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The Blackwell

Companion to Law and Society

Edited by

Austin Sarat

• A Blackwell

"-fl Publishing

© 2004 by Blackwell Publishing Ltd except for editorial material and organization ([) 2004 by Austin Sarat

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First published 2004 by Blackwell Publishing Ltd

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The Blackwell companion to law and society / edited by Austin Sarat. p. cm. – (Blackwell companions to sociology ; 11)

Includes bibliographical references and index. ISBN 0-631-22896-9 (hardback: alk. paper)

1. Law-Social aspects. I. Sarat, Austin. II. Series. K370.B554 2004

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2003019975

Contents

�a X

List of Contributors xm

1 Vitality Amidst Fragmentation: On the Emergence of Postrealist Law and Society Scholarship Austin Sarat l

PART I PERSPECTIVES ON THE HISTORY AND SIGNIFICANCE OF LAW AND SOCIETY RESEARCH 13

2 Law in Social Theory and Social Theory in the Study of Law Roger Cotterrell 15

3 Profession, Science, and Culture: An Emergent Canon of Law and Society Research Carroll Seron and Susan S. Si/bey 30

PART II THE CULTURAL LIFE OF LAW 61

4 The Work of Rights and the Work Rights Do: A Critical Empirical Approach Laura Beth Nielsen 63

5 Consciousness and Ideology Patricia Ewick 80

6 Law in Popular Culture Richard K. Sherwin 9 5

Vlll CONTENTS

7 Comparing Legal Cultures David Ne/ken 113

PART III INSTITUTIONS AND ACTORS 129

8 The Police and Policing Jeannine Bell 131

9 Professional Power: Lawyers and the Constitution of Professional Authority Tanina Rostain 146

10 Courts and Judges Lee Epstein and Jack Knight 170

11 Jurors and Juries Valerie P. Hans and Neil Vidmar 195

12 Regulators and Regulatory Processes Robert A. Kagan 212

13 The Legal Lives of Private Organizations Lauren B. Edelman 231

PART IV DOMAINS OF POLICY 253

14 Legal Regulation of Families in Changing Societies Susan B. Boyd 255

15 Culture, "Kulturkampf," and Beyond: The Antidiscrimination Principle under the Jurisprudence of Backlash Francisco Valdes 271

16 The Government of Risks Pat O'Malley 292

17 Thinking About Criminal Justice: Sociolegal Expertise and the Modernization of American Criminal Justice Jonathan Simon 309

18 Rights in the Shadow of Class: Poverty, Welfare, and the Law Frank Munger 330

19 Immigration Susan Sterett 354

20 Commodity Culture, Private Censorship, Branded Environments, and Global Trade Politics: Intellectual Property as a Topic of Law and Society Research Rosemary J. Coombe 369

CONTENTS IX

21 Legal Categorizations and Religion: On Politics of Modernity, Practices, Faith, and Power Gad Barzilai 392

22 The Role of Social Science in Legal Decisions Jonathan Yovel and Elizabeth Mertz 410

PARTV HOW DOES LAW MATTER? 433

23 Procedural Justice Tom R. Tyler 435

24 A Tale of Two Genres: On the Real and Ideal Links Between Law and Society and Critical Race Theory Laura E. Gomez 453

25 The Constitution of Identity: Gender, Feminist Legal Theory, and the Law and Society Movement Nicola Lacey 471

26 Sexuality in Law and Society Scholarship Leslie]. Moran 487

27 Law and Social Movements Michael McCann 506

28 "The Dog That Didn't Bark": A Sociolegal Tale of Law, Democracy, and Elections Stuart A. Scheingold 523

PART VI STUDYING GLOBALIZATION: PAST, PRESENT, FUTURE 543

29 Ethnographies of Law Eve Darian-Smith 545

30 Colonial and Postcolonial Law Sally Engle Merry 569

31 Human Rights Lisa Hajjar 589

32 The Rule of Law and Economic Development in a Global Era Kathryn Hendley 605

33 Economic Globalization and the Law in the Twenty-first Century Francis Snyder 624

Index 641

31

Human Rights

LI SA HAJJAR

Toward the end of Calling the Ghosts, a documentary film about the war in Bosnia, there is a scene in which the two central characters are looking through a rack of postcards. Jadranka Cigelj and Nusreta Sivac, Bosnian Muslim women who sur­ vived the Serbian concentration camp of Omarska, had come to the Netherlands to testify about their experiences before the International Tribunal for the Former Yugoslavia. The voiceover is Cigelj, reading the card they sent to their former Serbian colleagues in their former hometown, the ethnically cleansed city of Prijedor: "Greetings from The Hague. Hope to see you here soon." Those two short sentences speak volumes about modern ethnic hatred, genocidal violence, and torture, as well as the survivor spirit and demands for justice.

