Contrarian Anthropology: The Unwritten Rules of Academia 9781785337062, 9781785337086, 9781785337079

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CONTRARIAN ANTHROPOLOGY

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Contrarian Anthropology The Unwritten Rules of Academia

EEE Laura Nader

berghahn NEW YORK • OXFORD www.berghahnbooks.com

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Published in 2018 by Berghahn Books www.berghahnbooks.com

© 2018 Laura Nader

All rights reserved. Except for the quotation of short passages for the purposes of criticism and review, no part of this book may be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system now known or to be invented, without written permission of the publisher.

Library of Congress Cataloging-in-Publication Data A CIP data record is available from the Library of Congress British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library

ISBN 978-1-78533-706-2 hardback ISBN 978-1-78533-708-6 paperback ISBN 978-1-78533-707-9 ebook

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To Claire Nader and Ralph Nader In memory of Doreen Cheeseman

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b CON TEN T S

Acknowledgementsix Prefacexi Introduction1

1960s to 1980s

Chapter 1.  Up the Anthropologist: Perspectives Gained from Studying Up

12

Chapter 2.  Barriers to Thinking New about Energy

33

Chapter 3.  The Vertical Slice: Child-Rearing and Children

44

Chapter 4.  A User Theory of Law: Fourth Annual Alfred P. Murrah Lecture

56

Chapter 5.  The Subordination of Women in Comparative Perspective70 Chapter 6.  The ADR Explosion: Implications of Rhetoric in the Legal Reform

86

Chapter 7.  Post-Interpretive Anthropology

109

Chapter 8.  Orientalism, Occidentalism, and the Control of Women

129



1990s to 2000s

Chapter 9.  From Legal Process to Mind Processing

162

Chapter 10.  Civilization and Its Negotiations

168

Chapter 11.  Coercive Harmony: The Political Economy of Legal Models

190

Chapter 12.  The Three-Cornered Constellation: Magic, Science, and Religion Revisited

206

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viii

CONTENTS

Chapter 13.  The Phantom Factor: Impact of the Cold War on Anthropology

225

Chapter 14.  Postscript on the Phantom Factor: More Ethnography of Anthropology

258

Chapter 15.  Controlling Processes: Tracing the Dynamic Components of Power

268

Chapter 16.  Pushing the Limits: Eclecticism on Purpose

327

Chapter 17.  In a Woman’s Looking Glass: Normative Blindness and Unresolved Human Rights Issues

333



2000s to 2010s

Chapter 18.  Crime as a Category

351

Chapter 19.  Breaking the Silence: Politics and Professional Autonomy368 Chapter 20.  Iraq and Democracy

376

Chapter 21.  Law and the Theory of Lack: The 2005 Rudolph B. Schlesinger Lecture on International and Comparative Law

380

Chapter 22.  Promise or Plunder? A Past and Future Look at Law and Development

393

Chapter 23.  What the Rest Think of the West: Legal Dimensions

414

Chapter 24.  The Words We Use: Justice, Human Rights, and the Sense of Injustice

420

Chapter 25.  Vengeance, Barbarism, and Osama bin Laden: Full Circle

437

Chapter 26.  Three Jihads: Islamic, Christian, and Jewish

442

Chapter 27.  The Anthropologist, the State, the Empire, and the “Tribe”: New Dimensions from Akbar Ahmed’s The Thistle and the Drone: How America’s War on Terror Became a Global War on Tribal Islam (Brookings Institution Press, 2013)

447

Chapter 28.  Whose Comparative Law? A Global Perspective

455

Index473

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b Acknowledg m e n t s

My acknowledgments and gratitudes are many but always start with family. My parents raised a family that taught us from a very young age the difference between critical thinking and believing. My siblings, Shafeek, Claire, and Ralph, were playmates and inspiration, and later the first to comment and critique. My children, Nadia, Tarek, and Rania, in one way or another are in my writings. Tarek Milleron has a talent for editing and paying attention to detail and cogent thinking. Rania Milleron read and commented on the introduction. For original inspiration I also thank my cousin, Doreen Cheeseman, my childhood partner in mischief. My colleagues Ellen Hertz, Roberto Gonzalez, Chris Hebdon, and Nicholas Tripcevitch were each helpful at different points of the work. My colleagues in “controversy,” especially Ugo Mattei and Elizabetta Grande, were wonderful sounding boards and inspirational. Also, I acknowledge all the many colleagues who helped with the initial publication of some of the essays—Rik Pinxton, Ugo Mattei, Antonio de Lauri, Gustaaf Houtman, Giuseppe Lorrini, and other colleagues especially from Belgium, Brazil, Italy, England, Canada, and the United States. My assistants Lissett Bastidas and Sujey Reynoso were indispensable in requesting permissions to reprint, typing drafts of the introductory materials, researching in the library, and scanning papers. To her staff and especially to my encouraging editor at Berghahn Books, Marion Berghahn, who thinks that controversy is a good thing, many thanks. Finally, I acknowledge permissions to publish granted by Free Press, University of Michigan Press, the MITRE Corporation, the Institute for the Study of Human Issues, Southwestern Law Journal, Urban Anthropology and Studies of Cultural Systems and World Economic Development, University of Windsor, Anthropological Quarterly, Cultural Dynamics, WileyBlackwell, Berg Press, Kroeber Anthropological Society Papers, Taylor and Francis Group, The New Press, the Wenner-Gren Foundation for Anthropological Research, Political and Legal Anthropology Review, Horizontes Antropológicos, Windsor Yearbook of Access to Justice, Hastings

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x

ACKNOWLEDGMENTS

International and Comparative Law Review, World Bank Corp., Edizioni Scientifiche Italiane, Anthropology Today, Edward Elgar Publishers, and Cambridge University Press.

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E PREFACE

Anthropologists study anything that relates to humans, yet they often make willful use of blinders to narrow the scope of their scholarship. Contrarian, as used here, refers to abrogating unwritten rules of academia and the ensuing consequences. Critique of entrenched mindsets are embedded in many of the essays. My examination of mindsets as impediments to good science began with the challenge of Reinventing Anthropology (1969), a collaborative volume that reverberated strongly in anthropology and allied social science disciplines. I continued writing and speaking about mindsets (dogmas) in other disciplines in invited talks and in conferences following the publication of Reinventing Anthropology. Shortly after my tenure began at the University of California at Berkeley in 1960, I received an invitation to address the College of Engineering. Their invitation was partly spurred by their desire to reinvigorate their curriculum. My talk was a critical analysis of what was missing in the education of engineers. There were already multiple critiques on engineering education, some written by engineers themselves, a self-awareness not often characteristic of professionals. For this reason, the reception at the college was positive—an outsider was saying some of the things that insiders had been saying and wanted to hear said. This early experience with engineers foreshadowed later interactions with engineers in the course of my work on energy. For me, the interaction reinforced the importance of questioning disciplinary assumptions. The talks I gave outside my discipline over fifty years had some interesting results. The majority of these were to members of the legal profession—lawyers and judges, circuit court judges, state Supreme Court judges, lawyers focused on comparison, intellectual property, and more. At a judges’ conference in Reno, Nevada, the participants carried out an experiment that could not happen today for ethical reasons. A group of judges were arrested by police in a bar and taken to jail. One judge yelled from the cell, “Where’s a chair, where’s a goddamn chair?” Clearly a judge could sentence a defendant not knowing anything concrete about

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PREFACE

the jail cell he is sending him or her to. When asked after the ordeal what they learned, they quoted the inmates, “What are you guys doing here? You’ve got money.” The other judges, who were not part of the experiment, were outraged. But the participants acknowledged the change that had occurred in their mindset as a result. My talks to physicists were in national laboratories—Los Alamos, Lawrence Berkeley Laboratory, Lawrence Livermore Lab—and at the Mitre Corporation. Much of the interaction was gratifying, although sometimes startling. The occasion of speaking at a Gordon Research Conference on nuclear war and nuclear power illustrated how unselfconscious scientists can be. Not shy about expressing their values since they tended to believe that science is objective and detached from personal viewpoints, they often made unpredictable comments. In speaking about nuclear war, one physicist commented, “The trouble with you, Dr. Nader, is that you don’t see the beauty in destruction.” The American Association of Physics Teachers, for their part, asked me to focus on attracting the young to science. At a major conference in Hawaii, again on nuclear power, one scientist casually noted that “the trouble with nuclear power is that we haven’t had enough accidents so we can learn more.” Another said he was the father of the breeder reactor. I asked him who the mother was. Casting discovery in a patriarchal frame took me back to my early training in graduate school, though few anthropologists at that time were looking at scientists the way we looked at cultures traditionally. At the Lawrence Berkeley Laboratory, a note passed under my nose as I spoke about academic freedom for lab scientists, “Can’t you shut this lady up?” I was arguing that scientists at the national labs should have tenure so they could speak their minds without losing their jobs. There is certainly nothing boring about studying mindsets. Other groups of professionals, including medical doctors and psychiatrists, mental health associations, physical therapists, and others, wanted new ideas. The American Medical Association even sought critiques. What happens when you have an unhealthy culture? Other audiences were also not only interested in what anthropologists had to say, but also invited a more cultural, comparative approach. All of these engagements were a great way to learn about professions beyond my own discipline, a different kind of fieldwork from that traditionally associated with anthropology both from within and outside the discipline. This collection makes available essays less known to the discipline at large. Controversy is embedded in most of them. The essays are diverse and scattered in various publications. About a third of the materials are published in anthropology journals, another third in law journals, and a

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PREFACE

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final third in energy science publications. What made the publications of these essays possible was the diversity in cultural values and the variety of editors and reviewers who were receptive to “contrarian” perspectives, whether in the United States, Belgium, England, Canada, Brazil, or Italy.

