Sociology

Why the Law couldn’t keep its promises if it tried ? Exclusion and Inequality at the basis of Order

Assia TURQUIER-ZAUBERMAN (2017), The London School of Economics and Political Science, BA in Social Anthropology.

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All human beings are born. Most of them are free, if we agree to avoid semantics, but none are equal in dignity and rights.  This is particularly clear in view of the economic, social and environmental damage caused by neoliberal capitalism and the distribution of its effects worldwide. However, these processes of inequality are pervasive and intimate as much as they can be international. The essay that follows will explore the boundaries created by the legal apparatus at a national level.

The line drawn between insiders and outsiders needs to be carefully deconstructed, as I aim to define the boundaries within nation states. The ‘outsiders’ at hand are, for the most part, citizens in the widest sense of the term. Their exclusion, I argue, is with regards to participation in “common good”. I wish to retain the implication of welfare and prosperity the phrase implies whilst otherwise using Foucault’s definition.

That is ‘a state of affairs where all subjects obey the laws, accomplish the tasks expected of them, practice the trade which they are assigned and respect the established order’ (Foucault, 1991:95).  The outsiders are those excluded from this cyclical ideal of governance because its realisation is only possible if it is at their expense. In the current state of affairs, economic marginalization and fields of legal exception are inextricable from the perceived prosperity of the state and those ‘inside’ of it.

I will outline the origin of the law’s Universalist discourse and its disjunction with the reality of legal practice. Looking firstly at the semi-autonomous field most intimately linked to the state, I will show that the police force epitomizes the state’s legal relativitism whilst introducing some of the processes that lead to the exclusion of the most destitute. Secondly, I will explore the various ways in which this exclusion is enforced and experienced in poverty-stricken areas of Philadelphia. This should elucidate the way economic marginalization leads to involvement in informal economies, and the corresponding development of semi-autonomous fields incompatible with the larger moral and legal realm. Lastly, I will discuss the tasks of legal anthropologists, disavowing the role of spectator and translator in favour of that of activist.

1.All are equal before the law and are entitled without any discrimination to equal protection of the law” – (Article 7 UDHR)

The 18th century bore conflicting definitions of individualism which syncretically informed the legal and economic present conditions. Unfortunately, where Smith and his misreading had profound material impact, Kant’s legacy is more largely observable on the level of discourse. As summarized by Durkheim, empirical individualism should be at the basis of penal law. ‘According to Kant, I am only certain of acting properly if the motive that influence me relate to my equality as a man in abstracto’ (Durkheim, 2010:148). That is, the aggregation of individual circumstances lead to their cancelling out in collective morality: ‘if Rousseau sees the general will which is the basis of the social contract as infallible it is because it is a resultant of the totality of particular wills; consequently it constitutes a kind of impersonal average’ (ibid). Besides being optimistic on the inclusivity and equality of collective morality, Durkheim’s phrasing outlines a further dimension, itself also influenced by the former flaw. It is here assumed, as in Weber’s notion of legal-rational orders, that impersonality implies impartiality and hence, justice. I argue that it is perhaps in this dimension that the Universalist discourse has had the most importance at the domestic level. As Graeber notes, law has to be thought to come from somewhere else to avoid tautological legitimations since ‘any power capable of creating a system of laws cannot itself be bound by them’ (Graeber, 2015:121). The aura attributed to impartiality at the level of mankind may be the best justification for legal orders since divine law. All the more so if Durkheim is right about the latest form of religion being a ‘cult of personal dignity’ (Durkheim, 2010:149), it is only unfortunate to see that such universalism may have always been symbolic representation.

