Reflections on the Anthropology of Law, Governance and Sovereignty
Just over a quarter century ago, Simon Roberts and John Comaroff opened Rules and Processes, their study of African jurisprudence, with a statement that did not win them many friends among their colleagues at the time. “It is doubtful,” they wrote (1981:3), “whether [legal anthropology] should exist at all.” Their point was not that the comparative study of law was too insignificant or too marginal to claim a discursive do- main of its own. Quite the contrary. It was because its subject matter – and especially its theory-work – was too important to be confined to a island unto itself. Nor were they 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 un- derstanding of the social to one or another version of contract theory, but it rested on the implicit truth that homo sapiens was, everywhere, homo juralis. 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, some of his younger Manchester colleagues used to joke (Comaroff 2002).
Now, an epoch later, this seems more than a little overdrawn. Comparative law is not everything. Nor, patently, ought it to be the primary source of social theory. But there is reason to believe that legal anthropology warrants a more prominent place at the core of the social sciences than ever before: that it is fundamental to making sense of our Brave Neo World, a world whose lineaments are only beginning to make them- selves visible, a world for which we do not yet have adequate analytic equipment. If the idea of anthropology in the Maine-stream appeared first as farce, it returns to history a second time in deadly earnest. So much so that, in thinking out loud here about the pre- sent and future, we shall concern ourselves with two things, in counterpoint: One is to consider why it is impossible to approach the contemporary global order without close attention to law; to law especially in its polyvalent relation to governance. We shall ar- gue, in this regard, that the latest chapter in the longue duree of capital, the chapter often titled “neoliberalism,” has led to a hyper-extended, often counter-intuitive deploy- ment of legalities in the social, geographical, political, moral, and material reconstruc- tion of the universe, a process most usefully estranged, and grasped, by a critical legal anthropology. Our second objective is part programmatic, part problematic: it is to sket- ch three potential directions for that anthropology, three directions – among many, we stress – in which it may do both forensic and theory-work at the vanguard of the social sciences.
Before we begin, let us digress for just a moment. Much of what we shall say would have been impossible without the development of a discursive field now known as “legal pluralism,” a field productively cultivated at the Max Planck Institute in Halle, under whose aegis this essay began its life.1 Notwithstanding the critiques it has attracted (e.g. Roberts 1998, Merry 1988, Moore 1978), legal pluralism – as an orienting sensibility, as a call to reconceptualize the scope of the law, as provocation (von Benda-Beckman 2002:37) – sent a wave of creative energy through our discipline. Intersecting with other scholarly initiatives, it has compelled us all to look anew both at the colonial past and at the neomodern present; in particular, at the legal institutions, practices, and processes to which they have given rise. The question for us now, though, is not what has been ac- complished. That has been answered cogently by the von Benda-Beckmans (2006) and others. For us, 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 problemati- que, turns out to be a highly productive one.
CARDINAL POINTERS: MAPPING THE ANTHROPOLOGY OF LAW AND GOVERNANCE
We begin with the most general of our three 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, we hardly need say here, has always been erected on a foundation of legalities.2 Nor only the modernist nation-state. Among the premodern Nuer of the Sudan, who had no government sensu stricto, the line between a tribe and its exteriors, that Schmittian frontier between friend and enemy, was, according to Evans-Pritchard (1940:278-9), precisely the point at which the law gave way to war, the legal to the lethal. Similarly in classical Greece, where, Hanna Arendt (1998:194-5) observes, “the laws [were] like the wall around the city.” Since the destruction of The Wall that marked the end of the Cold War, law – specifically, that species of law held to un- derpin public order – has been yet further fetishized; even as, across the world, ever more forbidding walls are put up to protect the propertied from the unruly. Note that, in speaking of fetishism, we 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 mythic 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.3 Even more striking is the millennial faith in their capacity to conjure up equitable, ethically-founded polities (cf. Ackerman 1997:2,5) – and social order. It is a faith owed largely to the fact that the promulgation of a new Le- gal Order, in the upper case, signals a break with the past, with its embarrassments, its nightmares, its torments, its traumas. Throughout the global south, moreover, these na- tional constitutions have become the paradigm for a wide range of lower order analo- gues. In South Africa, everyone is acquiring them: chiefdoms, churches, NGO’s, taxi dri- vers, even street gangs. As salient as the sheer quantum of new national constitutions, though, is a change in their content. This, David Schneiderman (2000) argues, is owed to a global shift in “constitutional design” from a state capitalist to a neoliberal model – it- self the product of an epochal transformation in the relationship between the economics and politics of capitalism; also of a re-visioning of the relationship between law and governance. Thus, whereas post-World War II constitutions stressed parliamentary sove- reignty, 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 law.
This is the case even when both the spirit and the letter of that law are despoiled, distended, desecrated. Even as more regimes suspend it in the name of emergency, ex- pediency, exception. Even as they expropriate its sovereignty unto themselves. Even as they franchise it out.
The enchanted faith in constitutionalism speaks to something yet deeper: a “cul- ture of legality” seems to be infusing everyday life almost everywhere, becoming part and parcel of the obsession with order that haunts many nation-states nowadays. The term itself – “culture of legality” – underwrites a new citizenship education program in Mexico, for example.4 It also describes the object of a game invented in Sicily, mythic home of northern banditry; the game is called Legalopoli.5 Even the Vatican is using it. In 1998, Jubilaeum carried an essay entitled “A Strong Moral Conscience for a Culture of Legality” (Torre1998). It said, among other things, that we have entered an age in which humanity knows itself by virtue of its rights. Spelled r-i-g-h-t-s. A new chapter in the “judicial experience has been opened,” the essay added, a chapter we might “call the `rights of [individual] desires’…” In fact, this age appears to be one in which rites and rights conjoin in parallel significance as rarely 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-legality. Pace Karl Schmitt, it is not just about political theology that we ought to be vexing ourselves. It is also legal theology. Nor is this true only of the Judaeo-Christian world. As we shall see, it applies as much to Islam.
That humanity knows itself more than ever before by virtue of its rights – or, at least, that more of humanity knows itself in these terms – seems evident from the plane- tary explosion of human rights advocacy; also from the spread of law-oriented NGOs, especially in the global south. The civilizing missions of the new century, these NGOs, which ply the intersection between the public and the private, encourage citizens to deal with their problems by legal means. In the upshot, even those who break the law appear ever more litigious. In South Africa – which introduced a “law train” in 1998 to traverse the country giving free counsel6 – a plumber recently convicted of drunk driving sued the state for imprisoning him when, by rights, it should have had him in rehabilitation.7 And alumni of the liberation struggle, members of the Umkhonto weSizwe Veterans Association, squared up for a struggle in the courts in 2005 over the assets of the organization.8 In times past, this intra-ANC conflict would have been fought by political means. But then, in times past, Umkhonto would not have been an investment company as a com- mons for ex-guerillas.
