7 No. 5
A dialogue among disciplines
Guest Editor, Bruce M. Knauft, Executive Director,
Institute for Comparative and International Studies, Samuel C. Dobbs
Professor of Anthropology
think the boogieman of AIDS has more resonance in the United States
than it might have in a community in Africa, where people are accommodating
McFarland, Associate Professor of International Health
our law is so tied up with the religiosity of this society that
it’s not just repositioning law, it’s
repositioning the role of religion in American culture.
Martha L.A. Fineman, Robert W. Woodruff Professor
Globalization and collective identity in the Netherlands
Lechner, Associate Professor of Sociology
place in the Indian diaspora
Bahri, Associate Professor of English
Hebrew and Arabic in the Qur’an
J. Stewart, Associate Professor of Arabic and Middle Eastern Studies
How does your work in legal theory intersect with global scholarship?
Martha Fineman: It is interdisciplinary and increasingly
international in focus. Currently I’m involved with a group
of scholars who have come together around something called the New
Legal Realism. We are building on the Law and Society movement,
which is interdisciplinary, started by anthropologists interested
in the role of the law in society. We want to look at how we can
use social science information broadly construed—to include
things like anthropology and history—to effect progressive
political change. Legal realism is premised on the idea that law
is located within society, and that society and its institutions
profoundly affect the way that law is formed and applied. We are
interested in the distinction between the law on the books and the
law in practice. There’s a “gap” between what
law mandates and what actually is revealed by social science methodologies
that look at everyday practice. The New Legal Realism group is meeting
at Emory in June—this will be our third national conference.
Scholars from schools such as the University of Wisconsin, Berkeley,
SUNY Buffalo, and Cornell are involved in this growing movement.
BK: This concept runs counter to the perception
that law has to be consistent with the past.
MF: Not necessarily. There are many aspects to
the arguments about precedent. Some argue that without a strongly
developed notion of precedent you have undemocratic mechanisms changing
law. They refer to “runaway judges” acting in arbitrary
ways and assert that these judges are elitist and anti-democratic.
The mantra of those who make such arguments is that judges should
just follow the law. But within that catchall phrase is this notion
that law is determinative—that you can simply apply it, as
though there is no need for interpretation. Of course, many of us
think interpretation is exactly what law is about. One of the reasons
we have lawyers is that there is often a range of possible interpretations
and multiple arguments about which one should be adopted.
An important version of this debate takes place on the constitutional
level. Supreme Court justices Scalia, Rhenquist, and Thomas argue
that we should be “originalists”—that what the
drafters of the constitution said and meant at the time of drafting
should be at the heart of our interpretation. Justices like Ginsberg
or Stevens, by contrast, view the constitution more as a living
document that should evolve as situations change. If you look comparatively
at some other societies, you may see legal systems better able to
accommodate changing patterns of behavior than ours because they
do not make a fetish out of precedent in the same way. In fact,
increasingly European and other courts are receptive to comparative
arguments, looking at what’s going on in the jurisprudence
of other societies and thinking about what might be emerging as
the “best practice” from an international perspective.
If you read court opinions from South Africa, Australia, Canada,
the United Kingdom, or France, you’ll see references beyond
national law to what’s going on in other industrialized democracies:
How does the community of nations handle racial inequality? Gender
issues? But Thomas, Rehnquist, and Scalia reject arguments based
on norms of international human rights in interpreting American
constitutional law, calling those norms “foreign fads.”
BK: Why is it more difficult in the U.S. to
reposition or re-place law?
MF: On some level, the United States is acting
more like Iran than like the U.K. Increasingly, our law is so tied
up with the religiosity of this society that it’s not just
repositioning law, it’s repositioning the role of religion
in American culture. That’s particularly true in areas where
law regulates intimacy, such as family, sexuality, and gender laws.
In addition, because our constitutional approach is conservative
it is unable to facilitate change in these areas in particular.
For example, take the way we think about equality. We emphasize
sameness of treatment—an anti-discrimination approach that
is anchored in the Civil War era and the Fourteenth Amendment jurisprudence.
The paradigm for prohibited discrimination is based on race. Yet
in the international human rights context a concept of “substantive
equality” for all citizens is evolving. South Africans enacted
a constitution built on the idea of restoration and reparation.
They begin with the premise that they have lived in a racist society
in the past and those who have been victimized by that society need
special attention and protection. In the United States such affirmative
action for historically disadvantaged groups is attacked as setting
up reverse discrimination. We want our government to be neutral
unless there is overt discrimination on impermissible grounds—they
want theirs to act to ensure greater equality for all. It’s
a profound difference in terms of the government’s relationship
and responsibility to its own citizens.
Interview conducted by Bruce Knauft.