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Abstract: In this article, I draw on ethnography in the particular zone of engagement between anthropologists, on the one hand, and human rights lawyers who are skeptical of the human rights regime, on the other hand. I argue that many problems anthropologists encounter with the appropriation and marginalization of anthropology's analytical tools can be understood in terms of the legal character of human rights. In particular, discursive engagement between anthropology and human rights is animated by the pervasive instrumentalism of legal knowledge. I contend that both anthropologists who seek to describe the culture of human rights and critical lawyers who critically engage the human rights regime share a common problem - that of the iron cage of legal instrumentalism. I conclude that an ethnographic method reconfigured as a matter of what I term circling back - as opposed to cultural description - offers a respite from the hegemony of legal instrumentalism.
Abstract: The paper addresses the proliferation of "formalist" regulatory devices in the field of international financial regulation. It seeks to understand this transnational trend from the standpoint of a concrete case of legal reform in the global derivatives markets as they are encountered in Japan. Drawing upon five months of ethnographic fieldwork among traders and regulators, the paper offers an account of how processes identified with the expansion of the Rule of Law occur in the context of Japan's Big Bang, how they are interpreted and deployed by a variety of participants and audiences, and ultimately why formalism emerges as the solution as well as the mode or genre of deliberation in such reformist projects.
Abstract: The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."
In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts - the field's high degree of technicality disparaged as a "conflict-of-laws machine" and the multitude of theories famously deemed a "dismal swamp" - that figure among the advantages of a conflict-of-laws approach to international law in domestic courts.
A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism - which, we argue, conflict of laws is uniquely positioned to address.
International law and domestic courts, Conflict of Laws, Private International Law, International Law
Abstract: This paper treats the general sense of failure that pervades the field of Conflicts of Laws as an opportunity to consider how failure generally might be understood in the law. Through an analysis of the field's history as compared to the history of property law, the paper argues that Conflicts' failure stems not from its inability to identify with either a normative or an instrumental theory of law, but from a failure of aesthetic technique. This analysis stands against both a normative understanding of law that sees Conflicts as having failed because it lends no substantive support to any claims of political or social effect on the one hand and an instrumentalist view of law that finds Conflicts doctrines unworkable, and unable to produce predictable or desirable effects. The wider goal of the paper is to draw serious theoretical attention to the technical character of legal knowledge. The "failure" of Conflicts as a field, however, also invites attention to the conditions under which this technical aesthetic ceases to captivate the imaginations and commitments of legal theorists, teachers and practitioners.
Conflict of Laws, Property, Pragmatism, Anthropology
Abstract: In this article, I build upon research in one arena of global private law, the production of legal documentation for the global swap markets, to challenge the way both the utopic and the dystopic accounts describe private law beyond the State. I argue that these accounts stand on a set of anthropological assumptions or claims assertions about what this private law actually is, from insiders' point of view, about how it is interpreted and experienced in the real world - which for the most part go unexamined, untheorized, and undefended empirically. This matters because they also turn out to be, at the very least, seriously incomplete. In particular, I want to complicate three views of the source of private law legitimacy that figure prominently in both defenses and critiques of private law: the view that law is an artifact of state power, the view that law enshrines a set of norms, and the view that law is a coherent system of one kind or another. In contrast, I will suggest that if one approaches these debates from the standpoint of the deceptively naive question, 'what is collateral, really, in the derivatives markets?', one begins to grasp a view of law as something very different from a body of norms. Global private law is also, I want to suggest, a routinized but highly compartmentalized knowledge practices. I will shorthand this description of global private law as the Anti-Network in order to contrast it to celebrations of global private law as a kind of networked knowledge, and an artifact of global social networks of various kinds. From this perspective, debates about the threat of global private law to the legitimacy of the nation state need to be redirected to contend with a more accurate picture of global private law. If one understands private law beyond the State as a set of institutions, actors, doctrines, ideas, material documents of knowledge practices, one begins to see remarkable similarities between the technical workings of global private law and the nature of state work. The threat, if any, of global private law inheres therefore in the way it replicates and hence supercedes the state in practical, mundane, routine ways.
