Abstract
Readers of this journal have worked hard to overcome a predominant conception of law succinctly described by Judith Shklar and quoted in Ian Hurd’s book, How to Do Things with International Law: “Law is endowed with its own discrete, integral history, its own ‘science’ and its own values, which are treated as … sealed off from general social history, from general social theory, from politics, from morality” (qtd in Hurd, 135). Hurd’s book challenges this conception at the international level; Nick Cheesman’s book, Opposing the Rule of Law, challenges this conception as well but at the national level. In fact, in vastly divergent political contexts, these two books offer similar accounts of the complex operation of something understood as “the rule of law.” In addition, both Hurd and Cheesman make considerable contributions to the study of law by describing, not simply unmasking, how the rule of law works to reinforce – and even accelerate – inequalities of power.
Given all the publicity surrounding the slaughter and persecution of the Rohingya, many readers might think that Myanmar lacks a cohesive legal system. Cheesman combines archival research, contemporary case studies, and interviews with different figures to illuminate how the law works in Myanmar. Cheesman does not want to present Myanmar as simply lacking what scholars and policy makers in the West would consider “the rule of law.” Nor does he want to suggest a normative judgment of Myanmar. Instead, he wants to offer a detailed description of the operation of law. Cheesman believes legality is illuminated when it is examined in different contexts. Despite the fact that Myanmar adopted many Indian penal codes, Cheesman proves that Myanmar provides a unique context for the study of legal institutions.
Cheesman’s knowledge of Burmese helps structure Opposing the Rule of Law’s argument. Unlike the English language, in Burmese there are two distinct terms that distinguish two different aspects of law. The first, taya-ubade-somoye, is the equivalent to our understanding of the rule of law as a principle of justice that animates legal proceedings (though is not necessarily confined to them). The second, ngyeinwut-pibyaye, Cheesman describes as “a condition where the state’s forces bind people’s general activity, to ensure that they remain decent and inoffensive, quiet and unassuming” (30). In the lexicon of the United States, this kind of order is associated with the phrase “law and order.” Burmese Courts make it clear that their primary goal is ngyeinwut-pibyaye and their decisions often refer to the imperative for order.
Cheesman begins by arguing that not only are taya-ubade-somoye and ngyeinwut-pibyaye distinct from one another, they are fundamentally opposed. Hence, even though Myanmar’s courts follow routine procedures and written codes, and largely appear as instruments of the rule of law, to the extent that they are guided by ngyeinwut-pibyaye, according to Cheesman they actually oppose the rule of law. Cheesman makes it clear that he is not trying to say that Myanmar’s courts are somehow less developed than, say, European court systems. Instead he claims, “Partisans of law and order are not the occupants of low rungs on a ladder to the rule of law; they are climbing a different ladder altogether” (259).
The primary focus of legality in Myanmar is order and the performance of orderliness. What this means, among other things, is that judges take bribes in order to keep cases moving through the system. Cheesman explains that “the court in Myanmar functions as a marketplace where participants buy and sell case outcomes not because judges are underpaid and greedy – or not only for these reasons – but because the logic of law and order makes it possible, and to an extent mandates it” (162). Whatever increases the efficiency of courts serves law and order, and bribes do accelerate the efficiency of the courts.
The emphasis upon maintaining order and, perhaps more accurately, the appearance of order also means that the courts cannot acknowledge the torture behind confessions, as to acknowledge such a thing would bring an element of chaos into the proceedings. Like judges whose corruption slows the machinery of the courts rather than accelerating it, policemen that make it difficult to hide torture are a problem for the system. Police torture is not formally legal, Cheesman explains, so the courts work to erase it from the records. However, if interrogation techniques become “so egregious or incompetent as to threaten the semblance of orderliness,” a judge may instead sanction the officer or officers involved (138).
Through detailed accounts of the use of police torture, medical records, court procedures, and land seizures, Cheesman points out that the courts in Myanmar do everything possible to deny the agency of those who move through them. This observation makes even more powerful perhaps the most surprising aspect of Cheesman’s book, which is the fact that villagers in Myanmar who have found no justice in the courts and are acutely aware of the fact that the law is designed to serve the state’s interest, still invoke ngyeinwut-pibyaye, the rule of law. To read the descriptions of peasants arguing against an authoritarian regime using this language makes it clear why Cheesman wants to maintain the distinction between the two concepts of taya-ubade-somoye and ngyeinwut-pibyaye. The fact that the rule of law lurks as a possibility, even when formal institutions serve law and order is a central mystery for anyone who studies law. Pointing out that rule of law language provides the terms with which people can articulate a meaningful form of citizenship, Cheesman terms this phenomenon “rightful resistance.”