The global effect of all this is such that it is not unusual any more to hear the Euro-language of jurisprudence in the Amazon or Aboriginal Australia. Or among the poor of Mumbai, Madagascar, Cape Town, and Trench Town. Even in places where traf- ficking 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. Nor is it just rights, interests, identities, and injuries that have beco- me saturated with legality. Politics itself is 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 (2006:46 et passim), observation that, in India, the “use of the law” now “complements or repla- ces” other species of counter-politics. As we have noted before (2006:27), class strug- gles are giving way to class actions in which people drawn together by material predica- ment, culture, race, sexual preference, residence, faith, and habits of consumption beco- me legal persons as their common plaints turn them into plaintiffs with common identi- ties. Citizens, subjects, governments, congregations, chiefdoms, communities, and cor- porations litigate against one another in an ever mutating kaleidoscope – changing “con- stellations,” legal pluralism might call it – often at the intersections of tort law, human rights law, constitutional law, and the criminal law. Even democracy has been judicializ- ed: few national elections these days go by without some resort to the courts. No need to mention the American presidential election of 2002, which was decided by an ideologically-stacked judiciary, thereby aborting the democratic process; this in the imperium that imposes its political theology of “freedom” upon much of the rest of the planet.
For their part, states are having to defend themselves in courts against unprece- dented sorts of things in unprecedented ways. And against unprecedented sorts of plain- tiff. The legal struggle between the ANC and AIDS sufferers in South Africa is legend. But there are many 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 Panará Indians. Or Nicaragua, held to account a year earlier by the Inter-American Court for violating the ter- ritory of Tingni Indians by granting a timber concession to a Korean company.9 Suits of this species – which exemplify Eckert’s (2006:50-4) “legalism from below” – are often ab- etted by advocacy groups. In them, the law connects political means to political ends. At times, too, legalities are directed against unexpected sites of authority – in a manner that reverses 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.10 They won. But many such ini- tiatives fail. Thus the Ogoni lost a claim against Shell for its complicity in killing those op- posed to its presence in Nigeria. Patently, the law often comes down on the side of the powerful. And of big business, which also flexes its legal muscles as far as possible to create deregulated environments conducive to its workings.
In sum, while the law has always been a battle-ground, it appears ever more so; ever more, people seek, and find, legal justifications and jurisdictions on the basis of which to attack rogue capital, the state, and their enemies, real or imagined – extending, in the process, what has long been known as “forum shopping.” Note, here, the increas- ing 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 success. Unsurprisingly, mega-corporations have responded by trying to have the Act repealed, and by offering as an alternative “corporate social res- ponsibility,” and “soft law”; that is, self-regulation and mediation. A luta continua. But what this means is that the political geography of the planet is no longer sufficed by the kind of thing taught in school, the kind of geography 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 esta- blish the epistemic basis for this new geography.
Let us return, though, to the judicialization of politics.
It is not only the politics of the present that are being judicialized. The past, too, is being fought out in court. As Anja Peleikis (2006) and Judith Beyer (2006) have shown for Lithuania and Kyrgyzstan, history enters the law in diverse ways, often insinuating it- self into the cultural underpinnings of everyday jurisprudence, into its ways and means, its materialities and motivations. But we mean here something yet more specific: the struggle actually to repossess and reposition the past. Just as Brazil has had to recognize its part in the ethnocide of the Panará Indians, and to make material amends for it, so Britain is having to answer for atrocities in East Africa (cf. Anderson 2005; Elkins 2005): for having killed local leaders at whim, for having alienated land from one people to ano- ther, and for other such illegalities. By these means is colonialism 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 actual by its own sovereign word.
As a species of displacement, lawfare – the resort to legal instruments, to the viol- ence inherent in the law, for political ends – becomes most visible when those who “serve” 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 con- sistently passes statutes to justify the silencing of its critics. Operation Murambatsvina, which forced dissidents out of urban areas under the banner of “slum clearance,” took this to unprecedented depths. Murambatsvina, said the authorities, was merely an appli- cation of existing statutes to raze dangerous “illegal structures.”11 Lawfare may be limited 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 (1978) thesis that the law originates in violence and lives by violent means; that the legal and the lethal animate one another. Of course, in 1921, when he wrote his critique, Benjamin could not have envisaged the possibility 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? What are its wider implications?
Modernist nationhood seems to be undergoing a tectonic shift: the ideal of cultural homogeneity on which it was founded, always more aspiration than achievement, is giv- ing way to a recognition of greater heterogeneity. It is a move marked almost everywhere by nervous xenophobia, a move closely linked to the rise of neoliberalism, to its impact on population flows, on the dispersion of images, objects, desires, identities, on new geo- graphies of production and accumulation. And heterogeneity begets more law. Why? For one thing, because legal instruments appear – we stress, appear – to offer a means of commensuration: a repertoire of standardized signs and practices that, like money in the realm of economics, permit the negotiation of values and interests across otherwise in- transitive lines of difference. Hence the planetary flight into a constitutionalism that expli- citly 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 circle, 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 neoliberal turn has been the outsourcing by government of many of its conventional ope- rations, including those integral to the management of “bare life.” The Weberian bureauc- ratic state has mutated into a rather different beast: a state that is not just a corporate management enterprise – although, as Rancière (1999:113) says, it is ever more overtly just that – but one whose principal regulatory work lies in franchising and licencing, not least in the realm of policing and warfare. Where the modernist state undertook the redis- tribution 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 mark- et. And devolving ever more responsibility to citizens as individuals, communities, or clas- ses of consumer. This has a number of corollaries, variably felt across the world. One is that, with states no longer the sole guarantor of the security of citizens – with many shrin- king their policing operations and relinquishing their monopoly over the means of violence to the private sector – populations tend to become more fearful about the prospect of dis- order, more anxious about criminal violence, real or imagined. Of which more later. A se- cond corollary is that, with the outsourcing of government, counter-politics tends to be cri- minalized; this because it is treated not as the expression of democratic dissent, but as il- licit action against the property, persons, and prerogatives of those who act, contractually, in the name of authority. 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 to the deities of self- regulation, self-protection, and self-interest, the court – one institution still securely under the purview of the state, the one ostensibly capable of commensuration – becomes a utopic site to which human agency believes it may 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 public life becoming more legalistic, but so, in regulating their own affairs and in dealing with others, are sub- and transnational “communities”: cultural communities, corporate communities, residential communities, communities of faith or interest. Sometimes, as in India, these communities appropriate the law of the state unto themselves, which, Eckert (2006:47-8) notes, dissolves legal pluralism into judicial pluralism; sometimes they assert autonomy in specific domains, but leave others to government. And sometimes, as we shall see, they seek juridical independence. Nor is it only the communities of civil society that are saturated with legality. So are its criminal undersides. In the US, South Africa, Brazil, Russia, and elsewhere, “gangs” of various scale, i.e. organized crime, mimic both the state and the market. Many provide their “tax-paying” clients with the policing and protection that government has stopped supplying; some have shadow judiciaries to try offenders against the persons, property, and social orders over which they exert sover- eignty. In South Africa, recall, a number have constitutions. Several are structured as franchises. A few even offer “alternative citizenship” to their members. Charles Tilly (1985:170-1) once noted that the modern state operates much like organized crime. These days, organized crime is operating ever more like the modernist state. Concretely, we mean. Not just, as Derrida (1994) once suggested, in the manner of a specter.