Abstract: One finds everywhere signs of a new rapprochement between comparative law and socio-legal studies. A new series of shared topics, including, in particular, questions surrounding the character of law in transnational or globalized conditions, and the consequences of the exportation or importation of doctrines, practices and institutions associated with the Rule of Law from one jurisdiction to another, engage both comparative lawyers and socio-legal scholars. Likewise, a series of methodological shifts in both fields - shifts emblematic of wider epistemological realignments in law, the humanities and the social sciences - has rendered some of the old fault lines between socio-legal studies and comparative law increasingly obsolete. In this chapter, I consider some of the traditional disputes between comparative lawyers and socio-legal studies as outdated legacies of their different appropriations of the legal sociology of Max Weber. I argue that methodological progress in both fields demands casting off some of the vestiges of the Weberian tradition that continue, consciously or not, to dictate the path of research in both fields. But whatever the problems with Weber's larger argument and comparative methods, certain distinctions, Weber's work also continues to fascinate and I argue that returning to some other aspects of the Weberian tradition - in particular Weber's interest in the character of legal knowledge, and his refusal to situate his work squarely within either legal or sociological methodological camps - directs us to a different future for socio-legal approaches to comparative law.
Abstract: This article urges humanistic legal studies to take the technical dimensions of law as a central focus of inquiry. Using archival and ethnographic investigations into developments in American Conflict of Laws doctrines as an example, and building on insights in the anthropology of knowledge and in science and technology studies that focus on technical practices in scientific and engineering domains, it aims to show that the technologies of law - an ideology that law is a tool and an accompanying technical aesthetic of legal knowledge - are far more central and far more interesting dimensions of legal practice than humanists have often conceded. The article's concrete focus is the nature of relations of means and ends in the Realist Revolution, as exemplified by the field of Conflicts, and the quiet but fundamental transformation of the character of those relations in mid and late-twentieth century legal knowledge.
Abstract: Anthropologists engage human rights administrations with an implicit promise that our discipline has something unique to offer. The articles in this special issue turn questions about relevance and care so often heard in the context of debates about human rights outside in. They focus not on how anthropology can contribute to human rights activities, but on what anthropological encounters with human rights contribute to the development of our discipline. They ask, how exactly do we render the subject relevant to anthropology? Reflecting on some ways anthropologists in this field have dispensed care for their subjects, the authors highlight two modalities of human rights anthropology, co-construction and denunciation. Two key problems with these modalities are identified - their duplicative and iterative qualities. With reference to the contributions to this special issue, the editors make a case for a more ethnographically engaged anthropology of human rights. They emphasize disciplined description and disciplined engagement with the politics of the field as an ethical position for anthropology and as a means of reclaiming disciplinary relevance.
Abstract: This essay traces the relationship between activists and academics involved in the campaign for "women's rights as human rights" as a case study of the relationship between different classes of what I call "knowledge professionals" self-consciously acting in a transnational domain. The puzzle that animates this essay is the following: how was it that at the very moment at which a critique of "rights" and a reimagination of rights as "rights talk" proved to be such fertile ground for academic scholarship did the same "rights" prove to be an equally fertile ground for activist networking and lobbying activities? The paper answers this question with respect to the work of self-reflexivity in creating a "virtual sociality of rights."
Abstract: This essay aims to provoke conversation about the hegemony of what it terms the Cultural State - a kind of legal managerialism predicated on a concern with carving out a space for cultural difference within a liberal capitalist political system - by tracing some of the troubling consequences of the culturalist foundations of debates about a particular kind of formalism in colonial Fiji. The essay then presents an anthropological understanding of the uses of legal formalities surrounding title registration by the victims of the Cultural State. The essay argues that, for Part-Europeans in Fiji, legal formalities created what it terms an Empty Place - a set of actual places shielded from the reach of the Cultural State, and also a set of anti-hegemonic possibilities for living in the shadow of the hegemony of identity and cultural politics. The essay culminates with an anthropologically based argument for the possibilities, rather than the constraints, to be found in legal form.
