We asked the 2018-19 Davis Fellows the following question: how has your time at the Davis Center led to new insights about the reach and limits of law and legalities? Here is one set of answers that relate to each scholar's area of study (our other posts in this series are here and here):
The major question of my book is
how new, or supposedly new agenda of legality and justice emerged in the late imperial Russia. I explore rapid modernisation of ideas about law and
justice and judicial practices which was a part of more general European
‘revolution in government’ resulting from 1848 revolutions. Through
analysis of several criminal trials, which the contemporaries considered to be political, not actually criminal, I study
the emancipatory potential of new judicial practices and moral discourses
involved. Indeed, in 1860s-1870s my protagonists believed that the
implementation of new procedures would guarantee that fair trial would bring
freedom and dignity. This hope ended up in shocking acquittals of assassins who
attempted lives of the most mighty imperial administrators. Did the merciful
jurors reinforce the social contract challenged by terror? Or, on the contrary,
did they put forward war and violence?
Tensions between law, legitimised
violence, and arbitrary violence were underlined by Anatolii Fedorovich Koni
(1844-1927), prominent Russian jurist, who was a presiding judge when Vera
Zasulich was famously acquitted in 1878 after her unsuccessful attempt on
governor of St-Petersburg Trepov. Koni stressed:
Since the
jury recognized the fact that violence on one side (from the public
authorities) did not authorize violence on the other side (from the subjects),
the court had every reason to emphasize the first act of violence, to
underscore its moral effects. ... The court’s verdict –
firm and detailed – would have demonstrated to our sovereign how shamelessly
the tsar’s officials had been exceeding the limits of legality and trampling
personal dignity.
Indeed,
the Great reforms of 1860s-1870s were to promote new legal boundaries between
state, subject, and society. However, in practice, all the categories were in
flux, and new courts became arenas of struggle for these boundaries. This
struggle finally took a form of three revolutions of 1905-1917.
Interestingly, Koni wrote his
memoirs on Zasulich trial in the time of the first Russian revolution, but
disappointed by the growing level of violence, did not publish it. After the
Soviets seized power in 1917, and Zasulich was a celebrated revolutionary
heroine, Koni was still reluctant to publish his memoirs. Red terror pushed the
legitimised violence of the new state to the extremes. The message of Koni’s
memoir about power of courts to reestablish social contract and guarantee
people’s rights and dignity was again untimely. Since then, the boundaries of
legality in terms of allocation of power and violence has been too sensitive to
be challenged by courts. Open discussion about them has been something already
challenging the boundaries of legality, as recent political developments
confirm.
I have been
extremely lucky to be a part of Davis Centre this year. I have met great colleagues whose research
tests conventional boundaries of law and legality. Here, I found the most
fascinating to observe that, despite Davis Fellows are dealing with very
different historical contexts, there are remarkable similarities of the issues
we are interested in. George Aumoithe,
Angela Creager, and Franziska Seraphim problematise normative evaluation of
written law and procedural justice as either ‘success’
or ‘failure.’ Jon Connolly, Tom Johnson, Lena Salaymeh, reminded us of
normativity of legal field, that makes interdisciplinary research in law and
legalities methodologically challenging and still not conventionally
‘legitimate’ in practice. Mitra Sharafi, Liz Thornberry, Natasha Weatley,
Barbara Welke deal with temporal regimes of law and memory, be it contested
memories of imperial legal discourses, or traumatic memories that lawsuits
failed to heal.
Quentin Skinner once observed
that ‘one of present values of the past is as a repository of values we no
longer endorse, of questions we no longer ask.’ It does not seem to be entirely
true about legal history, though. Especially, if we deal with social dimension
of law, which is too important to be run and studied exclusively by lawyers and
policy-makers.
During my semester
at the Davis Center, I followed the debate between adversarialism and
inquisitorialism—usually a contest we think of between common-law and
Roman-law-based systems in Europe and the Americas—to colonial India. My focus
was on scientific experts, and how inquisitorial mechanics for the processing
of lab experts’ findings were introduced in British India. Was adversarialism
at odds with the scientific quest for truth? Did inquisitorialism threaten the
due process rights of criminal defendants? Like Angela Creager, I am interested
in what happened when law and science met, bringing into contact their distinctive
priorities, histories, and conceptions of what constituted evidence.
