Category Archives: global law

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.

Rudy Elmer, the Panama Papers and Deconstructing Offshore

In this post, Sol Picciotto,  Emeritus Professor of Lancaster University, provides an update on developments pertaining to the case of Rudolf Elmer which he wrote about in a chapter from the recently published The New Legal Realism Volume II: Studying Law Globally.

My chapter on “The Deconstruction of Offshore”, in the book The New Legal Realism 2: Studying Law Globally used the personal story of Rudolf Elmer to open up some of the fascinating story of the construction and more recent deconstruction of the offshore system.

Elmer is one of several whistle-blowers whose revelations have helped to spotlight some of the otherwise arcane practices of avoidance of tax and other state regulatory requirements developed mainly by lawyers, which helped to shape 20th century transnational corporate capitalism.

My chapter began by noting that of 28 encounters with the Swiss courts, Elmer had lost 27 of them. However, the final decision of the High Court of Zurich dated 19 August 2016 was forced to substantially exonerate him. The court conceded that Elmer was not guilty of breaking the strict Swiss bank secrecy law, since he was actually employed by an entity formed in the Cayman Islands. There is an obvious rich irony here, since this was a subsidiary of the Julius Baer Bank, formed to help its clients avoid tax and other laws, yet the Baer Bank was the main complainant in the case against him. Furthermore, a strongly worded report in the Sonntagszeitung of 30 July 2016 castigated the conduct of the case by the prosecutors, who had failed to disclose documents proving Elmer’s employment status.

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Rudof Elmer at the Press Conference of Wikileaks in the Frontline Club, January 2011.

In fact, the Baer Bank has had a bad year. As Forbes reported back in February, two of its bankers pleaded guilty, and the Bank itself admitted that it knowingly assisted U.S. taxpayer-clients in evading taxes, agreeing to pay $547 million in a deferred prosecution deal.

The revelations have not been confined to Switzerland, which is just one node of the offshore secrecy system. In April the world was rocked by the publication of the Panama Papers by the International Consortium of Investigative Journalists. These contained files and emails from the prominent Panamanian lawyers Mossack Fonseca, detailing some of their work for clients around the world. Elmer himself recorded some comments on the implications.

This publicity contributed to the public pressures forcing world leaders to deliver on their promises to end the abuse of this secrecy system. Panama agreed in October to sign up to the OECD’s multilateral convention on assistance in tax matters (although it must still ratify the treaty), and to commit to implement automatic exchange of tax information by 2018. There are still significant gaps: notably the US still stands aside from this multilateral framework, relying on the network of bilateral agreements it has fashioned under the Foreign Account Tax Compliance Act (FATCA), even though many of these are not fully reciprocal. Indeed, the US itself remains in many ways an important secrecy jurisdiction for non-US citizens. Research has shown how easy it is to set up a shell company in the US, and state legislatures are resisting pressures to introduce shareholder registration rules. Despite ringing statements that “the era of bank secrecy is over”, although considerable progress has been made, there is still some way to go.

“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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Additional Conversation: Hajjar and Mertz Respond to Margulies

Joe Margulies: I view this as a very curious thing.  We all recognize that emotional attachments figure in the social construction of meaning, including in the meaning of legal texts.  Anyone who doubts that should read, as I did, the blogosphere’s reaction to the Hobby Lobby decision.  And we all recognize we have our own emotional attachments.  The net of those two observations is nothing so prosaic as to wonder whether it is possible to ignore our emotional attachments in the name of ‘objectivity’; I think that’s silly.  The more curious thing is that, in acceding to our emotions, we fall back on an embrace of the mythologized notion of law as above politics.  It’s as though that myth provided a kind of safe harbor for emotional (secular) aspirations.  So curious.

Lisa  Hajjar: I don’t have the same recollection of the LSA panel as one in which the participants expressed a die-hard fidelity to law, nor do I know if that “mythologized” view of law fits me or not–it might. But “me” from my own perspective likes the law for two main reasons: it provides a lens through which to judge the world (political in the sense of Kramer’s quote that you cite above), and it has the potential to do some very good harm (while also doing vast amounts of bad harm). For example, I am an enthusiast for a perpetrator-centered perspective on rights; rights laws are valuable for their potential/capacity to hurt rights violators. (See, for example, http://www.jadaliyya.com/pages/index/247/a-meditation-on-the-importance-of-the-perpetrator-.) If anything, I would be an instrumentalist rather than an idealist.

Joe: I think that requires some unpacking before I really understand it.  I agree that rights laws have the potential to hurt rights violators.  So, as an example, I would point to a law that said, “Thou shall not refuse to serve African-Americans in your restaurant, and if you do, we’ll fine you $10,000 per incident,” and agree, that law has the potential to hurt rights violators.  But what we all know is that such a law has meaning and substance only in operation, and the gulf between what the law says on paper and what happens in real life is the gulf between myth and reality.  That gulf, I suppose, is captured by your qualifier word, “potential.”  The law has the potential to do good, like Brown v. Board had the potential to do good.  And my point is that, for emotional reasons, we attach ourselves to the myth of Brown rather than the reality; we attach ourselves to the myth of the torture memo rather than the reality, etc.  That’s one lesson I took from the LSA conference.

Lisa: My previous comment requires some repackaging. I am interested mainly in what we can call “the harder human rights”–torture, war crimes, crimes against humanity and genocide. And it is to those matters especially that I formulate my affection for a perpetrator-centered perspective on rights and the good harm theory. Sure, racist discrimination is awful. But it is not “legally” the same as torture in that it is not comparably criminalized.  Joe, I have benefited so much from your work. But one way in which I invoke your work in my own is by arguing in favor of the “sociological perspective”: to think about law NOT as a lawyer (what the law does in courts, for example) but what the use of the law does in the world, which suggests anything from counterfactuals (e.g., what would “the law” be like today if not for those who used it in Rasul, Hamdan, and Boumediene, as well as the various efforts to apply universal jurisdiction to American torturers) and the longue durée (e.g., it is possible to act against torturers today in ways that were inconceivable two decades ago, regardless of whether Cheney and Co continue to walk free).