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E INTRODUCTIO N

his book of selected essays is about the study of mindsets, rooted in wider cultural practices that intertwine with what I call a Contrarian Anthropology. In particular, the selection of essays for this volume focuses on professional mindsets—in anthropology, in energy science, in law, and in gender studies. Although the first essay starts out with academic mindsets in anthropology, chiefly a preference for studying down, rather than up, down, and sideways, the essays that follow cover mindsets well beyond anthropology while employing an anthropological lens that continues to be an inherent comment on anthropology itself. Though anthropology as a discipline is comparatively open to crossing boundaries in ways contrary to expectations, it is critical to consider the historical context in which these essays emerged. Anthropology has been called the “uncomfortable discipline” and “an institutionalized train wreck caught between science and humanities,” thus inherently contrarian, I argue. It is the anthropological perspective that sees what other disciplines often do not see, that makes connections that are not made elsewhere, that questions assumptions and behavior that is contrary to cultural expectations. In the nineteenth century, archaeologists replaced short chronologies of biblical origin with ones of longer time depth, while cultural and physical anthropologists questioned the idea of physical inequalities as innate (as the continuous study of contemporary racist attitudes informs us). Fieldwork dislodged anthropologists from their armchairs. We came to recognize the ideological nature of beliefs that science and technology provide us with the only source of truth, the ethnocentricity of Western science—even some anthropology—as it pertains to the future of life on this planet. The selected essays on nuclear and alternative energy science examined the idea that the mindset of experts might be part of the problem, something novel and contrary to expectations. As did many others before me, I asked, when is science scientific? The human dimensions of the energy problem, other than simple consumption, have been slow to sink in to this

T

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CONTRARIAN ANTHROPOLOGY

day, so deep is the ideology that technology will eventually solve all our world’s problems. Although earlier anthropology adhered to the notion of progress, bent on documenting a move from savagery to barbarism to civilization, today such notions are considered pseudoscience—at best—though they may still be believed by development experts. In 1948, Kroeber noted that the concept of progress has a powerful hold that is more religious than not and should not be taken for granted (pp. 297), that it is an assumption “adhered to with considerable fervor of emotion … something to be analyzed” (pp. 296–97). Progress as a concept driving planning is scrutinized by the public in areas as disparate as climate change activism, the nuclear arms race, or the happiness index. Other civilizations, from Tokyo west to Gibraltar, do not equate technological development as the measure of civilization or progress. Indeed most of the world’s civilizations see Euro-American societies as superior in technology but inferior in spirituality—a quality essential to non-Western ideas of what it means to be civilized. After all, the major monotheistic religions were borrowed by the West and originated in the Middle East. Among economists, a hidden ideological premise necessary for the spread of the “free market” is the concept of nature as a bottomless resource or raw material, an example of materialism eventually causing shrinking biological diversity. Conceptual categories are at the core of political struggles over biological diversity. It is obvious that the loss of native languages means loss of knowledge. The fact that we are losing knowledge needed for survival, even as we are gaining knowledge, is contrary to the prevailing belief that knowledge is always incremental. With such observations, anthropologists make new discoveries often contradicting expectations. We cross boundaries of acceptable truths—an anthropological habit—even if it means criticizing the anthropological discipline itself, as some of the essays illustrate. Anthropology, we say, is the study of humankind, past and present, here and there, us and them. Mirror for Man (1950), by Harvard anthropologist Clyde Kluckhohn, was a prize-winning book written for the general public that makes such an argument, which was not necessarily accepted by many anthropologists who confined the discipline to the study of others. This tension made graduate work at Harvard in the fifties particularly exciting. Also, with the return of many veterans to graduate school, there were among us even richer perspectives formed abroad. At Harvard, we were taught rules were made to be broken. But, in keeping with traditions, graduate students were encouraged to do their first fieldwork in places different from our own. I went to the Rincon Zapotec of the Sierra Madre in Oaxaca, Mexico, and I wrote my dissertation com-

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INTRODUCTION

3

paring law in two contiguous villages. I became a comparatist. It would take about a decade for me to turn my anthropological eye to “here” and “us.” In the 1960s Berkeley was full of ferment, much different from the McCarthyism that was much felt while I was at Harvard. The Free Speech Movement came together with other movements that had been building— the civil rights movement, the Native American movement, the feminist and consumer movements, the anti-Vietnam War movement, and more. Looking back now on this ferment, it is not surprising that Dell Hymes brought together a group of anthropologists to rethink their field in Reinventing Anthropology (1972).Thomas Kuhn was at Berkeley and had written his book on paradigm shifts, The Structures of Scientific Revolutions (1962), in which he distinguished “normal science” from nonhegemonic or a paradigmatic open-ended science. In Reinventing Anthropology, the usual rules were indeed made to be broken. My contribution was “Up the Anthropologist: Perspectives Gained from Studying Up,” the first essay in the volume. With the publication of Reinventing Anthropology, we were continuing the anthropological tradition of challenging assumptions, this time our own disciplinary assumptions. Even though the published reviews at the time were mixed, today we do examine power up, down, and sideways both in the United States and elsewhere (Stryker and Gonzalez 2014). But within anthropology, as in the larger society, there are always trends and trendiness. First, functionalists were fashionable; so were Marxists, interpretive anthropologists, and later European social philosophers like Foucault, Gramsci, or Derrida. In the wider society there is political correctness, Islamophobia, American exceptionalism, love of technology for its own sake—all of which might also be found in the academy. Trends are often initiated as new framing for reconsideration of issues of power, gender, and challenging political landscapes, or the desire for more “theory” to enhance “mere description” before becoming dominant. Trendiness or dominant positions can be intimidating and affect funding possibilities and tenure, but can also be a challenge to thinking new, open-ended science. Kuhn’s ideas about normal science and scientific revolutions were inspiring for many beyond any specific interest in the history of science, and certainly beyond his intended audience. The word paradigm began to appear in varied publications. In this context, dogmas and mindsets begged for scrutiny, setting the stage for thinking that challenged the status quo. My own understanding of mindsets was crystalized in the essay I wrote for Reinventing Anthropology after encountering a serious boundarysetting reaction to having two Berkeley graduate students collaborate

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with two Harvard law students in a study of a powerful Washington, D.C., law firm. This caused a short-lived furor among our faculty. Studying power was off the table, several of my colleagues felt. I argued that power is central to anthropology, but the matter was tabled and the students defunded, over my protest. Why had anthropologists limited their ethnographies to the colonized rather than the colonizer, the ghettos rather than the banks that redline poverty areas? Why did we focus on powerless people with no access to law rather than the powerful Washington, D.C., law firm of Covington & Burling? As Eric Wolf wrote in Reinventing Anthropology, anthropologists are a reflection of their own culture. Secrecy during the Cold War obscured the full history of anthropology, which we now know was gathered by the intelligence-gathering state. “The Phantom Factor: Impact of the Cold War on Anthropology” was a start towards understanding the underside of the discipline. There in the wings, influencing funding, publications, and the status of colleagues, were the dual uses of anthropological research: independent knowledge production and complicity with the national security state (Price 2016). It is difficult to understand power without understanding how control works as part of the dynamics of power, a point central to my Mintz Lecture on “Controlling Processes: Tracing the Dynamic Components of Power.” Anthropologists, having been granted the widest of discipline autonomies to understand the full context of the work, were simply blind to this large outside influence. A more diffuse control on the field, exceptionalism is an assumed normative standard challenged by nonhegemonic anthropology. A. L. Kroeber thought that the eradication of this pervasive sense of exceptionalism to be a most critical challenge of our field. It is important to employ Kroeber’s scrutiny now more than ever. Anthropologists slowly overcame this part of our cultural heritage early on by challenging anthropological theories of social evolution, which held that humans moved from savagery (them) to civilization (us). More recently, anthropologists began by questioning the history of the close alignment of anthropology with colonialism and imperialism. In the arena of human rights, mainly a U.S. invention after World War II, the United States ostensibly takes human rights to the so-called Third World. Focusing on violations of human rights elsewhere gives the impression that “they” have violations of human rights, whereas we do not. Yet true comparison is critical to improving human rights everywhere. We now have easy access to Chinese and Russian documentation of human rights violations in the United States, which certainly puts the shoe on the other foot, especially spotlighting political motives similar to our own. My one and only comparative essay on human rights, “In a Woman’s Looking Glass: Normative Blindness

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INTRODUCTION

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and Unresolved Human Rights Issues,” was published in Brazil, where I found a much less restrictive mindset. Notwithstanding its internal inconsistencies, the anthropological perspective was much sought after as critique in the 1970s. I was invited to join the National Academy of Sciences Committee on Nuclear and Alternative Systems (CONAES). In a talk at the Mitre Corporation to report on my CONAES publication, “Energy Choices in a Democratic Society” (1980), I asked whether the energy experts themselves were part of the problem. In my essay, “Barriers to Thinking New About Energy” (1979), I focused on the mindset of scientists and engineers that ignore human frailty. Nuclear power accidents most often result from human error and expressed emotion. After all, scientists calibrate their instruments, and the scientists themselves are part of the instruments. I argued, and still argue, that energy is a social problem primarily and that mindsets stand in the way of good science. My observations were validated by dozens of letters that I received from heads of laboratories, physics professors, and Nobel Laureates, who wrote about professional blindness, overspecialization, workplace bureaucracy, self-censorship, and the “mind cage.” These distinguished scientists felt unable to alter conditions, although time and changing public attitudes have partly changed the work of energy scientists and engineers working today. Meanwhile, back in my department, the chair advised me to “get off this energy kick, Laura; you won’t get promoted for that in this department.” Boundary maintenance. For an anthropologist, a fundamental examination of science mindsets would start with the comparative assessment of science quality in Western and other cultures. Having been drilled in grammar school through college that science was objective and autonomous from culture and society, in graduate school I took notice of Malinowski’s work Magic, Science and Religion (1926). There are parallels between the Pacific islanders, as they practiced magic, science, and religion, and modern-day Western science practices, both in the national laboratories and in academia. Scientists such as Ludwig Fleck ([1935] 1979) wrote about “thought collectives” and “thought styles” in relation to his work on syphilis. It was Fleck who influenced Thomas Kuhn’s (1962) analysis of paradigmatic changes in science (see Gonzalez, Nader, and Ou 1995). In this context, there is contemporary relevance of Malinowski’s 1926 work (see Leach 1957) for both Trobriand practices of science and magic in the lagoons and open seas, and predictions about the long-range consequences of nuclear power. Outside academia, there were groundbreaking happenings in energy initiatives. Through bricolage, people in business and science and just plain citizens made shifting gears possible (Nader 2004). By 2010, en-

