Category Archives: Anthropology

The trouble with law and order

By guest blogger Nick Cheesman

What is law and order? How does it differ from the rule of law? And what are the implications of the difference between the two for our understanding of how and why political and legal institutions act as they do? These questions have a new salience for Americans since the Trump presidency began in January 2017, promising a “law and order administration.” Of course, the United States has had more than its share of self-professed law-and-order administrations, and although today’s is unorthodox, it has its antecedents. Be that as it may, Trump’s aggressive posturing presents Americans with an opportunity to go beyond the usual understandings of law and order, and to ask more critical questions about this concept’s place in the country’s political and legal imagination.

In a book published in 2015, Opposing the Rule of Law, I argued that law and order is neither a fellow traveler with the rule of law, nor one among a package of goods that constitute it, as is conventionally assumed, but is its asymmetrical opposite. That is to say, the two oppose each other, although they do not occupy points at the far ends of a scale of identical values. They are not precisely contrasted, as in the rather worn out dichotomy between the rule of law and the rule of men, but are hostile to one another, each by virtue of its own distinctive contents.

I made this argument by asking what we can learn about the rule of law from study of a place where it is absent. My research site was Myanmar, or Burma: a country where conditions were unlike those of the United States in almost every way. During the 2000s and early 2010s, I documented the activities of courts, police and administrators there as they labored under a military junta. These institutions undoubtedly had a very different reading on law and order from their American counterparts, and at the time I gave little thought to the US. As an interpretive scholar of contemporary Southeast Asia I wanted to write an account of Myanmar on its own terms. The book’s findings seemed pertinent to nearby countries with shared legal traditions, or similar experiences of politically active armies. By contrast, the language and practices of law and order on the other side of the Pacific struck me as distant and foreign.

Nevertheless, study of political and legal ideas in any particular setting inevitably presents opportunities to identify elements that might help in our understanding of times and places that were not in mind during the course of research. In my case, having combined empirical methodologies so as to address theoretically informed questions (see Suchman and Mertz 2010), I embarked on a more protracted and generalized inquiry into the conceptual relation between law and order and the rule of law than I had originally intended—one that, through dialogue with colleagues from around the world, made me think harder about how the relation might travel. And without aiming to force research findings into places where they do not have purchase, I now think that the relation I sketched might provoke conversation about how law and order animates practices elsewhere—perhaps even in the United States under the Trump administration.

Law and order, to continue with the argument, differs from the rule of law in four primary ways. First, the rule of law rests on the idea that general rules maintain order, whereas law and order depends on particularistic commands and directives, in response to exigencies. Second, the former emphasizes the role of judicial institutions, whereas the latter privileges administrative ones. Third, under the rule-of-law ideal, public adjudication according to general rules guides conduct so that people can make decisions of their own accord. To maintain law and order, by contrast, authoritative institutions act on specific injunctions to intervene directly into people’s lives. Fourth, whereas under the rule of law, discipline ideally is an endogenous feature of political relations—characteristic of those relations; not imposed on them—law and order entails the exogenous imposition of discipline.

If the rule of law aims to minimize arbitrariness, then law and order has as its primary concern non-restlessness. Its ultimate object is quietude. Law and order conceives of a mode of association whereby essentially administrative mechanisms quieten people. Some kind of subordination is necessarily present in the idea of law and order. Quietude does not happen of its own accord. Somebody must quieten someone else. The trouble with law and order, then, is that it reveals in itself an essential affiliation with inequality—not only in fact, but also, in contrast to the rule of law, in principle.

None of this is to imply that practices animated both by law and order and the rule of law do not get entangled—that conditions can be indicative only of the one or the other. Obviously, order emerges from an admixture of arrangements, some coordinated and others coercive, some from below and others from above. But it does not follow that the ideas animating practices are consonant. On the contrary, it is precisely because of the oppositional relation between law and order and the rule of law that where both ideas are active, as in the United States today, we observe tension, conflict and inconsistency.

