sovereignties with deep ambivalence: those that
contend in the economy of violent means and ends, or spill over into polite, propertied
society, are likely to be criminalized - or recommissioned - by government, if it has the
capacity to do so. Other species of sovereignty may be tolerated, particularly if they limit
themselves to the "private" sphere, which, according to the liberal theory at the core of
modernist governance, is the domain in which difference ought to express itself.
One mode of sovereignty poses problems on this front: sovereignty based on cultural or religious difference of the kind that refuses the antinomy between the private and
the public altogether; the kind that invokes intransitive - and sometimes intransigentontologies of being-in-the-world. And, hence, of governance. There are exceptions, of
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course, like Pirie's Tibetan pastoralists, who proteet their cultural patch when it comes to
managing internal dispute, but defer to the Chinese state in maUers of criminal violence.
But the appeal to the sovereignty of culture or faith against government does not always
stop at this felicitous border, the border of disorder; not least because, as I said earlier,
neoliberal nationhood is having to admit ever increasing heterodoxy, a fact, recall, that is
recognized in the constitutive language of post-1989 constitutional design. To be sure,
ontological alterity seems ever more widely invoked these days make substantial daims
to autonomous self-regulation, claims that exceed the politics of recognition proffered by
liberal philosophers, the Iikes of Taylor or Kymlicka, as a panacea for the demands of difference in an ever more multicultural world, a world in which people tend to be citizens in
nation-states rather than of nation-states. Jean Comaroff and I have wriUen of this in respeet of South Africa, which may be the archetype of a phenomenon spreading with
exponential gravity.
South Africa, being a postcolony, was erected from the first on difference. But, Iike
most other pi aces, it has seen a seismic shift in the dialeetic of law and governance.
Here as elsewhere, neoliberalism has emerged triumphally as the only imaginable order
of things. Here, too, it has hidden its ideological scaffolding, reducing governance to, and
representing it as, technical management. Here too, partisan politics has become a tournament in the promise of competing efficiencies and profitabilities. Here, too, this has
spelled a shift from the struggle between political visions to a politics of visible interest
and affect. And, more and more, interest and affeet, in their colleetive voice, congeal in
identity, itself naturalized, as though it were an originary condition of human being. Put
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another way, the site of politics has shifted from ideology, the -ology of the idea, to IDology, the -ology of identity.
The most articulate, most comprehensive assertions of ID-ology, as I have already
implied, are those claims made in the name of culture and faith; most comprehensive because they are existential claims, based, in the instance offaith, in transcendent truths
and theologically sanctioned ways and means, and, in the instance of culture, on shared
essence, on genetics and genealogy, and on ontological alterity. This, patently, is more
than multiculturalism. It is poli-culturalism, where the prefix, poli-, denotes both plurality
and a strong claim to political sovereignty, to the exercise of governance over, weil, everything, through a law not accountable to any temporal authority. Not temporal, that is, in
a double sense: in the sense of being neither "secular" nor lodged in historical time, belonging, rather, to the eternal temporaneity of the gods.
The most elaborate assertion of politculturalism in this context is that made in the
name of Africanity, of African cultures. And it expresses itself most articulately in the
claim to a cultural jurisprudence: on the right of Zulu, Tswana, Xhosa, and other authorities to rule according to their own customary ways; note, though, that this is not the custom of colonialism. It is, quite expressly, a living law, one that - now unencumbered by
the ancien regime - is said, from within, to be Iiving and growing, but in vernacular ways
that apply timeless principles of African humanity to the Iife and times of the postcolony.
And it has both constitutional and institutional dimensions:
1. the constitutional:
a. CONTRALESA, the Congress of Traditional Leaders of South Africa, has, for the past
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decade, put pressure on the ANC regime to change the constitution to give them full
autonomy in ruling their realms, and to make statutory law to extend the force of, and
give greater room to, vernacular legal orders. They have failed in respect of the first, but
succeeded in some measure in the second (e.g, the customary marriages act). The story
is complicated at this level, since, recently, while the supreme court of appeal actually
found that customary patrilineal inheritance rules should take precedence over the
constitutional right to gender equality, the constitutional court delivered a subsequent
decision (Bhe) which appears to have criminalized customary devolution. That decision
is widely ignored in chiefdoms across the country, but it has left the Con Court deeply
worried about what it has done, and about to rethink itself. The point: the courts are
having to take African jurisprudence very seriously. What is more,
b. African jurisprudence is interpellating itself into national constitutional and statutory
law. Thus ubuntu, a notion of humanity based not on individualism but on social
connectedness and humanity is being deployed - Iike "dignity" - as a justiciable
principle; indeed, it was fundamental to the abolition of the death penalty.