In practice however, the law is ‘a short term for a complex aggregation of principles, practices of agencies, legislation, administration and enforcement backed by political power and legitimacy’ (Falk-Moore, 1973:720). This condensation allows for its abstraction from ‘the social context in which it exists’ and fosters the illusion that it is an ‘entity capable of controlling that context’ (ibid). Legal anthropology, for which ideal type are not acceptable, allowed the elucidation of a diversity of moral fields with customs, rules and symbols that operate semi-autonomously from the larger state-enforced nexus. I will now show the way that the corresponding semi-dependence has shaped these fields according to a political design, making them unequal in their compatibility and hence, prosperity.

  1. “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to perform any act aimed at the destruction of any of the rights and freedoms set forth herein” – (Article 30 UDHR)

Ìn ancient Greece, the first civil servants, and as such the first policemen, were slaves. The polis thus separated certain specializations from the political field, preventing its citizens from holding powers that could become autonomous and challenge its legitimacy (Ismard ,2015). In the modern nation state, the police force constitutes a challenge for governance in so far as it epitomizes the paradox outlined by Graeber.

How can the law apply to those who enforce it? How can those entrusted with the ‘legitimate use of violence’ also be subject to it? How can ‘enforcement activities be distanced from leaderships whilst keeping the political control of repressive apparatus beyond the reach of citizens’ (Fassin, 2015:97)? The imperfect solution to this predicament is found in the fragmentation of police forces, the semi-autonomous social field of ‘police discretion’ and their reliance on the criminalization of poverty to legitimate abuse.

In his ethnography on Parisian police, Fassin notes that the uniting principle of various definitions of policing is one of ‘monitoring for the supposed welfare of the population, if not its prosperity’ (Fassin 2015:95). This ideal of welfare, which as aforementioned is an exclusive and circular concept, is the larger virtue invoked by policemen to justify their action. Although the BAC (Brigade Anti-Crime) ‘cause more problems than they solve’, they are viewed as a ‘necessary evil’ for the greater “common good” (ibid:101). Founded in 1994, it is commensurable to other special measures taken to control marginal population and is performative insofar as it often creates the exception that justifies its existence: ‘the implementation of this type of measure is evident within public space, demonstrating the concerns of the authorities while conceivably encouraging the outbursts that are meant to be contained’ (ibid:98). In addition to the processes that instil ‘within law enforcement agents a sense of responsibility to the state rather than one of service to the people’, individuals are further dissociated from the communities where they work through recruitment practices at national level (ibid:97). The remaining possibilities for class solidarity are often overcome by differences in ethnicity and cultural capital. Under such “hostile” conditions ‘practices which would be inconceivable with respect to the majority of the citizens become possible when targeting these categories’ (ibid:106).

Racially prejudiced identity checks are the most common form of constitutional violations exercised by the police. The law of ‘August 10, 1993 stated that identity checks were not legal unless “risk to public order” is ascertained’ and is, by the way, echoed by article 9 of the UDHR (ibid: 107). The de facto principle of immigrant stigmatization under the current political framework however, renders this permissible, and assigns such arrests to the instrumental ‘police discretion’. It is furthermore encouraged by the “politics of numbers” which quantifies the number of arrests made by an officer and their clearance rate. This, according to Fassin, favours unsolicited immigrant and drug-related arrests which ‘only semantically depart from original mission as it has been redefined through the politics of numbers’ (ibid:103).  Another moral trope comes to buffer this attitude as well as more perverse ones: the disqualification of justice as ineffective ‘legitimized the justice rendered by the police in the field’ (ibid:106).  In the case of a disciplinary hearing, ‘collegial solidarity’ and a compassionate attitude towards the – again performatively created – difficulties of certain neighbourhoods make the system permissive toward offenders. Despite this, law enforcement agents express a sense of being ‘the scapegoats of society’ (ibid:93).  This sentiment is interestingly symmetrical to that of the subjects on whom they exercise power.