And what difference did colonialism make? Like Jon Connolly
and Liz Thornberry, I am tracing law and legalities in a British imperial
setting. Davis Center conversations helped me explore assumptions driven by
this colonial context, like the belief in “native mendacity” and the quest to
make western science seem clear, coherent and consistent for an audience of colonized subjects. Historians of South Asia often treat the rule of law as the
handmaiden of colonialism, but debates over adversarialism revealed that the
rule-of-law agenda (as a set of ideals, not practices) and colonial rule were
distinct projects that at times came into direct conflict with each other. For instance, a 1930s High Court judge named Douglas Young put up considerable resistance to a distinctively colonial provision of criminal procedure that endangered defendants' right to a fair trial. He pressed for the rule of law against the fact that this provision facilitated colonialism. In my story, it was the
politics of empire that imposed limits on law.
Writing a book about rape forced
me into an extended confrontation with the limits of law’s power. In both 19th century South Africa
(the site of my research) and in 21st century America (where I live
and work), law has seemed powerless to prevent rape, as well as inadequate in
responding to it. Extremely low rates of
conviction for sexual offenses provide the most obvious index of this
inadequacy—but the constant reference to this measurement is another. No outcome of the criminal legal system has
the power to undo the trauma so often produced by sexual violence.
While researching my book, I
attended a conference sponsored by an international feminist NGO. The keynote speaker was a South African
prosecutor, well known for successfully prosecuting sexual assault. Her speech noted both the difficulty of prosecution,
and its inadequacy. She proposed preventative measures: municipalities should
distribute locks in informal settlements, so that women could protect
themselves and their children. Listening, I was struck by the limits of this
vision. We cannot imagine a world in which men do not try to rape, only one in
which women can lock their doors against rapists.
Conversations at the Davis Center
this year have convinced me that these limits are one of law’s constitutive
dilemmas. Rape is notoriously difficult
to prove in criminal courts—but no more, it turns out, than
carcinogenicity. And if law cannot undo
rape, how can the legal systems that Franziska Seraphim explores possibly offer
meaningful responses to genocide? Yet
these comparisons also illustrate the degree to which these limits are
characteristic of the specific history of European law, which arrived in North
American and Southern Africa as part of a violent process of colonialism. In the precolonial territories that would
become South Africa, women who said they had been raped were generally assumed
to be telling the truth. Punishment for
sexual violence took the form of compensation payments, which in turn could
enable healing through sacrifices to the ancestors. I do not want to romanticize the precolonial
era, which licensed its own violations of sexual autonomy, particularly within
marriage; but precolonial law offered possibilities for addressing rape that
have not been adequately replaced.
In the contemporary moment,
anti-rape activists on college campuses use arguments based in Title IX to
pressure universities not only to offer their own forms of adjudication and
redress but also to try to prevent rape, through bystander intervention
trainings and other efforts to change cultural norms related to sexuality. Yet the difficulties of this movement
illuminate, I think, the limits of law, at least as we have inherited it.
Victim advocates argue with defenders of the due-process rights of those accused
of rape. Efforts to change ‘rape culture’
are urgent, but the example of corporate sexual harassment training suggests
that legal mandates for consciousness-raising are not particularly
effective. Perhaps this is evidence
that, as Lena Salaymeh has persistently reminded us this year, law remains in
urgent need of decolonization. I don’t
think we can return to the precolonial past, whatever its merits; but at
minimum, its history can remind us that there are other ways of imagining the
world, including law.
In
line with our theme “law and legalities,”
I am rethinking the Allied war crimes trial program after World War II in terms
of geolegalities, which calls
attention, according to Michael Smith, to “practices, processes, and discourses
involved in both the worlding of rules and the ruling of worlds.” My legal
geography maps out the spatial constitutiveness of “globalizing”
(international) criminal and humanitarian law and the reordering of the postwar
world in the late 1940s and 1950s: 18 countries convened predominantly military
international, national, and colonial courts in 226 locations across Europe and
the Asia-Pacific, holding thousands of individuals criminally responsible for
the brutal conduct of war and military occupation by Nazi Germany and imperial
Japan.
