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On the Singularity of Law

Excerpt from the Speech:*

“We must attempt to hear only what is said there.”
– Heidegger

Thus, situating myself within a cosmopolitan polycentricity, I discern two salient interpretive strategies purporting to ascribe meaning to what is apprehended as “law”—neither of them ever appearing in pure guise, both of them always formulated as narrative predilections (or valorizations).

* * *

The first approach discounts the singularity of law. Underlying this management-driven, productivity-oriented response to law-texts is the decision to instrumentalize law—that is, to press law into service in support of an agenda diversely introduced as “harmonization,” “integration,” “uniformization,” “unification,” or “globalization.” This program of rationalization’s principal discursive configurations are law-as-meta-law and meta-law-as-law. The initial variation on the theme of trans-legality concerns the move from localism to transcendentalism. Assumptions informing the prescriptive case for law-as-meta-law include the idea that law’s facticity must be regarded as the largely obsolete remnant of an early-modern worldview mired in diverse brands of stultifying nationalism; the related idea that as long as law’s particularism continues to abide, not enough has been done to move beyond the post-feudal shackles of melancholic parochialism; and the further idea that meta-law is worthy of high estimation as a progressive political, economic, or social weapon. For the partisans of law-as-meta-law, the responsible thing to do in the face of obstinate traces of stupefied localism is to surpass them, that is, to foster an emancipatory project of liberation from prejudice that moves beyond/beneath any culturality/traditionality of law. Unsurprisingly, advocates of this position, possibly taking the view that law-texts are striving for self-realization through assimilation into a totality and for reconciliation inter se within the totality, find law inherently repeatable and indeed incessantly repeated. Almost inevitably envisaging law as consisting of basic units somehow unconnected in any meaningful way to any local network of intelligibility, which they proceed to make isomorphically homogeneous across borders, the partisans of law-as-meta-law readily refer to the transportability of law and, indeed, to the obviousness of the transportability of law.

The other main variation on the theme of transcendentalization involves meta-law-as-law—that is, supranational regulatory or conflict-resolution regimes operating, often outside the realm of governmental law-making or international treaties and within self-established procedural frameworks, as issuers and enforcers of sometimes highly specialized rules. Whether one has in mind the Apparel Industry Partnership, the WTO Appellate Panel, the International Federation of Consulting Engineers Model Contract, the lex mercatoria, the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”), or the World Heritage Convention, “global” rules of governance are understood as functioning in a standard manner showing no meaningful deviation from one locus to the next—that is, as being implemented “irrespective of the legal traditions and the economic and political conditions of the countries in which they are to be applied.” Again, law is found to be inherently repeatable and indeed incessantly repeated. Even within the European Community, where the Treaty of Rome’s preoccupation is with the harmonization of laws (i.e., not with uniformity, equivalence, or convergence) and where all directives concede a national margin of appreciation to Member States, designations like “European Contract Law,” “European Tort Law,” “European Private Law,” “European Administrative Law,” “European Public Law” (dereferentialized labels all), to confine myself to the smallest number of illustrations culled from the plethoric references to “one law,” point to the view that “[u]niformity, in an ideal [European Community] would be both substantive and procedural. Not only would black-letter law be the same in all Member States, as if diligently copied or faithfully translated from a single private law code, but judicial remedies would reflect an identical sense of procedural justice as well.”

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

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Diffusion and Globalization Discourse

Introduction*

Karl Llewellyn used to re-read Treasure Island on his birthday every year. I have sometimes transposed that ritual to Christmas Day. However, on December 24, 2005, I received an unsolicited parcel containing a gift of David Westbrook’s City of Gold. So I decided to read that instead. City of Gold is far richer fare than Treasure Island, and I am still digesting it. However, I have at least grasped that Westbrook has presented us with an imagined world society that differs significantly from the impoverished visions of world capitalism, human rights, apocalyptic fears of global hegemony, and other inadequate imaginings.

Westbrook’s paper extends his account further by outlining four ways of imagining modern authority in tomorrow’s global society—imperium, fashion, system, and tribe. I understand this to be an aid to thinking about diffusion of law in three ways: First, to help us break away from spatial metaphors that link law to the territorial state; second, to present globalization not as some totalizing and homogenizing set of processes, but “as the formation of new contexts, new social spaces, and indeed, new hierarchies”; and third, to interpret diffusion of law as a typically benign method of bringing about adoption, adaptation, or modernization in response to changing conditions.