Formalism, Cultural State, legal formalities, Part-Europeans, Fiji, cultural politics
Abstract: This is our contribution to the project on Conversations between Anthropologists and Economists, focusing on analysis of the Commons. The short note is in the form of a "talk and response" exchange, coming as close to a conversation as it is possible to do on the printed page. This is worth trying because most conversations in print turn out to be separate papers from economists and anthropologists, brought together in a volume. We start by specifying what each of us believes the Commons problem to be, and then, in perhaps a novel reversal, each of us specifies the weaknesses of our discipline and the strengths of the other in analyzing the problem as we have defined it. Finally, we discuss the way forward in light of the exchange.
property, anthropology, economics, commons
Abstract: This paper presents an ethnographic account of the work of bureaucrats at the Bank of Japan, Japan's central bank, as they engaged in the construction of a "real time" payments system. The paper aims to consider certain shared dimensions of the knowledge practices of late modern anthropologists and economic planners and the special challenges these pose to the study of modern knowledge. In particular, the paper focuses on the effects of the attraction of "self-sustaining systems" consisting of "two sides." It concludes that one central challenge of new ethnographic subjects such as global financial markets is to find ways of ethnographically apprehending dimensions of modern knowledge that do not present themselves as steps or elements in the construction or destruction of systems, or as phenomena that can be seen from two sides.
Financial markets, social relations, ethnography, bureaucracy, Japan
Abstract: This article builds upon insights from contemporary anthropology to rethink the field of conflicts as a matter of cultural conflict. This approach shifts the analysis away from the dominant approaches in the discipline, which take as their primary metric either questions of state power or of individual rights. Drawing on a case of conflict between Native American legal norms and U.S. state and federal law, this article argues for a conflicts methodology that takes seriously the role of cultural description in the process of cultural adjudication. To do so, in turn will require us to adopt a more sophisticated, flexible, and complex understanding of culture. It will also require that conflicts as a discipline acknowledge, in a more reflexive way, that acts of conflicts adjudication, from finding foreign law to applying doctrinal tests, constitute the communities and problems they claim only to adjudicate between.
Abstract: This article explores the productive uses of amateurism in comparative law through a close reading of the life and work of John Henry Wigmore, the founder of the American tradition of comparative law who first came to the subject as a young missionary for the Langdellian style of American legal education in turn-of-the-century Japan. Drawing on anthropological and linguistic theory, the article explains amateurism as a post-Realist epithet for formalism. It seeks to counter the received view of the discipline as a pure product of American and European critiques of legal classicism by demonstrating how Wigmore's turn to the performative dimensions of legal formalism, at a moment when formalism found itself under Realist attack, provided a sustaining vision of the discipline. The power and creativity of formalist performance, as well as its limitations and even dangers, as deployed by Wigmore, raise questions relevant beyond comparative law about the aesthetic dimensions of American formalism.
Abstract: Since Friedrich Hayek, debates about the proper relationship between the state and the market, and about the optimal design of regulatory institutions, often turn on assumptions about the workings of legal expertise — and in particular about the difference between public expertise (bureaucratic knowledge) and private expertise (private law). Hayek’s central argument, adopted uncritically by a wide array of policy-makers and academics across the political spectrum, is a temporal one: bureaucratic reasoning is inherently one step behind the market, and hence effective market planning is impossible. In contrast, Hayek argues, private ordering is superior because it is of the moment, happening in real time. My research suggests that Hayek’s description of the limitations of bureaucratic planning resonates with the sense of powerlessness and frustration experienced by many government officials themselves as they attempt to manage economic fluctuations. But Hayek’s rich (and even empathetic) account of the limits of well-meaning public legal expertise is far less complete when it comes to the strengths of private legal reasoning. Public reasoning has temporal weaknesses, so private reasoning must have equivalent temporal strengths, the argument goes. This chapter from a forthcoming book, Collateral Knowledge: Legal Reasoning in the Global Financial Markets, takes on Hayekian arguments against government regulation through a detailed examination of real-world examples of how public and private legal technologies manage the temporal dimensions of risk in the over-the-counter derivatives markets. It draws upon over ten years of fieldwork conducted among regulators and market participants involved in the global derivatives markets in Japan. The specific examples are: the usage of collateral on the private law side, and the usage of “real time gross settlement” payment settlement systems on the public side. My research shows that while there is no reason to believe that either of these is actually more effective than the other as a stop-gap against future uncertainties in the market, there is nevertheless a kind of “Hayekian” perception, by market participants and government officials alike, that the private devices are more legitimate, and that the experts who deploy these are more knowledgeable, more expert. In order to understand the root of this legitimacy gap, the paper explores in detail how collateral, as a private legal technology, handles the temporal uncertainties surrounding market risk. At the heart of “collateral” is a deceptively mundane, but actually quite audacious legal trick called the legal fiction. In legal terms, a legal fiction is a statement that is consciously understood to be false, and hence is irrefutable. An example would be the statement that “a corporation is a person”. Collateral is actually just a set of legal fictions, layered one on top of another. I explain how these fictions — which are just as problematically related to market “realities” as government planning technologies — nevertheless come to be much more readily accepted predictors, and indeed creators of market realities. So does this mean that private regulation is inherently superior to public regulation? The fallacy of the Hayekian argument is the assumption that these “private” technologies can only be deployed by private actors. In fact, there is nothing inherently private or public about the legal fiction or other similar devices of private law. The paper demonstrates this by showing how financial regulators in Japan redeployed the trick of the legal fiction and hence regained legitimacy in their own eyes and in the eyes of market participants.