c. African chiefdoms have challenged the state by f1amboyantly asserting their sovereignty - NOTE: in so doing, they have used constitutionallaw and the principles of democratic procedure to defend their actions
- e.g. of the mogaga case: Chief Nyalala Pilane v Elizabeth Tumane and the
Human Rights Commission;
th
Tumane, 7 Day Adventist, Iitigates for having being confined to her home for a
year and to having to obey ritual proscriptions after a death, these death rituals being a
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matter of Iife and death to the community. Chief daims that (I) violation of these taboos
will have deadly effects; (2) that her confinement, once she had broken the rules, were
voted on democratically by the entire "tribe" and therefore were proper expressions of
popular will, and (3) that given the clear and present threat, he was in his rights since the
constitution allowed the rules of culture to take precedence over the bill of rights in
"exceptional circumstances." Edhoes of Agamben here: these circumstances constituted
astate of exception, since life and death were involved.
No need to bore you with the details: the case ended in no real decision. But the
point is that this is just one of many instances in which policulturalism expresses itself,
the sovereignty of a vemacular jurisprudence being asserted against the state, claiming
what was once defined by nationallawas a private matter is really a profoundly public
one, that it ruptures the Iines separating the religious and the secular - and points to the
Eurocentricity of the law and the limits of liberalism in a heterodox society.
2. The Institutional
Similar things are feit in the actual proceedings of the legal order. So-called customary
courts are constantly having to deal with matters criminalized by the state but culturally
intrinsic to everyday life for most the population. E.g. witdhcraft.
Whidh raises !wo interesting species of problem:
-how it is Iitigated in state courts (the cultural self-defence argument, the separation of
justice and jUdgment, the transformation of criminal into civil cases)
-how it is treated by indigenous courts (by ignoring entirely the presence of the state)
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I have taken South Africa as paradigmatic of the challenge of policulturalism, of its
complexities, of the dialeetics of its capacity to change the horizons of both the national
and the local, of its challenge to law and govemance, of its coming face to face with the
changing nature of political subjeclivity and citizenship. THERE IS MUCH MORE, of
course, and we have writlen about it elsewhere. For now, though, I want to stress that
there are number of OTHER instances presenting themselves elsewhere in the world,
with growing force - not least under the sign of FAITH.
I said earlier that faith and the law are the twin obsessions of the 21 st century, that
we are Iiving in an age of legaltheology. And an age in which political struggles are
increasingly being fought by means of lawfare. This is demonstrably true of faith-based
initiatives in the contemporary world: religion is taking more and more to the law to
change the world in its image - and, indeed, to extend is sovereignty.
1. Islam
the Salafiyya mvt in Morocco, rooted in Islamic law
the ulema in Pakistan having Islam dedared intelleetual property, unavailable to
others (like the Ahmediyya) - and heresy made punishable by death.
the effort of Islamists to take over govt and reconstitute (literally) the law of the
land via the koran
To altack others sovereignty: the Rushdie fatwa
2. The US Christian church
a. Jesus Camp: Bush as herD because of the appointment of Justice Allilto (and
later John Roberts; the sale of a failed candidate as a Xian). Toward the
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overturning of Roe v Wade. THE FIGHT FOR THE SUPREME COURT
b. Terry Schiavo
c. The Xian prison mission: irony - when George Bush was governor of Texas,
sued over religion in the prisons. Now getting revenge!
-The story of the Charles Coison prison mission and the courts: Two
strategies: a. to persuade the Supreme Court to allow the prison mission;
and (b.) to separate evangelical work from moral work. (cf. the work of
Winni Sullivan, daughter of L10yd Fallers, the first anthropologist to write of
the nation-state!) [[obliteration of the relig/secular opposition w/ref to moral
econll cf the Bishop of Nottingham and the ownership of prisons in Barry
Unsworth's Sacred Hunger.
d. gay marriage and the 2004 election: fighting the matter in state constitutions
3. Elsewhere
d. church in SA over corporaI punishmentlrastafarian right to marijuana
e. the TRC: as an ethico-Iegal construction, freighted with Judao-Xianity [i.e. law
+ ethnics = justice, new society] as a means of enabling a future by
judicializing the past, thus to redeem its sacrificial victims, etc. A POSITIVE
instance...
f. Henning Mankell's One Step Behind, p.351: Kurt Wallender, fictional detective,
tal king of the "Divine Motion" christian movt: "sects these days are no
longer simply charismatic. They are corporate franchises run by lawyers
and accountants.
