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Traversing Boundaries: New Anthropologies of Law

Authors:
Review Essays 505
Traversing Boundaries: New Anthropologies
of Law
Islam, Law and Equality in Indonesia: An Anthropology
of Public Reasoning. John Bowen. Cambridge: Cambridge
University Press, 2003. 289 pp.
Law, Anthropology, and the Constitution of the Social:
Making Persons and Things. Alain Pottage and Martha
Mundy, eds. Cambridge: Cambridge University Press, 2004.
310 pp.
MARK GOODALE
George Mason University
Current anthropologies of law move beyond and between
disciplinary, epistemological, and even ontological bound-
aries in both old and new ways. Although legal anthropol-
ogy has a long history of collaborative exchange and the-
oretical openness, recent contributions have pushed what
have always been flexible boundaries in ways that open
new spaces for inquiry and reflection. At the same time,
they subvert the idea of a coherent “legal anthropology” it-
self, which has been, although marginal, an intellectual or-
dering principle with real institutional consequences. Eve
Darian-Smith (2003), for example, examines the volatile
mix of racism, ethnic identity, and the political economy of
Indian gaming, through the legal categories and discourses
that constitute—and are constituted by—Native Americans.
Sally Merry’s (2005) forthcoming book tracks human rights
discourse through its several transnational registers, in a
way that leads to a redefinition of culture, expands our
understanding of the emergence of transnational discur-
sive networks, and causes us to rethink assumptions about
the relationship between the “local” and the “global.” And
Daniel Goldstein’s (2004) recent book uses ethnographic
and broader historical frames to explore legal geographies
in periurban Bolivia. His study interrogates the nature of
legality itself through its aethetisized instrumentalities and
counterinstrumentalities (lynchings), and his findings also
call into question orthodox accounts of the state and its
purposes.
In other words, anthropologists continue to find law
and its hegemonies compelling sites for inquiry and cri-
tique. The collection edited by Alain Pottage and Martha
Mundy—Law, Anthropology, and the Constitution of the
Social—and John Bowen’s most recent book on Indonesia
also demonstrate the enduring fruitfulness in studying law
as “a great anthropological document,” as O. W. Holmes
(Holmes 1920:212) describes it. Although in this case, it
is an anthropology that brings together intellectual his-
tory, political and social theory, religious studies, and crit-
ical science studies, among other seemingly disparate cur-
rents. But in doing so, the authors also underscore an im-
portant point that must be made when considering the
current state of the art within legal anthropology: There
are two relatively distinct background frameworks that in-
form recent studies of anthropology and law by European
(mostly British) and U.S. scholars. The first leads to the pur-
suit of questions of legal ontology; the second to critiques
of law-as-knowledge practice—that is, legal epistemology.
These divergent orientations reflect basic differences in le-
gal anthropology’s two major intellectual histories, but a
consequence is that one clearly cannot speak of “legal an-
thropology” or the “anthropology of law” as such. It would
instead be more accurate to refer to British (or perhaps
European) legal anthropology and U.S. legal anthropol-
ogy as two qualitatively different—although relatively in-
ternally consistent—modes of inquiry.
The legal epistemological (i.e., U.S.) approach to an an-
thropology of law was underscored by Annelise Riles during
the 2004 Law and Society Association meetings in Chicago.
She argued that a focus on the ontological dimensions of
either legal systems, or the range of social processes prop-
erly demarcated as “law,” was misplaced. What is really at
issue, according to Riles, is the interplay between differ-
ent knowledge practices about and within “law.” This is
especially true, she emphasized, in light of the expansion
of transnational normative networks, which has had the
effect of weakening established political and legal forms
(see also Riles 2000; cf. Hardt and Negri 2001). In other
words, the traditional ontological frames of inquiry and
critique are being collapsed into the regimes of knowledge
that they had previously entailed, so that we are left—if
Riles is correct—with what can be understood as consti-
tutive inter-epistemology (my description): the study of
competing knowledge practices and their productiveness.
