Routledge Handbook of Law and Theory

Andreas Philippopoulos-Mihalopoulos, Andreas Philippopoulos-Mihalopoulos

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317352990
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This handbook sets out an innovative approach to the theory of law, reconceptualising it in a material, embodied, socially contextualised and politically radical way. The book consists of original contributions authored by prominent academics, all of whom provide a valuable overview of legal theory as a discipline.

The book contains five sections:

• Spatiotemporal

• Sense

• Body

• Text

• Matter

Through this structure, the handbook brings the law into active discussion with other disciplines, as well as supra-disciplinary debates on the areas of spatiality, temporality, materiality, corporeality and sensorial studies, capturing the most exciting developments in current legal theory, and anticipating future research in the area.

The handbook is essential reading for scholars and students of jurisprudence, sociology of law, critical legal studies, socio-legal theory and interdisciplinary legal studies, as well as those people from other disciplines interested in the way the law converses with interdisciplinarity.

Chapter 12 of this book is freely available as a downloadable Open Access PDF at http://www.taylorfrancis.com under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) 4.0 license.

Part I

Spatiotemporal

1

Dense struggle

On ghosts, law and the global order

Luis Eslava^*

Introduction

What follows is an invitation to think the world and its laws otherwise, together with its dramas and occult forces, in five steps. The first section lays the ground for the analysis. The second takes the reader to a protest of internally displaced people (IDPs) in Bogotá, Colombia. The third section reminds us of the ongoing presence of the uncanny in our present, legally constructed world. In the fourth, a ghost appears. Finally, a call for moving beyond disenchantment is enacted. This will be a long journey, one that, I hope, will also be worthwhile.

The global emplotment

Today’s global order is characterised by a constellation of ever more closely imbricated relationships among different laws, levels of government, managerial techniques, economic, political and social forces and deeply engrained antagonisms. A sense of confusion, claustrophobia, constant surveillance and insidious but ever-elusive command have come to define these, our times. In this chapter, I try to rethink the global order we inhabit as a site of dense struggle. In order to do this, I stay with the global order, as closely as I can, not just to (re)confirm how intricate and dense that order is, but also to show precisely what results from it, and in particular what it produces on its margins – home to the apparently anti-modern, the popular, the otherworldly.

Three suggestions emerge from this exercise. As the reader will see, in paying attention to the products of today’s global order, it is possible to question anew – to theorise again – what law does and how it is experienced in our global times. At the same time, this exercise helps us recalibrate what our response should be once we remember that our assumedly uniform late modern, globalised, capitalist and disenchanted present is healthily plagued by frictions and clashes. These are contradictions that result from the encounter between tectonic social and political visions. Through these clashes, other worlds speak. Finally, this exercise invites us to consider the value of getting down and dirty with law, of approaching it ethnographically in a moment that continually forces us to transcend the usual divisions between (among other supposed binaries) the international and the local, the ‘rational’ and the ‘barbaric’, the legal and the violent.

Let me explain what lies behind these ideas before we move into the story that forms the core of this chapter in the next section. Regardless of how much concepts and areas of study like ‘globalisation’, ‘globalisation and the law’, ‘global governance’ and ‘global law’ have come to be discussed and debated in recent decades, there is still a persistent tendency to discuss ‘the global’ in a way that reduces it to exceptional moments, norms and events. Episodic, supra-national, ‘international’ (in a narrow sense), foreign, external, extraordinary and non-quotidian – these are the features that continue to define, and become attached to, ‘global’ moments and sites, and the order they are a part of. As Eve Darian-Smith has argued, socio-legal and theory- informed approaches to the relation between law and the global order often stay within, in order to depart from, the traditional dichotomies between international and domestic legal and between social and economic orders, and in doing so they naturalise those dichotomies (Darian-Smith, 2013: 1–20). As a result, approaches to ‘the global’ tend to be confined to particular instantiations when something external – i.e., non-native – pierces the national veil, or when an ‘international’ event is able to capture ‘local’ imaginations across disparate geographies. However, this neat analytical arrangement I have just described is constantly surpassed by the intense dynamism of our present moment, and most importantly, perhaps, by the structural forces that have come to underpin most aspects of our everyday existence. Capitalism and its legal dimensions, as we will see in this chapter, are key organising vectors of this new but long-in-the-making reality. They have become important underlying aspects of our global order, forcing us to redefine what were once believed to be the natural limits of the international, the separation between global structural forces and pure ideas of agency and, above all, pristine readings of the local (see, e.g., Eslava, 2014, 2015, 2017). Rather than neatness, what we witness today, therefore, are overlapping ground-level processes of mutual reconstruction and recolonisation involving both sides of these dichotomies. These processes are reconstituting both places and subjects that until recently were considered to be guarded by either the nation-state, typically post-colonial states in the case of the Global South, or more generally by the power of human resilience or localism.