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 we mean the exercise of control 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 (cf. Hansen and Stepputat 2005). “Lawmaking,” said Walter Benjamin (1978:295), “is power making.” But “power [is] 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 gover- nance in the age of neoliberalism, perhaps because so many of the operations of the bu- reaucratic state now live within the realm of the market, perhaps because the outsourcing of its authority has stretched so deep into the management of “bare life” – in short, be- cause we live in a world at once post-Weberian – 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, however, polities consist in a horizontal tapestry of partial sovereignties: so- vereignties over terrains and their inhabitants, over people conjoined in faith or culture, over transactional spheres, networks of relations, regimes of property; sovereignties at war or peace with each other; sovereignties longer or shorter lived, protected by more or less violence. Under such conditions, the social world tends to be imagined as an archipelago of zones of civility, of Arendt’s “walled” spaces of legality, under one or another sovereign jurisdiction; civil zones joined by corridors of tenuous safety in environments otherwise presumed to be, literally, out of control – inhabited by criminals, warlords, druglords, immigrants, and other alien non-persons – with the mediating reach of government 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 latter. 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 ex- ception, 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 pro- cess. 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 problems, towards interrogating the nature of sovereignty, we believe, that legal anthropology is being inexorably drawn. A great deal hangs on it.
This first cardinal direction leads directly to our other two. But, before we move on, we should like to stress that several things rather quickly passed by demand more atten- tion from legal anthropology. We have only scratched the surface of the problems of so- vereignty, of constitutionalism, and of the fetishism of law. The triangulation of these three axes mundi – and, concomitantly, the move from a world in which politics reigned over law and economy to one in which law seems to reign supreme – may turn out to be as consequential to our understanding of the neoliberal age as, say, the process of ratio- nalization was to Weber’s analysis of modernity, or the commodity to Marx’s reading of capitalism; both, interestingly, were also concerned with enchantment and commensura- tion. Indeed, what we have called legal theology – or theo-legality, the twenty-first century mutation of Carl Schmitt’s political theology – is, we would suggest, a critical grail to be followed, to whatever theoretical end-point it leads. So, we believe, is the mapping of a new jurisdictional geography through which to make sense of the unfolding logic of collec- tive action in the world. All of these questions are profoundly the subject of a legal anthro- pology that, as we said at the outset, ought to play a key part in theorizing the twenty-first century.
But let us move off in our second direction. We signpost it as…
2. DIFFERENCE, ID-OLOGY, AND THE LIMITS OF LIBERALISM
The turn toward legal self-imaginings on the part of communities of diverse kinds, like the changing cartography of sovereignty, is, we 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 or replace those of the state, some stress their alterity, some resort to modes of regula- tion that are only tenuously law-like, some strive for very limited autonomy. For their part, states tend to regard such sovereignties with deep ambivalence: those that contend in the economy of violence, or spill over into polite, propertied society, are likely to be criminalized – or recommissioned – by government, if it has the capacity to do so. Others 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 species of sovereignty poses particular problems for states on this front: so- vereignty based on cultural or religious difference of the kind that refuses altogether the antinomy between the private and the public; the kind that invokes intransitive, and often intransigent, ontologies of being-in-the-world; the kind whose alterity extends, as well, to governance. These sovereignties may be willfully self-limiting. Amanda Pirie’s (2006:78- 9, 93) Tibetan pastoralists, for example, are fiercely protective of the autonomy of their cultural patch when it comes to managing internal affairs and conflicts – and defer volun- tarily to the Chinese authorities in matters of criminal violence. But the appeal to the so- vereignty of culture or faith against government seldom stops at this felicitous border, the border of disorder. With neoliberal nationhood having to admit ever increasing heterodo- xy, with its explicit recognition in post-1989 constitutional design, ontological otherness is widely invoked these days to make substantial claims to autarkic self-regulation; claims that exceed the polite politics of recognition proffered by liberal philosophers as a pana- cea for the demands of difference in multicultural times. We have written of this in respect of South Africa (2003), which may exemplify a phenomenon spreading with exponential gravity.
South Africa, being a postcolony, was erected from the first on difference. Like most other places, it has seen a significant shift in the dialectic of law and governance. Here as elsewhere, neoliberalism has emerged triumphant, its language spoken as a national vernacular, albeit not without challenge. Here too, it has hidden its ideological scaf- folding, reducing government to, and representing it as, technical management. Here too, partisan politics has become a tournament in the promise of competing profitabilities and efficiencies. Here too, there has been a displacement from the struggle between political visions to struggles in the name of interest and affect. And interest and affect, in their col- lective voice, congeal in identity – itself naturalized, as though it were a generic and ge- netic condition of human being. For more and more people, the site of politics has shifted from ideology, the -ology of the idea, to ID-ology, the -ology of identity.12 Notwithstanding all the noisy debate about the future of the country that swirls around the African National Congress, its leadership and its policies, the “vast majority” of South Africans think of themselves first and foremost as members of “an ethnic, cultural, language, religious or some other group” to which they “attach their personal fate” (Gibson 2004:2).
The most comprehensive assertions of ID-ology, as we have already implied, are those made in the name of culture and faith; most comprehensive because they are exis- tential in their foundations – based, in the instance of faith, on transcendent truths and sacrally sanctioned ways and means, and, in the instance of culture, on shared essence and bio-genealogical alterity. Let us take each in turn.