On
this global map of Allied-induced justice, I locate and ultimately foreground
legal spaces that involved “the judged” as surprisingly active participants in
this war crimes program, from those serving sentences in prisons and the local
communities hosting those prisons, to Japanese and German leaders eager to mend
the social fabric and reestablish national sovereignty. Making the perpetrators
visible--and making them disappear again with their release and even
rehabilitation--was more than a (Cold War determined) historical development
that stretched into the late 1950s; it also drew upon geolegalities on different scales, through which I tease out often
unexpected commonalities and enduring differences that go well beyond the
enduring polarities that tend to frame this history--between the victors on the
side of justice and the vanquished denying their guilt, or the”success” of transitional
justice in Germany versus its “failure” in Japan, or more simply Europe and
Asia. The ongoing weekly gatherings and discussions with the Davis Center
community helped me develop a new conceptual vocabulary to bring some order
into the messiness to which I had opened myself, not least through the culture
of active and supportive listening that flourishes here.
We live in a contaminated
biosphere whose future is further threatened by climate change. In the US,
federal law has been a relatively weak instrument to reverse these worrisome
developments. Why has environmental law, an area of widespread popular
engagement and legal activity, met with such limited success in the last half
century? Corporate money? Special interests? Neoliberalism? These usual
villains are not innocent, but I am interested here in how companies and their
lobbyists used provisions of law, namely the 1948 Administrative Procedures Act
(APA), to thwart stronger regulation. As Dirk Hartog and this year’s Davis Center
fellows have helped me see, this is a common feature of law.[1]
My focus has been the Toxic
Substances Control Act (TSCA) of 1976.[2]
This was the first US law aimed at providing environmental and health oversight
of all commercial chemicals. The act was introduced in 1971 as part of the
Nixon administration’s environmental initiatives, and different versions of the
bill passed both houses by the fall of 1972, only to die in Senate-House
Conference Committee during the 92nd session of Congress. In 1974,
amidst the Watergate scandal and Nixon’s resignation, the Senate and House of
Representatives again passed different versions of TSCA. Once again, the
legislation died in committee. Early on, it appeared that none of the bills
would not become law, a simple solution for its opponents.
In July 1975, a scandal reignited
political pressure for chemicals regulation. Dozens of workers at chemical
factory in Virginia were poisoned through their exposure to Kepone, a
neurotoxic pesticide manufactured in the plant. The Ford administration made it
clear that some version of TSCA needed to be signed into law to appease
political pressure. Representatives for the Manufacturing Chemists Association
(MCA), a trade group representing the chemical industry, began hammering out
the details of a bill with Congressional staffers. The final statute specified
numerous procedural hurdles for EPA in fulfilling its mandate to regulate
chemicals. These hurdles were not conceptual slipups, but compromises made to
produce a bill acceptable to industry. James T. O’Reilly, an industry lawyer
who actually helped write the provisions, has said: “The 1976 Toxic Substances
Control Act (TSCA) contains such obscure and inconsistent phrases that its
supporters were doomed to frustration.”[3]
The legal scholar Kevin Gaynor, who analyzed the law shortly after it was
enacted, called it “a regulatory morass.” Even its provisions “ensuring
transparency of safety data” became “rigid procedural handcuffs.”[4]
This was a statute designed to make industry oversight difficult.
Many of these complexities had to
do with how TSCA addressed requirements of the APA. For example, rather than
make toxicity testing of commercial chemicals required for either old or new
chemicals, the bill stipulated that EPA would have to issue a rule to require
testing of any individual substance. Requiring rule-making on a
chemical-by-chemical basis meant that the agency could only request testing
data on a limited number of commercial chemicals, of the 60,000 on the market
and thousands added each year.
To be sure, not all of the EPA’s
challenges in fulfilling its mandate in TSCA related to how the bill was
worded; court decisions also played a part, especially the 1991 invalidation of
the agency’s asbestos ban by the US Court of Appeals. But US laws aimed at
protecting the environment are often more quietly checked at the mundane level
of administrative procedure.