Perhaps one of the best known (and still one of the most useful) terms employed to define this enmeshing of the global and the local is Zygmunt Bauman’s concept of ‘glocalization’ (Bauman, 1998). First emerging as a business concept in the 1980s, but then famously theorised and brought into the social sciences by Bauman in the heyday of globalisation studies in the 1990s, the term glocalization tries to capture the way in which localities all over the world have been turned into ‘local laboratories’ in which countless global forces and issues, like population flows, neoliberal adjustments and environmental degradation, are experienced and dealt with (Bauman, 2013: 2). In such localities, both global phenomena and localised responses to them are ‘put into test and either rejected or incorporated in daily practice’ (ibid.). According to Bauman, ‘this is what has stripped to-day “localities”, and big cities more drastically than any other among them, of a considerable part of their past autonomy and their earlier capacity of composing and running their own agenda’ (ibid.). Simultaneously, however, this process has invested localities ‘with an unprecedented importance through assigning to them a crucial role in the job of sustaining the present-day global order’ (ibid.). For Bauman, glocalization should therefore be understood as a creator of ‘local workshops’ where global problems are felt, recycled and perhaps repaired (ibid.).

Bauman’s analysis continues to have traction because of his invitation to approach globalisation as a widespread and dynamic process, one that is not simply restricted to economic variables but in which social, historical and material concerns are equally left, right and centre. His analysis also invites us to pay attention to the way in which what results from the encounter between the global and the local are rarely neat syntheses, carefully delineated third entities, or simply the global or local, but the ‘glocal’. If there are processes of ‘glocalization’, we need to accept that they take place in messy and uneven social, political, cultural and economic terrains and that they produce messy outcomes.

This point about the out-of-syncness – the out-of-whackness – that is usually involved in the global-local encounter is particularly important because what we can witness at the ground level, as I began to suggest above, are re-arrangements and clashes that take place on landscapes that are neither uniform nor evenly ‘modern’ or fully capitalist. In other words, tectonic confrontations rather than mere processes of synthesis seem to be the norm in the meeting of the global and the local. The implications of this point are especially poignant if we pay attention to the disorderly margins of the global order, as Jean and John Comaroff have called them (Comaroff and Comaroff, 2006: 1–56). In the post-colony which often inhabits these margins, we witness more than just the clash between hegemonic and alternative socio-political forces. Here, in the South – the South in the South or the South in the North, which is home to a far more explicit set of ‘laboratories’ than the centre, the North in the South or the North in the North – there is also a whole armoury of alternative cosmologies and popular imaginaries that refuse, and have always refused, to be fully enrolled in the project of modernity. In communication with, but resistant to being totally subsumed in, the tide of modernity, the guardians of such cosmologies counterpoise, negotiate and re-render ‘the global’ through their own categories, forms and images. Again, the end result is not a series of neat products, pure defeats or victories. These outcomes are dense, the products of dense struggles, in a dense global world.

In his now-classic study, The Modernity of Witchcraft, first published in French in 1995, Peter Geschiere demonstrated how this line of thinking about globalisation can help us make sense of the proliferation in the use of magic, witchcraft and mediums in recent decades, particularly in the South (Geschiere, 1997). For Geschiere, ‘[i]t is true that modern techniques … now penetrate the remotest corners of the globe’, and that ‘one cannot deny that peripheral groups are now increasingly involved in the world market not only as producers but also as consumers: new fashions and the latest gadgets turn up everywhere’ – a process that has only accelerated since the publication of his study (ibid.: 8). However, he continues, and this is crucial, ‘the paradox is that these processes do not lead to increasing cultural uniformity – the global victory of Coca-Cola, so much feared by anthropologists like Lévi-Strauss’ (ibid.). On the contrary,

the modern world … is marked by increasingly cultural heterogeneity. Idiosyncratic cultural traits are grafted upon new means of communication and processes of commodification: “traditional” more often “pseudotraditional,” traits are reproduced in new forms and on a wider scale.

(ibid.)