ID-ology under the sign of culture and shared essence, when it is translated into a will to sovereignty, yields poli-culturalism. The prefix, poli-, denotes both plurality and a political claim to the exercise of governance over, well, everything; this through the instru- mentation of a law accountable to no temporal authority. In South Africa, it asserts itself most articulately, perhaps, in the argot of cultural jurisprudence, of the right of Zulu, Xho- sa, Tswana, and others to rule and be ruled according to their own customary ways. Note that this is taken to be quite different from the custom of colonialism, although it may un- wittingly reproduce some of its effects. It is, quite expressly, a living, Afro-modern law (Comaroff and Comaroff 2004b), one that – now unencumbered by the ancien regime – is said, from within, to be vital and growing, but in vernacular ways that apply long-standing principles of Africanity to the life and times of the postcolony.
The cause of policulturalism here has been most fervently fought – no surprise, gi- ven what we have said about the fetishism of law – on the terrain of the South African constitution. Its primary protagonist is the Congress of Traditional Leaders (Contralesa). For the past decade, Contralesa has put pressure on government to change the Bill of Rights, which subjects all forms of difference to the universal rights of citizens;13 it argues that “chiefs and kings” ought to enjoy sovereign authority over their realms. By statute, their formal powers, although amended several times, are confined to the administration of “customary law,” the coordination of cultural activities, any “function…delegated by a competent authority,” and such odds-and-ends as “the gathering of firewood.”14 Matters came to a head at a national conference held in August 200015 to discuss “[indigenous] leadership and institutions” with a view to producing a parliamentary White Paper.16 Contralesa refused to take part, although many of its members were physically present. Even more, it declined to talk to anyone other than the president – and only about constitution- al change. There have been times when the organization was sure that the state had been persuaded to do its bidding. And times when it has declared that the ANC, acting in bad faith, has never intended “to accommodate [chiefly authority in] the making of the new South Africa.”17 Such assertions have typically drawn denials from government, leav- ing behind them a trail of ambiguity, to the extent that there remains “considerable con- fusion as to what exactly the constitutional recognition [of chiefs] implies.”18 All the more so since the state has enacted laws, like the Recognition of Customary Marriages Act (No.120 of 1998), that authorize some vernacular practices – including ones once deem- ed “repugnant”19 – and, by implication, delegate to indigenous rulers the sovereign authority to administer them.
The upper echelons of the judiciary, which occasionally embrace Africanity in their jurisprudence,20 have added to the confusion by acting incoherently on the sovereignty of culture and, by extension, of those institutions in which it is vested. On one hand, for ex- ample, in May 2000, in Mthembu v. Letsela, the Supreme Court of Appeal decided that women married under African customary law were subject to the rule of male primogeni- ture – and, thereby, excluded from inheriting conjugal property. The “interests of the com- munity” as expressed in its “mores and fundamental assumptions,” said the bench, were of paramount importance in cases of this sort.21 In short, it declared that there are situa- tions in which culture ought to take precedence over the Bill of Rights; in this instance, over its gender equality clause. The decision drew criticism from some quarters, notably feminist, but that is another story. On the other hand, in a vividly contrasting, controversial judgment four years later, Bhe and Others v. Magistrate, Khayelitsha and Others, the Constitutional Court concluded that “the rule of male primogeniture…is…inconsistent with the Constitution and invalid…”22 This outcome, too, evoked outrage, now from those who rule over the polities of indigenous South Africa, many of whom retain a high level of legitimacy among their subjects (see e.g. Oomen 2005); they complained that the Court had violated the constitution by criminalizing their culture.
Nor did Bhe bring an end to the confusion. Or to the struggle over policulturalism. As we write, a female ANC member of parliament, Tinyiko Nwamitwa-Shilubana, is emb- roiled in a dispute that replays, in a new key, the uneasy dialectic of sovereignty against the state. Ms. Shilubana claims that the chiefship she inherited from her father, Fofoza – who ruled the Valoyi, of Limpopo Province, until his death in 1962 – has been “stolen” by her cousin, Sidwell Nwamitwa. The intricacies of the conflict need not detain us, save to say that Fofoza died without male heirs at a time when daughters could not succeed to office and was, therefore, followed by his brother, Richard, also now deceased, and then by Sidwell, Richard’s son. Most significant about the story is the fact that, in 1996, when Ms. Shilubana approached the Valoyi people with her desire to become their ruler, they agreed, citing the gender equality clause of the Constitution and recognizing her genealo- gical status. But Sidwell went to law, asserting the principle of patriliny, and won a deci- sion from the Pretoria High Court and then from the Supreme Court of Appeal; why either entertained a quarrel that, by “tradition,” fell within the purview of the sovereign politics of an African chiefdom, was never broached (cf. Tebbe 2008). Both benches ignored the publically-sanctioned change in Valoyi succession rules; they paid no heed when Ms. Shilubana insisted, correctly, that “customary law” is constantly evolving. And both, acting like colonial tribunals, held that male primogeniture ought to prevail since, “pursuant to tri- bal custom and tradition, a Hosi [chief] is born not elected.”23 Which simply ignored Bhe. The case, not surprisingly, has been taken on by the Constitutional Court. What is surpri- sing, however, is that Ms. Shilubana is opposed by many of her ANC parliamentary com- rades, who think that a victory for her would lead to “`instability’ throughout Southern Africa’s traditional communities.”24 To tamper with vernacular sovereignty, they believe, is to enter a policultural minefield, with explosive consequences. Not to do so, of course, is to affirm that sovereignty, at least by omission. And to limit the jurisdictional reach of the Constitution.
The struggle for sovereign indigeneity – and against Euromodern liberal democra- cy, conventionally conceived – seems to be spreading across the legal terrain of the country. A few instances, true social dramas in the old anthropological sense of the term, have come to stand as paradigmatic of this struggle. While often arising out of conflicts of value within African polities, their intended audience, and ultimate respondent, is the state itself. And, not infrequently, they play on the incoherence of the judiciary in dealing with Afromodern “custom.” One, a cause celebre in the late 1990’s,25 pitted a staunch Je- hovah’s Witness, Mrs. Kedibone Tumane, against Chief Nyalala Pilane of the Bakgatla, under whose jurisdiction in the North West Province she was then resident. For reasons of faith, Mrs. Tumane had violated a burial taboo which enjoins bereaved women to re- main confined for a specified period and, when going abroad, to sprinkle a herb (mogaga) on their paths; not to do so is to risk spreading death pollution (sefifi), with potentially leth- al consequences for the “nation” (morafe). When Mrs. Tumane tried to leave her home and refused to broadcast mogaga, she was stopped from doing so by the Tribal Authori- ty. Some of her neighbors, reacting with a mixture of fear and fury, called for her banishment. In contemporary South Africa, riddled with AIDS and other perennial threats to life, dicing with death evokes deep existential anxieties. And mass anger.