Americans responding to the dangers posed by the Trump administration are working in very different circumstances from those encountered by Burmese who resisted demands for law and order under military dictatorship. Trump represents an unusual threat, but people in the United States have deep reservoirs holding rule-of-law traditions from which to draw, and public institutions that afford them opportunities to fight back, however imperfectly. The stream of demonstrations since the presidential inauguration, associational actions in support of immigrants’ rights, bold journalism, and interventions through the courts all stand in evidence.

But the current administration has resources to draw on in pursuit of its anti-rule of law agenda too. Among them, the most obvious ones include the proliferating regulations to manage and intervene directly and capriciously into the lives of millions of people living in a condition of carceral citizenship (see Miller and Alexander 2016), with literally thousands of potential collateral consequences for anyone having a criminal record; the functioning of lower courts as administrative clearing houses through plea bargaining in lieu of trial—a practice that John Langbein (1978) compared with the early modern procedures for judicial torture—and the targeting of entire communities as inherently disorderly and requiring constant surveillance and intervention to contain the threat they allegedly pose to the body politic.

The iniquity of these practices, and their detrimental consequences not only for the rule of law but also for American democracy, is manifest. But the point here is that whereas these practices if observed through a rule-of-law lens give cause for concern, from a law-and-order angle they are unproblematic. The piling up of measures to intervene coercively and arbitrarily into people’s daily lives, overwhelmingly administrative rather than judicial methods for addressing crime, and exogenous imposition of discipline on populations that, it is assumed, will not become orderly of their own accord—an assumption that is adopted into policy even when it is theoretically unsound and empirically groundless (see Harcourt 2005)—are the stuff not of the rule of law but of law and order.

The new administration’s pivot towards the police and other internal security forces, attributing of lawlessness to immigrants, and targeting of “the rioter, the looter, or the violent disrupter” as categories for invention and intervention are all consistent with the logic of law and order. So too are Trump’s invectives against the judiciary following efforts through the courts to obstruct his anti-Muslim program: from a law-and-order standpoint, judges are supposed to work cooperatively with the executive. They should not needlessly obstruct it. The notion that courts ought to temper the exercise of executive power (see Krygier 2015) holds little water for the advocate of law and order. Such thinking invites vulnerability and danger, not the safety and security promised by the Trump administration to those people deserving of it, in exchange for acquiescence to the law-and-order agenda.

The lesson I drew from research in Southeast Asia is that if the practices and verbiage of institutions and officeholders animated by law and order are studied according to rule-of-law criteria then they are liable to be misunderstood. Law and order is not a companion of the rule of law. It is its opponent. Politicians and office bearers motivated to act on a law-and-order agenda are not climbing the same ladder as their counterparts who hold to the values of the rule of law. They are on a different ladder altogether. To understand what they are doing—and to design strategies to respond—law-and-order partisans need to be studied and interpreted on their own terms. Rendered intelligible, they are easier to confront both intellectually and politically. And in America today, it seems to me, to make sense of law and order ought not just be a top priority for scholarly inquiry, but also a matter of no small political urgency.

Nick Cheesman is a Fellow at the Australian National University and in 2016-17 a Member at the Institute for Advanced Study, Princeton. This text is adapted from a talk delivered in the After Hours Conversations series at the IAS.

Chicago & Wisconsin During the Eisenhower Years

In this post, NLR blogger Stewart Macaulay responds to Marc Galanter’s comments here (as Guest Blogger in January 2016) about the University of Chicago Law School in the mid-1950s.   

Marc and I met when we both were appointed as Bigelow Teaching Fellows and Instructors in 1956-57.   Marc has been a great friend and someone I have admired for almost 60 years.   I have no quarrel with anything that Marc wrote in his comment about our time at Chicago.

Our experiences overlapped but differed.   Marc can write about being Karl Llewellyn’s student because he went to the University of Chicago Law School.   I went to Stanford and then I was Chief Judge William Denman’s law clerk on the Ninth Circuit.   As far as I could see when I was at Chicago, Llewellyn then was focused on his theories about “the common law tradition.”   It was classic legal realism that dealt with appellate judges.  After a year of looking at United States Circuit Judges in full flight as they reviewed the work of District Judges, I had my own views about that.   Later I was to find out that I only had seen one part of Llewellyn’s ideas.

