1

Mobile People, Mobile Law: An Introduction

Franz von Benda-Beckmann, Keebet von Benda-Beckmann and Anne Grifths

Themes and Perspectives This volume is a contribution, from an anthropological perspective, to the understanding of law in globalization processes under conditions of accelerating mobility of people, capital, technology, communication and knowledge. The contributors explore the varying forms this mobility takes and the ensuing consequences with regard to the resulting interactions with national and local institutions, agencies and populations. The book adopts an orientation that is focused on social actors, networks and multiple legal constellations that operate not only in a global, international and national arena, but also at a local level. The end of the Cold War and the ever-expanding nancial and economic market, as well as the emergence of theoretical debates over globalization, have all sharpened the general recognition that social, political and economic activities are stretching out across the globe. The result is that events, decisions and activities in one part of the world can come to have immediate signicance for individuals and communities in other more distant locations. At the same time, globalization implies intensication, and increasing density, in the ows and patterns of interaction or interconnectedness between states and societies that constitute the modern world community. In other words, alongside the stretching goes a deepening of connections and activities (McGrew, 1998, p. 325). Acquiring an understanding of what these processes entail is important, for they give rise to global and regional networks of activity, institutions and regimes of governance, social movements, global legal interactions, and other kinds of transnational association.1 They also create the potential for new kinds of political and legal space to emerge, which elude the boundaries of the territorial state and the remit of traditional legal scholarship. Law forms an important part of these processes. It operates at a global level while at the same time responding to processes of globalization. Transnational and international law embody a set of processes which generate a
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multiplicity of linkages and interconnections transcending the regions and societies that make up the modern world. But law by no means globalizes through transnational and international law only. For example, laws may be transplanted in state-to-state collaboration, and transnational networks of indigenous groups have stimulated the borrowing of modes of dispute resolution from one indigenous group to another. Yet, in much of the literature on globalization, the legal dimension of social, political, economic, religious and cultural organization receives little specic interest.2 This has resulted in a dearth of empirical research in the globalization debate on how law functions (Gessner and Budak, 1998, p. 1). Law is usually subsumed under the categories of culture, governance/politics, ideology or economics. But these categories are not mutually exclusive, and trying to subsume law to any one of them creates problems. For example, one cannot exclusively assign human rights, regulations of the World Trade Organization (WTO), free market models or the like to one particular category to the exclusion of all others. Human rights are part of governance structures and are therefore political, but they are also cultural and legal constructs. Similarly, WTO regulations are governance structures, but obviously they are economic and legal constructs as well. Reducing the legal dimension to the economic or political would negate the important legitimizing function of law in social, economic and political organization. Doing so ignores the fact that law is a powerful form of cultural expression that operates as a potential source for social, economic or political power, constraining and enabling social practices, with both their intended and unintended consequences. It also disregards the fact that law plays an important role in the formation of social categories and in processes of inclusion and exclusion. While exploring all these dimensions and the legitimation of power through political and economic processes, the authors acknowledge the signicance of law in its own right and not simply as an aspect of political or economic life. As the title indicates, the focus of the volume is twofold. The rst focus is on the mobility of law, looking at the agency and chains of interaction that make law mobile. It looks at what happens when globalizing law encounters national and local laws and is appropriated in specic situations. The book explores how law (for example, in the eld of human rights) and legal notions of governance and democracy, or resource tenure, are congured in these processes. It further explores the multiple ways in which law intersects with social, political and economic domains across time and space. The authors inquire how law works under conditions of globalization and what its effects are in the contexts in which law becomes available and is rejected or appropriated. They show that the reception and sedentarization of globalizing law takes place not only at the national level but in different sociopolitical spaces and contexts. Based on empirical data, including a large, diverse, and rich ethnography that has developed out of eldwork, the authors contributions also highlight the plurality of law in its many dimensions.

Introduction

A second focus is on the mobility of people and organizations as actors involved in the process of making law mobile. Among them are the highprole transnationally operating organizations that dominate so much of the debates. Also included are migrants moving across national borders and bringing their law to new countries of residence. Other actors have a foot in more than one country: state ofcials and others who, through modern means of communication, are connected with and operate in many localities within and beyond a specic state; also companies and non-governmental organizations (NGO)s, and law merchants (Dezalay and Garth, 1995) who work for organizations of development cooperation, for international organizations, or for NGOs. Some of these actors are highly mobile and devote most of their time to making law mobile. But the eld of actors involved includes those who, while not moving around a great deal themselves, are recipients and sometimes victims of mobile law. This double focus on mobile people and mobile law has a number of advantages over the more common approaches. An exclusive focus on international and transnational mobility of law, as we nd it in most literature, eclipses equally important aspects of mobility across other social boundaries, such as those encompassing regional, ethnic or religious entities. These often have their own legal orders, which do not necessarily cross-cut or transcend state boundaries, and may have important implications for the persons concerned. While, for instance, the social and political consequences of state citizenship as dened by national law are obviously important, peoples local, village or ethnic citizenship as dened in local laws sometimes may be more important than their state law citizenship rights, as many internal migrants in African states or in Indonesia have experienced (see Hart, 1982; BendaBeckmann, F. von and Taale, 1992). Similarly, internal migration may generate a mobility of law other than that of the nation state. For example, internal migrants take along their customary law to urban areas, where this law may be applied under quite new conditions. Such migrants in turn appear to be important actors in changing the local law of their place of origin as well. This type of movement within the borders of a national state may not always be considered part of globalization, but it does occur under the conditions of globalization of law. Moreover, moving from one nation state to another usually involves crossing more legally relevant boundaries ethnic and religious than that of the state. An anthropological perspective that tries to understand the broad spectre of processes of mobility and globalization of law and that takes plurality of law seriously thus has to include also people moving within states but not necessarily across national boundaries. It forces one to consider ordinary citizens who are not very mobile themselves but who are faced with new sets of norms and regulations, operating at the far end of the chains of interaction that make up these globalizing processes. A pre-occupation with the national state and its boundaries also tends to ignore the existence of plural legal orders and thus misses out on these processes of differentiation. While the notion of legal pluralism has been at