To interrogate legal ontological claims, however, is to ask
what “law” is, and to answer this question is also neces-
sarily to answer the question of what law does. That is
to say, the ontological approach, which dominates much
European legal anthropology, assumes that law’s constitu-
tiveness is existential. By contrast, U.S. legal anthropolo-
gists have long ceased to take the ontological dimensions
of law seriously—unfortunately in my view—except to the
extent that an examination of legal pluralism (e.g., Sally
Falk Moore’s semiautonomous social fields) is also a study
of law’s contours. Yet even though the recent history of U.S.
legal anthropology reveals this preoccupation, it is impor-
tant to understand this not as a simple exercise in the de-
velopment of theories of knowledge about legal conscious-
ness and discourse but, rather, as a grounded theoretical
strategy for locating law within broader regimes of power–
knowledge. In other words, what appears superficially as
a commitment to social scientific understandings of legal
506 American Anthropologist Vol. 107, No. 3 September 2005
knowledge practices—as against jurisprudential or deduc-
tivist alternatives—is, in fact, a reflection of a more basic
belief in the explanatory potential of ideas-in-action.
But the respective de-emphasis of either systemic or
epistemic questions within each of the identifiable legal
anthropological traditions has created analytical and em-
pirical blind spots. Within U.S. legal anthropology, for ex-
ample, there has been a marked reluctance to consider
foundational issues. Although one can argue that this al-
lowed scholars to finally move beyond what were consid-
ered, at the time, stale and lifeless debates over the mean-
ing of “law” and the characteristics of legal systems, it has
also restricted the range of possibilities. Perhaps the most
obvious example of this has been within a growing anthro-
pology of human rights. This is an area in which basic philo-
sophical questions about the person are assiduously avoided
in favor of what are otherwise highly innovative strategies
to study the interplay between human rights and culture,
or the impact of transnationalism on human rights prac-
tice. The problem is that to avoid the foundationalism of
human rights, as a topic of both localized and abstracted
analysis, is to avoid the linchpin of human rights discourse
itself—the key empirical fact that justifies human rights in
social practice.
Yetanoveremphasis on questions of legal form and
structure, which characterizes, in particular, some legal an-
thropological applications of autopoiesis, leads to inquiry
that is often—like the systems it purports to explain—self-
contained and self-reproducing. Although not all primar-
ily legal ontological frameworks end up producing theory
that cannot help but chase its own tail, it is clearly a chal-
lenge to resolve an analogue of what, in an earlier epoch
in anthropology’s intellectual history, would have been
understood as the tension between structure and agency.
To greater or lesser degrees of success, the volumes under
consideration in this essay do, in fact, innovatively medi-
ate between these two analytical dimensions, and in the
process either describe or establish several new avenues for
research and critique.
THE ETHNOGRAPHY OF LAW’S “FRAGILE
IMMANENCE”
Alain Pottage and Martha Mundy’s edited volume brings
together an eclectic group of scholars to consider the ways
legal technologies constitute persons and things. This is
a pressing theme because, as Pottage argues in the intro-
duction, “The legal boundary between persons and things,
rather like that between nature and culture, is no longer
self-evident” (p. 2). This fact is partly a consequence of the
emergence of biotechnology and its recategorizing logics.
It is also true that the regulatory and instrumental spaces
of law have been increasingly filled by nonlegal modes of
control and fabrication, modes that, in Pottage’s apt descrip-
tion, “implicitly acknowledge the impossibility of begin-
ning within a natural order of things” (p. 2). In other words,
the content of law’s most apparently well-established ortho-
doxies is no longer certain. Indeed, given the confluence of
economic, intellectual, and historical factors that the vol-
ume’s authors describe, the question of certainty itself is no
longer as relevant to understanding law’s meanings. Rather,
what is imperative now is “to explore the emergence and
deployment of the category itself” (p. 3), how (legal) per-
sons and things of legal consequence are distinguished one
from the other in social practice, not by virtue of their re-
spective statuses within the “ontological architecture of the
world” (p. 3), but because the process of categorizing is itself
constitutive.