When the women were incarcerated and repeatedly raped by Serbian soldiers, the possibility of legal retribution was virtually unthinkable. The illegality of Omarska was obvious, as evidenced by the precautions taken by the commanders of the camp prior to a visit by foreign journalists to obscure the harms being perpetrated there. But they had little reason to imagine, let alone fear, that they could be held account­ able. At that time, there was no institutional mechanism to enforce the international laws being violated in Omarska. But the fact that there were laws "in the books" inspired the women, when they were released, to document their own and fellow prisoners' suffering. Although the initial purpose of their documentation project was to facilitate recovery, it also constituted evidence of crime.

In 1993, when the United Nations created an ad hoc tribunal for the former Yugoslavia, the testimony of survivors was instrumental in preparing indictments. The postcard scene in Calling the Ghosts portrays this transitional phase in inter­ national law enforcement and institution building. It also provides a vivid, ethno­ graphic image of "law in action." For Cigelj and Sivac, their transformation from "victims" to "witnesses" is an empowering rejoinder to the violence that unmade their world.

590 LISA HAJJ AR

HUMAN RIGHTS IN THE FIELD OF LAW AND SOCIETY

Studying the power of law to make and to change social relations is a cornerstone of law and society scholarship. It is a shared interest in law as a social phenomenon and force that brings scholars from across the disciplinary spectrum to this interdisciplin­ ary field. However, until the 1980s, little attention was devoted to international law or law in the international arena. Rather, the field was dominated by the study of law in a particular country or community, or comparative analysis of law in select countries. Research on globalization and international law has picked up over the last two decades. Commenting on this trend, Silbey writes:

[S]tudying the social organization of law is a particularly good way to study the exercise of power under globalization: first, because so many of these new forms of interaction and exchange are organized through law; and, second, because to some extent, we have already been there …. Not only is there a noticeable structural homology between the narratives of globalization and liberal legalism, but the gap between law in the books and law in action revealed in much sociolegal scholarship can also be observed in the accounts and practices of globalization. Not only do we observe a consistent contradiction -the gap between ideal and reality- but the same gap is produced: abstract formal equality and substantive concrete/experiential inequality. (Sil bey, 1997: 230)

Human rights are a creation of international law, and therefore a manifestation of the globalization of law. As such, they constitute a rich and relevant vein of inquiry for law and society scholars. Moreover, like human rights discourse, much of law and society scholarship tends to embody a commitment to justice, empowerment, and rights.

In the Anglo-American academy, the field of law and society has been enriched by research on human rights and related topics. Indeed, this has contributed to the internationalization of the field itself. Conversely, the interdisciplinarity of the field can enrich scholarship on human rights. For example, the burgeoning interest in cause lawyering illuminates connections among legal activism, international laws, and social movements mobilized in struggles for rights. The field's venerable trad­ ition of applying sociopolitical analysis to legal texts and institutions is inspiring work on these topics at the international level. Enduring concerns about legal pluralism and legal consciousness lend themselves readily to investigations of human rights organizations and activism.

In this chapter, I provide a brief (and admittedly selective) history of human rights, highlighting some of the concerns that resonate in the field of law and society. I am particularly interested in one of the abiding concerns of the field: the "gap" between "law in the books" and "law in action." I would also note at the outset that the concept of "human rights" has multiple meanings and interpretations; in my analy ­ sis, I emphasize the centrality of violence.

VIOLENCE, JUSTICE AND SOCIAL CHANGE

In the twentieth century, planned and organized violence to achieve political ends reached unprecedented levels. But also unprecedented in this era were efforts to construct a global regime of law to regulate and restrict violence. The relationship

HUMAN RIGHTS 591

between these two phenomena, violence and law, is dialectical. As Austin Sarat and Thomas Kearns point out:

[V]iolence … is integral to the constitution of modern law, and … law is a creature of both literal violence, and of imaginings and threats of force, disorder and pain …. Vio­ lence thus constitutes law in three senses: it provides the occasion and method for founding legal orders, it gives law (as the regulator of force and coercion) a reason for being, and it provides a means through which the law acts. (Sarat and Kearns, 1993: 1, 3-4)

These three dimensions of the relationship between violence and law are useful for understanding developments in international law. The violence of two world wars was a constitutive factor in strengthening humanitarian law (otherwise known as the laws of war), and international shock and revulsion at the Nazi Holocaust provided a crucial negative inspiration leading to the creation of a new body of international law to establish human rights. The third dimension, the violence of law, features in this account, too, but until quite recently it remained a promise (or threat) unfulfilled.