Mobile People, Mobile Law

the core of the anthropology of law, political scientists and lawyers have only recently discovered the idea. They apply it only to the relationship between the legal systems of national states and international and transnational law. Understanding the implications of the concept requires de-centring the state and allowing for the possible existence of normative orders with quite distinct foundations of legitimation, beyond the state as well as within national states. The contributions to this volume provide analyses of such plural legal orders involved in globalizing processes. While this perspective on mobile law and mobile people provides insights into some of the dynamics of globalizing processes, it also presents a counterpoint to the notion that globalization is a completely new phenomenon that has gripped the world. Though not denying that its current form has unique features in terms of intensity, scale and density, the phenomenon of globalization itself has a long history. Several chapters in this volume discuss processes of mobility of law in their historic context, processes usually arising from local responses to earlier waves of law reaching out across the globe. Such an approach allows an analysis of the extent to which current globalizing law is shaped by local responses that are taking place in historically specic conditions of a particular state, region or locality. Conceptions of Law: Sovereignty in Plural Legal Orders These considerations raise questions about the mobility of law that call for new ways of conceiving law and its location within transnational processes. Approaches to these issues are quite different for scholars of law and international relations on the one hand and for (legal) anthropologists on the other. The small but growing body of literature on law and globalization displays the same kind of contradictory tendencies displayed in the general globalization literature. On the one hand there seems to be a convergence of the laws of national states, increasingly made compatible, or transnationally assimilated (Wiener, 1999), mainly through the fast-growing body of international law and emerging transnational law. On the other hand, observers are bafed because this seemingly uniform law is not so uniformly interpreted and put into practice. As in the general literature on globalization, the analysis of the effects of globalization of law is usually situated at the nexus of national, international and transnational levels. This idea of a single site of legal sovereignty embodied in the state is undermined by patterns of global legal interaction which erode the boundaries between domestic and international law, foreign and domestic legal systems and practices, as well as internal and external juridical authorities (McGrew, 1998, p. 336). Dezalay (1990, p. 281) observes that in the legal domain, globalization throws new light onto the old questions of autonomy, or if one prefers, the singularity of, national juridical cultures.

Introduction

The new patterns of legal interaction have altered the character of international law as well. Koh (2002, p. 328) notes that, given the rise of genuinely global problems and the emergence of non-state actors, international law can no longer simply coordinate state interests, but rather must facilitate state and non-state cooperation in such areas as humanitarian intervention, promotion of democracy and the rule of law, and transnational accountability. Thus transnational law becomes a subject in its own right as in time the domestic and the international will become so integrated that we will no longer know whether to characterize certain concepts as quintessentially local or global in nature. The positive aspects of this development are marked, for example, by attempts to develop a transnational private law catering to ordinary persons that would transcend the obstacles posed by current tort law which led to inadequate compensation being awarded to the victims of the Bhopal disaster (Galanter, 2002, pp. 172185). The negative aspects derive from concerns about the legitimacy of what ensues. As Banakar (1998) points out, in modern legal theory the concept of law has been predicated on the concept of legitimacy, which in turn implies the acceptance of legal rules by citizens of states. Notions of citizenship and national state do not have their parallels at a global level, with the result that the legitimacy of international law making and law enforcement established by state actors or by the support structures created by business actors becomes problematic.3 Teubner (1997) puts it even more strongly and concludes that the emergence of global law that has no legislation, no political constitution and no politically ordered hierarchy of norms has made it necessary to rethink the traditional doctrine of sources of law. These are issues of particular concern to normatively oriented legal scholars and political scientists who emphasize the relevance of these new phenomena for conventional legal theory of state and international law. However, their theoretical discourse and the empirical phenomena it selects, important as they are, are far too selective and normatively oriented from the perspective of legal anthropology. An anthropological perspective, with its focus on law as presented in this volume, calls into question the general overriding preoccupation with the position of the national state. First, as McGrew has pointed out for the example of sovereignty, one must see the difference between the notion of sovereignty as a legal construct, and the actual extent of political autonomy state organizations can exercise. Such constructions do not correspond to actual degrees of political autonomy and never have. The consequences of globalization for any state are mediated by its localization in the hierarchy of power, domestic institutional structures and the mobilization of countervailing political and economic strategies (McGrew, 1998, pp. 337338). From early post-colonial times on, transnational pressures on Third World governments were strong, initially mainly from the side of former colonial mother states, later from international organizations as well, and there was often little congruence between the notion of sovereignty and the actual political autonomy of states.

Mobile People, Mobile Law

The notion of the equality of states, just as the notion of equal citizens, masked signicant political and economic inequalities. The current weakening of sovereignty also works out quite differentially. The vertical slice, as Nader says (Chapter 10), cuts through the ideology of sovereignty. Second, instead of asking whether and to what extent states have lost sovereignty and whether national boundaries are dissolving, this volume draws on anthropological studies that have pointed at processes of hybridization and vernacularization that take place alongside homogenizing processes. That is, the contributions look at locally specic responses to globalization, showing that states in some respects and for some actors may dissolve, while they have become more dominant in other respects and for other actors. The contributions thus suggest that the effects of globalizing law and its appropriation in specic contexts are highly differential and constitute social inequality in new ways within states, across national borders, and among regions. Third, from a legal anthropological perspective which does not conceptually or theoretically privilege state or international law, the constructions of sovereignty and legitimacy are not necessarily exclusively tied to the nation state, and the diagnosed weakening of sovereignty under globalization is not as dramatic as is sometimes assumed. Legal anthropologists have looked at the state and state law as representing one political organization only beside other local, territorial or tribal, political or religious organizations with their own laws (Merry, 1988; Benda-Beckmann, F. von, 2002). Since they never privileged the European dogma of sources of law as dened through the nation state, there is no need to rethink the traditional doctrine of the sources of law felt by lawyers (Teubner, 1997), because they never thought in its terms anyway (Grifths, 2002). For them, the ever-expanding amount of international and transnational law and organizations means an increase in the empirical complexities of plural legal constellation that are difcult to research, but do not present a different perspective of law.4 With their empirical and theoretical attention to constellations of plural legal orders, anthropologists of law bring in an important perspective on law and globalization. For while legal pluralism has become an accepted term in some legal and political science studies, it is mainly understood as the coexistences of state, international and transnational law; and analyses remain limited to the question of whether such transnational connections inuence state law at the national level.5 There are as yet very few studies of the globalization of law in social elds or levels of state administration below the national level. While global legal pluralism remains dissociated from the consequences of transnationalization of law in existing congurations of legal pluralism within states, these consequences stand at the core of the present volume.6 Our orientation thus provides another focus for debates on transnational legal processes. In contrast to most studies of law and globalization, this volume engages with local perspectives and their integration with or resistance to these broader arenas. The contributions show

