The Power of Law in a Transnational World

The Power of Law in a Transnational World: Anthropological Enquiries

Franz von Benda-Beckmann
Keebet von Benda-Beckmann
Anne Griffiths
Copyright Date: 2009
Edition: NED - New edition, 1
Published by: Berghahn Books
Pages: 280
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  • Book Info
    The Power of Law in a Transnational World
    Book Description:

    How is law mobilized and who has the power and authority to construct its meaning? This important volume examines this question as well as how law is constituted and reconfigured through social processes that frame both its continuity and transformation over time. The volume highlights how power is deployed under conditions of legal pluralism, exploring its effects on livelihoods and on social institutions, including the state. Such an approach not only demonstrates how the state, through its various development programs and organizational structures, attempts to control territory and people, but also relates the mechanisms of state control to other legal modes of control and regulation at both local and supranational levels.

    eISBN: 978-1-84545-916-1
    Subjects: Anthropology

Table of Contents

  1. Front Matter
    (pp. ii-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgements
    (pp. vii-vii)
  4. Introduction The Power of Law
    (pp. 1-29)
    Franz von Benda-Beckmann, Keebet von Benda-Beckmann and Anne Griffiths

    Law is a source for constituting and legitimating power. It defines and validates positions and relations of power of persons or organizations over other persons, organizations and resources. It lays down in general terms which exercises of power are permissible or prohibited. It can be actualized in social interaction when the exercise of power is rationalized and justified with reference to law.¹ Of course, other means for constituting and legitimating power and exercising social control coexist and compete with legal ones. These include moral and ethical standards as well as naked, unabashed power based on the command and exercise of...

  5. Power of Law as Discourse:: Claims to Legitimacy and Higher Morality

    • 1 The Military Order of 13 November 2001: An Ethnographic Reading
      (pp. 33-53)
      Carol J. Greenhouse

      The Military Order of 13 November 2001 – a legal linchpin of the Bush administration’s war on terror – claimed new judicial powers for the executive branch for purposes of prosecution, trial, sentencing and appeal in cases involving noncitizens charged with terrorism (The White House 2001a). The legality of the order was immediately contested, first in the press and on the Internet by representatives of citizens’ rights organizations, and soon thereafter in Congressional hearings. Subsequently, a series of lawsuits arising from the government’s handling of detainees brought elements of the order to the United States Supreme Court. The contest continues in a...

    • 2 Law and the Frontiers of Illegalities
      (pp. 54-73)
      Laura Nader

      With all that has been written about imperialism and colonialism it is remarkable how little has been said about the uses made of law in that process. The omissions are significant. While theoreticians of imperialism recognize the uses of culture in the imperial project, it was and is specifically the rule of law discourse and practice that were and are keystones of the continuing Euro-American civilizing project. How the recent rule of law and democracy discourse – the law from above – works in the service of political, military and economic power in Iraq is a primary example in this chapter. It...

    • 3 Selective Scrutiny: Supranational Engagement with Minority Protection and Rights in Europe
      (pp. 74-95)
      Jane K. Cowan

      Remember those heady early days of globalization theory, its prophets confidently predicting the demise, the irrelevance, even – shades of Marx – the withering away of the state? Like Vladimir and Estragon for Godot, we are still waiting. The meanings and powers of statehood are nevertheless changing. Nowhere is this clearer than in Europe, where the nation state form historically emerged. Under the federalizing tenets of a Europeanization process launched soon after the Second World War, all member states have had to cede certain traditional prerogatives of state sovereignty and to submit to European institutions. Yet the degree of accountability to ‘Europe’...

    • 4 The Globalization of Fatwas amidst the Terror Wars against Pluralism
      (pp. 96-114)
      Upendra Baxi

      This essay aspires to explore a difficult terrain, namely the place and future of legal pluralism amidst the current ongoing global wars of, and on, ‘terror’.¹ It raises a whole range of discrete and desperate questions: How may pluralist readings go beyond the understanding that terrorism ‘is not a single causally coherent phenomenon?’ (C. Tilly 2004: 12). In what directions may deft legal pluralist moves comprehend ‘terror’ outside the state-centralist perspectives? In what ways may these further enable us to grasp the multifarious constitutions of violent subjectivities and the new forms of institutionalization of biopolitics that these wars now proliferate?...