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In sum, faith-based citizens, a legal class that displaces a social dass, is using the law of
the state to saturate thatlaw with theology. Or, at least, it is using deregulation - of
politics, economics, morality, to create new legal spaces to colonize with faith-based
initiative. Which is is a very particular move:
-it reconstitutes the relationship between (i) the PUBLIC and the PRIVATE and (ii)
the SECULAR and the SACRED with it, the secular theology of the liberal
nation-state - making the Xian (or Muslim) nation a viable telos beyond
liberalism. The End of History becomes a new End to History.
Once again, I have taken a great number of short cuts in tracing the pathways from
sovereignty, through policulturalism and ID-OLOGY, to law and governance. But I do so
in order to make a very general point. It is not merely that we live in an age of burgeoning
policulturalism, of assertions of sovereignty either in the name of culture or in the name
of faith. Or that such assertions may have affect the lives and the deaths of a great
number of people. It is that these assertions of sovereignty are having a fundamental
impact on the very nature of the nation-state and law and govemance within and beyond
it. [VIDE the SALMAN RUSHDIE affair and the sovereignty of UK law over Iife and
death.] States may seek to subordinate these sovereignties to them - although, in the
USA, it oflen seems the other way around - but, inevitably, are being locked in a dialectic
of mutual transformation, albeit an under-determined, as yet far from decided one. The
task that presents itself to legal anthropology, then, is to plumb this dialectic. It is a
complex one, not one winners or losers, domination and subordination, or even simple
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syntheses. It is one of translucent subtleties of substance, altering, as I have said, the
very nature of the publie and the private, the sacred and the seeular, in sueh a way as to
alter the future-history of democraey, of law and governance, of reason and humanism.
The global ehallenge to liberalism is not apartisan politicat struggle. It is a process
reconfiguring the political ontology of the planet. And the kind of soeial order whieh it will
construct for itself..
Which, perhaps, is why so many parts of the world are eoneerned with order and, conversely, disorder, at present. Whieh take me thirdly, and briefly, to my eardinal
direetion:
3. ON THE METAPHYSICS OF DISORDER, OR TOWARD A CRIMINAL
ANTHROPOLOGY
We live, it seems, in an age of apprehension, an age of fear, an age of ambivalence. It is not the first, nor will it be the last. To the eontrary, apprehension and uncertainty
- at times aeute, oflen just naggingly there - are the perennial undersides of social
existence.
But what is notable about this age, if we tap into popUlist diseourses across mueh
of the globe, is the extent to whieh social angst manifests itsetf in the gathering idea that
criminality is almost everywhere out of control, everywhere excessive, everywhere a
danger to life, Iimb, liberty, property. Even to soeiety itself. Moreover, it is eommon cause,
among many national publics and their police, that the fight against the forces of lawlessness can no longer be won. Except, maybe, in fiction, film, melodrama. Bertrand Russell's (1950: 143) "arduous journey," that great modernist march toward "a sociat organi-
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zation which curb(s) private violence and gives a measure of security to daily life," appears to have ground to a halt.
Moral panies over crime and violence are appearing in many pi aces: the Netherlands, Guatemala, Argentina, EI Salvador, Haiti, Papua New Guinea. Australia. Brazil, we
are told, jives with a "culture of fear." In Sweden, citizens have come to see their country
as "a place of dark crimes and vicious psychopaths, of fractured families and a fraying
society," in which violence is "out of contro!. In Britain, the "rule of lawlessness" was a
major issue in the 2001 national elections; at the time, England, which today has more
students of criminology than it does students of sociology and a
ca~acking
rate fast
approaching South Africa's, was so vexed by the problem of social disorder that Polly
Toynbee spake of the country being on the verge of a "nervaus breakdown." In the USA,
the obsession with crime - Doug Henwood refers to it as "public hysteria" - are, according to same social crities, way out of proportion to its incidence.
Criminality, in sum, has become a more-or-Iess global trope of negation, of the imminent unmaking of civility, civilization, social order; just as economic meltdown, contagion, nuclear holocaust, moral decay, and other things have been in historical epochs
past. Seldom seen as political in its ontology - or, for that matter, as an intrinsic product
of political economy -Iawlessness is now, in vemacular imaginations, exactly what Durkheim's normative sociology lang aga made it out to be: a pathology that, unchecked,
threatens the viability of modernist polities. Concomitantly, to the degree that policing
"stands for... order" in contemporary nations of governance, and to the degree that the
social functions of government have altered, perhaps withered, under neoliberal pres-
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sure, law enforcement is increasingly seen as the state function par excellence. It is also
a major criterion by which the "strength" of states, and the "success" of regimes, are
measured. This in spite of the fact that, all over the world, the work of security, justice,
and incarceration is being ever more displaced, even deliberately outsourced, into the
private sector.