Until the end of World War II, international laws were oriented almost entirely to relations among states, excluding, for the most part, matters concerning the rela­ tions between states and their own subjects. Sovereign states comprised a "commu­ nity of equals," and sovereignty constituted a form of supreme authority, based on principles of independence, domestic jurisdiction, and noninterference. Most human beings had no claim to international rights because they had (virtually) no standing in international law. But World War II took a toll on the legitimacy of this Westpha­ lian order. The grimmest lesson of the war was that the most egregious atrocities were not illegal because there were no laws to prohibit them and no authority to prevent them.

At the end of the war, new legal ground was broken when tribunals were established in Nuremberg and Tokyo to try Axis leaders. The process of establishing the tribunals and the proceedings that took place therein clarified the content and extended the parameters of "war crimes," articulated a new category of crimes ("crimes against humanity"), and established the basis for a new form of rights ("human rights"). Criminalizing and prosecuting state violence was a radical legal innovation because it eroded states' sovereign prerogatives to use violence with impunity. Indeed, Hermann Goering, one of the architects of the Nazi "Final Solution," used this transgression of legal precedent to challenge the prosecution: "But that was our right! We were a sovereign state and that was strictly our business."

Even some legal experts who condemned the violence were concerned about the legitimacy of prosecuting its authors. While law can be (and often is) used to innovate changes, the legitimacy of law depends on an appearance of stability and predictability. Legal reasoning appeals to precedent, to pre-existing principles, to prevailing views about order, justice, and rights. Thus these tribunals defied legal convention: they were created and used to hold individuals legally accountable for violence they undertook as agents of their states, actions that were not, at the time they were perpetrated, recognized as crimes. As Aryeh Neier explains the legalistic critique of the tribunals:

Adherents of positive law – that is, those who reject the application of natural law or higher law principles and who believe that only laws enacted by appropriate authorities

592 LISA HAJJ AR

are valid – argued that trying Germans and Japanese for crimes against humanity violated the fundamental principles of legality: nullum crimen sine lege (no crime without law) and nulla poena sine crimine (no penalty without crime). (Neier, 1998: 16)

But the heinousness of the violence overwhelmed legal conservatism in that transitional moment. According to Robert Cover, "The defense of the Nuremberg trials .. . was sounded at the outset in terms of the capacity of the event to project a new legal meaning into the future" (Minow, Ryan, and Sarat, 1995: 196). In his opening statement as lead prosecutor at the Nuremberg tribunal, US Supreme Court Justice Robert Jackson justified the undertaking as commensurate with the rule of law:

If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law [and given] a fair opportunity to defend themselves – a favor which these men, when in power, rarely extended to their fellow countrymen. Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission. (cited in Minow, 1998: 31-2)

The principles justifying the prosecution of Axis leaders were as lofty as they were radical. In principle, individuals were being tried for crimes against "humanity" and "peace," not against the particular victims of their regimes. In principle, the author­ ity of the tribunals derived from the "international community," not the victorious nations. In principle, the indefensibility of superior orders would serve as a deterrent against future atrocities, a ringing warning of "never again." And in principle, the precedents established through the tribunals would enable the pursuit and prosecu­ tion of other individuals suspected of engaging in similarly heinous acts. According to Neier, "The tribunals advanced the idea that law generally, and international law in particular, can deal with great matters and that legal process may be relied upon to deal appropriately with the most grievous offenses by human beings against other human beings" (1998: 18).

Along with the tribunals, in the immediate postwar period, two of the most significant initiatives to build an international legal regime were the creation of the United Nations (UN) in 1946 and the passage of the Universal Declaration of Human Rights (UDHR) in 1948. The mandate of the UN, enshrined in its Charter, made human rights a prominent theme, albeit conceiving such rights not as an end unto themselves but rather as a means to ensure global peace and security. The UDHR was more high-minded, declaring human rights to be "inalienable" – an end in themselves. Although the UDHR was a nonbinding agreement, it laid out a framework for a common set of rights that all humans could claim, and served as a reference for subsequent promulgation of laws to codify those rights.