Beth Mertz:   This is a great conversation.   My own question is how to move between the rhetoric or language of law and the “law in action” perspective in a way that does justice to the fact that the language still matters, even if it doesn’t matter in the way the ideology wants us to think it does. AND I’m concerned with the further question of whether to entirely cede the conversation about doctrine to groups that believe the ideology or myth (and ignore law-in-action).  So, for example, some progressive people started using a language of originalism once that was adopted in some  SCOTUS opinions — not because they necessarily accepted originalism, but because to leave the “other side” unanswered in its own terms simply meant conceding altogether. So, why not say that “even in your own terms, this makes no sense”?  Of course, even taking this attitude might be seen as legitimating the underlying ideology, which I think is what’s bothering Joe.  So it’s a tough double-bind at a strategic level, not to mention at an intellectual level. These are the tough questions about really translating between social science and law that NLR folks have been struggling over.  I’d also like to hear more from Lisa about the distinction she makes between criminalized or “hard” rights and others.  I’m not sure I see that difference as altering the underlying dilemma we’re discussing here, which I think we face no matter what kind of rights we’re discussing.

Joe:  Thanks, Beth.  This is at the core of so much of my thinking.  It’s a puzzle to me.  I think the complexity arises from the fact that doctrine matters in different ways for different types of disputes.  Law professors tend to look at SCT decisions.  Ironically, that’s where doctrine is least important, since that’s where popular culture takes over and assimilates the case into partisan narratives, as has been done countless times, most recently in Hobby Lobby.  But we know from your pal Sally Engle Merry, and from any public defender, that at the “lower” levels, doctrine matters a great deal.  It helps to settle thousands of routine cases every day.  No one thinks doctrine alone explains these outcomes, but it clearly contributes, and the social science evidence about implicit bias suggests that it matters most when the cases are simplest.  The political scientist in me wants to develop a model to explain all this, while the historian doesn’t really think that’s necessary. But the lawyer in me says we need to think carefully about the work we ask the single word, “doctrine” to do.

I also think this figures into the second part of your question.  If we can refine what we mean by doctrine, I think we can develop a language that allows us to take doctrine seriously when we’re talking w colleagues but not abandon what we know about law-in-action.  And I hope we can be more sophisticated than to say, “Well, it’s like the old nature-nurture debate.  Both matter some.”

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Joe and Beth are regular bloggers here at “New Legal Realism Conversations.”  Lisa is on the Sociology faculty at University of California-Santa Barbara. Her areas of expertise include  sociology of law, law and society, international and global studies,  and political sociology. Her research interests include human rights,  international law, torture, war and conflict. She is the author of  Courting Conflict: The Israeli Military Court System in the West Bank  and Gaza (University of California Press, 2005) and Torture: A  Sociology of Violence and Human Rights (Routledge, 2012).

 

Aman on Lawyers, Social Science, and Globalization

What should social scientists know about lawyers’ views on globalization? In our previous post, Michele LaVigne argued that social scientists need to consult with lawyers more if they want their research to have any impact on fairness in indigent defense. Fred Aman was inspired to send in some advice to scholars interested in law and globalization.

Globalization: Legal Aspects

Law’s role in globalization is often misunderstood, mainly with respect to whether “the global” is its own distinct and unified field. To a large extent, this misunderstanding reflects the influence of neoliberalism, some versions of which treat globalization as a function of capitalism (thereby relegating it to the preserve of economics). Such a formulation leaves little room for law, except in relation to international law and such “global” institutions as the International Monetary Fund (IMF), the World Trade Organization (WTO), and other legal arrangements primarily associated with the liberalization of trade. From this standpoint, one might imagine that globalization is all about competition—a competition for markets and investments that is global in scale and increasingly intense as markets expand. Accordingly, one might not think that law has much to do with this phenomenon beyond stepping out of the way, except where law contributes to the creation of markets and to ensuring that they function efficiently.

But the reality of globalization challenges such formulations. Law has an important role to play, particularly in contexts in which economic activity generates human rights questions, such as child labor. We need to focus on law’s prominence in the creation, implementation and contestation of globalization. The contexts in which law is relevant reflect the great diversity of relationships, circumstances, and legal arrangements under which globalization develops….

Globalization is embedded in our institutions—domestic and international, public and private, by virtue of legal arrangements (legislation, agency regulations, contracts, etc.) that draw global “forces” into everyday life, and vice versa. It is not a unilinear process or geography “out there,” but a dynamic relation across multiple regimes of public and private ordering. Globalization is subject to a wide array of influences and control and yields pervasive social effects—some of them broadly homogenizing, some of them diversifying in highly specific ways Understanding the relationship of globalization to law requires analysis of the interactions of markets, rights and bodies of law at all levels of government, domestic and international, as well as diverse processes of governance that involve norm creation, enforcement and adjudication by state and non-state actors alike.

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Carole Silver on global legal education

Continuing our discussion on global legal education, Carole Silver of Indiana University’s Maurer School of Law responds to Tejani and Aman.  Professor Silver is an expert on legal education and the globalization of the legal profession.  She has directed major programs at Georgetown and Indiana in these areas in addition to her own empirical research on global legal education.

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Aman responds on Law School Crisis

Riaz’s excellent post suggests a number of intriguing possibilities for rethinking the standard law school curriculum. I find especially provocative his  challenge to reconsider the conventional distinctions of subject matter from the
standard of social movements and their transnational effects.

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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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