Category: Law

The Legalization of Everyday Life: Reflections on Law/fare, Politics, and the History of the Present. Interview with Andrea Kretschmann, Special edition on “Wissen im Recht,” (eds.) Andrea Kretschmann, Caroline Voithofer, and Christoph Stoll. Juridikum 2:257- 63, 2018.

John Comaroff is the Hugh K. Foster Professor of African and African-American Studies and of Anthropology, and Oppenheimer Fellow in African Studies, at Harvard University. Before moving to Harvard in 2012, he held a Distinguished Professorships at the University of Chicago and a Research Professorship at the American Bar Foundation; he is also an Honorary Professor at the University of Cape Town. Besides his influential work on African and African-American societies and post-coloniality, much of it co-authored with his wife Jean Comaroff, he is known for his publications on the role of law in capitalist societies. With books such as “Rules and Processes. The Cultural Logic of Dispute in and African Context”1, “Law and Disorder in the Postcolony“ 2, and his works on law and witchcraft3, he has gained a high profile also beyond anthropology, in the field of law & society. For the special juridikum issue on „Knowledge in Law“ Andrea Kretschman has interviewed John Comaroff regarding the contemporary role of the law and its significance for lay people.

Kretschmann: John, in your writings over the past decade, you have made the point that, almost globally, we have seen processes of judicialization reach into ever more domains of life, both ordinary and epic. Why have you been so insistent on this, and do you continue to think it true? To what historical forces do you attribute this tendency?

Comaroff: Yes, I do think that the reach of judicialization into ever more domains of public and private life is, and continues to be, an essential feature of the world in which we live. The reason that I have been so insistent on this is that I believe it to be symptomatic of something that runs way beyond, or rather beneath, the surfaces of everyday social, economic, and political life; indeed, it runs to the essence of “life itself” – that favored phrase of contemporary theory-work – determining, among many other things, who lives, who dies, and under what elemental conditions. At core, we are seeing, unfold before us, the unraveling of the classical liberal social contract and, with it, the notion of a commonweal, of ethical civility, even of society, sui generis; this last a dying modernist abstraction that has given way to keywords like “the network” and ciphers like “the community,” neither of which have any intrinsic meaning beyond the metaphorical. The process is uneven in both its temporality and its locations, but it seems an unmistakeable corollary of the social tendency that tends, these days, to be dubbed, loosely, “neoliberal”; loosely because, sensu stricto “neoliberalism” does not refer to an ahistorical “formation,” an ordinary noun, an accomplished state of being in the world. To the contrary, it is a shape- shifter, describing a broad historical trajectory, a more or less polymorphous, more or less integrated concatenation of elements – again, practical and ideological, moral and material, cultural and cognitive – moving through time, transforming itself to the siren call of the moment as it is acted in and upon, conceptualized, and actualized. Its economic diacritica, as it has become commonplace to observe, lie in deregulation, financialization, and privatization; in the withdrawal of welfare and other (worker, consumer, citizen) protections; in rising inequality and dropping real incomes for all but the very rich – there is a radical aporia these days between a job and a livable income, the former ever less likely to assure the latter – along with the increasing impetus on individual citizens to take responsibility for their own well-being, for the risks and uncertainties they face, for the cost- benefit choices they make.

In this world, it is the logic of the market, rather than morality or sociality or culture, that perforce organizes – and, yes, constrains – our conceptual horizons and everyday practices. Apart from some obvious concomitants of this historical shift, like the de-democratization of the polis almost everywhere, the citizen-subject is no longer contractually entitled to constitutional or social protections, only to legal entitlements for whose realization s/he is also responsible. To be sure, the lingua franca of the neoliberal moment is the language of rights and the rule of law. We, as human beings – in an age seen ever more as post-human – have become the embodied fusion of homo juralis and homo economicus. Under these conditions, the primary recourse open to people for purposes of protecting their personhood, their property, and the benefits of citizenship, or for seeking compensation for violation or injury, is by asserting those rights. At least in theory. Which is why the juridical has come to saturate our imaginings; as a fetish, it appears – and I stress appears – to have the capacity to bring about a more equitable world, to be a means to just ends. Law, ultimately, is a currency of commensuration, a vehicle, like money, for asserting, negotiating, and transacting the value of contested relations, commodities, bodies, even being-in-the- world. And like all currencies, it is unequally distributed: some people have greater access to it than do others, some are more protected by it than are others, some are better placed than others to use it to their own benefit – even though “in principle” we are all equal before the law. Or, more accurately, unequally equal.