I am generally sympathetic to Westbrook’s thesis and I find his four perspectives on authority helpful. In the time available I shall attempt to contrast his rich and bold imaginings with my own, more articularistic perspective on the discourses and metaphors of globalization and diffusion.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

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Beyond Common Knowledge: Empirical Approaches to the Rule of Law (Erik J. Jensen & Thomas C. Heller eds., 2003)

Review of Beyond Common Knowledge, Edited by Erik J. Jensen and Thomas C. Heller.
Stanford University Press: Palo Alto, Cal., 2003. Pp. 456. $70.00 (cloth).*

Following in the Stanford tradition of socio-legal studies, Beyond Common Knowledge brings together an impressive array of international scholars and practitioners for a timely study of judicial reform and “rule-of-law assistance” (“ROLA”). Much of rule-of-law literature relies on insufficiently documented and often arid doctrinal approaches to the rule of law. In contrast, Beyond Common Knowledge places empiricism at the center of comparative legal scholarship to understand what courts and their alternatives actually do and what is actually happening within ROLA. This collection of studies from around the world successfully engages both scholars and policymakers in an empirically enlightened reassessment of what ROLA actually is and of what it can and therefore should be. While Beyond Common Knowledge makes an important contribution to the ROLA debate by introducing an empirical approach, the full value of an empirical inquiry will not be realized unless complemented by a strong normative argument. To deliver tangible outcomes in the area of development, global poverty, and inequality, ROLA should be conceived within a critical pragmatic approach that integrates empirical insights with progressive normative views. In this Book Review, I advocate for an approach that combines empiricism, normative critique, and pragmatic advocacy to articulate and advance a more progressive ROLA framework and agenda.

Beyond Common Knowledge is a collection of essays and case studies analyzing rule-of-law reform and the role of judicial systems and their alternatives across the world. These studies seek to test widespread doctrinal hypotheses about the role of legal and judicial systems in economic growth and democratic politics and assess the current practice of ROLA. What is unique about the book is its openly empirical approach that seeks to move ROLA discourse beyond discussions about the philosophical meaning of access to justice and the rule of law or the political biases of ROLA discourse. In classic law and society fashion, each author in this volume supports his or her analysis with empirical research, country or cross-country case studies of judicial systems, and a strong emphasis on political economy analysis. The various studies offer insightful conclusions, and some provoking thoughts. They include a case and methodology for evaluating systems of justice through public opinion polls (José Juan Toharia, chapter1); a comparative law and society study of judicial systems in Western Europe (Erhard Blankenburg, chapter 2); empirical assessments of informal justice (Marc Galanter and Jayanth K. Krishnan, chapter 3) and special consumer courts (Robert S. Moog, chapter 4) in India; innovative approaches to empirical research about the Chinese judiciary (Donald C. Clarke, chapter 5 and Hualing Fu, chapter 6); political economy analyses of ROLA (Jensen, chapter 10, and Heller, chapter 11); judicial reform programs in Latin America (Linn Hammergren, chapter 9, on Latin America generally, Carlos Pena Gonzalez, chapter 7, on Chile, and Héctor Fix-Fierro, chapter 8, on Mexico).

Beyond Common Knowledge addresses ROLA’s uneven empirical record and calls for its systematic evaluation through new empirical research standards. These standards can examine what courts and their alternatives actually do and monitor and measure the progress of ROLA reforms. Pointing generally to the limited impact of and resources for judicial and legal reforms, the book calls for a more “modest” and “thin” ROLA agenda that would focus on less ambitious intermediate level outcomes, such as improving court transparency and court management for everyday cases. The book argues for a shift away from ROLA’s “judicial centrism” and the doctrinal belief in independent judiciaries, for ROLA actors to recognize informal and alternative dispute resolution (“ADR”) processes outside of the formal judicial system, and for a deeper understanding of local legal culture and political economy.

Although the authors in Beyond Common Knowledge assess and criticize the gap between articulated ROLA goals and practice, they self-consciously prioritize a “realistic” and improving-the-record approach to meeting modest, intermediate level rule-of-law objectives as the way ahead. Hence, with the notable exception of Heller’s postscript chapter, which articulates a paradigm for governance and ROLA within existing institutional “ecologies,” the authors in this volume fall short of articulating a strong normative framework for ROLA.

Part I of this Book Review will discuss the broad outline of a critical pragmatic approach to ROLA that combines the empiricism found in Beyond Common Knowledge with a normative vision for attacking global poverty. Part II explores “selling” pro-poor programs within ROLA standard packages. Part III concludes. . . .