The postwar tribunals had operationalized the violence of law. But stripping state agents of "sovereign immunity" and prosecuting them for political crimes had a chilling effect on international law enforcement in their aftermath. Early efforts to build on the Nuremberg precedent by instituting an international criminal justice system were thwarted because, as Louis Henkin explains, "the principal powers [i.e., the permanent members of the new UN Security Council I were not prepared to derogate from the established character of the international system by establishing law and legal obligation that would penetrate Statehood in that radical way: clearly

HUMAN RIGHTS 593

they themselves were not ready to submit to such law" (cited in Steiner and Alston, 1996: 123).

Ironically, as the rhetorical influence of human rights was gaining ground, the ground itself was eroding. In the postwar era and for decades thereafter, political exigencies, notably states' defense of their sovereign prerogatives and Cold War polarizations, subverted the enforceability of human rights and humanitarian laws.

HUMAN RIGHTS AS UTOPIA

The concept of utopia, once defined as imagined perfection, has expanded to include cures for imperfection. By this definition, any struggle or movement for rights could be conceived as utopian to the extent that it represents a desire to make the world a "better place" for the (would-be) beneficiaries. The utopianism of rights, and the vision of human dignity (and vulnerability ) upon which rights strategies are based, is grounded in modern legal liberalism: rule of law, equality among the subjects of law, and universalized application and enforcement within the jurisdiction of law (see Dworkin, 1977; Donnelly, 1998; for skeptical assessments, see Fitzpatrick, 1992; Scheingold, 1974).

The idea of human rights is undisputedly utopian because it assumes and asserts that all human beings are equal in their humanity. But since humans do not actually live as equals, the idea is also revolutionary because it challenges hierarchies of power and privilege upon which political, economic, and social orders around the world are based.

Louis Henkin (1990) has described the twentieth century as the "age of rights." His intention was not to proclaim a victory for rights, but rather to acknowledge the influence of the idea of rights on the expectations and struggles of people around the world. Indeed, the right to rights has become an internationalized – if far from universalized – norm. Abdullahi An-Na'im defines the "human rights paradigm" as "the idea that the protection of certain individual and collective/group rights . .. is a matter of international concern, rather than the exclusive internal affair of states" (2001a: 87). According to Richard Wilson: "Notwithstanding disputes over their conceptualization and application, human rights are among the few utopian ideals left, and there is still a remarkable degree of consensus by governments on the principle at least that certain rights be protected under international law" (Wilson, 1997: 1).

Human rights are legal entitlements. To understand what human rights "do" or can do, it is necessary to appreciate what rights are. Rights can be defined as practices that are required, prohibited, or otherwise regulated within the context of relationships governed by law. To create new rights requires the creation of new laws, or reinterpretation of existing laws in new ways, or extension of the jurisdic­ tion of laws to new subjects. The process of creating new rights emerges and proceeds in response to changing perceptions about social needs and problems, which, in turn, mobilizes a swell or shift in the balance of politicolegal forces to act. The products of that process, new laws that establish new rights (or revise or extend existing rights), impose changes by legally regulating relationships and practices in new ways. In short, rights are both markers and means of social change.

The idea of international human rights had been in circulation for decades prior to the first substantive steps to institutionalize it (see Keck and Sikkink, 1998; Lauren,

594 L I SA HAJJ AR

1998). One of the leading crusaders for human rights was the prominent British utopian writer, H.G. Wells. At the beginning of World War II, Wells wrote:

At various crises in the history of our communities, beginning with the Magna Carta, and going through various Bills of Rights, Declarations of the Rights of Man and so forth, it has been our custom to produce a specific declaration of the broad principles on which our public and social life is based . . . . The present time seems particularly suitable for such a restatement of the spirit in which we face life in general and the present combat in particular. (cited in Lauren, 1 998: 52)

In true utopian fashion, Wells and the many other individuals and groups who mobilized and collaborated during the war years strived both to enunciate principles of human rights and to advocate their incorporation into the postwar international order. While this mobilization replicated and built upon similar activities during World War I, the failures of those earlier efforts to prevent a second global conflagra­ tion fortified the movement and legitimized their demands for change. For example, whereas in World War I nine out of ten of the millions of casualties were soldiers, in World War II the proportions of soldier and civilian casualties were roughly even (Gutman and Rieff, 1999: 10). In addition to concerns about the harms wrought by the war, rights activists like Mohandas Gandhi and W.E.B. DuBois were animated by the injustices of colonialism and racism. World War II highlighted the linkages among these concerns; the politics of race (racial superiority and extermination), and the conquest and control of foreign lands were central to Axis war aims, and thus became central to the discourse and aims of the Allies' campaign as well. The war against fascism was pitched to the public as a fight for "freedom" (e.g., see US President Franklin D. Roosevelt's "Four Freedoms" speech), and the Allies' victory seemed to offer an opening to connect anticolonialism and antiracism to the postwar agenda for international legal reform.