Introduction

that transnationalized law can affect other legal orders within the state, for instance religious, customary or traditional law, and that these orders stand in complex interrelationships within which they affect each other. They also show that neither the fate of transnational law nor its impact on local legal constellations can be understood without giving attention to the plural legal character of such local situations.7 The Historical Contextualization of Law These approaches call attention to the importance of understanding globalization in its historical contexts. As noted earlier, globalization of law is not a new phenomenon and several chapters in this volume take a historical stance to consider to what extent present globalization shows new characteristics.8 Throughout history, law has always been mobile. It has been transported through trading relations and during hegemonic expansions of states. Single legal forms, specic sets of legal institutions and entire legal systems have found their way across national borders in all periods of history. Such legal ows predate the establishment of colonial states in the nineteenth century and go back to ancient times. These processes in history have been studied by anthropologists, political scientists, legal scholars and historians, in particular for the periods of European colonialism and thereafter, especially the dynamic law and modernization phase of the 1960s and 1970s, until the present time. But early examples of globalizing law cannot be found in expanding European national legal systems only, as has been shown by the proliferation of Islamic law to regions in Africa and Asia before and since the advent of the European colonial powers.9 Besides, international law and treaties have a long history and have been an important factor in the globalization of law, though they have not received a great deal of attention in anthropological studies. Indeed, they may not have had an immediately visible impact on small-scale local organizations and plural legal congurations in the European colonies. Yet they certainly were part of the constraining and enabling context in which governments operated in the colonial metropole countries as well as in their colonies. A closer look at the historical processes from the recipient perspective shows that there is no one-directional development leading towards everexpanding globalization. Series of waves of imported law have led to complex and variable congurations of various types of law, in changing mutual relationships. Periods of high inux and intense connectedness are followed by periods of slower mobility of law, while periods of intense connections are often followed by disengagement. With decolonization the close legal and political ties with the colonizing country were often loosened, if not severed outright. The collapse of the Soviet Empire is but one of the latest examples of the dissolution of strong legal ties and a dramatic reduction of the spatial spreading of law, that is, of de-globalization.

Mobile People, Mobile Law

Several papers in this volume show how earlier ows of law and the ways in which they have become part of local settings continue to shape contemporary political processes in which scarce resources and new governance structures are being negotiated. In their paper the von BendaBeckmanns (Chapter 6) highlight the important differences between colonial legal transplantations and the waves of law and development exports in the post-colonial period in Indonesia. They trace the long and discontinuous historical processes in which constitutional concepts of democracy developed in Europe and in the Arab world have been introduced and appropriated in Indonesia, in opposition to local notions of consensual democracy. Each of these forms of democracy creates its own power structure. Several categories of mobile people (migrant labourers, traders, civil servants, as well as donor agencies and international NGOs) have been important conduits in this glocalizing process. The chapter shows how historically earlier interpretations of democracy leave traces in later periods, resulting in fragmented elds of notions of democracy that are mobilized in political struggles for governance and access to resources. On another continent Oomen (Chapter 5) explores the intimate relationship between globalization, retraditionalization and the law in post-apartheid South Africa, especially in the locality of Sekhukhune. She demonstrates how decentralization policies propagated by international and bilateral donors as the way to increase popular participation have often had exactly the opposite effect: strengthening local elites, reimposing chieftaincies and reviving customary law. The aim of such leaders is to retain as much political autonomy as possible and to shield the communities concerned from all the insecurities associated with the global economy. In examining the resurgence of traditional leadership and customary law she discusses the role of migrants in the formulation, propagation and mobilization of exible categories of culture, custom, and tradition and analyses the shifts in power relations that occur in processes of renegotiating traditional leadership and governing institutions. McCarthy (Chapter 8) and Hellum and Derman (Chapter 9) discuss the overlapping notions of resource management that have been introduced in Indonesia and Zimbabwe in different historical periods. Pfaff-Czarnecka (Chapter 13) points at the different path dependencies when comparing the responses to claims of religious minorities for special treatment in the educational system in several European countries and Zips (Chapter 4) discusses the development of African law that has been carried to the Caribbean and back to Africa by Rastafari, where it met with local legal forms that have undergone quite different developments under the African colonial experience. Overall, the studies suggest that historically older processes of globalization leave traces that are only partly superseded by newer waves of globalization of law. They further suggest that each new wave of legal inux occurs in specic local and wider power constellations, which affect the way

Introduction

of incorporation and the relative importance of that newly imported law. In addition, the specic conditions in which new law nds its way into a political space in turn has a strong inuence on the way this law is perceived and treated in later periods. The Multi-Spatial Contextualization of Law The contributions of this volume deal with these ows and their localizations at different levels of socio-political and legal organization. They show the importance of looking at the chains of interaction connecting transnational, national and local actors in multi-sited arenas of negotiation along with the power relations that structure these interactions and are reproduced or changed by them. This highlights the ways in which anthropological methodology and theory has beneted from engaging with studies in globalization. The earlier parameters of an ethnography based on local microstudies, often centred on village life that is bounded by geographical and territorial limits, have been called into question by the challenges posed by globalization and the place of the local or locals within it, so that knowledge of society can no longer be restricted to a knowledge of face-to-face social relations but must encompass the effect of technology, global consumption patterns and changing geopolitical congurations (Moore, H. L., 1996, synopsis).10 Expanding the scope of ethnography to become multi-sited (Marcus, 1995) or deterritorialized has opened up new horizons for study. Even where the local remains circumscribed in terms of a territorial or geographically bounded site it can no longer be divorced from global processes that have varying effects on the everyday life of individuals, institutions and social groups.11 Of course, in development anthropology and most legal anthropology since the 1970s, the analysis of external inuences on local socio-political and legal congurations has been part and parcel of this research. However, while research in the past focused on fairly conned regions, the kind of multi-sited research that is called for today involves a broader landscape, one that encompasses not only diverse spaces unconned by territorial or geographic markers but also such arenas as information ows, the Internet and global conferences (Merry, 2000, p. 131) in its diaspora. The volume discusses spatial and temporal dimensions of globalization of law and traces the emergence, ow and inuence of transnational legal forms into small-scale social elds. These may be lower levels of state administration, or villages, or social elds and arenas interconnecting actors at different levels of political organization. Once mobile law enters a new socio-political eld, it is confronted with the elds legal structures. S. F. Moores (1973) observation on the semi-autonomous social eld is as relevant for law coming from the neighbouring village or an NGO, as for law emanating from state or transnational agencies. Transnational law becomes