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ergy work had gone past bricolage to include a wide range of people from the sciences, humanities, journalism, politics, and citizen action (Nader 2010). A movement had taken off. Power had shifted in energy choices. Notions of power were being reinvented by scientists who considered themselves citizens first. The longue durée was front and center. In contrast to the flexible mindsets engaged in the study of energy science, policy, and culture, those concerned with the status of women showed (and continue to show) a great deal of intransigence. Cultural beliefs about the status of women go back centuries (Khan 1801). In primary school I was taught that Arab men do not treat their women well, to which my mother responded, “When you grow up you will find out that American women are treated worse than anywhere in the world,” a perception contrary to American popular beliefs most certainly. Even sophisticated anthropologists preferred not to use comparative framing (us and them) in research on genders. Such research might suggest that American women may not be number one on questions of status and choice. My essay “Orientalism, Occidentalism, and the Control of Women,” about the means used by Eastern and Western patriarchies for control of women, was rejected for publication by several American anthropology journals. Reasons included questioning the use of comparison to rationalize Islamic women’s status. The paper was published in Belgium. The hesitation to publish was also true for “The Subordination of Women in Comparative Perspective,” which questioned American ideas of exceptionalism. Again, on the question of the status of women, a global comparison is indispensable. My hypothesis is that comparison and contrast are strategies of control, strategies in male-dominant societies to control women in their own societies by pointing to the lower status of women in other societies. Islamic women are repressed, but which Islamic women and as compared to what? The Islamic clerics point to repression of Western women and argue that Islamic women are more respected, citing the very literature of Western feminists. Western imperialism enters in—“We need to invade Iraq or Afghanistan so that we can save their women”—while in the United States today, an average of three women a day are murdered by their partners. We need more research on this topic worldwide. Professional mindsets, within and outside of anthropology, tend to exclude a look in the mirror. If we consider the Other as mute, we cannot benefit from their possible insights. I was once invited to deliver a college talk on a New Yorker cover which showed two women, one covered and the other showing much of her nakedness. The question about each in turn was “Why do her men make her cover herself?” “Why do her men

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INTRODUCTION

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make her go naked?” A challenge to insular thinking can yield discoveries that are contrary to expectations, by recognizing that the Other is not mute. This question of parity in dress is certainly one that deserves more attention from anthropologists. In the Amazon, if he is uncovered, she is uncovered. In Saudi Arabia, if she is covered, he is also covered. But in Euro-American culture there seems to be no parity. He’s covered, but she is nearly uncovered. There is as yet no fundamental explanation for these patterns. In a recent New York Times op-ed, Roger Cohen (11 August 2016) calls to our attention two Olympian volleyball players at the Rio de Janeiro games in Brazil. One Egyptian, the other German, one in a hijab, the other in a bikini, reaching for the ball between them—two women, two dress codes, both reflective of two contrasting beliefs about emancipation and subjugation. And Cohen asks, “Who is to say which of the women is more conservative, more of a feminist, or more liberated?” While my interests in Western science practice came later, early in my work the ethnography of law had been my central specialty (Nader 1965). In thinking about legal decision-making in my own country, questions included examining the very concept of judicial-made decisions, which were viewed as if the judge was practicing an autonomous law separate from culture and society. Here the contrast with Zapotec practices could not have been clearer: Zapotec knowledge of law was ubiquitous: they knew their rights and how to exercise them. I taught and observed at several law schools—Boalt Hall at University of California at Berkeley, Yale Law, Harvard Law, and Stanford. I taught that categories are artificial, made by humans and not hard-set, although sometimes unrecognized due to thinking that is professionally rigid. What is a crime and what is civil action? Perhaps we should consider a plaintiff as having the dominant position in decision-making because it is the plaintiff who initiates the case (Nader 2002). In many countries the distinction between civil and criminal is not recognized. In my own society, the powerful party may determine the label. In the case of contaminated water supplies in Woburn, Massachusetts (Harr 1995), the case was considered a civil case, but it might have been a criminal action. If corporate crimes are preferentially treated as civil actions while street crimes are labeled criminal, then an understanding of corporate crime by the average citizen is impeded, to say nothing of justice. For example, at a Yale conference on Mirrors of Justice (Clarke and Goodale 2009), no mention was made of injustice. Justice as a concept has an interesting history no matter where anthropologists might choose to look. However, upon examination of the comparative use of the categories justice or injustice, we find that in my own culture there is a widespread professional preference for the word justice, rather than injustice.

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If we prefer to use the concept of justice over injustice, the research becomes abstract, ideal, and above the fray. If the murder of Osama bin Laden is accepted as deliverance of justice, we discard the importance of due process, key to what we think of as civilized law. Similarly, we think of the Islamic concept of jihad as unique to Islam when we in fact are presently in the midst of religious wars of several stripes today. Yet even in academic circles, many people hold the belief that jihadism is only found in Islam, although there is excellent historical literature about jihadi rabbis, for example (Shahak 1994). The final essay, “Whose Comparative Law?,” covers much of my work on law from the start. Anthropological errors in evolutionary and crosscultural formulations were recognized as soon as anthropologists began ethnographic studies of particular societies, early in the twentieth century. Decontextualized facts or broad observations were considered unusual by most anthropologists conducting research outside the United States. But anthropologists also became isolated in bounded ethnographies as new nation states made their appearance after decolonialism and an everexpanding globalization process accelerated. Western legal paradigms saw the newly developed peoples as lacking law. Following the end of the European colonization and the development of new states, legal missionaries were sent to Africa and Asia in the 1950s and 1960s, followed by decades of legal development moves in Latin America (Gardner 1980). The legal development movement continues to this day. “Promise or Plunder? A Past and Future Look at Law and Development” was the title of a talk I presented at a World Bank Conference. In a later article, I noted that an example of new states that gain monopoly over “unofficial law” is the region of Waziristan: both in Afghanistan and in Pakistan legal boundaries were drawn by colonial powers running roughshod over local Waziristan cultures (Ahmed 2013). Legal development has its twenty-first-century dark side, too, no better exemplified than by Paul Bremer’s one hundred edicts after the United States invaded Iraq in 2003. The Iraqis “lacked law” according to the American invaders, although they have well-developed systems of law—from civil to criminal codes, customary and religious law, and tribal and state law—that had coexisted for many years of Iraqi state development before the American invasion. The majority of essays selected have implications for American or Western professional dogmas as they relate to how American anthropologists are conducting ethnographic research in a rapidly changing world. This was not so in my earlier bounded fieldwork among the Zapotec of Oaxaca, Mexico, or the Shia Muslims of southern Lebanon. I was not able to return to southern Lebanon for continued research because of the Lebanese Civil War and the Israeli invasion in 1982; however, I have contin-

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INTRODUCTION

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ued to revisit the mountain Zapotec. My last primary contact was to make a documentary film, “Losing Knowledge: 50 Years of Zapotec Change” in 2005. The earlier PBS film, “Little Injustices,” was about comparative access to disputing forums in the Sierra de Juarez and the United States. Increasingly, however, it became impossible to disentangle the state from local cultures like that of the Zapotec. The North American Free Trade Agreement (NAFTA) undercut Zapotec farmers. Cheap corn was brought in from the United States, displacing local production. Outmigration increasingly became an imperative, facilitated by ideas of progress, road building, and NAFTA. Much of this was contrary to modern expectations among the Zapotec and even among many anthropologists. The idea that local courts might provide more access and justice as compared to dispute resolution in U.S. disputes between people in face-to-faceless disputes was an open door to understanding the real impact of “little injustices” that weren’t so little, especially in our country with “no access to law” Americans. There were reactions in and out of anthropology to the focus on access to justice, especially during the debates about President Nixon’s appointee, Chief Justice Warren Burger. His attack on the American civil justice system was ferocious as he promoted Alternative Dispute Resolution (ADR) as a substitute for litigation. “The ADR Explosion: Implications of Rhetoric in Legal Reform” examines the Chief Justice’s techniques. A recent history of the Burger court as one that moved the Supreme Court to the right (Graetz and Greenhouse 2016) left out Burger’s destructive tactics beyond what he did in cases heard by the court. Burger’s rhetoric was powerful, widely accepted, and spurred the ADR movement to happen earlier than Burger himself predicted. If my work had been along lines of “normal science,” as Kuhn might call it, reactions might be subdued or it might be referred to as building on past work, as much work on the ethnography of law has been. If the research appears contrary to expectations, reactions were often more controversial, eliciting more reaction. The essays on issues pertaining to nuclear power generated an oral talk published by the Mitre Corporation, then republished in Physics Today, Chem Tech, and some forty years later in the Industrial Physicist. Controversy is thought to be key to the basic values of many science organizations. The law, according to Oliver Wendell Holmes, is one big anthropological document. Most nineteenth-century anthropologists were lawyers. I was invited by Warren Burger, then Chief Justice of the United States, to address the Pound Conference in Minneapolis in 1976 because of my work on Zapotec harmony and conciliation. My observations on the overall conference are being republished forty years later! Our critique of

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Western Rule of Law, Plunder: When the Rule of Law is Illegal (Mattei and Nader 2010), was turned down by two American university presses, but when published was translated into Italian, Chinese, Portuguese, Spanish, and more. The study of paradigms and scientific revolutions is a rich academic subject for philosophers and historians of science. But historians and philosophers of science are usually examining Western science. In the contemporary world, the anthropological study of professional mindsets is increasingly urgent, particularly in bridging indigenous and scientific knowledge systems which are increasingly complementary. Such knowledge is context specific and adaptive to changing environments. Climate or ecological holistic solutions are thought by some scientists and many lay people to increase resilience. Western worldviews are not enough to expand the range of problem-solving options. The sciences of the other extant civilizations—Japan, China, India, Middle East—require respectful acknowledgment of their distinctive epistemology related to health and sustainability, as in the case of water and the management of drought, particularly in the Middle East. A developing subfield of anthropology on comparative issues in the study of professional mindsets—which is already robust for numbers of anthropologists who study NGOs, agricultural experts, medicine, gender, and more—would be timely for all divisions of anthropology. The extant research itself needs to be brought together as a field worthy of specific attention. The selected essays that follow outline a field of study. Although they barely scratch the surface, my hope is that this collection is a book for everybody in and out of the discipline, stimulating argument and counterargument; there is much need for such critical thinking as remedy for contemporary increased specialization and narrow demarcation of knowledge production. The essays that follow are presented in chronological order from 1969 to 2016, indicating that, with time, unraveling mindsets becomes as natural an academic concern as if working within demarcated subjects, only more stimulating.

