Materialism and Legal Pluralism

by Paul Maharg on 22/04/2016

To the ANU College of Law Moot Court couple of days back to hear a lecture by Margaret Davies on Materialism and Legal Pluralism.  Abstract:

Legal pluralism can be understood geographically, discursively, sociologically, and as the plural consciousness and performances of legal subjects. It pays attention to the bottom-up and material conditions of law production. In trying to unravel some of these complexities, this lecture will also add to them by expanding the meaning and reach of law, to address the human body, the earth, and the world of objects.

I found it a very suggestive lecture, quite fascinating.

Six main sections, according to my sketchy notes – Margaret took it at a speedy pace, but held her audience.  The pluralism of law (she identified one origin in the anthropological literature of early anthropologists such as Malinowski, who went out to eg Trobriand Islands and encountered the pluralism of law at first hand); law has no limits (eg the imposition of English law on Australian place and culture, obliterating indigenous law; and she observed the effect of Hayles’ ‘Platonic backhand‘ which I confess was wholly new to me); law becomes what it is, where it is (eg where can cars be parked, how many hens in a cage); so Law has time, place, materiality, distributed across space; discussion of the Ehrlich / Kelsen debate on how law can be used, cf Kelsen:

‘if you analyse any body of facts interpreted as ‘legal’ or somehow tied up with law  … two elements are distinguishable: one, an act or series of acts – a happening occurring at a certain time and in a certain  place, perceived by our senses: an external manifestation of human conduct; two, the legal meaning of this act, that is, the meaning conferred upon the act by the law’.[1]

Subjects constitute the law. Eg Hart’s rule of recognition, used by legal officials; Dworkin’s Hercules.  New forms of legal pluralism have drawn on marginalized stories to constitute law’s existence in the world.  The social situatedness of the actor is read into the operation of the law: ‘[critical] legal pluralism is something hosted by human selves: there is not a clash of two distinct systems in a social field, but a permanent interplay of ideas and principles in peoples’ minds, gleaned from innumerable sources, that resolves into ‘the law’ for any one person in any one situation.’[2]Law is performed and lived. So look at the lived existence, the doing (Llewellyn) of the law.  Law is material. The human subject is often constructed as differently from the rest of material physical reality. Margaret moves away from dualism (eg subject over against the world) towards a view of entanglement and co-emergence.  The new materialism embeds the human in the world, rather than just looking at the world.  She says, this is an ontological shift.  Objects and things have an agency – not intentional agency, but based on the interactive effect of humans and things.  Eg neural pathways formed by repetition – a form of law.  She concluded by outlining five ways that a legal materialism can be taken forward, including a joining together of nature and culture.

Lots to reflect on.  Two points, the first on materiality, the second on time.  Materiality in legal education is actually something that Craig Collins and I were discussing just prior to this, talking about glossa, the Ramist revolution and the digital domain.  Because in the last, what’s changed, and changes the law is the materiality of the scholarly culture that was developed around the law.  Roman law, as a number of commentators have observed, could not have been received in medieval Europe in the form it had survived had it not been for the development of scholarly tools that enable scholars to cope with the huge overload of information it released into western European legal systems.  As Margaret pointed out, that aspect of the new materialism termed object-oriented ontology feels like a rediscovery of the original materiality of the sign and the move that happens between sign and materiality (flashback at this point to my days as an Arts doctoral student at Edinburgh U in the late 1970s, Derrida etc).

We shift, endlessly, between semiosis and materiality.  Thus the glossed text is, materially, tough vellum, pinned, ruled, inked, written upon in black and red.  It’s also a skein of complex signs including arabic numerals, chapter divisions, rubrics, capitals, paraph marks, running titles, all of which reference textual meaning, gloss to textura, textura to gloss.  And the lexical relationship between gloss and textura content, in terse statement, is always in tension, never resolved, the argument built incrementally, and always respectful of the status of auctoritas.  Materiality affects meaning in this context in so many layers – for example the broad margin of the scholarly text that invites reader gloss, marginalia, interlinear comment; for example only so many words can be legibly set down in the page’s gloss, so abbreviations are used, which affects access to meaning, as scholars and teachers such as Francisco de Zabarella pointed out.

Second point was made by a speaker at questions who asked a simple but penetrating question about the place of time in Margaret’s materialist constructs.  It immediately drew me to think about something that I’d just vaguely felt in the previous hour — that like Graham Harman’s analysis of object oriented ontology, it seemed as if objects were, if not in ‘vacuum-sealed isolation’ then at least curiously muted or distant.[3]  I think that this was partly to do with the high-theory overview version of her thinking that Margaret was giving, in which form of presentation historical examples were present, but rare.

But, and going back to Margaret’s first point, the question also led me to think about historical examples of folded time.  For example mention of Malinowski leads one (or at least me) irresistibly to think of the proto-anthropological discipline that his work overturned – the work on ancient society, carried out by Scots lawyers, often linked to the Faculty of Advocates — J.G. Frazer, John Ferguson McLennan and others.  As Adam Kuper pointed out, the construct of ‘ancient society’ didn’t actually exist:

‘in practice primitive society proved to be [the anthropologists’] own society (as they understood it) seen in a distorting mirror.  …  They looked back in order to understand the nature of the present, on the assumption that modern society had evolved from its antithesis’[4]

And there were other issues in the relationship that Kuper doesn’t pick up on.  These lawyers (and theologians — Robertson Smith, eg) were addressing the condition of ancient society; but just as Maine’s book of the same period, Village Communities of the East and West (1871) was written in part to inform western readers of what was disappearing in the East (ie in his book, India), so Scottish lawyers are writing about constitutionality.  They are addressing the very foundation of society, written in a society, Scotland, that had given up parliamentary right to its own constitution, was a stateless nation whose identity, beyond colonialist empire, was a puzzle to itself.  In Victorian Britain there was, to be sure, a plurality of law, whose discernible and different histories could be traced back.  But to that legal history McLennan and others added multiple ethnographical layers, eg McLennan’s Primitive Marriage (1865): projections forward into the present.  It is a pluralism that is (as Margaret elsewhere describes her sense of pluralism in law) ‘not just of the values and cultures which may exist under the one law, but rather of varieties of laws which coexist and interact’, and where ‘[u]nderstanding law as plural may open different avenues for change in yet-to-be envisaged ways.’[5]  True of pluralism in law, it’s also true of pluralism in legal education. But the extent of the correlation there needs considerable research.

My thanks to Margaret for a stimulating lecture.

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