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Mobile People, Mobile Law

part of social settings in which it not only competes with and shapes existing state law, it also competes with self-regulatory mechanisms, customary and sometimes religious law. It does so at different levels within and beyond a national state with the result that its fate at local levels is shaped by a variety of social processes that may have very different outcomes. The incoming law may be locally reproduced as a recognizably distinct and foreign body of law; it may remain somewhat distinct but may also become hybridized, creolized with local legal forms or vernacularized, or it may be absorbed and become an inseparable part of the existing legal structures.12 Confrontation with such foreign legal ideas may lead to a revitalization of customary law (however (re)invented) by local actors, well adapted to contemporary circumstances and economic strategies. Some papers discuss the emergence and absorption of transnational law in wider inter- or transnational arenas and discuss its effects at various levels, including the national. While Nader points at the central leading role of American law in globalizing national legal systems throughout the world, Merry (Chapter 11) and Grifths and Kandel (Chapter 14) discuss international human rights law that is primarily developed in UN organizations and the ways this is used in national legal contexts. On another level, Wiber (Chapter 7) discusses the arenas of epistemic communities as the locus of law making for marine sheries. Several contributions demonstrate the importance of combining various scales in which law is important. The von Benda-Beckmanns show that debates and political struggles about democracy nd place at different localities and different scales (local, national, international), showing different paces and constellations of actors.13 Zips (Chapter 4) discusses how Rastafari legal notions carried from the West Indies to Ghana come to coexist in various ways with Ghanaian state law, customary laws and notions of international law. Merry (Chapter 11) explores how global law is produced by national actors, how it is appropriated by national and local organizations and how tensions emerge as this transnational law is applied to the particularities of national states. Her paper, which is based on three years of ethnographic research on the global human rights system and its approach to violence against women, rst describes the process of human rights documents, showing how global law incorporates local and national issues and concerns and then examines how local social movements appropriate global human rights law. In this process she underlines the critical role that NGOs play in dening social problems while noting that many of the donors on whom they rely come from Europe or America. However, the appropriation of human rights creates the discourse and political space for local actors engaged in social reform who can frame their work in these terms, improving their access to funding and to national and international elites, although there are also tensions between the global discourse of human rights and the complexity of local situations. For as human rights are implemented their effects may differ from those envisaged by their advocates. Thus, there is a tension between

Introduction

11

global understandings of law and its implementation and local activists ideas of how to achieve the goals articulated in the human rights system. At another level, Grifths and Kandel (Chapter 14) examine the glocalization of participation, in terms of Article 12 of the United Nations Convention on the Rights of the Child, in the context of the childrens hearings system in Glasgow. They focus on the perspectives of children from inner-city neighbourhoods, as they manoeuvre their way (in the light of local facts and knowledge) through the legal landscape of the childrens hearings system in Glasgow, contrasting their views and experiences with those of the institutions and personnel who exercise authority over them (especially panel members who run the hearings). The young peoples strategies reveal that they have neither conceptually incorporated nor actually beneted from global discourses on welfare and due process rights that sweep across the legal landscape and become absorbed into national law. This is because the youngsters conception of participation is informed by local concepts of family, autonomy, loyalty, safety and their own understandings of the possible resources and risks of the hearings system. Their rationales for participation, which centre on strategies of silence, compliance and autonomy or deance, become versions of local law that often stand in marked contrast to the perception of participation envisaged by local panel members, that involves transparency and openness, essential attributes of a process geared to reaching decisions through consensus. Actors and Power In describing and analysing these processes, the contributions not only focus on the agency of persons and organizations but also give attention to the constraining and enabling contexts in which they operate. One of the values of adopting such an actor-oriented perspective is that it presents a study of the concrete ways in which social actors use law to negotiate their universe, and how the ability to do so is inuenced by power relationships. How power is congured within processes of globalizing law and increasing mobility of people is crucial to comprehending the differing effects of globalization. Many of the contributors to this volume address the hegemonic and counterhegemonic processes involved in the latest waves of transnational mobility of law that affect power positions of actors differentially situated at national and local levels. Nader (Chapter 10) considers this with respect to the Americanization of international and transnational law. She traces the origins of the hegemonic and expansionist character of American law, stressing its European roots and its philosophical underpinnings, along with the American inheritance of European doctrine and British common law. She documents how American law lays claim to priority over other legal systems through its characterization of those systems as lacking its attributes. For what has buttressed the