Why do I raise this now, at the tail end of a lecture on the present and future of
legal anthropology? Because, it seems to me, the moment that we open up the question
of law and govemance, as a critical theoretical project, the problem of order presents
itself with unavoidable force. And, in the contemporary moment, its underside, what we
may refer to as a metaphysic of disorder, has come to setue on the trope of crime. Now
there is a lot to say about this: for one thing, there is the very concrete question of whether, as some have suggested, the massive economic impact of the flow upward of
wealth under neoliberalism, of its sharpening of the wealth gap, of the retreat of the
welfare state, has not in fact led to rising crime. Some critical criminologists of both the
left and the right have argued that there is - and certainly crime statistics, themselves a
very vexed phenomenon, seem to bear this out.
More interesting, for present purposes, though, is the fact that, in many parts of
the world, there is a disproportionate relationship between fear and risk: those who fear
crime most do not necessarily suffer it worst, and those who suffer it worst do not necessarily fear it most. (Which is why police spend more these days on fighting fear of crime
than on fighting crime itself.) As this suggests, crime is an ethical vernacular, a communicative practice that takes different forms in different times and places, shaping and being
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shaped by the regimes of Iife of which it is part, from which it becomes separated as
exception, and on which, opportunistically, it feeds; which is why, in, say, South Africa
and the USA - and many lands beset by xenophobia - it is the language through which
race, the topic that cannot name itself, is spoken. More generally, in other words, crime is
part and parcei of a universe of production, law, politics, and regulation that it defines by
its transgressions. It is the negative against which the hegemonie ideal of liberal civility
sustains itself; as Durkheim was to note, Carol Greenhouse reminds us, "a society...free
of crime would fall into chaos, since it would be berett of the signs of its own existence as
an authoritative order. If, therefore, we are to commit ourselves to interrogate law and
governance in this neoliberal age, if we are to understand the nature of sovereignties of
various kinds, if we are to plumb the complexities of lawfare, indeed if we are to address
all or any of the questions that I have raised thus far, one of the critical ways of doing so
is to develop a criminal anthropology: an anthropology, that is, which takes as its
problem what crime means, what it conveys, in the contemporary world, what kinds of
governmentality it rationalizes and justifies, what it produces. We already have some
extraordinary examples, of course: Siegel's New Criminal Type in Jakarta is just one that
comes readily to mind; so, also, is Maleolm Young's ethnography of policing, An Inside
Job.
In short, in charting a third direction - one which may seem rather at a tangent to
the others, but is NOT, since it inhabits the underside of sovereignty, law and
governance - it seems to me that legal anthropology ought to take on directly the
metaphysics of disorder by addressing the meaning of crime-and-policing, which refer
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not to opposed forces in the world but to a hyphenated complicity, in the neoliberal age.
[[The popularity of Benjamin, Derrida, Foucault, Agamben, all of whom concern
themselves with the metaphysics of disorder, policing and violence, teils us something.])
Indeed, Jean and I argue, in a forthcoming volume, that some of the critical features of
neoliberal govemance of which I have spoken today - not least the outsourcing of the
operations of the state, especially in respect of policing and the means of violence, not
least, either, the kinds of moral deregulation that accompany an expanding world of
horizontal sovereignties - are deeply entailed in the metaphysics of disorder. Which, of
course, brings me full cirde, to where I began: the future work of legal anthropology. And
to one or two words by way of condusion.
CONCLUSION: law, govemance, and legal anthropology, after Foucault
-reprise: the contemporary importance of legal anthropology, and the legal pluralism of
the future: why legal anthro, especially comparative legal anthro, is critical to all
contemporary social theory, and especially to theorizing the 21 st century.
A. The fetishism of the law, constitutionalism, the problem of sovereignty,
B. Difference, ID-ology, Policulturalism (faith/cutlure) and the end of Iiberalism
C. Criminal Anthropology and metaphysic of disorder
There are many other agendas, of course. These are simply the ones that seem critical
to me. The point, though, is to act with critical, engaged hubris, to take the high ground.
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-The Project Group Legal Pluralism here at Halle, in moving from its first to its next
phase, promises to do just that. In wishing it weil, and in congratulating it on its first five
years of admirable productivity and fine scholarly aceomplishment, we urge it, and
ourselves,
-to claim for legal anthropology, as a site of both of imaginative ethnography and theorywork, its proper place in, weil, the Maine-stream.
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