Hayek, central bank, collateral, legal fiction, planning, Japan, derivatives
Abstract: This article critiques the current Japanese legal education reforms, modeled largely on the United States, by proposing a socio-technical framework for analyzing the distribution of legal expertise in a given society. On one side of the spectrum is the "monocentric" model of legal expertise, in which expertise is monopolized by the profession and legal literacy is low. On the other side of the spectrum is the "polycentric" model of legal expertise, in which a range of social and institutional actors share responsibility for legal expertise and legal literacy is high. If the U.S. is a more monocentric system, the Japanese system has historically been more polycentric. The article evaluates the strengths and weaknesses of the two kinds of systems, focusing on the role of "legal knowledge workers" who are not professional lawyers in Japan. It concludes that although each system has strengths and weaknesses, a polycentric model of legal knowledge distribution is ultimately more economically efficient and better suited to the goals of a liberal democratic society than a monocentric model. For this reason, the rush to emulate the American system in current Japanese reforms is seriously flawed.
Abstract: This introduction to our co-edited special issue of Law and Contemporary Problems addresses how interdisciplinary studies might contribute to the revitalization of the field of Conflict of Laws. The introduction surveys existing approaches to interdisciplinarity in conflict of laws - drawn primarily from economics, political science, anthropology and sociology. It argues that most of these interdisciplinary efforts have remained internal to the law, relating conflicts to other legal spheres and issue areas. It summarizes some of the contributions of these projects but also outlines the ways they fall short of the full promise of interdisciplinary work in Conflicts scholarship, and indeed often replicate the very shortfalls of Conflicts doctrine that they set out to overcome. Drawing on examples from the symposium, the article then argues that there is much to be gained - in both law and other fields - from a more "external" interdisciplinarity that engages nonlegal disciplines such as economics, political science, and anthropology in a more serious and sustained way. It outlines a number of ways cross-disciplinary engagement, like the kind in this symposium, can push the project further: by approaching the study of conflicts through its discourse and imagery, through the historical and present-day context of colonialism, and through ethnographies that detail how its doctrines are experienced and produced in the real world. The final section discusses how the interdisciplinary insights yielded by the symposium might provide a richer and more productive techniques and practices for addressing conflict of laws problems.
conflict of laws, private international law, legal theory, colonialism, feminism, anthropology, legal history
Abstract: Legal knowledge refers to the ensemble of forms of knowing, theorizing, judging, analyzing and reflecting that constitute the practices of legal actors. The study of legal knowledge treats all of these practices, and all of the knowledge workof different categories of legal actors, from police officers to ordinary litigants to expert witnesses to judges, on the same plane, as one field of social action. This encyclopedia entry describes the intellectual context of the emerging focus on legal knowledge in socio-legal studies and legal theory, its historical antecedents, and key themes.