The space between what is
intentionally written into law, what is construed as lawful, and what is accepted
as just remains central to contemporary legal history. My work examines the
administrative apparatus that underpinned governmental regulation of public
health, curative medicine, and the welfare state in the latter-20th
century United States. Much like Angela Creager’s engagement with statutory
law, legislative history, and regulatory scandal, my research examines the
regulation of public hospitals, Medicaid, and its attendant controversies.
My book project, tentatively
titled Strange Bedfellows: Hospitals,
Public Health, and Welfare Politics in the United States, looks beyond
statutes and cases toward the “exogenous” forces that shaped healthcare.
Insurance, pharmaceuticals, and the tensions between corporatism and charity
prefigure as ancillary law-making spaces. Black, Latinx, and working-class
people in American cities understood—more intimately than the state ever
could—how much the public relied on robust public healthcare . I focus on one
salient site: the public’s fight to prevent the dismantling of “safety-net”
hospitals and its transformation in the postindustrial 1970s and AIDS crisis of
the 1980s—present. Political economy shaped the resources at hand to respond to
the epidemic just as much as racist, homoantagonistic, and xenophobic discourses
did.
Much like Franziska Seraphim
elaborates an archipelago of justice, my project looks at the conflictual
jurisdictions of public health, healthcare, and welfare state law after
Medicaid. These three domains of law collided in public hospitals and
publicly-funded private facilities. For example, fiscal crisis in New York City
constrained more expansive Great Society policies. In response to federal
dictates, the state and city enacted hospital closures at the same time that
more workers transitioned into medical services.
A year examining the limits of the
law challenges methods that exclusively examine statutes and cases. In my work,
social movements from the NAACP Legal Defense Fund (LDF) to the AIDS Coalition
to Unleash Power organized cases of discrimination for the courts and
administrative agencies, which expanded access to hospitals, federal health
insurance, clinical trials, and drug assistance programs. LDF effectively
eliminated de jure forms of
segregation in hospitals. Cases like Simkins
v. Moses H. Cone Memorial Hospital in 1963 found state action in segregated
hospitals that received federal funding—before the Civil Rights Act of 1964.
This case, however, represented the low-hanging fruit of early desegregation.
Fights to resolve uncertainties
stemming from the uneven elimination of de
facto segregation proved more tenacious. In the 1970s, courts became less
sympathetic to statistical demonstrations of adverse impact. Following
anti-inflationary policy and conservative counter-reactions to the Great
Society, courts began to deny plaintiff-patient claims of de facto economic (and racialized) segregation in the North. Cases
like Bryan v. Koch about Harlem’s
Sydenham Hospital closure and NAACP v.
Wilmington Medical Center, Inc. about suburban relocation of an inner-city
Delaware hospital demanded proof of discriminatory intent. Even if disparate
impact was demonstrated, putatively neutral municipal policy emerged unscathed.
The social and economic context of
law-making is a vital matter. Some have done so by examining the connections
between orality, tradition, and custom. Others have shown how capitalists
racialized categories of difference to coerce indentured labor
post-emancipation. Encountering my colleagues’ approaches has alighted my imagination.
Similar dynamics apply to the uneven access to legal protection for disparately
impacted groups in healthcare policy.
(posted by Mitra Sharafi)
[1] And certainly not specific
to environmental law; see Lee Vinsel,
“Designing to the Test: Performance Standards and Technological Change in the
US Automobile after 1966,” Technology and Culture 56 (2015): 868–894.
[2] In response to the
enactment of the Registration, Evaluation, Authorisation and Restriction of
Chemicals, enacted by the European Union in 2006, TSCA was overhauled under the
Obama Administration in 2016. However, the subsequent election of Donald Trump
as President has changed the course of implementatingh of what was expected to
be more precautionary chemicals regulation by the Environmental Protection
Agency.
[3] James T. O’Reilly,
“Torture by TSCA: Retrospectives of a Failed Statute,” Natural Resources & Environment 25 (2010): 43–44 and 47, on 43.
[4] Kevin Gaynor, “The Toxic
Substances Control Act: A Regulatory
Morass,” Vanderbilt Law Review 30
(1977): 1149–1196, on 1151.