But in the process that ensued, the utopian vision prioritizing the interests and needs of human beings was overwhelmed by realpolitik. The changes in inter­ national law after World War II that created human rights did not undermine the centrality of states to political life around the world. Nor did the new international institutions replace or diminish the authority and power of states over their subjects. Rather, the creation of human rights entailed the elaboration of new international­ ized norms of government to which all states would be expected to adhere, while preserving the general principle of states' rights as sovereign entities. Consequently, while states' rights were revised (e.g., they could no longer claim the "right" to exterminate civilians), states retained their status as the premier subjects of inter­ national law. Put simply, human rights obtain their "universalizing" character from the fact that people are subjects of states, and states are subjects of international law. Thus the establishment of human rights simultaneously revised and reinforced the state-centrism of the international order.

The most obvious problem with this arrangement was the lack of effective means of global governance to ensure law enforcement. Under the state-centric structure of the UN, states were both the governors and the governed – the makers, the enforcers, and the subjects of these laws. This meant, for the most part, that the protection and promotion of human rights depended on self-enforcement by states. Thus the availability of human rights was contingent on the willingness of individual states to behave and conform, and dependent on the system of states to act against those that did not (see Falk, 1985).

HUMAN RIGHTS 595

While some states willingly instituted domestic reforms in keeping with their international obligations, most refused to regard human rights law as binding and enforceable, especially if the implications would compromise vested interests. Obvi­ ous examples were resistance by imperial states to relinquish colonial possessions, or to dismantle racial or ethnic hierarchies. Unenforceability of international law was compounded by the dynamics of Cold War rivalries between "East" and "West," and superpower competitions for power and influence across the global "South." Certainly, the rights of "self-determination" and "equality" enshrined in the UN Charter and the UDHR informed anticolonial and antiracist struggles, but these moral-legal imperatives did not mitigate the difficult and often violent processes of decolonization and desegregation.

The human rights idea was further compromised by sharp ideological disagree­ ments over the nature of rights and the contested legitimacy of universalism. In the UDHR, political and civil rights and social and economic rights were conceived as "indivisible." However, Western leaders and leading human rights scholars tended to argue that political and civil rights were the priority, or even the only kind of "real" rights, since social and economic rights could not be guaranteed or enforced without violating the "freedom" of the market and the rights to profit and property. Leaders of socialist and developing states and scholars committed to those goals tended to argue that social and economic rights had to be prioritized to create conditions of equality. This would inevitably entail limitations on political and civil rights, and justify the use of force in putting down resistance. Socialists challenged the liberal legal emphasis on individual autonomy and freedom, emphasizing alternatively the need for a strong state with a centralized economy capable and committed to pursuing an agenda to remake the social order by redistributing goods.

The other major debate about human rights arose over the meaning and legitim­ acy of "universalism." Specifically, the debate circulates around the changes envi­ sioned and imposed through the establishment of international legal norms. Critics of universalism assumed or were given the title of "cultural relativists." Their arguments were twofold: that human rights enshrined Western values of individual­ ism (since individuals were constructed as the "beneficiaries" of human rights law) which contradicted social arrangements and values emphasizing collective relations and mutual duties, and that the imposition of universal standards was a new form of imperialism over non-Western societies (see Pollis and Schwab, 1979; Renteln, 1990).

THE " G AP" P RO B LEM

The paramount "problem" of human rights has always been the gap between codified principles of rights ("law in the books"), and the enforcement or enforce­ ability of law ("law in action"). To illustrate these gaps and their ramifications, we can consider three bodies of law: the Genocide Convention, the four Geneva Conventions, and the Torture Convention.

The Genocide Convention, promulgated in 1948, was a clear rejoinder to the Holocaust. Its aim was to prohibit and thus deter mass killing. But the Convention reflected a very particular – and limited – understanding of prohibited violence. While genocide was categorized as an international crime wheth

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