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hegemonic scope of American law is an internal logic based on lack or emptiness that has had lasting power over centuries of Euro-American dominance, even though perceptions of lack may change. So, for example, in the context of the rise of law and economics strategies, this lack theory has been fully rationalized as a lack of efciency. The power of American law lies in a Euro-American conguration of institutions and belief systems that normalize technological progress over social progress, efciency over justice, while at the same time pointing to the possibilities inherent in political democracies so that it continues to convince the world of the superiority of its economic law, intellectual property, and alternative dispute resolution American-style. Due to its political and economic power the United States is able to Americanize large parts of international law. Where international law is not in its interest, as in the invasion of Iraq or the conclusion of the Kyoto convention, its power seems strong enough to neutralize it. Similarly, Merry (Chapter 11) describes how delegates from the international community of states at the Beijing Plus Five Meeting negotiate consensual conclusions. Although this appears to be the outcome of egalitarian decision-making processes, the consensual mode allows a small group of powerful countries to exert their wishes in a way that they could not under majority voting. On an institutional level, Weilenmann (Chapter 12) explores the lawmaking capacities of development projects and of international and national development agencies, such as the German Agency for Technical Aid, GTZ.14 He does this through a case study of a project in Ghana aimed at promoting women through reforms dealing with law, state and civil society. He shows how organizations of development cooperation develop project law during the early stages of project design that is largely structured by the legal requirements of the donor country. Based on practical experiences acting as adviser for bilateral GTZ projects, he traces how those legal concepts which determine the conceptualization of development projects inuence social change and how they can guide a project to its clearly dened development goal, such as poverty alleviation. In examining the interactive dynamics between project plan, project implementation and social context he explores how emerging project ideas are turned into feasible development plans (institutional procedures of project design). He then goes on to describe how the socio-political contexts, in which development cooperation agencies become active, are represented in respective development plans (procedures of socio-political perception) and how these agencies normative orders inuence the social structure that they have set out to change. He describes which interactive dynamics (procedures of socio-political design power) will come into force, desired or not. In Chapter 7, Wiber draws attention to the arenas in which powerful actors or epistemic communities set the agenda for legal blueprints that are (to be) imposed on national governments and other societal organizations and people. She explores the concept of mobile law, the centrality of property theory in global sheries management and the role of epistemic communities

Introduction

13

in furthering the transfer of one management regime across global sheries. In her discussion of two case studies she demonstrates how different shers in the inshore sector of the Scotia Fundy region in Canada have attempted to recongure this property-based management approach and how the federal bureaucrats have in turn responded. What is clear is that recent sheries management is an important contribution to a growing number of case studies of globalizing law and that the concept of the epistemic community can be rened by careful attention both to the conditions under which some such communities succeed or fail and the consequences of their success. Thus epistemic communities, assembled in international organizations and development organizations or otherwise, prove themselves to be important conduits in globalization processes through which law is transported from Western to developing countries. Not only do they transport law across the globe but they also establish themselves as important sources of lawmaking. Many contributions discuss the role of such organizations as important political actors in restructuring local government and the management of natural resources, and in furthering human rights.15 Law is an important potential source of power and many of the contributions discuss the implications for the power constellations around natural resource management when a state decides to recognize customary law. McCarthy (Chapter 8) considers how a transnationally inspired but nationally specic decentralization process helps generate particular sociolegal congurations in the districts of Kapuas and South Barito within the Indonesian province of Central Kalimantan. He examines how the international decentralization policy narratives interpenetrating with national and district legal processes affect administrative practices and local social elds governing patterns of access and use of forest resources. He discusses the emerging socio-legal congurations in which violent interethnic conicts over power and over scarce natural resources are carried out in the light of policies of decentralization, as actors interact in a dynamic situation where increasingly a heterogeneous state and district legal regimes combine with volatile district social elds and re-assertive customary normative orders. He shows that legislative processes at the national, the provincial, the district and even at the international level lead to coexistence of different, fragmented, forms of legality. In the conict, people draw on a wide range of legal, social and economic resources to enhance their position. The paper is a cogent critique of what appears to be one of the most important dogmas of the international world of donor agencies, that is, that decentralization improves effectiveness and responsive government and provides solutions to inter-ethnic conict. From another perspective Hellum and Derman (Chapter 9) focus on the multiplicity of laws and policies that come into play in the water reform process in Zimbabwe. Their paper begins by describing this process and placing it in its historical context. They then turn to the changing nature of land reform and how this intersects with water reform, examining how these

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processes interact in two areas, Chegutu District and Mhondoro communal land. Finally, they underline the continued importance of national states in blocking or facilitating international norms, policies and human rights instruments. In providing a vivid account of the complex socio-legal elds in which rights to water are being renegotiated in contemporary Zimbabwe, the authors show that internationalization of law, especially of human rights, can have the effect of increasing national concerns over loss of political and cultural autonomy and identity. However, it can also provide the basis for opposition leaders and movements to contest existing power relations and protest the lack of basic freedoms by invoking customary rights at a central level. This resonates at a local level in a re-articulation by new settlers of customary norms and principles which view water as God-given, while old commercial growers favour the system based upon the user pays principle. However, the contributions also highlight that state law is not the only legal source of power. Each body of law has its own way of dening power positions and therefore are sources of power by themselves. Oomen and the von BendaBeckmanns show how important the legitimation of power through revitalized customary law (however reinvented) becomes in processes where, under the call for democracy and decentralization, local governance structures are rearranged. The authors record that recognition of customary law by no means implies that a government can control the processes it sets in motion. They discuss some of the main unintended consequences of these state policies. While some of the subordinate groups have gained negotiating power, thereby strengthening their economic position which had been severely undermined by state policies, at the same time some disturbing processes of exclusion are taking place as well under recognition policies, as McCarthy and Wiber indicate. Both address the role and position of large companies in these processes. McCarthy discusses the attempts of logging companies to position themselves in the new conguration and make alliances with local administrative ofcers. Wiber shows that large and well-endowed shing companies, in cooperation with the powerful epistemic community of sheries management, and not indigenous groups win out in the reconguration of shing rights. From another perspective, that of vulnerable young people who nd themselves in an unequal power relationship as subordinated actors in a state legal system, Grifths and Kandel highlight how legal discourses on participation, involving welfare and rights, that characterize national and transnational approaches to dealing with children have little impact at the local level when it comes to young peoples participation in childrens hearings in Glasgow. Migration and Multi-Sited Lives Multi-sited ethnography is especially pertinent when addressing research on migration and following the trajectories of migrants multi-sited lives.