The tendency to take refuge in the law, to turn to it as a means of intimidation, justification, or self-protection – itself evidence of the increasing ubiquity of judicialization – has infected social and political life in the USA as never before. Rarely a week goes by without Donald Trump and his administration threating suit or appealing to the courts for something or other, either personal or governmental; or conversely, being threatened with suit or taken to court. It is a process that has become a daily drama, modeled, of course, on the grotesque spectacle “reality” TV. But it has real effects, all the more so since, at least in its governmental dimensions, many of the suits involve attacks on the rights of citizens – especially poor citizens, people of color, and immigrants – while, at the same time, defending corporations for their violations of the environment, of the health and safety their workers and customers, and so on; violations, as I said a moment ago, that may involve life or death. It is not hard to find examples: the legal exoneration of businesses that poison water supplies and soils, with fatal consequences; or the denial, by limiting medical insurance, of access to life-preserving care; or the immunity given to private security and state police when they kill young, unarmed black men. Nor is this confined to the USA. My own homeland, South Africa, for example, while not as extreme as the USA in the violence it deals out to its own citizens, is equally prone to judicialization. So, too, is Brazil: witness the fight in recent years for political control conducted by its right wing through the criminalization of leaders of the Workers’ Party – culminating if the parliamentary coup against President Dilma Rousseff and the indictment of ex-President Ignacio Lula – all of it effected through lawfare, the commissioning of the violence inherent in the law for political ends.

Kretschmann: What effects has the legalization of everyday life for the individuals?

Comaroff: The saturation of public discourse with talk of rights of all sorts has, I believe, insinuated a sense of legal consciousness into citizens everywhere, both as individuals and as the bearers of collective identities. Nor only citizens, even more so those who lack the rights of citizenship by virtue of being undocumented migrants, refugees, criminalized subjects, displaced persons. Not everyone, of course: cognizance and consciousness of legality obviously varies. And it has its exclusions. But, as Guiseppe Dalla Torre, a leading Catholic intellectual, suggested just before the millennium in a Vatican journal, a “culture of legality” has come to dominate our age, an age in which humanity knows itself increasingly as homo juralis. In many parts of the world, there is an almost autonomic tendency to respond to any sense of violation or injury – however slight, however varied – by turning to the language of the law in contemplating remedy. This tendency is stoked by mass media in all its registers: fantasy, fiction, drama, documentary, comedy, commentary, all of which give disproportionate time and attention to matters il/legal. There is no doubt, either, that the capillary spread of legal consciousness and the popular sense of a “right to rights” has been exacerbated by the proliferation of legal NGOs that seek to give access to “justice” to people who would otherwise not have it; also, in many nation-states, by the growing criminalization of race and poverty, the “get tough on crime” impulse to incarcerate for ever more petty offences, the spread of legal institutions and, to repeat myself, recourse to lawfare for a wide variety of political ends.

At the same time, as noted earlier, access to the law, in practice, is anything but equal. For all the efforts of NGOs, social activist lawyers, and the like, structural lines of social inequality replicate themselves in the degree to which ordinary legalities – and, more dramatically, lawfare – favor the rich over the poor, capital over labor, the powerful over the disempowered; as Carlos Fuentes once said, it is power that begets rights not rights that beget power. But not always. In our Law and Disorder in the Postcolony, Jean Comaroff and I document examples of insurgent lawfare, cases in which minorities of one kind or another have deployed available jurisdictions and jurisprudence – or have had them deployed in their name – to secure rights, recompense, restitution, and recognition for their claims. The processes involved are rarely straightforward, however: sometimes “little people” win legal decisions, only lose out as those judgments are not implemented. In short, while lawfare yields the possibility of political transgression and transformation, realpolitik and the facts of social structure typically intervene between law and justice.