REFERENCES Ahmed, Akbar. 2013. Thistle and the Drone: How America’s War on Terror Became a Global War on Tribal Islam. Harrisburg: R.R. Donnelley. Clarke, Kamari, and Mark Goodale, eds. 2009. Mirrors for Justice: Law and Power in the Post–Cold War Era. Cambridge: Cambridge University Press. Cohen, Roger. 2016. “Olympians in Hijab and Bikini.” New York Times op-ed, 11 August.

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Fleck, Ludwig. (1935) 1979. Genesis and Development of a Scientific Fact. Chicago: University of Chicago Press. Gardner, James, A. 1980. Legal Imperialism: American Lawyers and Foreign Aid in Latin America. Madison: University of Wisconsin Press. Graetz, Michael, and Linda Greenhouse. 2016. The Burger Court and the Rise of the Judicial Right. New York: Simon and Schuster. Gonzalez, Roberto, Laura Nader, and Joy Ou. 1995. “Between Two Poles.” Current Anthropology 36, No. 5 (December). Harr, Jonathan. 1996. A Civil Action. New York: Vintage Books. Hymes, Dell, ed. 1972. Reinventing Anthropology. New York: Pantheon Books. Khan, Mirza Abu Taleb. 1801. “Vindicating of the Liberties of the Asiatic Women.” Asiatic Annual Register. Kluckhohn, Clyde. 1949. Mirror for Man: The Relationship of Anthropology to Modern Life. New York: Whittlesey House. Kroeber, A. L. 1948. Anthropology: Race, Language, Culture, Psychology, Prehistory. New York: Harcourt, Brace and Company. Kuhn, Thomas. 1962. The Structure of Scientific Revolutions. Chicago: University of Chicago Press. Leach, E. R. 1957. The Epistemological Background to Malinowski’s Empiricism. London: Routledge and Kegan Paul. Mattei, Ugo, and Laura Nader. 2010. Plunder: When the Rule of Law is Illegal. Oxford. Blackwell Publishing. Nader, Laura. 2002. The Life of the Law. Berkeley: University of California Press. ———. 2004. “The Harder Path: Shifting Gears.” Anthropological Quarterly 77, No. 4 (Fall). ———. 2010. The Energy Reader. Malden, Mass.: Wiley Blackwell Publishers. Price, David, H. 2016. Cold War Anthropology: The CIA, the Pentagon, and the Growth of Dual Use Anthropology. Durham and London: Duke University Press. Shahak, Israel. 1994. Jewish Religion: The Weight of Three Thousand Years. London: Pluto Press. Stryker, Rachel, and Roberto Gonzalez, eds. 2014. Up, Down and Sideways: Anthropologists Trace the Pathways of Power. New York: Berghahn Press.

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E c ha p te r 1

Up the Anthropologist Perspectives Gained From Studying Up

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n this essay I shall describe some opportunities that anthropologists have for “studying up” in their own society, hoping to generate further discussion of why we study what we do (Nader 1964). Anthropologists have a great deal to contribute to our understanding of the processes whereby power and responsibility are exercised in the United States. Moreover, there is a certain urgency to the kind of anthropology that is concerned with power (cf. Wolf 1969), for the quality of life and our lives themselves may depend upon the extent to which citizens understand those who shape attitudes and actually control institutional structures. The study of humanity is confronted with an unprecedented situation: never before have so few, by their actions and inactions, had the power of life and death over so many members of the species. I shall present three reasons for “studying up”: its energizing and integrating effect for many students; scientific adequacy; and democratic relevance of scientific work. Finally, I shall consider some frequent obstacles and objections and try to answer them.

Indignation as Motive Many of our brighter students look at the anthropology journals of recent times and conclude that anthropology appears to be phasing out, content to make a living for the most part by rediscovering what has been discovered or by selling our wares to other disciplines and professions. The audience is too narrow, the nitpicking too precious. Making a living by selling one’s wares is not an inappropriate way to subsist; it is, however, in this case, symptomatic that a talent, the perspective of a Mirror for Man, is being underused.

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Today we have anthropology students who are indignant about many problems affecting the future of Homo sapiens, but they are studying problems about which they have no “feelings.” Some think this is the only appropriate stance for a science. Yet the things that students are energetic about they do not study. I think we are losing something here. The normative impulse often leads one to ask important questions about a phenomenon that would not be asked otherwise, or to define a problem in a new context. A rapid growth in civil rights studies is directly attributable to activities whereby the victims of the system made their victimization visible. By a process of contagion, this visibility spread moral indignation into the law schools and the legal profession, which in turn led to research into civil rights questions and the related area of poverty law. In anthropology, we have the example of Ruth Benedict’s The Chrysanthemum and the Sword (1946), an effort to understand opponents in war. The normative impulse here, generated by patriotism and loyalty, considered appropriate in World War II, was responsible for an insightful book and the development of new techniques for studying culture at a distance. Looking back to an early founder of American anthropology, L. H. Morgan (the first anthropologist to become president of the American Association for the Advancement of Science [AAAS]), we discover that he broke new ground in science as a result of having been interested in a social problem (Resek 1960). Throughout his career, Morgan was indignant at how American Indians were being treated, at how they were being pushed off the land. It was his initial indignation which led him to study American Indians, and his indignation preceded his curiosity about kinship systems and social structure. In Morgan’s case, indignation had an energizing effect. As Jules Henry (1963, p. 146) put it, “To think deeply in our culture is to grow angry and to anger others; and if you cannot tolerate this anger, you are wasting the time you spend thinking deeply. One of the rewards of deep thought is the hot glow of anger at discovering a wrong, but if anger is taboo, thought will starve to death.” I see among young students at Berkeley an energizing phenomenon in studying major institutions and organizations that affect everyday lives, such as the California Insurance Commission, the Better Business Bureau, air pollution agencies, and the like. The following extended excerpts illustrate something about what motivated these students to study what they did: I chose to study the insurance industry primarily because it is one of those “things” (there is no term) which is made of vast networks of people who have effects on many aspects of the lives of all people in California. Most are affected in a direct way, by owning an insurance

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policy. All are affected in other ways, such as by the vast political influence of the “insurance industry” and its tremendous economic influence over our personal lives. For example, one drives to the market in one’s car, which is itself insured. The market one arrives at is insured for loss, theft, damages and liability. The food was delivered by trucks which were insured for the cargo they carry, which is also protected against various problems. The price of these coverages also affects the price of your food. Incidentally, the factories where the truck and your auto were manufactured are insured with various policies (as are all the employees). One of these, termed “pollution insurance,” protects the company for liabilities incurred if they are sued for pollution damages. The price of this affects other prices, as mentioned, but the ownership of the insurance permits the factory or the network of people who control the factory to pollute the air without economic risk to themselves. To extend this further, the auto company is probably owned in large part by insurance companies. To get an idea of the tremendous wealth of the insurance industry, consider that California owners of insurance policies paid over $6 billion in insurance premiums in 1970, which is over $300 per person in the State of California. This is greater than the per capita income of most of the world’s population. As a matter of fact, the annual amount of premiums taken in the U.S. by the insurance industry is greater than the gross national product of all but five nations in the World. (Serber 1971, pp. 2–3)

Another student had the following to say about her study of the Oakland Better Business Bureau: In our complex society, we obtain many goods and services in a prepackaged state. Like the proverbial city child who grows up believing that milk grows in paper cartons, most consumers know little about what their purchases are made of, how they work, how to evaluate their potential before buying them, and how to repair them if they break down. This ignorance is not limited to goods but extends to services, investments, charities, to say nothing of the legal and medical professions. We rely on [Pacific Gas and Electricity] to install gas equipment, to check it for safety, even to relight the pilot if we cannot locate it when it is accidentally extinguished. We take our special garments to a dry cleaner. When the transmission on an automobile doesn’t work, the car must be towed to a transmission specialist. Goods are ordered by telephone or through the mail. Appointments at a photographer’s studio, cosmetics, magazine subscriptions, and investments may be sold and contributions to charities collected by door-to-door solicitors. When a carpet is desired, the consumer depends on a salesman to explain the qualities of the constituent fibers, to calculate the number of yards needed to cover a given area, and to make sure that incidentals like matting, tacks, and labor are included in the quoted installation cost. We depend upon specialists to provide