Some time after Marc joined the Wisconsin Law School faculty, we were walking home together.   We observed that, between us, we had gone to three important law schools at about the same time  (Marc went to both Pennsylvania and Chicago).   We noted that we had heard not one word about plea bargaining or settlement of personal injury cases in our classes.

As Marc indicated, a lot was going on at Chicago when we were there together.   The Jury and the Arbitration Projects were major undertakings.   We heard talks about them, and I met many people working on them.  Law and economics was beginning to have its own turf at Chicago.    However, there were other people doing things that we tend to forget today.

Nick Katzenbach had come to Chicago from Yale.   He wanted to develop materials for a course in legislation.   Most Bigelows taught legal writing.  I did some of that, but I was also assigned to work with Nick.   I was something between a research assistant and a very junior co-author.   Nick had the material developing the theories about the legislative process.   He wanted to get behind outward appearances and offer material about how it really worked.  He was very interested in the role of lawyers who worked backstage for governors and for legislative leaders.    They had contacts and high political skills.    Added to this group were the members of the legislative staffs who understood the deals that had prompted various provisions in the state statutes as well as how all the pieces fit together.   Nick sent me off to the University library to try to track down what had been published about such things.   I found some material, but Nick and I thought that we had identified a major research project that needed to be done.  We discussed the problems of studying what lawyers actually did when so much of it depended on contacts, favors owed over time and other things better kept hidden.   As a member of the Stanford Law Review, I had written and edited notes about cases.   As a law clerk, I had written memos about appeals from trial courts and administrative agencies.   Nick had previously pushed me into work about law but not about rules and appeals.   Only a few years later, Nick would leave Chicago to join the Kennedy and then Johnson administrations.   He went from studying lawyers playing these political roles to doing it for two presidents.   (There is a famous picture of Governor George Wallace standing in the doorway to the University of Alabama symbolically blocking its integration.   Wallace was a small man.   The very large man who represented the United States was Nick Katzenbach.)

My mentor at Chicago was Malcolm Sharp.   He taught contracts.   I had first seen his name when Harold Shepherd, my Stanford contracts professor, handed out to our class reprints of Franklin Schultz’ “The Firm Offer Puzzle.”   This was one of the first empirical studies in the area of contracts.    Those bidding on building construction contracts only made offers and not binding contracts by their bids.   Both those bidding and those receiving the bids thought that one should stand behind a bid and not back out once the one receiving it had relied on it.   Schultz advocated changing contract law to make the bids enforceable.   Sharp commented on the study to our class.  He liked the empirical work, but he didn’t think that Schultz had established that other-than-legal normative and sanction systems were inadequate.

I hoped to become a contracts teacher, and I talked with Sharp.   We discovered that my father-in-law had been a close friend of Sharp’s when they attended the University of Wisconsin.  My wife and I managed to get them together again.

I was hired at Wisconsin.   During the summer before we moved to Madison, I sat in on Nick Katzenbach’s contracts class.   He used Kessler and Sharp as his casebook.   I got to hear Nick’s take on Malcolm’s ideas.   I took lengthy notes.    Then Nick got the flu, and I got to teach the class for a week.   I think that I managed to hide my terror and case of the “impostor syndrome” as I faked it.   But the experience made it easier to begin as a 26-year-old contracts professor at Madison.

We used Lon Fuller’s contracts casebook at Wisconsin.   Fuller had written a famous article distinguishing the various interests that contract remedies might protect  — the expectation, the reliance, and the restitution interests.   Protecting the expectation interest involved putting the aggrieved party where he would have been had the contract been performed.   Jack Ramsey, my father-in-law, was the retired CEO of S.C. Johnson & Sons.   He asked me what I was teaching in contracts, and I told him about the expectation interest.  Jack exploded.  “If you ever have to sue for a breach of contract, you will not be where you would have been had the contract been performed!”   He told me that Johnson had bought containers for its products from three suppliers in the early 1930s.   When the great depression hit, Johnson worked to place its orders with the supplier that needed the order most in order to stay in business.   It did not stage a reverse auction and push the suppliers to engage in a bidding war.   Jack said that this was right morally.   Moreover, he pointed out that six or seven years later, we were in World War II.   Steel was rationed, and containers for consumer products did not have a high priority.   But Johnson never wanted for a can.   “The suppliers owed us one!”    Jack said that I might think that this was just his eccentric behavior.   He called several of his friends who worked for major corporations.  I was on my way to becoming an empirical researcher.  [Here Macaulay refers to the famous study he subsequently conducted on “Non-Contractual Relations in Business,” published in the American Sociological Review.] Fortunately, I had a wife who was well into her graduate studies in social psychology.   She kept her husband from making too many screaming mistakes.