Kretschmann: Do the effects you describe interact with changes of the individuals’ perception of law? How do their knowledge and meaning of the law changes in parallel to the process you describe, and how their use of the law?

Clearly, the social effects of the neoliberal turn in reconstituting the citizen-subject as a fusion of homo economicus and homo juralis – a radically individuated persona in a historical formation founded less on a moral order or a social compact than on rhizomatic networks of contractual relations – is dialectically entailed in the forms of legal consciousness and action that pervade our world in the early twenty-first century.

Kretschmann: Taking into account rising legal consciousness in so many parts of the world these days, what judicial protections or legal rights can citizens, individually or collectively, deploy to address social, economic, moral, and cultural privation, violation, or exclusion – and with what effects?

Comaroff: This is an important question, since it is a more technical one than it seems. The reflex answer nowadays is to invoke human rights (HR) in one or another form; this itself being a manifestation, a fusion in the neoliberal moment of the rising fetishism of the law and the global turn to HR – whose genesis lies, mythically, in the United Nations’ Universal Declaration (UDHR) of 1948, the terms of which, translated into more than 500 languages, are flouted much more frequently by ruling regimes across the globe than they are respected. Without disputing the political and ethical importance of a focus on human rights in an increasingly anti-liberal age, they tend, in practice, to make for weak legal remedies. Indeed, in many nation-states, there is no effective HR jurisprudence, per se, under which to make claims against anything or anyone. It is always critical, in the individual or collective pursuit of justice, to appeal to the strongest form of jurisprudence and the most capacious, most sympathetic jurisdiction available. The specifics depend on context, obviously. We all know about forum shopping and the effort to fight suits – be they civil or criminal – in politically, culturally, and ideologically favorable jural environments. Which is why recent US presidents and parties have expended so much effort to stack the federal judiciary with partisan-compliant judges, judges who might be expected to deliver the “right” decisions. The issue of jurisprudence is more complicated: across the planet, in both intra-national and international actions, canny litigators pay a great deal of attention to framing their suits with reference to the kinds of “hard” law most likely to be effective for their purposes. Does one indict a warlord or a former regime for murder, for genocide, for mass rape, for a crime against humanity, for property violations? Does one sue the defendant/s in question also in a civil suit for reparations, the restoration of land, the repatriation of the remains of the dead? I could go on ad infinitum: the routes through the means of the law – through its geography and jurisprudence, its institutions and horizons, its normative practices and its ends – are always highly variable. But the way in which those routes are navigated can, and do, make a huge difference.

This is especially salient for social movements, not least movements that essay the cause of those who (or which) ostensibly have rights but do not act or speak for themselves: fetuses, animals, religious deities, the environment, inanimate objects. Both the strategic reading and the tactical deployment of legal geographies – of the institutions or jurisdictions or jurisprudence likely to prove conducive to juridical action/s – are often critical in accomplishing socio-political ends. At the same time, of course, the prescribed norms of juridical processes everywhere – prevailing procedural practices, rules of evidence, questions of standing – limit the ways in which the law may be engaged for those ends. Jean Comaroff and I published an essay in one of our books a few years back entitled “History on Trial”. It argues that, more and more these days, to make historical claims for recognition and/or for rights of various sorts, ethnic and religious groups, as well and others who see themselves as afflicted by collective injury, find it necessary to take to the courts to validate those claims; without legal ratification, recognition and rights alike remain immanent, unrealized, an abstraction awaiting concretization. But recourse to the law has its costs and constraints. It requires framing a narrative that the judiciary can cognize and address, one that must perforce pare down their history – which they typically tell themselves in the “thick” terminology of trials and trauma and tribulations, of resistance and redemption – to the “thin,” redundant-free language of facts and rules. Frequently, litigants seeking to reclaim their past from the violations they have suffered object loudly to having to reduce and translate their story, one that they desperately desire to have heard, to the bare bones necessary to win their struggles in court. It is a tough experiential and existential bargain. After all, the law is not necessarily their battleground of choice. Resort to it, even when successful in material and political terms may have deep affective, ethical, and aesthetic downsides.