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services and often even to give us the criteria by which we are to judge their work. Many of our transactions take place infrequently, which means that the consumer may be totally inexperienced in evaluating what he pays for when he buys a large appliance, an insurance policy, or a vacation trip. Likewise he may find himself incapable of obtaining redress of his grievances when he thinks he has been misled or cheated. Most contacts with businesses are limited to the disembodied voice of the switchboard operator, to the secretary or public relations representative in the front office, or to the salesman who happens to be on the floor when the customer walks into the store. The consumer phones the company to see what it will do for him, or he writes to a newspaper complaint column or a broadcasting station’s “hotline” program. The services of these expediters are also “packaged”: the complainant sends in his story and waits for the machinery to grind out an answer. This situation extends even to the law enforcement and consumer aid organizations to which the irate customer may eventually refer his problem… I began this project on the BBB in total ignorance of what it is, what it does and does not do, and why. Like the typical citizen, I began with the simple knowledge that there is a business-supported organization called the Better Business Bureau and that it is customarily contacted by telephone when a person has a question about the dependability (or existence!) of a firm or has a complaint against a business that has failed to give satisfaction. Few people go beyond these facts to ask who the voice on the other end of the line is, where she gets her information, or what actually happens to the complaint form which arrives, is returned, and whose results are relayed back to the consumer by mail. And yet thousands of people use the BBB every year. (Eaton 1971, pp. 2–3)

Maybe these are attempts to get behind the facelessness of a bureaucratic society, to get at the mechanisms whereby faraway corporations and large-scale industries are directing the everyday aspects of our lives. Whatever the motivation, the studies raise important questions as to responsibility, accountability, self-regulation, or on another level, questions relating to social structure, network analysis, library research, and participant observation.

Scientific Inadequacy If we look at the literature based on fieldwork in the United States, we find a relatively abundant literature on the poor, the ethnic groups, the disadvantaged: there is comparatively little field research on the middle class and very little firsthand work on the upper classes. Anthropologists

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might indeed ask themselves whether the entirety of fieldwork does not depend upon a certain power relationship in favor of the anthropologist, and whether indeed such dominant-subordinate relationships may not be affecting the kinds of theories we are weaving. What if, in reinventing anthropology, anthropologists were to study the colonizers rather than the colonized, the culture of power rather than the culture of the powerless, the culture of affluence rather than the culture of poverty? Studying “up” as well as “down” would lead us to ask many “common sense” questions in reverse. Instead of asking why some people are poor, we would ask why other people are so affluent? How on earth would a social scientist explain the hoarding patterns of the American rich and middle class? How can we explain the fantastic resistance to change among those whose options “appear to be many”? How has it come to be, we might ask, that anthropologists are more interested in why peasants don’t change than why the auto industry doesn’t innovate, or why the Pentagon or universities cannot be more organizationally creative? The conservatism of such major institutions and bureaucratic organizations probably has wider implications for the species and for theories of change than does the conservatism of peasantry. If, in reinventing anthropology, we were principally studying the most powerful strata of urban society, our view of the ghetto might be largely in terms of those relationships larger than the ghetto. We would study the banks and the insurance industry that mark out areas of the city to which they will not sell insurance or extend credit. We would study the landlord class that “pays off” or “influences” enforcement or municipal officials so that building codes are not enforced. Slums are technically illegal; if building codes and other municipal laws were enforced, our slums would not be slums (if enforcement were successful), or they might be called by another name which would indicate that they were results of white-collar crime. One might say that if business crime is successful, it will produce street crime. With this perspective on white-collar crime, our analysis of gang delinquency might be correspondingly affected, and in developing theories of slum-gang behavior we might ask, is it sufficient to understand gangs as products of the value systems of that subculture alone? We might study the marketing systems or the transportation system which, as in Watts, makes virtual islands of some ghetto areas. We might study the degree to which legal practices, or the kind of legal services, mold the perceptions of law that are present in the ghettos. The consequences of not studying up as well as down are serious in terms of developing adequate theory and description. If one’s pivot point is around those who have responsibility by virtue of being delegated power, then the questions change. From such a perspective, one notices

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different facets of culture—the ghetto may be viewed as being without law, lawless. The courts are not geared to the complaints of the poor (which would fall in the $20 to $80 range); furthermore, they are not geared for cheap and quick resolution of conflict—crucial features for the poor. From this perspective, ghetto communities may be said to be shut out of the legal system except as defendants, and indeed they are often shut off from other municipal services ranging from garbage-collecting to police protection. From this orientation, then, the question may be raised again: in our studies of delinquency, is it sufficient to understand gangs as products of the value systems of that subculture alone? Let’s ask another question: what have been the consequences of social science research on crime? By virtue of our concentration on lowerclass crimes, we have aided in the public definition of the “law and order problem” in terms of lower-class or street crimes. Let’s assume that the taxpaying public in a democracy, after listening to a presidential speech calling for more tax money for enforcement and protection from street crimes, decides to see for itself. No matter what library they went to, the most they could get is some information on crimes committed by the lower class. They would have no way of evaluating, given present descriptive materials, whether, in a situation of limited money, they would do better to put their money on street crime or on white-collar crime, both of which, after all, imperil the lives of all taxpayers every day in many ways. As Clyde Mitchell has noted, it was with such problems in mind that anthropologists first introduced the concept of “social field”: The classical anthropological study takes a unit—a “tribe” or “society” or “community”—and presents the behavior of its members in terms of a series of interlocking institutions, structures, norms, and values. It is not only anthropologists working in urban areas who have found this sort of assumption difficult to maintain, but also those who have been conducting “tribal” studies in modern Africa (and presumably also elsewhere). They have found that the effect of groups and institutions not physically present in the tribal area influences the behavior of people in it. The unit of interacting relationships, in other words, is larger than the tribe. (Mitchell 1966, p. 56)

Lowie may have studied the Crow, and Llewellyn and Hoebel the Cheyenne, as if they were “islands” unrelated to the wider society and even unrelated to the policies and actions of the Bureau of Indian Affairs, but there has ranged a whole literature since the fifties challenging the limited ethnographic community view of the world, and a recognition of methodological need has been, as Mitchell noted, what has perhaps stimulated the development of network theory and the development of nation state studies (Adams 1970).

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If anthropology were reinvented to study up, we would sooner or later need to study down as well. We are not dealing with an either/or proposition; we need simply to realize when it is useful or crucial in terms of the problem to extend the domain of study up, down, or sideways. If we become interested in the determinants of family patterns (rather than the poor or the rich as such) then studying this problem across class, or at least on a vertical slice, would be a way to test hypotheses regarding whether certain aspects of lower-class or upper-class plight are somehow due to a particular kind of family pattern (serially monogamous matrifocal, father-absent), whether poverty, for example, is generated by certain types of employment patterns or external factors. At least posing the problems in a comparative frame would help improve our chances for understanding the forces that generate excessive poverty or affluence and the origins of those forces, whether intrusive from the larger society or “determined by cultural transmission within the group” Gladwin 1969; Valentine 1969). Depending on one’s view of the processes that generate behavior, one would seek solutions to social problems either by a policy directed to reforming the society as a whole or by one directed to modifying the behavior of the subculture, or both (Gladwin 1969; Valentine 1969). On the basis of such work in our own society,1 we could rewrite the books on American society, whose indexes make no mention of the advertising, insurance, banking, realty, or automobile industries, which most people on the street know have played a major role in forming modern American society. Ethnographic reports would describe the communications industries, the agencies which regulate them, the institutions that undergird the industrial sector, such as the legislative bodies, the universities, and professional organizations, and such descriptions would be from the point of view of the users as well as the managers. It is appropriate that a reinvented anthropology should study powerful institutions and bureaucratic organizations in the United States, for such institutions and their network systems affect our lives and also affect the lives of people that anthropologists have traditionally studied all around the world. It is particularly appropriate that anthropologists should lead the way in this work by virtue of a number of characteristics of our discipline. The study of humanity has had to be eclectic in its methods, broad in its vision of what it takes to understand human beings—their past, their present, their culture, their biology. We have specialized in understanding whole cultures in a cross-cultural context. We should, for example, be at home in studying the law firm as a secret society, in finding and analyzing the networks of power—which on paper may not be there—in describing those unwritten customary behaviors that are completely indispensable

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for understanding, for example, what makes Congress tick. The anthropologist should, above all, by virtue of his or her understanding of the principle of reciprocity, be able to analyze why it is that decisions of federal communications commissioners may not be “rational,” or the cultural dimensions involved in the failure of national programs ostensibly geared to reintegrate society. It is the anthropologist who, by virtue of his or her populist values, may be able to define the role of citizen-scholar—a science of humans for humans.