Introduction

15

Transnationalizing law across national boundaries is not the exclusive domain of powerful international and transnational actors. The von BendaBeckmanns show how a few inuential members of the Indonesian elite imported constitutional ideas of democracy from The Netherlands and notions of democracy circulating in the Near East into the colonial Dutch Indies, to legitimate their struggle for freedom, equality and independence. This small political and intellectual elite who travelled to The Netherlands and to the near East has been very inuential in spreading these notions of democracy that, in many respects, went against local notions of consensual democracy. However, ordinary migrants, businessmen and traders who do not belong to the political and intellectual elite are also important actors in the globalization of law. The literature on migration usually describes one aspect of these processes. Migrants take their law to the new country of domicile. That is, the customary or religious law of their place of origin, but to some extent their national law as well, does not lose its relevance for migrants after they have arrived in their new domicile. This law is usually seen as opposing the law of the receiving national state, creating a host of problems for politicians, lawyers and for the migrants. In her paper, Nuijten (Chapter 3) focuses on the experience of migrants who move back and forth between La Canoa, a rural village in Western Mexico, and the US. She explores contrasting normative values that migrants are confronted with in their transnational existence and which, in the process of confrontation and reection, transform their identities. The effects of transnational migration in terms of economic gains and identity formation are extremely variable. Some Mexican families do very well in the US. However, many others are less successful on the US labour market. Based on a detailed study of one family in La Canoa with children on both sides of the USMexico border, Nuijten details how migrants perceive normative differences concerning gender relations, the relation with state authority and labour standards and how they deal with this in their transnationalized lives. Special attention is paid to two children who did not make it in the US and who, after being involved in illegal and criminal activities, returned to the village. By discussing the case of these marginal migrants, attention is paid to the dark side and the liminal features of transnational migration and the way in which this can affect lifestyles and identity formation of transmigrants. Thus, it is argued that MexicoUS migration contributes to the development of different categories of transborder citizens who display a variety of normative standards based on their specic transnational experiences. Glick Schiller (Chapter 2) also explores the concept of transborder citizenship in the context of migrants who live multi-sited lives across national borders. She outlines three different contexts in which transborder citizenship is experienced and exercised. These include transnational social elds that migrants establish to connect their homeland and the new land, transborder networks of social relationship and communications that connect

16

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migrants to multiple states, and local citizenship with its transborder ramications. In observing that an impressive number of states have adopted some form of dual citizenship or dual nationality in recent years, nonetheless a proper understanding of the development of transborder citizenship must take us beyond legal citizenship into the subject of governmentality and social citizenship. Based on ethnographic research carried out in the US, Haiti and Germany, the author demonstrates how migrants make claims on more than one state, using concepts of rights, culture and citizenship that they experience and shape within an unbounded transnational social eld. In this way they become incorporated into more than one state, while constructing forms of legal pluralism that differ from the predominant legal system in all their locations and that are shaped by the constraints and possibilities of each governmental system into which their transnational social eld extends. Zips example, however, shows how the Rastafari refuse to be intimidated by dominant discourses concerning law and culture. In examining the Rastafari claim of the Bobo Ashanti for repatriation to their original homeland (Africa), his study captures a globalization of law that is neither connected to globally powerful economic actors, nor dominated by the law of national states. In this process the Rastafari church plays a central role in establishing a multi-legal and multi-sited eld of governance, reaching from Jamaica to Ghana: legislation made in Jamaica is transformed when it is put to effect in the new social eld of a Rastafari community in Ghana. The Rastafari interpretation of documents such as the Universal Declaration of Human Rights and their rhetorical politics offer highly critical reections of hegemony, legal hierarchies and international power relations in general in their attempts to deconstruct the dominant discourses in the public arena about transnational law, national legislation and unofcial law. For their claim to repatriation is not framed within the legal concept as it stands in international law. Rather, transnational law and the struggle for its transformation and implementation according to their precepts forms the background of the Rastafari/Reggae calls for global re. Zips research provides a unique description and discussion of the combined role of unrecognized Rastafari governing structures, of new churches and of artists in the emergence and reformulation of transnational law that largely dees the ofcial governments of the states in which they operate. Such a perspective, however, poses difcult questions for lawyers and politicians who have to deal with such a diversity of legal forms and practices. Foblets (Chapter 15) and Pfaff-Czarnecka (Chapter 13) both discuss ways in which West European countries have attempted to cope with religious minorities in the face of European human rights requirements. Foblets focuses on dual citizenship in the realm of (international) private law and discusses the classical techniques that Western national legal systems have designed to deal with migrant populations. She observes that the phenomenon of ever more mobile people around the world raises especially intricate questions in the domain of personal law when it comes to regulating the family lives of

Introduction

17

individual Muslims residing in Europe. She highlights the problems that crossborder migration in combination with double citizenship raise for lawyers practising in the realm of international family law; namely, distance (migration), diversity (mixed relations, dual citizenship, etc.) and dislocation (double bounds). For the legal categories with which they have to work are typically rigid and allow for relatively little exibility. Anthropological analyses, by contrast, document the inherently exible ways of incorporation and adjustment in a West European environment, while maintaining close relations with the country of origin. Her paper thus reveals a basic contradiction between legal categories of migrants, based on the assumption of clear and xed identities, and social reality that shows uent identity formation in response to lived experiences, differing according to gender and generation. The paper is particularly relevant for its discussion of the problems this contradiction poses for judicial decision making and for bilateral negotiations between Belgium and Morocco to regulate the legal position of migrants. In contrast, Pfaff-Czarnecka compares the different ways in which school systems in European countries have accommodated migrants claims for more freedom to express and practise their religion. Focusing on Switzerland, her paper examines the current position with regard to the accommodation of immigrant religions and analyses it in comparison with that adopted by Germany and France. Despite similarities there are differences that indicate that the particular solutions each country develops for similar problems are to a high degree dependent on the specic history of how previous religious minorities were incorporated in the various European countries. PfaffCzarnecka argues that these are results of negotiations between migrants and host societies, in which legislators, lawyers and courts are confronted with public opinions formed by mass media. Thus different countries have made different choices regarding public and private modes of accommodation, which in large measure reect the path dependency of earlier political struggles among religious groups in each of the countries. The author discusses to what extent these options might enhance integration or contribute to segregation and calls for more research in this area, looking at factors such as temporal differences, circumstances and pace of immigration, in order to assess the importance of migration patterns for bringing about institutional changes. The role of migrants in the process of globalization extends far beyond policies and responses by them to these processes in the country of domicile. Only a minority of migrants have severed all relationships with their country of origin; this minority may be in a political situation that has made it simply impossible to sustain relationships. This is especially the case if the country of origin is under a severe dictatorial regime. Another reason may be that the migrant does not have the resources to keep up relationships with people back home. Or he may feel ashamed because he has not been successful. Most migrants, however, remain more or less closely connected with people in their country of origin. Modern communication techniques and low costs of