  1. ‘Everyone has the right to a standard of living adequate for the health and well-being and the right to security in the event of unemployment or other lack of livelihood in circumstances beyond his control’ (Article 25 UDHR)

The ascendancy of neoliberalism and the corresponding celebration of individualism correlate with the ‘deployment of punitive and proactive law-enforcement policies targeting the categories trapped in the margins of the new economic and moral order’ (Wacquant, 2008: 2). These “cracks” are part of a necessary process of exclusion, pandering to the needs of capitalism. The three fold processes of commodification of public goods, rise of underpaid insecure work and unravelling of social protection schemes ‘concentrates disorder and despair’ in them, excluding the poor from the activities comprised in the notion of “common good” (ibid).  Economically however they are not so much marginalized as subordinated: The informal economy is not residual, but a structural and fundamental part of capitalist development.  Integrating it is often the most, if not only, “rational” choice for “self-maximization”. In cities under public and private sector divestment, ‘the drug economy has filled the economic vacuum and become the most readily accessible “equal opportunity employer”’, (Karandinos et al., 2014: 3); ironically making it one of the few fields in adherence with the 2010 Equality act.

Karandinos and al.’s ethnography of a destitute north Philadelphia block identifies a semi-autonomous field ruled by a moral economy of violence on the one hand, and a system of Maussian gift exchange on the other. The interplay between them constitutes a negative feedback mechanism: ‘ethics of reciprocity propel individuals into violent acts’ whilst simultaneously ‘imposing restraints on overly transgressive violence’ (ibid:4). If the semi-autonomous field regulates itself in this way, its areas of interaction with a larger moral and legal framework lead to less sustainable mechanisms. As noted by Goffman in her study of the same city, but of predominantly African-American neighbourhoods, the over-punitive system leads to necessary cultivation of unpredictability that represents a form of positive feedback[1]. It participates in the disintegration of intimate relations by justifying unreliability, ‘serving as an excuse for obligations that may have gone unfulfilled anyway’ (Goffman, 2009: 340). Furthermore, the trend of over-incarceration makes staying out of jail indicative not of ‘upstanding, respectable action but even shadier character’ (ibid: 354).  Either way, participating in violence becomes imperative and represents the primary source of cultural capital. This inclines individuals to valorise violent self-protection and justice retribution. In addition to this, unreliability and abusive nature of the Philadelphia police forces, the worst in the country according to a 1998 Human Rights Watch Report (ibid:9), further disinclines appeal to state security.

The habitus developed in this social field is in opposition with the normative models of citizenship that animate both welfare programs and criminal justice. The paternalist attitude emphasizing individual responsibility of the subject is in stark contrast to the relational understanding of personhood, prosperity on the basis of reciprocity and accompanying use of violence (Wacquant, 2008 :12). Symbolic uncontrollability of masculinity is praised, particularly when at the service of kin: ‘when I’m really angry, I don’t think of anything, not even getting locked up. (…) If I go to jail for my mom like this, then I don’t care’, making these individuals ill-equipped to strive in the larger field. Punitivism in time of insecure employment leads to mutually exclusive moral economies: success in one equates failures in the other. This works to ‘increase the cost of strategies of exit from fragmented wage labour services’, ‘neutralizes the elements rendered wholly superfluous’ by the restructuring of labour demand and ‘reaffirms the authority of the state in daily life within a restricted domain’ (Wacquant, 2008:8). These strategies are effective and, along with spatial class segregation, prevent community action giving way instead to ‘destructive solidarity predicated on intraclass interpersonal violence’ (Karandinos et al., 2014:10). This violence in turns legitimates heavy penal responses, forming a perfect cycle of exclusion.