Democratic Relevance “Studying up” seems to be one track for integrating paramount social concerns with the goals and aims of the science of humanity. The service function we have performed in the past could be amplified to include another service, social as well as scientific—that is, writing ethnographies for the “natives.” A monograph that should be taken into account by managers for the benefit of people concerned is Colson’s (1971) book on The Impact of the Kariba Resettlement upon the Gwembe Tonga. She writes, “Massive technological development hurts. This is a fact largely ignored by economic planners, technicians, and political leaders. In planning drastic alterations in environment that uproot populations or make old adjustments impossible, they count the engineering costs but not the social costs. After all, they do not think of themselves as paying the latter … This book is a study in the impact of forced change upon some of its victims.” Another example is Spradley’s You Owe Yourself a Drunk, an ethnographic description of the interaction and the consequences of the interaction that drunks have with the legal and enforcement systems. This monograph is already serving to educate managers of that system about the consequences of specific legal decisions and procedures. This is not a novel role for social scientists to play, and unfortunately our findings have often served to help manipulate rather than aid those we study. Another role, however, is related to the concept of citizenship in a country that is to be run on a democratic framework and the control that citizens must have to harness managerial manipulation. We cannot, as responsible scientists, educate “managers” without at the same time educating those “being managed.” A democratic framework implies that citizens should have access to decision-makers, institutions of government, and so on. This implies that citizens need to know something about the major institutions, government or otherwise, that affect their lives. Most members of complex societies and certainly most Americans do not know enough about, nor do they know how to cope with, the people, institutions, and

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organizations which most affect their lives. I believe that anthropologists would be surprisingly good at applying their descriptive and analytical tools to a major problem: How can a citizenry function in a democracy when that citizenry is woefully ignorant of how the society works and doesn’t work, of how a citizen can “plug in” as a citizen, of what would happen should citizens begin to exercise rights other than voting as a way to make the “system” work for them? But first, as we know, we have to describe the bureaucracy and its culture. Love and Eaton (1970) began their study of the Bay Area Air Pollution Control Agency with questions about the functions of the agency: How does the agency perceive itself? Who uses it? How do the users perceive the agency? Public access was a key question: Our approach was, at first, guarded due to our doubts. We pretended innocence, and in fact found out that we really were innocent. We then began to realize that we were “outsiders.” We were the public who did not understand the professional language being spoken. The avenues we approached were those the public generally approached. Gradually, a picture of the agency and its position in the legal system emerged. Its structure, the personalities of the decision-makers, the limitations reality places on any ideal system, and finally the kinds of uses made of it became clearer. (pp. 2–3) When the citizen goes to the agency, he is translated into statistical data which separate him from the actual procedure or use of the agency. … Assumed in this is the notion that since the agency is supposed to protect the public interest, the public will seek access to it. The reality of the situation is very different. The agency acts as autonomously as possible to combat air pollution and in so doing, comes into close contact with the industry officials who speak the same technical and legal language. It is industry which has the greatest access to the agency, especially at the legislative level. It is industry which makes the greatest use of the agency to protect its interests. (pp. 32–33)

This same study notes that, in the legal division of the agency, violation notices are treated like parking tickets—after so many are collected the violator is prosecuted. But what does prosecution consist of, given the intimate patterns of social interaction described above? These were not ordinary criminals. “In the legal division, the agency lawyer emphasized that the principals of criminal law were not a solution, hence the civil fines. The type of ‘responsible’ official being put in jail with ‘prostitutes and muggers.’ … An interesting footnote to this procedure is Regulation 1, which does not apply to most large industries but to private citizens and land developers, is treated as a misdemeanor where the violator can be put in jail with the ‘prostitutes and muggers’” (Love and Eaton 1970,

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p. 33). Apart from being a useful report on bureaucratic culture, this thirtyseven page report is the kind of ethnographic information that citizens need prior to an attempt to gain access to, or attempt to use, a public agency. Such reports would introduce them to the structure and culture of the subgroup in such a way as to allow them to gauge whether the cards are stacked and in what direction they are stacked in terms of real access to, and use of, a public agency. The study of the California Department of Insurance, and in particular the processing of complaints by the Policy Services Bureau of that same agency, is another attempt to describe the workings of an organization whose acts of omission or commission affect the lives of many (Serber 1971). Serber concludes that the Department of Complaints does not meet the needs of the people of the State of California because “the vast majority of the people are not aware of its existence” (p. 627). He adds, by means of a quote, a further insight which has been noted by other student studies of governmental agencies (and it is not much different for private agencies that purport to serve the public) and which suggests that such public institutions are not structured for public access: “‘It is much worse to deal with someone in the public because you know that you are very limited in what kinds of answers you give them and the results you can get for them. They expect more and often get impatient. With the industry, it’s different: they are usually friendly and polite, at least to our faces; we always know where we stand and how far we can go. It’s less stressful because I feel less responsible for the outcome of the conversations.’ (Insurance Officer III).” The report goes on to note that “there is a qualitative difference in the nature of the interaction between the complainants and the Insurance Officer and the representative of the industry and the Insurance Officer” and gives another quotation as an example: “‘It’s not very pleasant to arrive here at a quarter of eight in the morning after battling to cross the Bay Bridge for forty-five minutes and before I can finish a cup of coffee some hysterical fat bitch who can hardly talk, she’s so stupid and excited, will come in, and they will call me. When I catch sight of her my stomach tightens and my mouth gets dry; sometimes the burning in my pipe starts before I can even get up to the desk, and I’ll have to take a sip of water.’ (Insurance Officer IV).” This same report makes a set of predictions as to what might happen to this Department of Complaints were access by the public easily available; the structure and function of the department would move more closely in line with a major goal of the Department of Insurance “to enforce insurance laws so as to achieve the highest possible degree of protection for the public in general and all policy holders and beneficiaries in particular” (Serber 1971, p. 64). The above-stated goal raises a more

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general question: Who is to decide what is good for the public? Eaton’s paper on the Better Business Bureau of Oakland illustrates the dilemma of a value conflict: A major limitation in the value of the BBB to the consumer lies in the very fact that it is an organization designed to further the interests of legitimate business. The movement assumes that what is good for business is good for the economy and for the consumer. It assumes that the power of conscience and the power of public opinion will triumph over the unbridled profit motive, that an informed public will be able to mold the responsive market to its own desires. These assumptions may be true on some levels, but the picture is not that simple. There are areas of the society in which power is concentrated and areas where it is dispersed or absent altogether. The consumer’s complaint has more weight with the locally competitive retailer than with the faraway corporation which made the product that retailer sells. The Bureau regulates retail advertising, but the consumer is also exposed to national advertising, especially on television. The retailer is not a free agent: he is limited by the distributor and the supplier. … The Bureau is concerned with truth in advertising, but is it equally concerned about relevance in advertising? There are many things which can be said about a product which are true, but which have very little to do with its significant attributes: durability, safety, efficiency. … The consumer is told on the one hand that it is his responsibility to be informed and to exercise his power of choice to bring the market into line with his needs and desires. … On the other hand he is assaulted by national advertising, which stresses the nonpractical attributes of products, and he is confronted with a range of products from different manufacturers which have essentially no differences between them in areas which the consumer may think are significant. He is to understand the warranty that comes with his new car, but he is not told what he can do if he does not like its terms and finds that all warranties from all companies are just the same. As an individual, he is essentially powerless to bargain in the greater market system that characterizes the modern complex society. (Eaton 1971, pp. 68–70)

Understanding the differences in the perceptions producers on the one hand and consumers on the other allows a citizen to evaluate for himself any government statement about the need for government not to encroach on the self-regulatory organizations such as the BBB that are set up by business groups. Eaton’s study of the BBB touches but a tiny part of the self-regulatory attempts of business. Since 1966, there has evolved a whole series of “complaint handling mechanisms” from “hot lines” to corporate ombudsmen. A comparative study of such mechanisms would be a much-needed contribution to the literature on the nature of extralegal attempts at voicing complaints and redress. It would be fascinat-

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ing to know to what degree informal “law” is dominated by public relations and Madison Avenue techniques in conflict management. The use of advertising in grievance resolution may be related to an upper-class perception of upper-class law and order which says, “Cool it rather than resolve it.” Some years ago, the criminologist Edwin H. Sutherland wrote a book entitled White-Collar Crime. A landmark finding documented in that work was the simple fact that white-collar personnel commit crimes, a fact which should have helped combat the belief, at least among social scientists, that the poor had a monopoly on crime. If, as scientists, we are interested in understanding the determinants of crime, then the “discovery” that the rich as well as the poor commit “crimes” (something that is well known to the average citizen and most certainly known by the poor) is very important. The fact that crimes are differentially stigmatized and prosecuted according to class should lead us to disregard overly simplistic theories explaining criminal behavior. Very few sociological works of this type followed Sutherland’s study, and indeed there was a long dry period between the muckraking of the turn of the century and Sutherland. Instead, sociologists such as Lewis Coser (1968) prefer to tell us why some poor do and why some poor do not commit crimes in terms of the theory of related criminal behavior. If we look at the question in relation to a vertical slice, it is a well-known fact that the criminal law has been oriented toward individual crimes, preferably street crime, and collective criminal behavior by an agency or corporation is often dealt with in administrative agencies or in ways which leave very little stigma on those involved (Pound 1906; Sutherland 1949). Yet our analyzed data base is slim. Henry Ruth, director of the National Institute of Law Enforcement and Criminal Justice, noted as late as 1970 that “the National Institute of Law Enforcement and Criminal Justice has developed an intensive concern that so-called ‘white-collar crime’ receives scant attention from the law enforcement and research communities. … The entire field of white-collar crime represents a national priority for action and research—to define the problem, to examine its many faces, to measure its impact, to look for ways in which its victims can be helped, and to determine how such crime can be prevented, deterred, and effectively prosecuted” (Edelhertz 1970, p. iii). With regard to benefit to citizens, it is astounding that in as legalistic a country as the United States, nowhere in the educational system does one get a working knowledge of the law as part of a general education. In fact, after years of studying the Zapotec legal system of Oaxaca, Mexico, I would conclude that the single most important difference between the Zapotec legal system of southern Mexico and the American legal system

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(from the point of view of a middle-class consumer) is that Zapotecs have access to, know how to use access to, the legal system. In the United States, most citizens do not have access to the legal system, either because they are ignorant of the workings of the system or because they cannot afford the professional (lawyer) who would have adequate knowledge of the workings of the system. In California, for example—and I imagine this is much more widespread—there are few books for citizens describing the legal system, what it is, and how it works. This situation is representative of the larger problem of citizen education. Most of what we learn about the law we absorb vicariously from TV westerns and Perry Mason–style shows. Ethnographic works on the subject of law would be filling a scientific and descriptive need, as well as informing the native about a system which at times heavily weights the direction his or her life takes. For example, one student began a study of the Immigration and Naturalization Service in an effort to find out how immigration and the INS have molded and influenced the communities of third-world immigrants. The basic hypothesis was that the INS is the historical product of negative American attitudes toward non–Northern European immigrants—fear of foreigners, dislike of strange cultures, isolationism, and the like; that while there has been a major liberalization of the laws, the administration of immigration and indeed recruitment to the agency continue to be affected by these historical attitudes. Other anthropological studies might involve the use of personal documents—the memoirs of judges, lawyers, and corporate executives are more noticeable for their absence from the bookshelves. The Washington law firms whose lobbying functions have earned them the label “fourth branch of government” would be a fascinating place to test some of Elizabeth Bott’s hypotheses about networks. What shapes and functions do the networks of such firms have in an organization where, at mid-career, the majority of firm members fan out into positions about Washington, yet still maintain relations with the law firm even after they are no longer on the payroll? What kind of reciprocity is involved here?