18

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transport have made lifestyles possible that were unthinkable a few decades ago. Today, large numbers of migrants live, as Glick Schiller (Chapter 2) calls it, multi-sited or transnational lives. They have meaningful social and economic relationships in more than one country and design their life and relationship to authorities in different countries accordingly; hence her suggestion to analyse the social processes in terms of transnational social citizenship, as distinguished from legal or political citizenship. Such migrants live in complex situations of legal pluralism, in which the national law of more than one state, as well as customary law and religious laws, may play a role. As Oomen (Chapter 5) and the von Benda-Beckmanns (Chapter 6) show, such multi-sited lives also take place within a single national state. Migrants usually come to live in a different social setting with different lifestyles, especially if they migrate from rural to urban settings. Their new legal situation is often also characterized by a different constellation of legal pluralism from that in the place of origin. Though these internal migrants do not have to deal with different national legal systems as transnational migrants, they often come to live in situations where they have to deal with other customary legal systems and often with different religions and religious laws as well. As in the case of transnational migration, they also have to adapt to their new surroundings. The interpretations of the customary and religious law that they have brought along may change considerably and become contested over time in the region or country of domicile (Benda-Beckmann, K. von, 1991; Anders, 2005). This has important repercussions for those staying behind. Migrants seem to be important actors in changing the (neo-)traditional law and religious law in the country or region of origin, whether it concerns neo-traditional governance structures or issues of social security. This is especially the case for high-level, highly educated and nancially and politically well-endowed migrants, as in the cases described by Oomen and the von Benda-Beckmanns, but it is by no means restricted to them. Nuijten (Chapter 3) considers the implications of migration and living multi-sited lives for unsuccessful Mexican migrants, who are forced to return from the US because they have failed to nd work or lost their job. These migrants nd themselves faced with the difcult task of readjusting to a lifestyle and normative order with social sanctions that they had tried to escape and which they nd uncomfortable. Showing that men more readily readjust to the patriarchic lifestyle of rural Mexico, Nuijten draws our attention to the gender issues involved and the implications it has for partner relationships. To what extent these unsuccessful returned migrants might contribute to changes in the local normative structure in the long run is a question that would require further research. This volume thus deals with some of the wider implications that looking at migration as a multi-sited phenomenon may have for law in plural settings. The contributions show that migrants operate in networks of people who act in specic localities, each with their own specic legal conguration.

Introduction

19

Migrants are important actors in the dynamic recongurations of law at the different localities, with which they are involved. What happens in one of the localities may have important implications for the way law develops in the other localities. However, the changes may occur at different paces and have different results depending on the specics of the various localities involved. Homogenization and Fragmentation: Concluding Remarks In tracing the varying forms that the mobility of people and law adopt, the contributors to this volume highlight the dynamic processes that underpin the uneven and diverse effects of globalization. By adopting an anthropological perspective that is actor-oriented they help to rene the notion of impact, by tracing how transnational legal forms or principles are taken up, appropriated and mobilized by differentially situated local actors in socio-political spaces. They also show how political and economic struggles, and struggles over law, become transnationally inspired. Looking carefully at the working of law in different local situations, as the papers in this volume do, reveals that both increased homogenization and differential glocalizations of law can take place at the same time, in different contexts and socio-political spaces. Legislators, foreign experts, World Bank consultants, epistemic communities who forge legal blueprints all over the globe are important homogenizers. Homogenization by transnational epistemic communities is not entirely new but has radically gained inuence over the past few decades so that the form of law so forcefully pushed by powerful Western states becomes increasingly homogenous. While in colonial settings each colonizing power forced its own distinct national law on its colonies, the law that is forced on weaker states today is increasingly homogenous, with a leading role claimed by the US. However, the specic historical developments and resulting structures of individual states make adoption of uniform regulations, such as the European catalogue of human rights, a process with highly differential consequences in different states. Moreover, several studies in this volume demonstrate that at levels below the central state district, village or urban neighbourhood this homogenized law often works out very differently from that envisioned by the homogenizers. Thus transnationalization of law appears to create both homogeneity and fragmentation and ambiguity, creating space for negotiation for some while barring others from legitimate claims. The authors also dissect a variety of pathways which may lead to further system integration or fragmentation, or both simultaneously. This perspective is not only important for an anthropological understanding of globalization; it may enhance legal scholarship on transnational law which has tended to ignore the standpoint of strategic actors and (except in the US) to focus exclusively on institutions (Snyder, 2002, p. 92). This focus, that seeks to reconstruct the system in which institutions are embedded, may be useful in tracing the elaboration of legal doctrine, but it fails to account for how legal

