Vol. 19 No. 12 (December, 2009) pp.879-882
RULES OF LAW AND LAWS OF RULING: ON THE GOVERNANCE OF LAW, by Franz von Benda-Beckmann, Keebet von Benda-Beckmann, and Julia Eckert (eds.). Burlington, VT: Ashgate Publishing Company, 2009. 302pp. Hardcover. £60.00/$114.95. ISBN: 9780754672395.
Reviewed by Beau Breslin, Department of Government, Skidmore College, bbreslin [at] skidmore.edu.
The intellectual shadow of Robert Cover grows larger. Indeed, the late Yale law professor, whose untimely death in 1986 left a considerable void in the field of public law, remains an important and influential voice in the examination of legal theory and practice. Cover had much to say on a number of different topics, but he was especially erudite on the relationship between law and violence; law, he insisted, is a violent enterprise. In perhaps his most famous article, “Nomos and Narrative,” he writes that law often destroys the narrative – and thus the collective identity – of a particular people. Take decisions emerging from the Supreme Court as an example: Cover understood that any decision rendered by this country’s high court has the capacity to be imperialistic, to crowd out competing, yet weaker narratives told by the inhabitants of insular communities (e.g. the Amish). The same destructive potential exists, Cover continued, when lower courts deliver rulings or when other official institutions with power, including the democratic lawmaking bodies of the American polity, carry out their legal and constitutional responsibilities. The point is that law, an instrument frequently used to offset or manage violence, can itself destroy particular ways of life.
At no point in the entire edited volume, RULES OF LAW AND LAWS OF RULING: ON THE GOVERNANCE OF LAW, does Cover’s name or his work come up. Even still, his intellectual presence is felt throughout the book, as well as within the larger field of legal anthropology to which this volume belongs. The book is mostly about the ways in which non-governmental and semi-governmental (or non-state and semi-state) actors control legal and political resources and the mechanisms by which they are able to advance policy interests through less formal networks. Governance, we are told, is not a concept monopolized by formal political institutions like a country’s legislative or executive branches, but is rather a concept that is almost entirely informed by power relationships. Non-state actors thus have the capacity to govern themselves, and often do so in response to formal state policy. In a sense, then, the central lesson of this volume is that many organizations, actors, and institutions – both state and non-state – exert power and affect the governance of a contemporary polity. That exertion, as each chapter of the collection asserts, amounts to a violent and often destructive act.
The volume is divided into twelve chapters, the first two of which are [*880] introductory and the last ten of which are case studies. Chapter 1, “Rules of Law and Laws of Ruling: Law and Governance between Past and Future,” is written by the three volume editors. It is an odd, though mostly effective chapter in that the authors attempt to contextualize the project by providing some background on the development of the particular strand of the literature that they will explore. The authors write, “The concept of ‘governance’ [recently] points to a turn from a normative substantive conception of government exclusively tied to the national state based on constitutional and international law towards a functional characterization of governing activities” (pp.1-2; emphasis added). Their book will exclusively examine the second strand, the one that claims that the way a polity governs is functionally impacted by law and power. The distinction between strands is helpful, especially to those of us who live so much of our scholarly lives in the “normative substantive” world of politics and law. The introduction is also helpful in that it frames the book effectively. The authors insist that they are focusing on non-state methods of governance, those “soft laws” established by non-state actors and subject to great inequities and power differences. And yet the chapter is oddly organized. The general description of the book in the first half of the chapter is filled with illustrations from the case studies that follow (which is not an odd occurrence), only to be juxtaposed in the second half of the chapter by a fairly redundant description of each of the volume’s remaining chapters. To this reader at least, it felt like deja vu all over again.
The second chapter, “Reflections on the Anthropology of Law, Governance and Sovereignty” by John and Jean Comaroff, is the most interesting in the book. After doing a solid job of defining legal anthropology as the study of the culture of law in both its formal and informal iterations, the authors turn to a single fundamental question: how do legal institutions (courts) view policultural (political and cultural) phenomena within the state? How do courts, in other words, react to informal legal structures that compete with formal ones? South Africa provides a perfect example. Communities within the South African state have endured, and in some cases thrived, with their own governance structures (chieftanships, traditions, rules, and so on). John and Jean Comaroff, who have studied South Africa’s political and legal culture for most of their careers, are particularly interested in the way in which post-apartheid institutions (like courts) interfere, and thus subordinate, the more localized and culturally-based governance systems. Such a dynamic, of course, smacks of Cover’s thesis. The tone of the chapter is one of despair, or at least skepticism: the authors seem to have their doubts about the possibility of cultural laws surviving under the withering power of the state.