Obstacles and Objections But there are those who would not want to entertain any such reorientation of anthropology, and it is important to appreciate the reasons why present-day anthropologists would say “impossible,” “improbable,” “irrelevant,” “off the mark,” even “impertinent.” The obstacles that are posed are many, but for our purposes here they may be discussed in terms of access, attitudes, ethics, and methodology.

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Departments of anthropology have generally believed that students should do their fieldwork in a non-Western culture. At some points in time that was a useful policy to implement if, in training anthropologists, one valued the importance of culture shock and the detachment which accompanies it. For many students today, the experience of working in a Washington law firm, in a company town, or in an international industrial complex would be more bizarre than anything a student anthropologist could find in a Mexican village, or in New Guinea for that matter. We anthropologists have studied the cultures of the world only to find in the end that ours is one of the most bizarre of all cultures and one, by virtue of its world influence for “bad” or “good,” in urgent need of study. The most usual obstacle is phrased in terms of access. The powerful are out of reach on a number of different planes: they don’t want to be studied; it is dangerous to study the powerful; they are busy people; they are not all in one place, and so on. As some of our students found out in their studies of corporate use of the courts, The belief that corporations work secretly and surreptitiously in their own interests has been somewhat verified. Their desire for secrecy, their paranoid fear of all but self-fashioned publicity, their refusal to discuss questions on their operation, and the overconscious regard of their lawyers for the confidential nature of the lawyer-client relationship (even when the public’s interests are at stake), all serve to eliminate any free flow of information which should be available to the public forum, and are reminiscent of secret societies. The stealth of the corporation is epitomized in those wily chess masters they employ to handle their cases, the corporate lawyers. (Zeff and Bush 1970)

These difficulties are true of the people that anthropologists have studied in many different places. That problems of access are any different, or at least any more problematic, in studying up in the United States is a proposition which has not been adequately tested. Anthropologists have had problems of access everywhere they have gone; solving such problems of access is part of what constitutes “making rapport.” In view of our successes among peoples of the world who have been incredibly hostile, it is rather surprising that anthropologists could be so timid at home (see Riesman 1954, pp. 440–66). Furthermore, it could be argued that access to bureaucratic organizations (such as governmental agencies) frequented by the wealthy and powerful should be open to social scientists by virtue of laws which protect public access to information. In addition, there are wealthy anthropologists who would presumably have access “up.” Cleveland and Amory (1947) and Digby Baltzell (1964) have made substantial contributions to understanding the power status of the

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upper class, although neither one is an anthropologist. No, there must be more plausible reasons why the less powerful are more attractive for study in the United States. It has been said that anthropologists value studying what they like and liking what they study and, in general, we prefer the underdog. Braroe and Hicks (1967), discussing the mystique of anthropology, make reference again to the traditional alienation from their own culture that characterizes anthropologists, and they explore how such alienation relates to their lack of intense commitment to social reform. This could be phrased more positively: anthropologists have favored studying non-Western culture as a way of fulfilling their mission to study the diverse ways of humankind; they have not had an intense commitment to social reform because of their relativistic stance and a belief that such a stance was necessary to a truly “objective, detached, scientific perspective,” or because they thought that others, such as sociologists, were involved in social reform. While scientific findings may be viewed as “value-free,” certainly the choice of subject for scientific inquiry is most certainly not. Anthropologists of the future will have a greater responsibility for what they choose to study as well as how they study. The ethical problems that are raised in studying up almost always appear to be confused, particularly in discussing ethics of one’s own society. One student made the following comment: “To say that kula-ring participants don’t perform in practice what they say they do has very different consequences from saying that a government agency is not living up it its standards. This isn’t to say that the government shouldn’t be studied, or that the fact it isn’t living up to its standards shouldn’t be pointed out. The question is, can the anthropologist do structural study and then in his role as citizen point out that the agency is screwing the American public?” The same student asked, “How can we gain access to the same kinds of information as when we ‘study down’ without being dishonest (i.e., a fake secretary or other role)? If we did get information without letting informants know we were social scientists, how could we publish it? It seems that the only ‘open’ way of doing a study would end up being fairly superficial—questionnaires and formal interviews as versus what we learn by participant observation.” The problems raised by this student are ethical problems anthropologists have had to face no matter what culture they are studying. In discussing such ethical questions involved in studying up in our own society, I have the impression that confusion results depending on whether or not one recognizes the implicit double standard—is there one ethic for studying up and another for studying down? Or is it, as this student suggests, that the consequences of describing what may be systemic inadequacies may be greater for government agencies than

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peasant economic systems or for conflict resolution (or just plain conflict) in a small fishing village, and that therefore our subjects of study should be treated accordingly? There is an important distinction to be recognized as to “public” and “private,” even though informant anonymity may be important to both sectors. For the most part, anthropologists working in the United States can be said to have worked in the “private” sphere: we study families, small groups, those aspects of communities which are more private than public. We should not necessarily apply the same ethics developed for studying the private, and even ethics developed for studying in foreign cultures (where we are guests), to the study of institutions, organizations, or bureaucracies that have a broad public impact. In reinventing anthropology, any discussion of ethics should consider the public-private dimensions and as well as the home-abroad component. Furthermore, in the present anthropology, work that is considered in the objective social science mode, when carried out abroad might well be dubbed “journalistic” by the subjects. Telling it like it is may be perceived as muckraking by the subjects of study (Oscar Lewis’s work on Mexico was so viewed), or by fellow professionals who feel more comfortable if data is presented in social science jargon which would protect the work from common consumption. The concept of participant observation plays a determining role in what anthropologists choose to study. The power of participant observation as such was only discovered in the twentieth century. Malinowski and Radcliffe-Brown, among the first to do fieldwork by the techniques of participant observation, set a new standard for ethnographic descriptions. When an anthropologist goes to study the culture of a people, she or he lives with them; the resultant description is rich in contextual information and is the result of the many points of view that one is opened to by virtue of “living with the natives.” Hortense Powdermaker (1966, p. 287) has described the components of participant observation as follows: “The conditions for successful mutual communication include (1) physical proximity of the field worker to the people he studies, (2) knowledge of their language, and (3) psychological involvement.” She goes on to say, “The ability to be psychologically mobile is important in hierarchical situations where it is necessary to move easily between different levels in the power structure. Some field workers identify so completely with the underdog that they are unable to make effective contacts with those on the top level of the social (or political) hierarchy” (p. 291). At the same time that Powdermaker has described the value of participant observations, she has also alluded to the limitations of such complete acceptance of participant observation as a distinctive feature of all social anthropo-

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logical fieldwork. When the anthropologist participant observes, he or she resides and generally partakes with the “natives.” Such a method has weighed heavily in the decisions as to where anthropologists study: we prefer residential situations, whether the residence is in a primitive village or a modern hospital. The degree to which our field choices might be determined by whether or not we can observe as participant was made clear to me when two of my students went to Washington to study a law firm that did not want to be studied (even though individual members were willing to cooperate in a limited way). How could they participant-observe if the firm wouldn’t let them in the door, and if they couldn’t participant-observe, how could they do anthropology? These questions have, of course, been raised before in anthropology, and when anthropologists thought it important enough they surmounted the problems raised. Witness the culture-at-a-distance studies that cropped up during World War II, or witness the work of Elizabeth Bott (1957) in her network study of kinship in London, which was based principally on face-to-face interviewing. The point here is that there is a mystique about participant observation that carries points with it, yet it remains that the anthropologist’s image of himself or herself is shattered (Fischer, 1969) if he or she cannot participant-observe, and for the most part our students are not generally trained in the kinds of techniques that they would need to work on problems in nonresidential settings such as banks, insurance companies, government agencies, electronics industries, and the like. How many anthropologists know how to find out who owns a city? If Sol Tax is right in pointing out that anthropologists are not working on the most relevant problems of the world today—such as population, pollution, and war—because they cannot participant-observe such problems in a community, then, in reinventing anthropology, we might have to shuffle around the value placed on participant observation that leads us to forget that there are other methods (see Gussow and Tracy 1971) more useful for some of the problems and situations we might like to investigate. The use of personal documents, memoirs, may substitute for anthropological participation in some areas of culture that take long years of participation to really understand. One student makes the following comments about field methodology: The principal research method of the anthropologist, participant observation, is, needless to say, not wholly applicable when one is studying a government agency or elite institution and its interaction with various people. A particular situation can be dealt with, but characteristically the data gleaned would be through observation rather than participation. We can define participation in two ways. One

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definition would maintain that to say the researcher is a participant means he is able to interact as a native in the situation studied and is therefore able to use himself as an informant. The other definition considers the participant in a status achieved by an outsider, since he is treated as an insider. Ideally, the more intimate the acceptance, the less the participant/observer will influence the situation he is observing and the closer he will be to the status of participant. Considering these two definitions, the term “participant/observer” could not be applicable to the types of situations that the ethnographer would want to study in large-scale institutions, unless he was actually to become a member of the group he is studying. The term “participant/ observer” would not truly apply to this researchers’ techniques, even in the situations where I was attempting to fulfill the ideal. In studying one’s own society, especially if it is complex and highly specialized and heterogeneous, the question is to determine the levels of actual participation and the level barred from participation. If the anthropologist is going to make a contribution to the understanding of the institutions which in a complex way affect the lives of many people, he must take a methodologically eclectic approach. (Serber 1971, pp. 5–6)

Interviews of various sorts (formal/informal, face-to-face/telephone) were used by my students. Documents were used (see the NACLA Guide 1970)—public relations documents for understanding the preferred self-image of the organization, internal documents on the structure and statistics of work planned and accomplished by the organization, all useful in discovering trends and what is thought of as problematic by the actors. Also important is what Marian Eaton has labeled “self-analysis”—an awareness on the part of the student of how he or she as a social scientist is perceived, run around, enculturated, and described in the veiled and not so veiled encounters with informants and the members of organizations and the like whose job it is to deal with outsiders. We may have to give higher priority to traditional anthropological values such as using our knowledge of others as a mirror for ourselves and allowing questions to lead to methodology (rather than vice versa).We may have to reorder our conception of urgent anthropology. Surely it should be the needs of humankind for the study of humanity that lead the way.