Willard Hurst had a series of grants that he used to develop a new kind of research at Wisconsin.   He insisted that we had to get away from appellate cases and study law as delivered. He used the grant funds to buy research semesters and summers for younger faculty.   Essentially, your job was to read, and Willard would supply suggestions.   I worked my way through such thinkers as Weber, Parsons, Merton, and Malinowski.   Now I also read Karl Llewellyn, particularly The Cheyenne Way [with E.A. Hoebel].

Out of all of this, I fashioned the first drafts of my “Non-Contractual Relations” article.   I sent a copy to Malcolm Sharp, and he invited me to visit him at Chicago.   We took a long walk along Lake Michigan and talked.   He had all kinds of ideas and suggestions which proved to be very valuable.   But just as valuable was the reassurance that I was doing something worth doing.   Sharp also had given a copy of my draft to Harry Kalven who was the head of the Jury Project.  Kalven was a torts teacher who saw that doctrine in his area was hardly enough to account for how law dealt with accidents, crimes, and the like.   Kalven was extremely encouraging and he too offered valuable suggestions.   Some years later when I was awarded a Hilldale Professorship at the Univeristy of Wisconsin, I was entitled to name it after someone in my field with some connection to Madison.    I became the Malcolm Pitman Sharp Hilldale Professor.   It was a way of saying thank you for reassurance when I needed it.   After all, in the late 1950s other young professors were not interviewing lawyers and businessmen.   And they weren’t suggesting that contract law played an important role only in a limited group of situations.   Later I also won the Harry Kalven Prize from LSA.   A prize named after Kalven had special meaning for me.

 

Mertz on Studying Social Science Ethics

In recent months, prompted by media coverage of research by sociologist Alice Goffman, a number of law professors have stumbled upon a longstanding set of questions surrounding social science ethics.  These questions, which I first encountered during my Anthropology 101 class in the 1970s, are obvious concomitants of any form of deep, long-term observational research.  Anthropology has long been a leader in a form of that research known as participant observation, the results of which are generally reported in ethnographic writing.  One of the most striking aspects of the current exchanges — to this anthropologist/law professor’s ear — is the assumption made by some that a superficial glance at one high-profile case suffices to identify where key problems lie (see, for example, some of the exchanges on a well-respected law professors’ blog, The Faculty Lounge.) My esteemed former colleague Stephen Lubet even went so far as to comment that: “It seems that the field of ethnography ethics is seriously undertheorized,” without any citation to the voluminous literature involved, let alone any consultation with the many scholarly experts in this area.

He further promised to spend the summer researching this, in his view, previously untrod ground.  This led me to once again contemplate differences in research strategy between some (not all) trained in law, and most (not all) trained in social science.   My own training, and that of most I know who are trained social scientists, is to begin with an assumption that there is much to learn.  This assumption also carries with it a form of humility that is part of stringent method:  I don’t assume that I can quickly grasp a complex area.  In keeping with this approach, if I were going to study the ethics of ethnographers, I would not focus on the unusual high-profile case that grabbed media attention, but rather on standard practices.  I’d want to know about common ethical dilemmas facing all kinds of field researchers, and the history of how disciplines had dealt with them.  Of course, since observational researchers tend not to trust self-reports, I’d want to spend some time actually observing ethnographers over substantial periods of time.  I’d want to learn about ethics training for incipient fieldworkers.  And I’d excavate thoroughly what is already known, talking with experts from the field in question who know far more than I do about the current state of affairs.

The situation, mentioned above, that was described by my introductory anthropology course professor (all too many years ago now!), involved a mother about to give birth to twins in the village where my professor was conducting long-term ethnography.  The practice in that village, as she described it, was to kill one of the twins immediately after birth.  The villagers knew that this was frowned on in the Western-style colonial legal system that could formally be enforced against them.  My teacher described the dilemma she faced in deciding whether to intervene or not — a dilemma that was resolved when the family opted not to follow traditional practices (possibly because she was present as a potential witness).