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

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Beyond Common Knowledge: Empirical Approaches to the Rule of Law (Erik J. Jensen & Thomas C. Heller eds., 2003)

Review of Beyond Common Knowledge, Edited by Erik J. Jensen and Thomas C. Heller.
Stanford University Press: Palo Alto, Cal., 2003. Pp. 456. $70.00 (cloth).*

Following in the Stanford tradition of socio-legal studies, Beyond Common Knowledge brings together an impressive array of international scholars and practitioners for a timely study of judicial reform and “rule-of-law assistance” (“ROLA”). Much of rule-of-law literature relies on insufficiently documented and often arid doctrinal approaches to the rule of law. In contrast, Beyond Common Knowledge places empiricism at the center of comparative legal scholarship to understand what courts and their alternatives actually do and what is actually happening within ROLA. This collection of studies from around the world successfully engages both scholars and policymakers in an empirically enlightened reassessment of what ROLA actually is and of what it can and therefore should be. While Beyond Common Knowledge makes an important contribution to the ROLA debate by introducing an empirical approach, the full value of an empirical inquiry will not be realized unless complemented by a strong normative argument. To deliver tangible outcomes in the area of development, global poverty, and inequality, ROLA should be conceived within a critical pragmatic approach that integrates empirical insights with progressive normative views. In this Book Review, I advocate for an approach that combines empiricism, normative critique, and pragmatic advocacy to articulate and advance a more progressive ROLA framework and agenda.

Beyond Common Knowledge is a collection of essays and case studies analyzing rule-of-law reform and the role of judicial systems and their alternatives across the world. These studies seek to test widespread doctrinal hypotheses about the role of legal and judicial systems in economic growth and democratic politics and assess the current practice of ROLA. What is unique about the book is its openly empirical approach that seeks to move ROLA discourse beyond discussions about the philosophical meaning of access to justice and the rule of law or the political biases of ROLA discourse. In classic law and society fashion, each author in this volume supports his or her analysis with empirical research, country or cross-country case studies of judicial systems, and a strong emphasis on political economy analysis. The various studies offer insightful conclusions, and some provoking thoughts. They include a case and methodology for evaluating systems of justice through public opinion polls (José Juan Toharia, chapter1); a comparative law and society study of judicial systems in Western Europe (Erhard Blankenburg, chapter 2); empirical assessments of informal justice (Marc Galanter and Jayanth K. Krishnan, chapter 3) and special consumer courts (Robert S. Moog, chapter 4) in India; innovative approaches to empirical research about the Chinese judiciary (Donald C. Clarke, chapter 5 and Hualing Fu, chapter 6); political economy analyses of ROLA (Jensen, chapter 10, and Heller, chapter 11); judicial reform programs in Latin America (Linn Hammergren, chapter 9, on Latin America generally, Carlos Pena Gonzalez, chapter 7, on Chile, and Héctor Fix-Fierro, chapter 8, on Mexico).

Beyond Common Knowledge addresses ROLA’s uneven empirical record and calls for its systematic evaluation through new empirical research standards. These standards can examine what courts and their alternatives actually do and monitor and measure the progress of ROLA reforms. Pointing generally to the limited impact of and resources for judicial and legal reforms, the book calls for a more “modest” and “thin” ROLA agenda that would focus on less ambitious intermediate level outcomes, such as improving court transparency and court management for everyday cases. The book argues for a shift away from ROLA’s “judicial centrism” and the doctrinal belief in independent judiciaries, for ROLA actors to recognize informal and alternative dispute resolution (“ADR”) processes outside of the formal judicial system, and for a deeper understanding of local legal culture and political economy.

Although the authors in Beyond Common Knowledge assess and criticize the gap between articulated ROLA goals and practice, they self-consciously prioritize a “realistic” and improving-the-record approach to meeting modest, intermediate level rule-of-law objectives as the way ahead. Hence, with the notable exception of Heller’s postscript chapter, which articulates a paradigm for governance and ROLA within existing institutional “ecologies,” the authors in this volume fall short of articulating a strong normative framework for ROLA.

Part I of this Book Review will discuss the broad outline of a critical pragmatic approach to ROLA that combines the empiricism found in Beyond Common Knowledge with a normative vision for attacking global poverty. Part II explores “selling” pro-poor programs within ROLA standard packages. Part III concludes. . . .

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

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Women’s September 11th

Introduction*

The configuration of acts and actors of September 11, 2001 is not one that international law, centered on states, has been primarily structured to address. Neither was most of men’s violence against women in view when the laws of war, international humanitarian law, and international human rights guarantees were framed. The formal and substantive parallels between the two—prominently their horizontal legal architecture, large victim numbers, and masculine ideology—make both patterns of violence resemble dispersed armed conflict, but the world’s response to them has been inconsistent.

Since September 11th, the international order has been newly willing to treat nonstate actors like states as a source of violence invoking the law of armed conflict. Much of the international community has mobilized forcefully against terrorism. This same international community that turned on a dime after September 11th has, despite important initiatives, yet even to undertake a comprehensive review of international laws and institutions toward an effective strategic response to violence against women with all levels of response on the table, even as the “responsibility to protect” from gross and systematic violence is increasingly emerging internationally as an affirmative duty. The post–September 11th paradigm shift, permitting potent response to massive nonstate violence against civilians in some instances, exemplifies if not a model for emulation, a supple adaptation to a parallel challenge. It shows what they can do when they want to. If, in tension with the existing framework, the one problem can be confronted internationally, why not the other?