    • 5 Human Rights, Cultural Relativism and Legal Pluralism: Towards a Two-dimensional Debate
      (pp. 115-134)
      Franz von Benda-Beckmann

      In the world of national and international relations, human rights have become an important but also contested political topic. Human rights have been elaborated as international law by international organizations and international legal science, and have successfully become globalized. Most categories of human rights are accepted by most states. Western governments and international organizations especially aim at strengthening human rights on a global scale and support human rights NGOs. Acceptance and implementation of human rights have become a frequent conditionality for financial and technical support. Human rights are used as an instrument of pressure on state governments in other parts...

  6. At the Intersection of Legalities

    • 6 Learning Communities and Legal Spaces: Community-based Fisheries Management in a Globalizing World
      (pp. 137-155)
      Melanie G. Wiber and John F. Kearney

      I first stepped off the ferry onto the Island¹ in 1969. The Island was shrouded in dense fog, and shearwaters in the harbour indicated it was sufficiently off shore to attract pelagic avian wanderers. The houses formed a semicircle around the main public wharf, with numerous small private wharves and salt-fish processing sheds encircling the cove. There were no hotels, and the one restaurant in the village was a converted fish processing shed situated out on one of the private wharfs. All of this enhanced my impression of a pristine fishing village, isolated from the rest of the world,with human...

    • 7 Project Law – a Power Instrument of Development Agencies: A Case Study from Burundi
      (pp. 156-175)
      Markus Weilenmann

      With my case study from Burundi I would like to focus on an often neglected but particularly important field of law production: the field of development politics. Development agencies are certainly front-runners in the ongoing globalization process, but at the same time they also work closely with rural ‘target-groups’, trying to empower identified victims or marginalized groups and strengthen societal institutions. Hence, they strive for a social balance that comes closer to their own notion of social justice. All political interventions of development agencies can thus directly or indirectly influence existing legal relations and change the conditions under which people...

    • 8 Half-told Truths and Partial Silence: Managing Communication in Scottish Children’s Hearings
      (pp. 176-195)
      Anne Griffiths and Randy F. Kandel

      This chapter explores the power of law through an examination of the management and control of a legal process, the Scottish Children’s Hearings system that was set up to deal with children in need of compulsory measures of supervision.¹ Besed on a study that was carried out in Glasgow, our essay highlights the complex mix of differing normative orders that impinge on law in practice and that reflect the outcome of social interactions that take place during a hearing. It traces how international and global human rights law, including the United Nations Convention on the Rights of the Child (UNCRC)...

  7. Religion as a Resource in Legal Pluralism

    • 9 Keeping the Stream of Justice Clear and Pure: The Buddhicization of Bhutanese Law
      (pp. 199-215)
      Richard W. Whitecross

      In 1991National Geographiccarried a lengthy article on Bhutan entitled ‘Bhutan: Kingdom in the Clouds’. The reader encounters a set of claims about the essence of Bhutanese identity and the character of contemporary Bhutanese society and culture. ‘In serene isolation … after centuries of solitude’, ‘Shangri-la as it is – a land of pure air, fragrant pine forests’ (Bunting 1991: 78). Similar sentiments are expressed in other writings, in particular travel writing and coffee table books on Bhutan. These images have been and continue to be used by the Bhutanese state, as well as Bhutanese and Western tour operators, to...

    • 10 Balancing Islam, Adat and the State: Comparing Islamic and Civil Courts in Indonesia
      (pp. 216-235)
      Keebet von Benda-Beckmann

      Since the end of the Cold War, the public role of religion, in particular of Islam, has become a major focus of political debate and social scientific enquiry. Religion generally has become more prominent in most parts of the world, but there is great variation in the mode and extent to which it is part of public life.¹ Its social, political and moral role has to be understood in relation to the alternative normative universes with which it has to compete. In some countries, powerful forces entrench religion deeply within the state organization. Political elites that understand their country as...

    • 11 Kings, Monks, Bureaucrats and the Police: Tibetan Responses to Law and Authority
      (pp. 236-253)
      Fernanda Pirie

      Tibetan groups at either end of the plateau maintain significant autonomy over their local order and processes of conflict resolution. In this chapter I contrast a village in Ladakh, at the western end of the Himalayan mountain range, now part of India, with a nomadic encampment on the grasslands of Amdo, in central China. I discuss the local experiences of and reactions to legal control by the modern state. These two Tibetan groups have been subject to the very different legal and governmental regimes of a liberal democracy and a one-party state. However, each maintains a measure of autonomy in...

  8. Notes on Contributors
    (pp. 254-258)
  9. Index
    (pp. 259-271)