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“Reality” and Justice

“Reality” as a Claim for Justice — by Beth Mertz

In these oddly jaded times within the social sciences, it is interesting how controversial a claim to be capturing “reality” can be.  Of course, this is not surprising.  One of the key jobs the social sciences can perform is to keep us from too easily accepting commonly accepted “truths” that are in fact false, or perhaps just very dubious or impossible to prove.  Even the very positivist field of forensic psychology at times sounds oddly postmodern in its denial of any fixed “truth” – we know a lot more about what can cause false identifications or memories than we know about accuracy, as if there are no accurate eyewitness identifications or memories of abuse.  Again, there is a good reason for some of this:  we now know that many people have been unjustly jailed, even sent to death row, based on false identifications and evidence.  At the same time, reading this literature, one sometimes feels a sense of vertigo, as if these hard-nosed empiricists have actually given up on there being any accurate memories or actual “reality” that happened at all – although of course, their own work depends on their own abilities to remember and code and identify some kind of empirical “reality” with accuracy – as does so much of the fabric of social life.

In the more qualitative areas of social science, as in my own home field of anthropology, this discomfort with identifying “truths” and fixed realities has reached high levels – again for very good reasons.  Too often the “realities” fixed by cross-cultural encounters have been based in the self-serving perceptions of Westerners engaged in colonial or post-colonial adventures designed to impose their norms (and profit-margins) on people with less power but much wisdom, so frequently ignored and lost in the transactions.  The realization that anthropology itself had been complicit in these impositions froze the field in its tracks in many ways, and plunged it into a sometimes-productive, sometimes-infuriating phase of epistemological questioning.  (I may be prejudiced, but I do think that this phase has left the field well-placed to help in the cross-cultural translation processes now becoming so ubiquitous in an era of concern with the “global.”)  Again I just note that while questioning is very important, if we generate only critique, we are unlikely to be able to contribute to activist attempts to improve the frequently very dismal situations being studied – and this ought to raise some ethical issues for us.

Moving then to law, that very applied arena of social studies, it is perhaps surprising to encounter yet more agnosticism about “reality” – and I can only repeat, once more for terrific reasons.  What other field has the awesome task of deciding the fate of accused human beings, of jailing them or even killing them?  In the hands of legal decision-makers can rest the fates of businesses and churches; of children, abused women, the wrongly accused, and the mentally ill.  When juries or judges find “facts,” on the way to making decisions, they are ringed around with procedures that limit the scope of their inquiries – in a sometimes successful, sometimes terribly wrongheaded effort to keep out factors that are deemed wrongly prejudicial or inflammatory, and so forth.  This means that the truth that emerges from legal decisions can never claim to be the “actual reality,” but only the “facts” as framed very particularly in this legal proceeding.

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Tejani on Transnationalism and the Law School Crisis

Transnationalism and Nonpurity: Europe, Law Schools, and ‘Law in Action’ for the Current Crisis

Riaz Tejani

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).

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Introducing 2 new legal realists and 2 old legal realists…

In our September 2011 post, we introduce two members of a younger generation of new legal realists, and re-play some nuggets of wisdom from two of the older generation…. Jerome Frank and Karl Llewellyn.

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Welcome!

We are starting a new format for the New Legal Realism Conversations,which have been posted as part of the NLR Project webpage since 2009.   We feature commentary from current contributors and highlights of important legal realist scholarship — from past to present.   This is not intended to be a conventional blog, but is part of a larger project (see our webpage for more information).

Join Stewart Macaulay, Elizabeth Mertz, and new contributors, for conversations about law, society, and all that jazz!

Below you will find an archive of some of our past topics:

2009-2010 POSTS: (click on page numbers below)

  • Leading Economists Criticize Rational Choice Models (page 2)
  • Why Law Needs Empirical Anthropology (page 3)
  • Stewart Macaulay’s Jazz Picks (page 4)
  • Legal Research Funded by Big Oil? (page 5)