Transnationalism and Nonpurity: Europe, Law Schools, and ‘Law in Action’ for the Current Crisis
Having recently completed an ethnography of “crisis” in French politico-legal culture in the period surrounding the failed European Constitution, I was intrigued by Alfred Aman’s piece on the “Law School Crisis” (3/13/12).
There, Aman suggests the growing transnationalism of legal regimes as one of three major factors contributing to a disconnect between supply and demand in human resources for today’s legal marketplace. As a law professor and anthropologist, I agree. Indeed, after spending the past few yearsreluctantly packaging my international fieldwork for a legal academic audience, Aman inspires in me new insight about relevance and the anthropology of global legal regimes.
My central contention here is that there appear to be uncanny similarities between transnationalism’s effect upon North American law school and its effect on grassroots politics in the European Union [the subject of my research in France].. But first, I’lladmit to the stark differences between these two phenomena, differences which might seem to make their comparison unnatural. Clearly, separated by oceans and languages, the political cultures of continental Europe and North America have traditionally differed in important and familiar ways. The former is based in Roman civil law, the latter in English common law; the former entailsintense fealty towards a sovereign and its agents, the latter a popular notion of the judiciary as a forum for “speaking truth to power”. Above all, European legal culture, if one can be said to exist, has long been pluralist—at least in the sense of formal, mutual,transborderrespect for differing legal traditions. North America, by contrast, developed a deep sense of exceptionalism among its legal institutions and actors. Simply put, we in the U.S. rarely had to collaborate across legal cultural borders the way Europe long has. And so, we generally haven’t.
Geography aside, a comparison of grassroots political movements and formal legal academic institutions still seems awkward. The former espouse spontaneous collective action—social effervescence with ideological groundwork and material ends. On the other hand, law schoolsaim at the professional formation of expert, technically trained mediators of State power. More importantly, in today’s “Occupy” context the comparison seems just plain wrong: ‘lawyers have, grassroots activists havenot.’ Sothe saying might go.
Still,I’ll suggest that some social movementorganizations of Europe—the ones I found germane to study—are comparable to North American law schools in the way transnationalism has challenged their roles and meanings– and that this occurs in a manner that supports Aman’s account. For instance, the large human rights associations that I studied in France wereno longerspontaneous collective movements; they were ratherroutinized, highly organized bureaucracies with bank accounts and employee manuals. Groups such as the Ligue des Droits de l’Homme, and the MouvementContre le Racisme et Pour l’Amitié entre les Peuples boasted dozens of thousands of dues-paying members. They hosted formal training sessions enabling volunteer clinics to attain practical legal outcomes for refugee, discriminated, and indigent peoples. Finally, they influenced national social policy and generated, throughorganizational power bases, several candidates for public office. Most importantly for my project and this discussion, these groups—representing what many held to be the core values of French Republican citizenship in the mid-2000s—tried to resisttransnational governance by formally opposing the 2005 European Constitution. Their position—one whose validity may have been debatable —was that the Constitution attenuated fundamental rights in a way a real constitutionswerenot supposed to. The immediate result of thisposition and its widespread acceptance was defeat for the Constitution as voted.However, in the longterm, this resulted not in a mass democratic meditation upon regional integration as a goal,but in the pursuit of that goal by its main beneficiaries throughless democratic means. Ultimately, under the “Reform Treaty”,member states simply ratified the same languageyears later without provisions for fundamental rights, or the word “constitution”. In effect, French domestic resistance to a transnational E.U. legal culture of the kind suggested by the Constitution did little toforestall global governance on the Continent. And in my opinion, these shifts in legitimacy from techno-legal innovation,through popular “legitimacy from below”, to sovereign “legitimacy from above”,helped cultivatethe fragility now marking the European Union of 2012. But that’sanother direction for another day.
Returning to the “law school crisis”, I seesimilarity in the way transnationalism created problems for French human rights activists and the way itnow confronts law school faculty and students. This confrontation, Aman properly writes,demands a reconsideration of the nexus of theory and practice.It’s an insight that wasunderdeveloped in my French activist colleagues. For them, the concern became how the variegated legal structure of the E.U would burden their established practices—of free law clinics for example. Similarly, I have often heard, “how willpaying attention to the transnational contexts of law benefit the ultimate ‘practice’ of American law students?”In a few specific areas, that benefit might still beremote. In others—international business transactions for instance—it is already ostensible. Butacross all subjects, the benefit grows less remote each day, and our challenge is to anticipate the forms it will take in the days ahead.
As I entered the legal academic job market a few years ago, I was surprised to find a similar conservatism of thought. “How would an anthropologist add value to the law classroom?”“How would international fieldwork on law be of use to our students?”These questions were premised upon the specious concept of “legal doctrine”. What they really were asking, I nowunderstand, was how studies of “law in action” will promote studies of “legal doctrine”? My own answer today is that they will not: they will complicate it, and should be invited to. Because if nothing else, and asAman pointed out, this is one of the demands of legal education in a context of transnationalism.
At any rate, that word “doctrine” always carries a hint of purism. And yet, increasing circulation of our concepts across boundaries of meaning, power, and space, means that our norms can’t remain—if ever they could—pure. So I agree with Aman that the law school dilemma is really part of a larger global crisis of grappling with thenonpurity ofchanges in our approaches to meaning and our economic situations. . This being said, law schools should feel ever morecompelled to understand —either by ethnographic or other means—the true impact of their effortsacross diverse contexts of advocacy and action.