Behind the ease with which the world of the ‘traditional’ as well as the supernatural have come to incorporate and respond to the new power relations of the money economy, however, lie ‘sharp feelings of impotence’ (ibid.: 9). These feelings reflect a desire to find meaning in the drastic politico-economic changes of the neoliberal age together with ways of ‘gain[ing] control over them’ (ibid.: 3). In this context, the appearance of ghosts – the figures in which I am most interested in this chapter – should not, any more than magic, mediums and witchcraft, be understood as expressions of savage animism. They are instead the ‘dark side’ of kinship in the domestic sphere, and of the state and the global order in the public sphere. They are responses to the need to ‘have a grip on power’ (ibid.: 8–9). They are ‘dark’ – and here I am paraphrasing Geschiere – because they express the frightening realisation that there is jealousy and therefore aggression within the family, the state and the world, where there should be trust and solidarity (ibid.: 11).

Just as E. E. Evans-Pritchard noted in regards to the use of oracles and magic by the Azande in the transient terrain of southern Sudan under British colonial rule; or as David Lan argued in his study of spirit mediums in the context of the guerrilla anti-colonial liberation movement in Zimbabwe; or as Michael Taussig pointed out in his ethnography of shamanic practices in post-colonial Colombia, what we will see in the story I am about to tell, therefore, is ‘the non-modern’, ‘the otherworldly’, entering into ‘co-operation’ with marginal communities facing a world that is in convulsion (Evans-Pritchard, 1976; Lan, 1985; Taussig, 1987). Appealing once again to the analysis of the Comarroffs, when ghosts appear – like witches or spirits – they represent ‘a finely calibrated gauge of the impact of global cultural and economic forces on local relations’ (Comaroff and Comaroff, 1993: xxviii–xxix). They are ‘modernity’s prototypical malcontents’ (ibid.). And, as such, they must be understood as the consolidated legacy of these immaterial forces – a legacy so intense that it grows a body of its own every now and then. These ghosts are the palpable manifestations of a dense struggle, in an equally dense global world.

Tellingly, this continuous and increasing presence of the otherworldly has been accompanied by a sort of a ‘metamorphosis’ in the reading of ghosts and the ghostly in recent years. Once understood, and understandable, only as fakes, mistakes or, at best, anachronistic plot devices which could be discarded or not depending on one’s level of ‘mysticism’ or ‘primitivism’, today ghosts have become ‘influential conceptual metaphors permeating global popular culture and academia alike’ (del Pilar Blanco and Peeren, 2013: 1–5). Ghosts and other subterranean forces are now read in terms of ‘spectres’ and the questions unleashed by ‘spectrality’ (del Pilar Blanco and Peeren, 2010: x). In this re-reading, what has been gained is an appreciation of the importance of paying attention to the permanent disjunctures – ‘the complex and often contradictory processes of globalisation, (trans)nationalism, and localisation’ – that lie at the very core of the project of modernity (ibid.: xiv). Following Derrida, it can be argued that ghosts and spectres should be read, in this context, as figurations that, in signalling about what is being lost and what is in danger, force us to accept a ‘politics of memory, of inheritance, and of generations’ (Derrida, 1993, as cited in del Pilar Blanco and Peeren, 2013: 7, emphasis in original). Always hesitantly and always in unruly patterns, according to María del Pilar Blanco and Esther Peeren, ghosts draw our attention to ‘the insufficiency of the present moment, as well as the disconsolations and erasures of the past, and a tentative hopefulness for future resolutions’ (del Pilar Blanco and Peeren, 2013: 16).

In this ‘spectral turn’ that has accompanied the arrival of the twenty-first century, ghosts express the moment ‘when your bearings in the world lose direction’ (Gordon, 2008: xvi). Key here is the insight that ghosts reveal themselves to people in ‘complex’ situations; to people for whom ‘life is complicated’ (ibid.: 1). In this moment, as Avery Gordon has put it, people tell stories about ‘themselves, about their troubles, about their social worlds, and about their society’s problems’. These stories weave between and become entangled with ‘what is immediately available as a story and what [people’s] imaginations are reaching toward’ (ibid.: 4). The actuality of ghosts, according to this take, must not necessarily lie at the centre of the analysis. What is crucial, instead, is the fact that they actually surface in the social realm, and that in so doing they speak about a world of troubles and in trouble.

Ghosts must, in other words, be understood as ‘a constituent element of modern social life’ (ibid.: 7). However, they do seem to surface, more often than not, in spaces and before people that are located in precarious positions within the global order and its dominant rationalities. This is where the law comes in. ‘It is through law that persons, variously figured, gain or lose definition’, according to Colin Dayan, and it is through law that persons ‘become victims of prejudice or inheritors of privilege’ (Dayan, 2011: xi). Once discriminated against or stripped of personhood, those at the losing ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of figures and table
• Notes on contributors
• Introduction: The and of law and theory
• Part I Spatiotemporal
• Part II Sense
• Part III Body
• Part IV Text
• Part V Matter
• Index