To cut a tortuous story short, Mrs. Tumane, abetted by the Human Rights Com- mission (SAHRC) took Chief Pilane to court late in 1998.26 Her constitutionally-protected rights had been deliberately traduced, she said. Having been put under “house arrest” – note her use here of an apartheid-saturated term – she had been forced to “live…[as] an outcast.”27 In an affidavit sworn prior to the case, Mrs. Tumane claimed that, in June 1998, the ruler had agreed to call a mass gathering and had promised to announce the end of her confinement, but had failed to do so. Pilane replied that he could not “release” her at the meeting in question, since “the tribe” had taken a “democratic” decision there to the contrary. He added that Mrs. Tumane was “confined” not by the tribal authority, but “by her own custom,” which could not be changed save by the “consent of the Kgatla na- tion,” of which she herself was a member. Her rights had been respected, he said, except where they were in tension with the Section 36 of the Constitution, which acknowledges that some limitations on individual freedoms are “reasonable and justifiable in an open… society” (see above, n.13). For Kgatla, a received practice whose transgression present- ed a clear and present danger to their community, and was recognized as such in a de- mocratically-constituted public forum, was just such a justification.28 To this, the complain- ant answered that, while an indigenous people is entitled to promote its culture and religion, it had to do so within the compass of the Bill of Rights, which placed individual free- doms above all things. This argument won, at least in the short run: in July 1998, the cou- rt agreed that the compulsory performance of mogaga violated the Constitution. An inter- im order instructed the chief to lift Mrs. Tumane’s confinement immediately.
Nothing happened. Political pressure from the state mounted. Counter-pressure came from the House of Traditional Leaders, which put three questions to the state. In paraphrase: Why did the constitution place the individual rights above those of “tribes”? Why were cultural practices not similarly protected? And why was the Tumane case be- ing handled by the high court and not by their own house, where it belonged? For its own part, Pilane’s defense fused British functionalist anthropology with Agamben on sovereig- nty: “Tradition is the glue that holds the tribe together, gives it purpose, sustains its identi- ty…” Virtually all Kgatla, irrespective of religion or education, observe mogaga, it went on. The transgression of death rituals endanger social life. Only Jehovah’s Witnesses refuse to comply. This explained why his people, following due democratic procedures, had de- cided to sacrifice Mrs. Tumane’s “rights” and – deploying the exception authorized by Section 36 of the Constitution – to condemn her to social death. This was their right as a sovereign nation; his sovereign obligation was to do their will. What is more, the SAHRC, clearly seen here as a cipher of government, had exploited the circumstances to crimina- lize an unobjectionable rite in the hope of bringing a cultural practice under the penumbra of the Bill of Rights. Pilane added, in a subtle legal stratagem that seemed to reverse his earlier statement, that mogaga was a ritual voluntarily followed by Kgatla and that, there- fore, Mrs. Tumane had not suffered compulsion. Per contra, being “eccentric,” she had shown contempt for a constitutionally-protected practice.29 Stressing that mogaga had been “declared voluntary” – that it belonged to the “private” domain of individual choice and did not compel anyone to violate their religious beliefs – the court dismissed the case. It clearly did not want to enter deep constitutional waters by being seen to outlaw an indigenous rite. As it happened, Mrs. Tumane’s period of mourning was by then long over.30
Here, then, is a paradigmatic instance in which policulturalism expresses itself. Here the sovereignty of a vernacular jurisprudence, and the political order in which it is embedded, is asserted against the state.31 Here the fundamental lines drawn by the Con- stitution – between the private and the public, the religious and the secular, the prerogati- ves of the individual and the imperatives of the communal – are directly challenged. Here an existential struggle over sovereignty itself is conducted by means of lawfare, displac- ing the political into the legal. Note that this is also a confrontation between Euromod- ernity and Afromodernity: Pilane did not simply invoke “custom.” He sought to re-write it into the thoroughly contemporary language of democratic decision-making, jural excep- tion, freedom of choice, rights-talk. Thus do constitutional jurisprudence and culture re- cast each other – and the political geography of a nation-state now built on the irreducibility of difference. Thus does policulturalism, its imbrications and its effects, become the urgent object of legal anthropology.
But it is not merely on the rarified scape of constitutionality that policulturalism is making itself felt. The confrontation between the Euromodern and the Afromodern, the displacement of the politics of sovereignty into the juridical, and the reworking of legal subjectivities are occurring in more mundane contexts as well. For example, so-called customary courts across the country are constantly having to deal with practices that are outlawed or unrecognized, yet are part of everyday life for much of the population. Most notable in this respect are conflicts arising out of the African occult – whose practice, real or alleged, remains illicit – which call into doubt the capacity of the state to impose both its rule of law and its monopoly over the means of violence (cf. Geschiere 2006). Precise- ly because they do, they provide a theologico-legal space for indigenous rulers to assert sovereign control over their realms. On occasion, these kinds of conflicts also filter into the lower reaches of the judiciary, where they compel the authorities to deal with the ine- luctable pragmatics of difference. Which, at times, has called forth a strikingly novel, and an analytically unexpected, species of jurisprudence (Comaroff and Comaroff 2004b).
Because we know it best, we have taken South Africa as the ground on which to open up the matter of policulturalism, of the processes it sets in motion, of its capacity to transform the interiors of both the national and the native, of its challenge to liberal no- tions of legality, of the analytic and theoretical issues that it raises. We could equally have looked elsewhere; for example, to France and its treatment of Muslim head scarves or to the banning of female circumcision most lately in Eritrea or to the outlawing of sati in In- dia. Also, as in our discussion of the fetishism of the law, we have barely scratched at its surfaces. For now, though, let us turn to the other domain of ID-ology that poses import- ant questions of sovereign difference, and its implications, for legal anthropology: faith. We said earlier that faith and the law are the twin obsessions of the 21st century,
that we are living in an age of legal theology, of theo-legality: faith, it seems, is taking more and more to the law to re-make the world in its own image, to extend is sovereignty, to police populations. Not everywhere, patently, nor always in the same way. But palpab- ly. Many religions, of course – not least those that bear the capitalized adjectives “Great” or “World” – have long had a juridical scaffolding. What appears different nowadays is the degree to which they are resorting to lawfare to extend their imperium. And to displa- ce liberal reason, albeit often by liberal means.
