Thursday, December 7, 2017

A conversation about law's priorities

Comparative Studies in Society and History has come out with an online discussion, Priorities of Law: A Conversation with Judith Scheele, Daniel Lord Smail, Bianca Premo, and Bhavani Raman. All four scholars have published articles in CSSH over the past decade. Now, they interact in this blogpost. 

Here is the set-up:
...we invite four CSSH talk about law as a kind of evidence, one that tells us about other aspects of social life. In many of our best essays on law, it would seem that legality is shaped by something else, and the point of analysis is to understand how law interacts with a second or third factor. It might be gender, community formation, material culture, or ideas of power and truth. Often, law does not account for as much as it should. The analyst has access to a rich body of legal documents, but in treating them as evidence, it turns out that these materials point to (or belong to) discursive fields that are above the law, or beyond it, or that simultaneously call for and contradict legal decisions. The special relationship between legalism and other modes of interaction can be pervasive, even formative, without being easy to model or understand. 
In short, much of society and history remains oddly adjacent to law. Law seems always to be set apart, no matter how intimately entangled it is with the rest of life. The inadequacy of legal procedures, and their necessity, is related to this distance, which is discernible in old archival records and in ethnographic observations of contemporary legal practice. Our four interlocutors agree, for instance, that law is a specialized activity, that it involves rule-making and breaking, and that, despite its enduring ties to government, law can develop against or apart from state institutions and their interests. Law insists on its own significance and, in many cases, makes disrespect for its protocols a punishable offence. Indeed, law’s priority—in the double sense of its importance and its basis in historical precedent—pushes the conversation toward problems of origin and grounding: when is law really law, what is it ultimately based on, and who can decide? 
...We are invited to think of law as a field of mediating concepts that are variously expressed in objects (palm leaf manuscripts and websites), words (sworn oaths and public declarations), sensibilities (honor, humiliation, probity), and statuses (household head, slave, guest). We are asked to consider law as a vehicle of moral display, in which fines and damages are paid in a proud attempt to assert membership and social value. Law is compared to a coral reef, a body of materials sedimented and alive, growing and calcifying. The process, we are told, has an almost necessary relationship with formality, with texts, technicalities, and legitimating props, all of them weaponized in competitive attempts to impose the best, most authoritative forms of law. In the end, the conversation suggests that law falls prey, forever and inevitably, to its own reliance on authenticity, as its practitioners and subjects forge legal documents, swear false oaths, and bring their own extra-judicial values and social forms into the very heart of law.
You can follow the full conversation here