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institutions and other institutional, normative and processual sites are created and how they develop and operate in practice. An actor-oriented approach, in contrast, not only allows for local agency but provides insights into local agents strategies for dealing with such phenomena, involving their manipulation, appropriation or, even, subversion of such phenomena, in particular contexts. This in turn promotes an understanding of how these external interventions become endowed with diverse and localized sets of meanings and practices. Consequently there is a recognition of a reciprocal interaction between global and local forces which does not essentialize either in terms of the other but rather acknowledges that these initiatives may constrain local initiatives, while at the same time acknowledging that these initiatives may appropriate and transform the global for its own needs. Thus a number of the contributors to this volume address the hegemonic and counter-hegemonic processes involved in the latest waves of transnational mobility of law that affect power positions of actors differentially situated at national and local levels. What are highlighted are the complex ways in which local forms of knowledge and organization are constantly being reworked in interaction with changing external conditions, and how power operates in different places and is transformed to provide for the emergence of new identities and alliances within specic populations. Such data provide valuable information on processes of social transformation that would otherwise remain hidden from view, or be only partially accounted for, in analyses that focus on the relationship between national, international and transnational actors, institutions and law, as is the case with most studies on globalization to date. This type of analysis undermines any view of globalization as a monolithic entity producing uniform results, by highlighting global ordering in terms of the complex changing patterns of homogenization and diversity outlined above. By placing actor-oriented perspectives at the core of analysis it becomes clear that the local cannot be viewed as a sphere that is simply acted upon through the imposition of external institutions, interests, or market forces derived from national, regional or international agencies that are brought to bear on its domain. Instead, these perspectives provide for an analysis that not only examines how the global shapes the local but also how the local responds. Thus they promote a more nely tuned account of the effects of globalization and its interventions, one that acknowledges that these phenomena represent socially constructed and continually negotiated processes. As several of the papers in this volume demonstrate, law has been mobile throughout history. Attention to the historical contextualization of law highlights the fact that there is no uni-directional, linear progression of law towards an ever-expanding globalization, but rather a series of movements in time and space that may lead to imported law being accommodated in local settings in a whole variety of ways, or to its rejection in periods of disengagement. The plurality of law is not a new concept. As was mentioned earlier, analyses by lawyers and political scientists are mainly conned to the

Introduction

21

question whether such transnational connections inuence state law at the national level and of how different forms of transnationalization of law affect the sovereignty of nation states, and thus dissociate global legal pluralism from existing congurations of legal pluralism within states. Anthropologists, however, have explored legal pluralism from the perspective of normative orders that have distinct forms of legitimation not reliant upon the nation state for their recognition, and that exist both within and beyond nation states. In adopting an anthropological perspective the contributors to this volume make the vital point that has hitherto been overlooked, that neither the fate of transnational law nor its impact on local legal constellations can be understood without giving attention to the plural legal character of such local situations. In drawing out these connections an anthropologically informed approach is better suited than conventional legal discourse to unravelling the constellations of legal complexity that have always existed in specic locales and that have been brought about by current forms of globalization. For ethnographically detailed micro-studies not only capture what occurs at a local level but also elucidate the inequalities of power that give rise to hierarchies of privilege, control, marginalization and exclusion. As new frameworks for governance emerge it becomes clear that the legal repertoire embracing multiple legal orders is not necessarily governed by a hierarchical structure with clearly dened boundaries forming a linear progression up the chain of command from local to regional, to national, and international and global arenas. Rather a more porous form of legal pluralism emanates from the conjunction of an interrelated range of domains and associations. As the authors in this volume demonstrate, an anthropologically informed analysis with its focus on social actors in their community networks and legal constellations is well equipped for identifying and disentangling overlapping economic, political and legal domains enmeshed within larger encompassing systems. For these reasons we see our volume also as a corrective to that legal and political science mainstream thinking on law and globalization that cannot distance itself from the ideological notion of the state as the only relevant unit of political organization. Notes
1 For a useful overview of the different interpretations of globalization, see Held et al. (1999). 2 Held et al. (1999). Similarly, Appadurais (1990) scheme of scapes, comprising ethno-, media-, techno-, ideo- and nanscapes does not explicitly address law. Parsons (1978) criticized the same reductionism of the dominant streams in social science 35 years ago when writing about law as intellectual stepchild. See also Gnther and Randeria (2001). 3 McBarnet (2002) demonstrates the dangers that may arise where professionals draw selectively on the laws of multiple jurisdictions to create transnational legal constructs to meet their business clients needs in ways that may subvert national regulations designed to serve the public interest. 4 See Merry (1997); F. and K. von Benda-Beckmann (forthcoming).

22
5 6

Mobile People, Mobile Law

See for instance Teubner (1997); Rob (1997); Callies (2002); Gnther and Randeria (2001). Only very few authors have discussed the question of how different forms of transnationalization lead to new variants of legal pluralism. See de Sousa Santos (1995); K. von Benda-Beckmann (2001); Gnther and Randeria (2001). See also Merry (1997); Gessner (2002); Randeria (2003). Most social scientic studies of the impact of colonial law transplantations have not paid a great deal of attention to the role of international law and treaties, and indeed these may not have an immediately visible impact on small-scale local organizations and congurations of legal pluralism in the colonies. See Fisch (1984, 1992); Anghie (1999); K. von Benda-Beckmann (2001). For early attention to international law in anthropology, see Bohannan (1967). On the question of what is new, see McGrew (1998); Tsing (2000). Held et al. discuss the spread of world religions, especially Islam and Christianity, as one of the most powerful and signicant forms of the globalization of culture in the premodern era, indeed of all time (1999, p. 333). This not only concerns the learned law of the four main schools of Islamic law. Hannemann (2002, p. 47) has shown that Islamic law can also be seen as a carrier of customary legal practices over large geographical spaces. See also F. and K. von Benda-Beckmann (forthcoming). In such a world the classic focus on a local place is no longer adequate for the ethnographic study of social life in the twenty-rst century (Merry, 2000, p. 127). Anthropologists who did research in court and village settings and examined the interrelations between social processes going on in these different places, were in fact doing multi-sited research. See K. von Benda-Beckmann (1984); Nader and Todd (1978); Grifths (1997). For an example of development anthropology, see Hobart (1993). Forms of combined or hybrid law have an old history in the former colonies. For the Dutch East Indies, see K. von Benda-Beckmann (1984). For Africa, see Holleman (1978); Chanock (1985). In the recent globalization literature, authors speak of creolization (Hannerz, 1992), hybridization (Nederveen Pieterse, 1995), or of vernacularized law (Merry, 1997). Randeria (2003) combines what is happening at a transnational scale in the World Bank with what takes place at a local scale in the various localities affected by the Narmada dam in India. (Deutsche) Gesellschaft fr Technische Zusammenarbeit GmbH. Randeria (2003) provides an analysis of the various levels (local, national, international) at which popular opposition against large infrastructure projects in India nanced by the World Bank was mobilized, forcing the Banks Inspection Panel to deal with the issues raised. The Panel has had to deal with the structural schizophrenia of the Bank itself and the way in which a cunning state draws on various bodies of law to fend off unpopular decisions while taking the decisions that are to the advantage of political elites.

8 9

10 11

12

13 14 15

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