Take orthodox Islam. Where there have been efforts to recast the foundations of nation-states in its name, they have been deeply invested in the rule of Sharia law. The same applies to regions within states, as in Northern Nigeria, and Aceh, Indonesia; also to Muslim initiatives that would extend the dominion of both the faith and the faithful, like the Salafiyya movement in Morocco, which propagates a “return” to legal Islam (Turner 2006:101). Indeed, the force of Sharia law in the lives of Muslim populations was dramati- cally affirmed in early 2008 when, of all people, the Archbishop of Canterbury, Dr. Rowan Williams, suggested that some measure of official recognition be given to it by the British state for purposes of everyday governance in predominantly Islamic communities; per- haps the first time, this, that a religious leader of his stature has called for the policultural acceptance of (even partial) sovereignty for another faith. “As a matter of fact,” he noted, “certain provisions of Sharia are already recognised in our society and under our law” – as they are in India and Egypt – to the extent that their adoption was “unavoidable.”32 Predictably, his statement sparked a bitter controversy. Said his predecessor, Lord Ca- rey, “there can be no exceptions to the laws of our land.”33 What is significant, however, is that the argument has been joined at all. Clearly, we have reached an historical juncture in the convergence of faith and the law at which it has become thinkable.
But it is not only for the governance of everyday life that Muslim theo-legality has been evoked in policultural assertions of sovereignty. The religion itself is being reframed in these terms. A dramatic instance is to be found in Pakistan. It began in the 1970s, when the ulema, orthodox religious authorities, sought and won an injunction against the Ahmadis, a movement they declared heretical, to prevent them from using any of theSha’ir (“signs”) of Islam; these, said they said, belonged solely to “proper” Muslims (Ah- med 2006:19-24, 40-45). When, in 1978, the Ahmadis appealed to the Lahore High Court,34 counsel for the ulema again argued “that Muslim-ness [is] the exclusive property of Muslims alone, that certain Muslim terminology [is] analogous to copyright and trade- marks,” and that their improper is, therefore, “an infringement of the rights” of the faithful (p.21). On this occasion, the judge found against the religious authorities on the technical ground that they could not show that a material loss had been incurred (p.41). But fifteen years later, in 1993, in a Pakistan Supreme Court case35 that addressed the constitutional bases of Muslim identity, the same argument was accepted by a majority of the justices: they argued that certain signs were not just distinctive characteristics and practices but the exclusive property of Islam” (loc. cit., pp.41-2). Thus was Islam transformed “into property, something that could be owned, possessed and bounded off from others” (Ibid.), something whose true nature vested in the law. In some religions, as we have ob- served elsewhere (Comaroff and Comaroff n.d.), divinities may themselves have a jural identity. In 1986, when the Indian government sued for the return of a 12th-century bron- ze Shiva that had been looted from a village in Pathur, “it did so on behalf of the offended god himself,” who was the “named…plaintiff in the case” (Keefe 2007:60-1; emphasis ad- ded). Thus does a Deity, and the faith for which it stands, become a legal person.
Contemporary Christianity is also interpellating itself into the law – and, through it, into governance – in the effort to extend the reach of faith-based sovereignty. This, too, has precedents: Protestant and Catholic missions have, throughout their history, sought to create more-or-less closed, sovereign communities, thereby to exercise an authority over their citizens at once institutional and capillary. And the church, in its various deno- minational guises, has always taken pains to exert influence on political society and the state. But we appear to be seeing an acceleration, and an accretion, of this tendency, evident both in small Christian movements and in large evangelical awakenings across the world. Henning Mankell, the noted crime novelist and organic anthropologist of Swe- den, writes of these movements in One Step Behind (2003). “No longer [are they] simply charismatic,” he observes, “They are corporate franchises run by lawyers and account- ants” (p.351), legal persons that strive to change the world by means of legal ploys. The extent to which this is true has been brought to light in the US, on unprecedented scale, since the turn of the new century: reminiscent of the rise of Christian Political Economy (CPE) at the dawn of the modern Age of Capital (Waterman 1991), conservative Protes- tantism would render social, moral, and material life according to the dictates of faith – al- though, in its second coming, CPE seems much more anxious to insinuate itself directly into the workings of state.
Witness, in this respect, the spread of so-called dominionism, whose “global `king- dom’ agenda” is founded on the belief that Jesus will not return “until the Church has tak- en…control of the earth’s governmental and social institutions” (Leslie 2008:2, 3), includ- ing the market and the courts; its “3-legged stool” subsumes the state, business, and civil society (ibid.:6). Even among Christians who do not explicitly see themselves as part of this movement, many support the effort to entrench “godly dominion over our neighbor- hoods, our schools, our government, our literature and arts, our sports arenas, our…me- dia, our scientific endeavors – in short, over every aspect and institution of human socie- ty.”36 For some, the longer term objective is to make the country over into a theocracy, thereby to reverse the course of history. And to put an end to the hegemony of secular reason. The ideology of the religious right is too familiar to bear repeating: its assaying of “family values” and laissez faire, its antipathy to abortion, homosexuality, welfare, and stem cell research, its hard-nosed positions on poverty, the environment, theological and cultural relativism, immigration, “just” wars, and the like. In pursuing its imperial ends, conservative Christianity has been quick to resort to the means of lawfare.37 Recall the disturbing Jesus Camp (2006, dir. Rachel Grady and Heidi Ewing), a documentary about the indoctrination of very young people, who spend their summers learning to “seize back” the USA for Christ. The film may seem extreme in its choice of subject matter and in the matter of its subjects’ choices. But it captures a rising tide in modern America. Oth- er than footage of a Christian leader claiming to have open access to the White House and its decision-making processes, its most potent motif is a life-size cardboard effigy of George W. Bush, the ultimate American Idol: prayers are said for (to?) him, urging that he install “righteous judges” – the youths chant the mantra “righteous judges,” over and over – who would conjure into being a truly Christian commonwealth. The fight for domi- nion, in short, gives yet further impetus to the fetishism of the law and, and, with it, the ju- dicialization of politics. Legality is the secular instrument by which civil society is to be re- made in the image of the sacred.