The contributions, each in their own way, and through
a range of epistemological and methodological orienta-
tions, all build toward an interdisciplinary ethnography
of what Bruno Latour, in his own chapter, felicitously de-
scribes as the law’s “fragile immanence” (p. 112). This
fragility, which the authors trace through its historical
(Yan Thomas, Mundy, and Engin Deniz Akarli), judicial
(Bruno Latour), political (Pottage), cultural (Tim Murphy
and Marilyn Strathern), and aesthetic (Susanne K¨
uchler) ar-
ticulations, describes the only way in which law can be con-
nected with—and in—the world through what Latour calls
“chains of reference” (p. 96), those tenuous links in “the
production of reference by means of the gradual precipita-
tion of an ever more determinate ‘fact’ from the transporta-
tion of [legal] reference through a chain of inscriptions”
(p.19). And, as Latour emphasizes, the fragility that char-
acterizes this universe of circulating legal references is not
transitory but inherent. This is not surprising given the fact
that law is—rather than merely can be understood as—“a
textual universe which has the double peculiarity of being
so closely linked to reality that it can take its place, and yet
unintelligible without an ongoing work of interpretation”
(p. 97). In other words, even though law “fabricates” per-
sons and things, its own ontological status is contingent.
As Tim Murphy writes in his chapter on the technologies of
cultural property, “The law and its products are at once real
and unreal” (p. 131).
EMBODYING THE LAW
The Pottage and Mundy volume also explores another as-
pect of law’s potentiality, one that reveals how law’s tech-
nologies “embody” it. As Mundy describes through her
analysis of the relationship between categories of ownership
and political office in Islamic jurisprudence, legal and social
actors can never be fully located within either category as a
matter of practice but are left “somehow vacillating between
the two idioms of right” (p. 164). This means that the “body
of law”—understood both literally and metaphorically—
mediates the movement between reification and person-
ification, a movement that is social, political, and eco-
nomic, rather than jurisprudential. (This observation cuts
against, of course, the strong Luhmannian, or systems the-
ory, undercurrent of several of the other chapters, a fact that
Review Essays 507
Pottage somewhat reluctantly acknowledges in his intro-
duction [p. 3]). So, rather than simply studying how the law
constitutes persons and things—which is itself an innova-
tive move fraught with challenges for researchers—Mundy
and several of the other contributors point to what is actu-
ally a liminal space between these two fundamental cate-
gories. Although the book intends primarily to destabilize
what were traditionally understood as dialectically related
categories (persons and things) with corresponding onto-
logical status, its chapters indirectly suggest something else:
that law is basically indicative, that legal categories or sta-
tuses are never actually coextensive with the persons or in-
stitutions that constitute them. This is another important
insight and one that also creates room for novel types of
legal anthropological research and analysis.
The promise of innovation is partly illustrated within
the volume itself in that several chapters show how the new
spaces of inquiry that they clear might be filled. A good
example is Marilyn Strathern’s reanalysis of the “Compo
girl case” from Papua New Guinea, in which a compen-
sation payment for a death that involved the giving of
a bride was invalidated as unconstitutional by a national
court after a case was brought by a local human rights non-
governmental organization. She shows how an ethnogra-
phy of what I have described as law’s indicativeness can
create an opening for cross-cultural dialogue over the mean-
ings of important legal discourses like human rights. In
Strathern’s terms, research into the play of law across cul-
tural contexts is a way of creating “intellectual resource[s]:
modes of thinking that help us think” (Strathern, p. 203).
She is writing specifically against some current anthropo-
logical analyses of human rights that tend toward an in-
finite regress of local cultural context; Strathern, on the
other hand, urges us to study the way law, including hu-
man rights, fabricates a “‘middle ground’ as its own order
of phenomenon” (p. 231). In other words, she too pursues
the possibilities that emerge through “thinking with” the
spaces between legal categories or social scales (i.e., between
the local–national–international–transnational). The result
in this case is that Strathern shows how human “rights” can
be reconceptualized to accommodate both the possibility of
human “ownership,” and the greater importance of obliga-
tion in ordering social relationships, even if this means that
the concept of “rights” necessarily loses its orthodox value
transcendence.
LEGAL DISCOURSE AS SOCIAL REASONING
If the Pottage and Mundy volume brings together an-
thropological and nonanthropological analyses of law to
problematize the traditional relationship between persons
and things, John Bowen’s new book on Indonesia—Islam,
Law and Equality in Indonesia: An Anthropology of Public
Reasoning—is located along a different trajectory, one that
engages more formally with current debates within legal
and political anthropology. His book is an archaeology of
the complex layers of public reasoning within one of the
most disarticulated nation-states in the world. Like Latour,
Bowen also describes the chains of references that fragilely
constitute law, but instead of a feedback loop or system of
circulation, Bowen understands legal discourse in Indonesia
to be part of a broader “double movement of reference”:
One direction is inward, towards indigenousness, authen-
ticity, and Indonesian values...an effort to find local
points of support in the face of global moral corrup-
tion. The other direction is outward, towards universal-
ity, modernity, and transcultural values of social equality,
[which represent] ...the hope that these values may help
overcome local injustices (p. 4).