Abstract: Documents are everywhere in modern life, from the sciences to bureaucracy to law. The production, collection, sharing and even destruction of documents is such a common aspect of modern social life that it usually goes unnoticed. Yet both law and science depend upon the day to day handling of thousands of routine forms, vouchers, tickets, reports, court records, laboratory results, and more. On closer examination, the routine ways documents structure our lives have much to teach us about how truth is produced or politics is done, or how actors maintain their commitment and enthusiasm for the daily routines of modern life. The essays in this book describe practices of documentation in cultural settings ranging from prisons, to scientific laboratories, to the United Nations, to hospitals, to universities, and Fijian death rituals. They describe the powerful role of mundane documenting practices in structuring actors' conceptions of time, for example, or in shaping notions of agency (in ritual contexts), authorship (in the scientific context), even humanity (in interactions between hospital staff and patients). In so doing, the essays show that areas of modern life that seem very distant or different - law and medicine, American hospitals and Fijian rituals - can actually be compared in fresh new ways. Documents are not just features of the modern world; they are also hallmarks of ethnographic research: fieldworkers document social realities by collecting, producing and exchanging documents of their own. The contributors to this volume, all renowned and accomplished ethnographers in the fields of law, anthropology, sociology and science studies, take this point of overlap as an opportunity to reflect on the new challenges to humanistic social science in a world in which the subjects of research increasingly share the professional passions and problems of the researcher.
Abstract: Comparative Law is experiencing something of a renaissance, as legal scholars and practitioners traditionally outside the discipline find it newly relevant in projects such as constitution and code drafting, the harmonization of laws, court decisions, or as a tool for understanding the globalization of legal institutions. On the other hand, comparativists within the discipline find themselves asking questions about the identity of comparative law, what it is that makes comparative law unique as a discipline, what is the way forward. This book, designed with courses in comparative law as well as scholarly projects in mind, brings a new generation of comparativists together to reflect on the character of their discipline. It aims to incite curiosity and debate about contemporary issues within comparative law by bringing the discipline into conversation with debates in anthropology, literary and cultural studies, and critical theory. The book addresses questions such as what is the disciplinary identity of comparative law; how should we understand its relationship to colonialism, modernism, the Cold War, and other wider events that have shaped its history; what is its relationship to other projects of comparison in the arts, social sciences and humanities; and how has comparative law contributed at different times and in different parts of the world to projects of legal reform. Each of the essays frames its intervention around a close reading of the life and work of one formative character in the history of the discipline. Taken as a whole, the book offers a fresh and sophisticated picture of the discipline and its future.
Abstract: This article draws upon one year of ethnographic research at United Nations conferences to challenge some common academic assumptions about what it means to "do" international law. The article compares the work of academic international lawyers ? founded in making models of an international system ? to the work of practitioners ? exemplified by the work of making documents, and demonstrates the particular, peculiar nature of each kind of knowledge, from the point of view of the observer. This leads to a set of conclusions concerning how an academic study of international law influenced by an appreciation of the particularity of its own aesthetics might be transformed to accommodate other understandings of what it means to practice international law.
Abstract: "Networks" and other artifacts of institutional life-documents, funding proposals, newsletters, organizational charts-are such ubiquitous aspects of the "information age" that they go unnoticed to most observers. In this work, Annelise Riles takes a sophisticated theoretical approach to examine the aesthetics of these artifacts and practices, to learn what their very forms and formats can tell us about knowledge and legality in today's world. The immediate subject of Riles' ethnographic work was a group of Fijian bureaucrats and activists preparing for and participating in the United Nations Fourth World Conference on Women. Participants in this meeting and the activities surrounding it understood themselves to be "focal points" in national, regional, and global "networks." Starting from the premise that anthropologists are "inside" the Network, that is, that they are producers, consumers, and aesthetes, not simply observers, of the artifacts of late modern institutional life, Riles enacts a new ethnographic method for turning the network "inside out." The resulting experiment in the theory and ethnography of transnational institutional practices makes an important contribution to the anthropology of knowledge. With its focus on developing a method for studying transnational phenomena, The Network Inside Out will appeal not only to anthropologists, but also to legal scholars and political scientists.
Abstract: This article revisits the work of a canonical but quixotic figure in early American comparative law, John Henry Wigmore, as a lens through which to imagine what comparative law's role might be in the era of globalization. Wigmore's "pictorial method", compared here to the "treasure boxes" of Ming and Ch'ing Dynasty Chinese emperors, in which precious objects of different scales and eras were appreciated aesthetically side by side, presents a challenge to the many "modernist" approaches to comparative law in existence today. An exploration of the intellectual history of comparative law through the disjuncture that Wigmore's work engenders a treatment of comparative legal theories as paradigmatic artifacts of modernist knowledge practices and offers a perspective on what might be missing from that tradition and what might be its contribution in an era of information overload.
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