  1. The answer to the critique of anthropology is not a retreat from ethnography but rather an ethnography that is personally engaged and politically committed. (Scheper-Hughes, 1995: 419)

Legal anthropologists are the best suited to unveil the complex and circular processes that cause such marginalization. However, the task of understanding is charged with responsibility. Observation is central to analytic processes but anthropologist must first transcend the role of the spectator.  The need to engage with ‘a multiplicity of alternative truths’ and the attempt to de-politicize anthropological writings have led to short-lived quests for objectivity, suspending the ethical (Scheper-Hughes, 1995: 409). This is not acceptable, especially in view of ‘those whose vulnerable bodies and fragile lives are at stake’ (ibid). Understanding the way lines of inclusion and exclusion are drawn requires first understanding the way they apply within a discipline built on the construction of boundaries between ethnographer and Other. This being said, legal anthropologists must also navigate their power as translators with caution.  As any form of allyship, it must be aware the advocacy entails ‘the practice of speaking for’, often ‘replying the drama of subordination’ in its deployment (Cunnigham, 1991:1299). Abu-Lughod (1991) offers an antidote to this pervasive ‘guardian mentality’ (ibid). She calls for a necessary ‘reorientation of the ‘connections and interconnections, historical and contemporary between a community and the ethnographer (…) asking questions about the processes by which it came to pass that people like ourselves could be engaged in studies of people like those’ (Abu-Lughod: 1991: 472-3). Through these efforts and more, legal anthropologists can make anthropology ‘a site of struggle, a form of resistance’ (Scheper-Hughes, 1995:420). If anthropologists’ task is to “write against culture”, legal anthropologists must write against the “common good”.

In conclusion, the law’s claim to universality is part of a precise discourse legitimating its sovereignty. In practice however, societies are the aggregation of semi-autonomous moral fields, shaped through its interactions with the over-arching one. This becomes evident when looking at police morality as the field most susceptible to expose the circular nature of rule: obedience to law is the law itself and the “common good” is the state of affairs in which capitalism can best strive, exploitation included. This necessitates the exclusion of the poor, stuck in a double bind between moral economies of violence and exchange. The increasing punitivism is inextricable from policies of economic deregulation since the latter legitimately arouses anger as it is the ‘political betrayal of the work-class electorate that brought them to power in the hope of receiving stronger state protection against the failings of the market’ (Wacquant, 2008:9). A larger schema disproving the universality of law can thus be constructed as liberal-paternalism ‘insofar as it is liberal and permissive at the top and paternalist and authoritarian at the bottom’ (ibid).  Understanding these lines of inclusion and exclusion is a necessary first step but useless on its own, as they are not there by accident. It is the task of anthropologists to disseminate this knowledge and its denunciation, as well as to propose alternatives – which perhaps can only come through debunking the inevitability of capitalism.

References

Abu-Lughod, L. (1991). Writing Against Culture. Recapturing Anthropology: Working in the Present.

Cunningham, C. D. (1991). Lawyer as translator representation as text: Towards an ethnography of legal discourse. Cornell L. Rev.77, 1298.

Durkheim, E. and Giddens, A. (2010). Selected writings. 1st ed. Cambridge: University Press.

Falk Moore, S. (1973). Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study. Law & Society Review, 7(4), pp.719-746.

Fassin, D. (2015). At the Heart of the State: The Moral World of Institutions. Pluto Press, pp.93-116.

Foucault, M. (1991). The Foucault Effect. University of Chicago Press. pp.87-104

Goffman, A. (2009). On the Run: Wanted Men in a Philadelphia Ghetto. American Sociological Review, 74(3), pp.339-357.

Graeber, D. (2015). The Utopia of rules. 1st ed. Brooklyn: Melville House.

Karandinos, G., Hart, L., Montero Castrillo, F. and Bourgois, P. (2014). The Moral Economy of Violence in the US Inner City. Current Anthropology, 55(1), pp.1-22.

Scheper-Hughes, N. (1995). The Primacy of the Ethical: Propositions for a Militant Anthropology. Current Anthropology, 36(3), pp.409-440.

Ismard, P. (2015). La Démocratie contre les Experts. 1st ed. Paris: Editions du Seuil.

United Nations General Assembly, (1948). The Universal Declaration of Human Rights. Paris.

Wacquant, L. (2008). Ordering Insecurity. Radical Philosophy Review, 11(1), pp.1-19 [1]

 

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