Cheesman’s account of Myanmar’s courts makes it clear that we should figure out ways to acknowledge degrees of agency within the court of law instead of simply dismissing these courts as somehow deficient. Indeed, reading Opposing the Rule of Law made me question anew what legal subjectivity really means and how limited our understanding of it is when we limit ourselves to European and North American legal contexts. Legal subjectivity is a complex issue, as Althusserians and Foucauldians demonstrate when they argue that legal subjectivity is anything but agentic. This is why it might be particularly important for legal theorists to spend time with Cheesman dwelling in a vastly different legal context than the European and North American ones.
While one might think that Myanmar’s system would provide one of the bleakest cases for legal scholars, Hurd’s book, How to Do Things with International Law is ultimately less optimistic than Cheesman’s. This is probably because Hurd is operating in an Anglo-European context where law and order frequently dresses itself up as the rule of law so he does not maintain a division between law and order and the rule of law. Hurd investigates the rule of law (broadly speaking now) as it operates in the international system, and finds that it does not provide a meaningful check on the activities of states. International law is ineffective even though it seems to be a hegemonic concept – even Putin and Duterte profess to believe in the rule of law, after all. Hurd’s book persuasively demonstrates that “the hegemony of the international rule of law is not manifest in compliance. It is manifest in the universality of law as a source of justification and contestation” (133). Just as order is the goal of the legal performance in Myanmar, so adherence to legalism is the goal of the legal performance in the international system.
The book is designed as an intervention in International Relations theory. Liberal theorists see the ascent of international law as indicative of the spread of norms and the (generally) effective restraint of sovereign power. Realists dismiss the law as window dressing. Hurd adopts a constructivist approach, saying that power’s exercise is shaped and presented according to law. Unlike realists, he thinks the presence of law matters; unlike liberals, he believes power is not constrained by law.
There are many fascinating twists in Hurd’s analysis, including the persistence of territorial gaps and different rights for states in what is presumably an egalitarian international legal system. For example, Hurd discusses how the exact same act, killing a whale in the Southern Ocean, is regarded differently depending on whether the whaler is associated with Australia, Turkey, or Iceland. This short book packs a conceptual punch, pointing out that our existing theories of legality and sovereignty are belied by the complexities of practice. “[O]ne must ask what the law is for a given state, and perhaps even in relation to a specific other state, and then find the answer in the treaties, protocols, and rules of custom that apply to that state,” he advises (33).
States are able to depoliticize their actions by invoking the rule of law. The rule of law framework presumes a separation from power. By framing their behavior in the language of legalism, states can assert not only their compliance with international law but they can also claim normative grounds for what they are doing. Hurd argues, “Compliance with the law becomes the marker for acceptable policy, masking the substantive politics of the situation and the law itself” (3). One might take the position that this is some sort of victory, a demonstration of Weber’s legal-bureaucratic authority winning in the international sphere. Where there is no clear sovereign, the bureaucrats have come to reign. Hurd prefers us to understand that the cloak of bureaucracy obscures the persistence of brute force.
His chapter, “Torture” is a particularly stark discussion of how legalism shapes and often sanitizes what is presumably outlawed by the Geneva Convention. The United States does not abstain from torture because it is illegal. According to Hurd, instead, “The law gave protorture officials some tools with which to construct a legal space for torture within or alongside the antitorture regime” (125). In other words, legal maneuvers helped shape the practices of torture. They also worked to sanitize these practices because the government went to pains to explain how it was always in compliance with the rule of law. Hurd argues that this is not a sign of the weakness of legalism internationally as many have concluded, but a sign of its strength.
Though Hurd begins his book with a discussion of the rule of law, as the volume draws to a close he uses the language of legalism more. This makes me think that even though Hurd does not expressly distinguish between rule of law and law and order, he instinctively draws on a distinction between them. One of the more refreshing aspects of Hurd’s book is that he questions the hegemony of legalism. He says that “it is easy to appreciate the importance of legalism as a normative and political structure when compared to those that don’t obtain in the world as it is,” but he suggests, “Rather than legalism, humanitarianism, for instance, might govern the international system” (132). If humanitarianism governed the international system, protection of the vulnerable might be the yardstick by which compliance with the international order might be measured. This move by Hurd suggests a path forward and an alternative to the unfulfilled promises of legalism. But state actors could twist an alternative framing mechanism in exactly the same way they twist existing ones. Look at what is done in the name of humanitarian intervention today.
In the end, it is because we have so much faith that there can be some principle that stands outside of power relations that we are repeatedly disappointed by the rule of law. This brings us back to Shklar’s observation that we conceive of law as separate from history and social context. The important case studies provided by both of these books show this conception of law to be false. Many legal scholars, myself included, spend much time demonstrating exactly how bound laws are to their context. Why then do we remain so devoted to the idea that law is “endowed with its own discrete, integral history, its own ‘science’ and its own values …”? No matter how thoroughly we demonstrate the unreality of this idea, there is some aspect of law that suggests an appealing potential. This possibility lurks within both volumes even as they provide sobering accounts of legal uses and abuses of the rule of law.