By documenting the religious, economic, and politi-
cal forces that encompass Indonesia’s marketplace of com-
peting norms, he arrives at a theory of “value-pluralism”
in which law is no longer privileged among alterna-
tive mechanisms of social control or as a framework of
political legitimacy. Rather, in Bowen’s reconceptualiza-
tion, law becomes simply a “species of social reason-
ing,” and one, moreover, that in Indonesia is clearly
marginalized in many contexts in the face of religious
alternatives.
Like E. P. Thompson (1975) in his famous conclud-
ing section on the “consequences and conclusions” of his
definitive social history of the Black Act of 1723, Bowen
too could have been excused for suggesting that he might
wisely have ended before he actually does, in Bowen’s case
after tracing Indonesia’s double movement of reference in
rich ethnographic, historical, and interpretive detail. But
also like Thompson, Bowen does not let the implications
of his research and analysis speak for themselves—res ipsa
loquitur—but, rather, uses them for a series of “general re-
flections” on the value of contemporary political theory.
And just as sociolegal theorists have been the better for the
fact that Thompson allowed himself to venture some “gen-
eral reflections upon the law” (Thompson 1975:258), so per-
haps will legal and political anthropologists—and others—
benefit because of Bowen’s extensions. Although his theo-
rizing here is reluctant—needlessly so, in my opinion—he
uses his research to make the point that all current foun-
dationalist political and legal theory—whether liberal or
multicultural—is ultimately relevant only for understand-
ing which ideas and practices are important within cer-
tain nation-states or legal systems at certain times. In other
words, his work amounts to a broad-ranging critique of
foundationalist theory as such. He then goes on to sketch
the beginning of what appears to be a highly important al-
ternative political theory, in which irreducible pluralism is
codified and institutionalized. It becomes the work of law,
in this view, to protect a formal value pluralism as much as
it must ensure “transparency, adherence to procedure, [and
the protection of] citizens from harm and loss” (p. 257).
Notice how Bowen’s definition of law combines only
law’s apparently neutral procedural dimensions with what
could be called its “police” functions. There is no attempt
to also describe law as a repository—or positive expression
508 American Anthropologist Vol. 107, No. 3 September 2005
of—society’s moral aspirations, because Bowen has in fact
redefined law to exclude this possibility—a bold move, I
would argue, which is made all the more convincing be-
cause of the way he combines the results of his long-term
ethnographic engagement with Indonesia with cultural cri-
tique. But there is something more here. If law, strictly
speaking, refers to a set of institutional practices that enable
value pluralism, then legal discourse has also been recon-
ceptualized; it becomes a language through which cultural
difference is reasoned. Although Bowen, in general, mod-
estly defers to the “next iteration of political theory” (p.
264) rather than taking his critique of orthodox “skele-
tonized” political theory where it appears to lead, he need
not do so. The theory he refers to has enormous conse-
quences for the practice of everyday life, in Indonesia and
elsewhere, and this fact lends a sense of urgency, and legit-
imacy, to Bowen’s search for a new analytical framework.
REFERENCES CITED
Darian-Smith, Eve
2003 New Capitalists: Law, Politics, and Identity Surround-
ing Casino Gaming on Native American Land. Stamford, CT:
Wadsworth.
Goldstein, Daniel
2004 The Spectacular City: Violence and Performance in Urban
Bolivia. Durham, NC: Duke University Press.
Hardt, Michael, and Antonio Negri
2001 Empire. Cambridge, MA: Harvard University Press.
Holmes, Oliver Wendell
1920 Collected Legal Papers. New York: Harcourt, Brace.
Merry, Sally
2005 Human Rights and Gender Violence: Translating Interna-
tional Law into Local Justice. Chicago: University of Chicago
Press.
Riles, Annelise
2000 The Network Inside Out. Ann Arbor: University of
Michigan Press.
Thompson, E. P.
1975 Whigs and Hunters: The Origin of the Black Act. New York:
Pantheon.
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1st issued as paperback, Repr Bibliogr. s. 333-345