Also uncivil society. Over the past decade or so, penitentiaries have become a ma- jor target of Christian movements in many countries (Burnside 2005); in the US, this initi- ative is associated primarily with PFM, the conservative Prison Fellowship Ministries foun- ded in 1976 by Charles W. Colson, ex-Watergate conspirator and alumnus of an Alaba- ma correctional facility. Neither Durkheim nor Foucault would have been surprised, of course, given their grasp of the constitutive relationship between the prison and the world, the disgraced and the disciplined. PFM’s “cultural commission” is to assist the church in evangelizing inmates, to promote “biblical standards of justice in the criminal justice system,” and, more broadly, “to cultivate righteousness in society, strengthening the work of God’s kingdom.”38 In its Utopia, the Lord’s Leviathan – about which Hobbes (1986:Pt III) himself would have felt distinctly queasy, given his belief that religious power ought al- ways to be subordinate to civil authority – would be ruled by a seamless fusion of the Laws of Leviticus and the Laws of the Land. Again, the Protestant presence in prisons has a deep history: the Bishop of Norwich, Barry Unsworth (1992:158) reminds us in Sac- red Hunger, owned one of England’s more notorious houses of detention in the late eigh- teenth century. But there was less concern then for the promiscuous interpellation of church into state. Ironically, as Governor of Texas, George W. Bush was sued by a con- vict for violating the constitution by turning the pastoral care of the penitentiary over to PFM, hence to advantage evangelical Christianity over other faiths or no faith at all.39 PFM has had to answer to the law on its own account as well: its InnerChange Freedom Initiative (IFI), partly funded by the state under President Bush’s Faith Based Community Initiatives Program, was the object of a suit filed in Iowa in 2003 by Americans United for the Separation of Church and State. It “is unconscionable” said the plaintiffs, for “govern- ment to give preferential treatment to prisoners based solely on their willingness to under- go religious conversion and indoctrination.” The real controversy here, argued Ministry-Watch, a Christian Organization sympathetic to PFM and IFI, is about whether “our na- tion’s basic approach to solving social problems [is] secular humanism powered by big government and void of transcendent values [or] real and lasting social change…effected by `armies of compassion’… working for true justice based upon unchanging principles.”40
Critics of PFM accuse it of religious coercion, indeed, of theologico-lawfare. They point out that the evangelical Christian Ministry, committed to dominionism, has persuad- ed several states to make its programs, paid for by tax dollars, a requirement of parole – and to give better carceral treatment to those who sign on.41 As it turned out, the Iowa
suit was successful. Both the lower courts and a federal appeals court, the second in late 2007, found that IFI does violate the constitutional separation of church and state. Althou- gh the plaintiffs took the ruling to be “a major setback for the White House’s `faith-based initiative’,” the IFI was banned only if it continued to operate with government funds.42 In other words, as long as it is privately financed, it will continue to have access to prisons, and be free to press its convictions on convicts. At the time of writing, PFM was consider- ing an approach to the ideologically-stacked Supreme Court – in respect of whose com- position Mr. Bush has answered the prayers of the Jesus Campers – there to persuade the highest levels of the judiciary that government should pay for its work. And that the constitutional wall between church and state, the sacred and the secular, ought to be re- aligned. A luta continua. Nor only in the USA. In South Africa, where the constitutional protection for religious expression is much greater than it is in the USA, there is ongoing debate about the place of faith in civil society and its governance, not to mention ongoing efforts on the part of religious parties to deploy the judiciary to extend their sovereignty.43
Similar things might be written about other faiths, other places. For example, the popularity of fundamentalist Judaism has grown strikingly over the past decades. In Is- rael, the role in government of the religious parties – in particular, their control over family law – has long posed a problem for the full accomplishment of a secular liberal democra- cy. With the occupation of Palestine and the expansion of settlements dominated by or- thodox Jews, the West Bank has become an archipelago of faith-based sovereign com- munities notorious for their aggressive self-assertion. Outside Israel, throughout the Jew- ish diaspora, ultra-conservative congregations have tended to be highly protective of their integrity, closing themselves off to the world and its interventions, settling disputes, enact- ing sociality, managing their public finances, and negotiating their own moral economies – with rabbinical courts as the arbiters of order and propriety. Some time back, Channel 4 in the UK presented a television program entitled Jewish Law in its series, Faith and Be- lief.44 Focusing on just such a “self-contained” community in Manchester, it showed scenes of religious authorities “enforcing an array of intricate regulations ‘governed by biblical texts’,” rules that cover “every element” of people’s lives. And deaths.
The degree to which ultra-conservatice Jews seek sovereign autonomy, and suc- ceed in attaining it, is highly variable, of course – as it is among other communities of conviction, be they evangelical Christians or orthodox Muslims, Mansions of Rastafari or ancestor-worshiping Africans. But the overall trend seems clear. The sovereignty of diffe- rence, of ID-ology under the sign of culture or faith or the fusion of the two, is decreasingly a matter of indifference, increasingly the stuff of lawfare, ever more world-altering in its will to self-expression.
It is not simply that faith or culture are becoming more significant. In claiming sov- ereignty for culture and/or faith, the turn to ID-ology is having a fundamental impact on the very nature of political society. Nation-states may seek to subordinate these sover- eignties to them; although, in the USA, it often seems the other way around. But, inevita- bly, they find themselves locked in a dialectic of mutual transformation, albeit an under- determined, as yet far-from-decided one. How so? Because assertions of sovereign diffe- rence, of policulturalism, seek to reconstitute the lineaments of the universe. Not only do they insist on a realignment of the relationship between the public and the private, the sa- cred and the secular, the empirical and the ineffable, and other founding oppositions at the core of liberal modern society. They also demand that the authority of the state – in respect of governance, legality, the means of violence, the fiscus, and many things besi- des – no longer be cast as universal, that it be parsed rather along lines of difference; of different universalities, that is, those of god rather than government. Similarly citizenship, whose rights and responsibilities are no longer to be defined purely in relation to the body politic, but to identities than nestle within it, transcend it, or transect its boundaries. Which returns us, full circle, to the historical shift of which we spoke earlier, the shift from a wor- ld built on vertical sovereignties to one erected on horizontal, partial ones.
Once again, the theory-work in all this for legal anthropology is to plumb the dialec- tic. It is a complex one, we reiterate, not one of winners or losers, domination and subor- dination, or even simple syntheses. It is one of translucent subtleties of substance, alter- ing, as we have said, the political ontology of the lived world in such a way as to reground the future-history of democracy, of law and governance, of our ways of being-and-knowing. Of the Order of Things, tout court.
Could this be why so many people in so many parts of the world are concerned right now with order – and, conversely, with disorder? That is the question that points us finally, and very briefly, toward our third cardinal direction…
3. ON THE METAPHYSICS OF DISORDER, OR TOWARD A CRIMINAL ANTHROPOLOGY
We live, it seems, in an age of anxiety, an age of fear, an age of ambivalence. It is not the first, nor will it be the last. To the contrary, apprehension and uncertainty – at times acute, often just naggingly there – are the perennial undersides of social existence.
But what is notable about this age, if we tap into populist discourses across much of the globe, is the extent to which social angst manifests itself in the gathering idea that criminality is almost everywhere out of control, everywhere excessive, everywhere a dan- ger to life, limb, liberty, property (Comaroff and Comaroff 2004a). Even to society itself.