The remaining chapters are case studies that further support the primary thread running through the book. Chapter 3, for instance, examines the awkward relationship between government institutions and private military [*881] companies. These companies, we are told, are asked to fill gaps that state and defense departments traditionally filled. In an environment of shrinking budgets and decreasing forces, private military companies are being asked to fulfill certain duties previously mandated to the military branches. The problem is that these gaps create opportunities for private military companies to govern without significant oversight, thus creating their own rules and policies. Similarly, Chapter 4 examines the structures of governance that characterize Israel’s West Bank. The author, Tobias Kelly, is primarily interested in the ways in which authorities implement governance rules in places like the West Bank where there are difficult and very sensitive economic, political, and cultural forces in play. He refers to the practice as “mapping legal status onto space.”
Chapter 5 examines state power on the periphery – both literally and figuratively. The authors follow highland Peruvians and ask about the presence of the state in the day-to-day lives of these “peripheral” citizens. Perhaps unsurprisingly, they conclude that the formal governmental institutions do not have much of a presence and that these “communidads” are therefore governed by ambiguous land laws and direct violence. Anne Hellum and Bill Derman argue, in Chapter 6, that the governance of land restitution in South Africa has taken on a hybrid model – marrying the post-apartheid push for equality with the need for continued economic growth in the region. The governance structure, they claim, consists of law, administrative discretion, contract, and custom. Chapter 7 is a case study of shellfish management in Nova Scotia. The battle pits a monopolized organization (Innovative Fisheries Products, Inc., or IFP) sponsored by the state against local fishermen and women, many of whom would like to see the privatization of the fisheries. Governance structures and processes are dictated by the monopoly, to the detriment of indigenous populations. IFP has used some extra-legal tactics – banning certain individuals from beaches, regulating licenses, and the like – as a way to maintain control of the lucrative fishing area.
Continuing, Chapter 8 is an interesting case study about the extra-judicial process for resolving juvenile issues in Scotland. It reminded me of the literature on restorative or community justice models. Like earlier chapters in this volume, “The Governance of Children: From Welfare Justice to Proactive Regulation in the Scottish Children’s Hearing System” highlights the virtues and vices of non-state governance activities. Chapter 9 does so as well by exploring immigration policies in the European Union. These policies – involving family reunification, for example – are designed to be flexible so that member states can accommodate their own domestic immigration policies. Chapter 10, on international tax competition, Chapter 11, on the World Bank in Indonesia, and Chapter 12, on the transparency (or lack of it) of faculty appointments in Italian universities, all continue the dialogue about non-state actors and their influence over governance policies.
In all, the case studies are accessible and appropriate for the volume. There is certainly an international flavor to the collection of articles (each case study explores a different part of the world), though there is no attempt on the part of the editors to be comparative. That is to say, this book is analytically rigorous in [*882] that the treatment of each case study is deep and thoughtful, but the chapters (as is the case in so many similar edited volumes) are mostly independent of each other. What holds the collection together are two principal commonalities: the fact that the authors are investigating similar non-state actors and the scope of their governing capabilities, and the insistence on qualitative methodology. There is almost no quantitative analysis in the entire book. This book might be useful for upper level comparative law classes, especially ones wrestling with the relative influence of political and cultural factors on questions of law and governance, so long as the reader knows that she will have to do some of the heavy intellectual and comparative lifting. It might also be useful for political science courses that explore legal topics alongside those on state sovereignty, public policy, and political power.
The book, for the most part, is illuminating. The chapters all share the same feel and tone, which may reflect the dominant intellectual and methodological approach to the study of legal anthropology. They tell stories, narratives of peoples and groups that have mostly been injured and discarded by the mechanisms of the state, only to find innovative ways of reestablishing personal or political control. Some stories are more compelling than others, but each chapter has one.
The major fault of RULES OF LAW AND LAWS OF RULING is that the promise of its stately title is not fully realized. Any book on the rules of law and the capacity of law to dictate human and institutional behavior has the potential to tackle some grand ideas, especially when so much of the work mirrors the thoughts and ideas of scholars such as Robert Cover. This volume can only be described as a thin version of the impressive literature on law, violence, power, and governance. It offers the sophisticated and serious student further insight into the complex, multi-dimensional relationship that exists between state and non-state actors, law and governance, violence and order. And yet its impact within that intellectual arena, and certainly beyond those narrow confines, is probably limited. RULES OF LAW AND LAWS OF RULING doubtless belongs in the library of those who are interested in these topics, but I suspect it might not be the first volume plucked from the shelves.
Cover, Robert M. 1983. “The Supreme Court, 1982 Term – Foreword: Nomos and Narrative,” HARVARD LAW REVIEW 97:4, pp. 4-69.
© Copyright 2009 by the author, Beau Breslin.