Kretschmann: When you are talking about an increase of recourse to the law and of political struggles in law, caused by a spread of legal consciousness and a popular sense of a “right to rights”: would you characterize this as an increase of emancipatory struggle against the background of increased opportunity of addressing the state? Or rather as a shift from the political sphere towards the sphere of the law?

Comaroff: Again, a complicated issue. To take the second part of the question first: the judicialization of politics, in its many forms, appears as a shift of collective action from the political to the legal domain. But what it suggests, I think, is the erasure of the line as we have long conceived of it in Euromodernist liberal thought; or, more accurately, it points to a morphing of that line into a new alignment in which political ends seek out legal means, not least because of the persistent impression – itself a corollary of its fetishization – that the law has the capacity, the numimous power, to bring about enforceable ends. Of course, the line between the political and the legal, wrapped up together in the political theology of sovereignty, has always been more a membrane than a moat: a porous, translucent filter, sometimes enforcing real or imagined spheres of distinction, sometimes a conduit between different species of collective action and their legitimation. In the contemporary moment, it has become more of the latter than the former; hence the conduct of so much that we have long of as normatively “political” by an almost autonomic turn to the institutions of the law. The first part of the question refers to the extent to which the judicialization of political struggle, and rising legal consciousness, has emancipatory potential, especially for those who assert a “right to rights” against the state. The deployment of legalities by the disempowered against the powerful – we refer to it, in Law and Disorder in the Postcolony, as “insurgent lawfare” – does have emancipatory potential. It has opened up possibilities and sites of social action to populations for whom mass politics have proven ineffective. Indigenous Brazilian Indians, for example, have won cases in the country’s highest courts against the state. So, a couple of years back, in the Constitutional Court of South Africa, did Abahlali baseMjondolo, a shack dwellers’ movement against a government long bitterly hostile to it. There are plenty of other examples. But many have failed as well. It is a well-worn truism that the law tends, proportionately, to favor the politically and financially well-resourced. At the same time, are many NGOs and activist lawyers skilled in insurgent lawfare that, increasingly and with gradually increasing success, are taking up the cause of those who claim recognition, rights, and recompense hitherto denied them. What, in sum, the latter- day judicialization of politics has done is to create another domain of emancipatory praxis. Like all such domains, however, it is not one in which things are easily accomplished. As this implies, it behooves social movements to come to understand the theory and practice of insurgent lawfare – a much more complex species of politics than may first appear – if they are to exploit and expand its emancipatory potential, and to address its dangers and downsides and difficulties, in the cause of righting the wrongs of an increasingly unequal, structurally violent, and unfree world.

Kretschmann: Thank you very much for the interview, John.

Prof. Dr. John Comaroff is Professor Hugh K. Foster Professor of African and African-American Studies and of Anthropology, and Oppenheimer Fellow in African Studies, at Harvard University; jcomaroff@fas.harvard.edu

Dr. Andrea Kretschmann is scientific researcher and leader of the department “Crisis and Constitution of Societal Orders” at Centre Marc Bloch, affiliated institute of Humboldt University of Berlin; andrea.kretschmann@cmb.hu-berlin.de

1Comaroff/Roberts 1981. Rules and Processes. The Cultural Logic of Dispute in and African Context, Chicago: The University of Chicago Press.

2Comaroff/Comaroff 2006. Law and Disorder in the Postcolony, Chicago: The University of Chicago Press. 3Comaroff/Comaroff eds. 1993. Modernity and its Malcontents: Ritual and Power in Postcolonial Africa. Chicago: University of Chicago Press; Comaroff /Comaroff, eds. 1999. Occult economies and the violence of abstraction: Notes from the South African postcolony, in: American Ethnologist 26 (2), 279–303.