Moreover, it is common cause, among many national publics, that the fight against law- lessness and disorder can no longer be won. Except maybe in fiction, film, melodrama. Bertrand Russell’s (1950:143) “arduous journey,” that great modernist march toward “a social organization which curb(s) private violence and gives a measure of security to daily life,” appears to have ground to a halt. Moral panics have surfaced in many places: the Netherlands, Guatemala, Argentina, El Salvador, Haiti, Papua New Guinea, Japan, Aust- ralia. Brazil, we are told, lives with a “culture of fear” (e.g. Caldeira 1996:303f, 2000). In sedate Sweden, citizens have come to see their country as “a place of dark crimes and vicious psychopaths, of fractured families and a fraying society.”45 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 students of sociology, was so vexed by the problem of social disorder that Polly Toynbee spoke of it as being on the verge of a “nervous breakdown”;46 things have not improved appreciably since. In North America, where panics over crime peaked a little earlier, they have given way to a terror of terror- ism, of warfare made criminal.
In sum, criminality has become a more-or-less global trope of undoing, of the im- minent demise of civility, democracy, social order; just as economic meltdown, contagion, nuclear holocaust, moral decay, ecological catastrophe, and other things have been in previous historical epochs. Seldom seen as political in its causes or effects – or, for that matter, as having anything at all to do with political economy – lawlessness is now, in vernacular imaginations, exactly what Durkheim’s normative sociology long ago made it out to be: a human pathology that, unchecked, threatens the viability of modernist polities. Concomitantly, policing has come to “stand for…order” in twenty-first century notions of governance (Corrigan and Sayer 1985:4). It – or, more generally, security – is now the state function par excellence. It is also a major criterion by which the strength of regimes is measured; hence its rhetorical significance when those regimes perform themselves for their citizens (Comaroff and Comaroff 2004a). This is in spite of the fact that, all over the world, the work of enforcement and incarceration is being ever more displaced into the private sector. Or, more likely, because of it: there is good reason to believe that contemporary obsessions with disorder, themselves fed by a mass-mediation, are a corollary of the outsourcing of many of the operations of government, leaving the national citizen unsure of who or what might be the guarantor of life-and-death, of private property and public space. As Kevin Haggerty (2001:197) puts it, mass anxieties with lawlessness and punishment have more to do with “the late-modern breakdown of a host of… social secu- rity systems” than with the brute fact of “criminal victimization.”
This, in turn, raises a number of questions, among them, whether felony rates are not in fact rising precipitously, fed by the massive economic impact of upward flows of wealth and rising Gini coefficients, by the retreat of the welfare state and morphing labor markets. Some criminologists of both the left and the right have argued that they are. And crime statistics seem to bear them out; although the crime statistic is itself an inherently unstable knowledge-object (Comaroff and Comaroff 2006b). Whatever the “truth” in this respect, there is a well-established disproportion in many places – including the USA (see.e.g. Garland 2001:10f) and UK47 – between fear and risk: those who fear lawlessness most do not typically suffer it worst, those who suffer it worst do not tend to fear it most. In Cape Town, South Africa, for instance, where 350 murders occur in the poor black township of Khayelitsha for every one in wealthy, white Camps Bay, residents of the latter evince far greater concern with criminal violence. This disproportionality is why police departments often spend more these days on fighting the fear of crime than on fighting crime itself (cf. Haggerty 2001). It also points to something more general: that criminality is an ethical vernacular, a reflexive language in terms of which populations frame their discourses of deficit, arguing among themselves about what it is that stands between them and the good life. Which is why it always takes on a profoundly contingent, local content: such things as the alleged incapacity of the government of the day to deliver on its responsibility to it citizens, or, worse yet, the corruption of its personnel; the inherent unruliness, incivility, violence of racialized others (a.k.a young black men); the insidious presence of immigrants (a.k.a. “Illegal aliens”); the evil of those whose jealous terror wou- ld wilfully destroy our civilization (a.k.a. Muslim fundamentalists). It is, conversely, by vir- tue of their translation into the argot of criminality that racism, xenophobia, and their ilk may be spoken, and enacted, without being named.
Crime, to invoke Foucault, is productive: it is productive of emergent discourses of politics and law, of economics and ethics, of liberty, civility, sociality, and religiosity – all of which it defines by its transgressions. As Durkheim (1938:xxviii) noted, Carol Greenhouse (2003:276) reminds us, “a society…free of crime would fall into chaos, since it would be bereft of the signs of its own existence as an authoritative order.” Like the African witch, in other words, the felon is a “standardized nightmare” (Wilson 1951): an embodied figure by means of whom, as camera obscura, a civil order may conceive of itself – and, to the degree that nightmares are historical in their content, locate itself in its own contempora- neity. If, therefore, we are to interrogate law and governance at the dawn of the new cen- tury, if we are to understand the nature of its socialities and sovereignties, one way of do- ing so is to develop, within legal anthropology, an anthropological criminology that takes as its problem (i) what criminality and policing mean, what they convey and communicate in the here-and-now, (ii) how we read crime “facts and figures,” even fictions, as a spe- cies of political and social knowledge, (iii) what kinds of governmentality they bespeak, (iv) what sorts of world they conjure up. We already have some extraordinary examples, of course: James Siegel’s New Criminal Type in Jakarta is one. So, too, is Malcolm Young’s An Inside Job. Each, in its own way, shows how it is that uncertainty and ambi- valence, congealed in the specter of lawlessness – in a metaphysic of disorder, so to speak – have come to haunt the present. Both underscore the contention with which we began: that a critical legal anthropology is foundational to the theory-work required to make sense of the twenty-first century.
Which brings us to one or two words by way of conclusion.
Our three cardinal topoi – the fetishism of the law, ID-ology, and anthropological criminology – converge. They are triangulated dimensions of the same thing: of the grow- ing centrality of a culture of legality, broadly defined, in the post-Cold War (neoliberal?) Era, in its politics and sociality, in its economics both moral and material, in its emergent forms of sociality, religiosity, and citizenship, collective consciousness and subjectivity. In short, in world-making in the wake of the millennium. We have tried to take the measure of this “legal turn,” of its expression in such diverse things as the judicialization of political life, changing patterns of sovereignty, the rise of policulturalism and new faith-based movements, and spreading obsessions with lawlessness and disorder. But our primary objective has been more general, more programmatic. It has been to show why it is that a critical legal anthropology – one unafraid to take on Big Issues, even as it continues to interrogate small things – is so crucial to contemporary social theory at large, especially to theorizing the 21st century. In sketching one possible set of horizons for that anthropology, we seek to claim for it its proper place in the mainstream.