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

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Innovation Through Intimidation

Introduction*

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China’s Peasants. The book exposed official malfeasance on Zhang’s watch and the resultant peasant hardships. Zhang demanded an apology from the book’s authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge.

In 2000, Song Dianwen, a peasant, sued the Heilongjiang Daily, the official paper of the Communist Party, in his home province for defamation after it published an article reporting that, during a village disturbance, Song had lit a fire that killed two people. He won a judgment from a local court, affirmed on appeal, for 3,500 yuan (approximately U.S.$430) in emotional damages.

The cases exemplify two different tracks of defamation litigation in present-day China. Track-one cases, like Zhang’s, are brought by local public officials, government and Communist Party entities, or corporations to punish and control the increasingly aggressive Chinese media. In these cases, courts serve as state institutions at the local, as opposed to central, level to restrict and retaliate against the media and to block central oversight. On the second
track, persons without power or Party-state ties sue the media, which, despite widespread commercialization, virtually all continue to be linked to the Chinese Party-state. Many such cases are brought by ordinary persons against Communist Party mouthpiece newspapers. Track-two cases thus represent a deployment of the courts by ordinary citizens against state entities. Empirical evidence from 223 defamation cases studied in this Article indicates that
the media lose the overwhelming majority of cases on both tracks.

The conventional wisdom, taking track-one powerful plaintiff suits as the paradigm, perceives defamation litigation in local Chinese courts as yet another lever of state control over the increasingly autonomous Chinese media. Track-one developments in China correspond to experiences in other contemporary single-party states, where libel laws often serve to restrict individual rights, and to the use of defamation law to preserve state authority in Western legal history. By neglecting track-two cases, however, this popular view shortchanges the extent to which defamation litigation in China also serves a countervailing function: the use of courts by ordinary persons to challenge state authority. The conventional wisdom also overlooks the degree to which defamation litigation reflects growing use of the formal legal system by local authorities to resist central Party-state control.

The development of defamation litigation, on both tracks, illustrates the complex and evolving roles of courts, media, and civil litigation in China. Analysis of the claims and outcomes in 223 defamation cases suggests that use of defamation litigation by track-one plaintiffs for repressive purposes is encouraging both ordinary persons to use such cases to protect their own interests and courts to become increasingly important arbiters of individual rights. Through these processes, instrumental use of the courts to protect local interests is legitimizing the role of courts in Chinese society. Defamation litigation serves
to intimidate and restrain the Chinese media, but in a system in which the media are not free of state control, such cases may also increase state accountability. This story is not as simple as commonly believed, but, better understood, it adds signiªcant insight into the nature of legal innovation and institutional development both in China and in other developing legal systems.

In prior work I have shown how close Party-state ties give the media extensive power both to inºuence the courts and to resolve disputes, power that has increased even as the media have become increasingly commercialized and have begun to assert new autonomy. A high rate of media defeats in defamation cases does not alter that conclusion. The fundamental fact is that the media often have far more real authority and power in the Chinese legal system than the courts. China’s courts remain institutionally weak and subject to extensive external inºuence, particularly from the local Party-state. The media continue to exert inºuence across a range of cases, and the total number of defamation cases brought against the media is relatively small when compared to the total volume of civil litigation in China.

Still, defamation cases are worthy of independent study. These cases represent an area in which the media frequently are a weak party, in particular when sued by courts, judges, and other local officials and state entities. Such cases suggest that courts are increasingly able to challenge the media’s broader authority and influence. Understanding the media’s strong position in the Chinese system helps explain why courts and other local ofªcials and state
entities have turned to litigation to combat media oversight: They possess few other tools to challenge media verdicts. Yet defamation cases also show that courts are not always swayed by the relative power of litigants before them. In cases brought by ordinary persons, court verdicts in favor of plaintiffs often reºect judicial willingness to rule against powerful entities.

This Article proceeds in three Parts. Part I sets out the methodology of the study, the legal framework governing defamation law, and the early development of plaintiff-favoring defamation cases in the 1980s and 1990s. Part II analyzes 223 defamation cases brought in China in the past decade, with particular attention to who sues and is sued, the nature of defamation claims, and plaintiffs’ goals. Part III places the empirical findings from Part II in a
larger context, showing that although defamation law has become a significant tool by which to control the newly commercialized Chinese media, defamation litigation cannot be understood solely in terms of restraints on the press. Cases by ordinary and famous persons reflect the increased willingness of those without Party-state ties to challenge the Party-state. The courts’ growing role in resolving defamation disputes may have the effect of encouraging both greater use of the courts and greater innovation by the courts.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

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