Acknowledgements I am very grateful to Elizabeth Colson, Marian Eaton, Dell Hymes, and Julio Ruffini for taking the time to read and criticize earlier versions of this paper. Marian Eaton deserves special recognition for helping research

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and edit these pages. The undergraduate students who have been pioneering in “studying up” deserve recognition for their vision, their persevering attitudes, their delight in doing ethnography of everyday life situations at home, and for trying to do so in better than the usual way. Physicist Arthur Rosenfeld deserves special thanks for funding two anthropology students in an early effort to study up in Washington, D.C., an effort which led to the formulation of ideas for this paper.

NOTES This chapter was previously published as: Laura Nader, “Up the Anthropologist—Perspectives Gained from Studying Up.” In Reinventing Anthropology, Dell Hymes, ed., New York: Pantheon Press, pp. 285-311. (Reprinted in Anthropology for the Eighties, Johnetta B. Cole, ed., New York, N.Y.: Free Press, 1982; Anthropology for the Nineties, Johnetta B. Cole, ed., New York, N.Y.: Free Press, 1988; Reinventing Anthropology, Ann Arbor, MI: University of Michigan Press, 1999). Reprinted by permission of Laura Nader.   1. See M. N. Srinivas’s book Social Change in Modern India, Chapter 5, “Some Thoughts on the Study One’s Own Society,” for a discussion of the problems involved in such an endeavor.

REFERENCES Adams, Richard Newbold. 1970. Crucifixion by Power. Austin: University of Texas Press. Amory, Cleveland. 1947. The Proper Bostonians. New York: E. P. Dutton & Co. Baltzell, E. Digby. 1964. The Protestant Establishment: Aristocracy and Caste in America. New York: Vintage Books. Benedict, Ruth. 1946. The Chrysanthemum and the Sword. Boston: Houghton Mifflin. Bott, Elizabeth. 1957. Family and Social Network: Roles, Norms and External Relationships in Ordinary Urban Families. London: Tavistock Publications. Braroe, Niels Winther, and George L. Hicks. 1967. “Observations on the Mystique of Anthropology.” Sociological Quarterly 7, No. 2: 173–86. Colson, Elizabeth. 1971. The Impact of the Kariba Resettlement upon the Gwembe Tonga. Manchester: University of Manchester Press. Coser, Lewis A. 1968. “Violence and the Social Structure.” In Violence in the Streets, ed. Shalom Endleman, pp. 71–84. Chicago: Quadrangle Books. Eaton, Marian. 1971. “An Ethnography of BBB Oakland: One Consumer’s View.” Unpublished undergraduate thesis, Department of Anthropology, University of California, Berkeley.

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Edelhertz, Herbert. 1970. The Nature, Impact, and Prosecution of White-Collar Crime. Washington, D.C.: Government Printing Office. Fellmeth, Robert, ed. 1971. Power and Land in California, Preliminary Draft. Washington, D.C.: Center for the Study of Responsive Law. Fischer, Ann. 1969. “The Personality and Subculture of Anthropologists and Their Study of U.S. Negroes.” In Concepts and Assumptions in Contemporary Anthropology, ed. Stephen A. Tyler, pp. 12–17. Proceedings of the Southern Anthropological Society No. 3. Athens: University of Georgia Press. Gellhorn, Walter. 1966. When Americans Complain. Cambridge, MA: Harvard University Press. Gladwin, Thomas. 1969. Review of Culture and Poverty: Critique and CounterProposals, by Charles Valentine. Current Anthropology 10, Nos. 2–3: 185. Gussow, Zachary, and George S. Tracy. 1971. “The Use of Archival Materials in the Analysis and Interpretation of Field Data: A Case Study in the Institutionalization of the Myth Leprosy as ‘Leper.’” American Anthropologist 73, No. 3: 695–709. Hannerz, Ulf. 1969: Soulside: Ghetto Culture and Community. New York: Columbia University Press. Henry, Jules. 1963. Culture Against Man. New York: Random House. Kluckhohn, Clyde. 1960. Mirror for Man. Greenwich, CT: Fawcett Publications. Leacock, Eleanor Burke, ed. 1971. The Culture of Poverty: A Critique. New York: Simon & Schuster. Love, Norma, and Marian Eaton. 1970. “The Bay Area Air Pollution Control District: An Anthropological Perspective.” Unpublished undergraduate paper, Department of Anthropology, University of California, Berkeley. Malinowski, Bronislaw. 1922. Argonauts of the Western Pacific. London: Routledge & Kegan Paul. Mitchell, J. Clyde. 1966. “Theoretical Orientations in African Urban Studies.” In The Social Anthropology of Complex Societies, ed. Michael Banton, pp. 37–68. Association of Social Anthropologists Monograph No. 4. London: Tavistock Publications. Nader, Laura. 1964. “Perspectives Gained from Field Work.” In Horizons of Anthropology, ed. Sol Tax, pp. 148–59. Chicago: Aldine Press. North American Congress on Latin America. 1970. NACLA Research Methodology Guide. New York. Pound, Roscoe. 1906. “The Causes of Popular Dissatisfaction with the Administration of Justice.” Reports of the American Bar Association 29, Part 1: 395–417. Powdermaker, Hortense. 1966. Stranger and Friend: The Way of an Anthropologist. New York: W. W. Norton & Co. Resek, Carl. 1960. Lewis Henry Morgan, American Scholar. Chicago: University of Chicago Press. Riesman, David. 1954. Individualism Reconsidered and Other Essays. Glencoe, IL: Free Press.

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Serber, David. 1971. “A Discussion of the Policy Services Bureau of the California Department of Insurance, with Specific Reference to the Interaction with the Insured Public and the Insurance Industry.” Unpublished undergraduate thesis, Department of Anthropology, University of California, Berkeley. Spradley, J. P. 1970. You Owe Yourself a Drunk: An Ethnography of Urban Nomads. Boston: Little, Brown & Co. Srinivas, M. N. 1966. Social Change in Modern India. Berkeley: University of California Press. Sutherland, Edwin H. 1949. White-Collar Crime. New York: Dryden Press. Valentine, Charles. 1969. Book review of his Culture and Poverty: Critique and Counter-Proposals. Current Anthropology 10, Nos. 2–3: 181–200. Weakland, J. H. 1960. “‘The Double Bind’ Hypothesis of Schizophrenia and Three-Party Interaction.” In The Etiology of Schizophrenia, ed. Don D. Jackson. New York: Basic Books. Wolf, E. 1969. “American Anthropologists and American Society.” In Concepts and Assumptions in Contemporary Anthropology, ed. Stephen A. Tyler, pp. 3–11. Proceedings of the Southern Anthropological Society No. 3. Athens: University of Georgia Press. Zeff, David, and Peggy Bush. 1970. “Corporate Use of the Courts.” Unpublished undergraduate paper, Department of Anthropology, University of California, Berkeley.

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E c ha p te r 2

Barriers to Thinking New about Energy

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nthropologists study the past and the present; we don’t normally study societies that don’t exist, let alone invent them. Until about five years ago, I specialized in studying legal systems cross-culturally. Now I look at questions about energy and science and professionals, the workplace of scientists, the freedom of science, and the future. How did an anthropologist get involved in energy issues? A few years ago, some people at NASA asked me to attend a conference in Monterey, California, on potential energy systems. My immediate response was that they had the wrong Nader. The man at the other end of the line said, “You are the anthropologist? We want an anthropologist at this conference.” So I went down to Monterey for five extraordinary days with different groups of professionals and scientists and engineers. We talked about different “scenarios” for the future. (I hadn’t even heard the word scenario at that time.) We were to think freely about these different scenarios of the future, but it became quite clear that there were already boundaries around those scenarios. You were to think freely—within those boundaries. When you went beyond them, someone would tell you, “You’re off the track.” Finally I told one fellow that we didn’t know where the track was: that was why we were there. At the end, I told these people what I thought, as an anthropologist, listening to them. I gave them a sketch of why I’d gone into science—anthropology is a science as well as a humanity. One reason why I’d gone into science was that I was curious; I believed that scientists encouraged curiosity. In Monterey I had found that, in fact, curiosity and freedom to roam mentally were curbed among physical scientists and engineers. The group itself was very limited—all but three were men; all of us were white; and aside from two social scientists and two lawyers, the rest were all engineers and physicists.

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I noticed the earlier patterns in this group: a good deal of homogeneous thinking; lack of respect for diversity; absolute taboo on the word “solar.” Their memos discussed nuclear, coal, and non-nuclear. Nonnuclear was solar. I asked the co-chairman, “How come nobody ever uses the word ‘solar’ around here? I’ve been on board six months and nobody’s used the word ‘solar.’” He looked at me, rather surprised. “I don’t know. Solar’s been an orphan child.” Somebody else piped up, “Solar? Solar’s not very intellectually challenging.” Somebody else said, “What’s solar? A bunch of mirrors.” Some things said off the tops of people’s heads have much deeper meaning, as any social scientist could understand. The first observation was, “It’s an orphan child.” The president of the American Chemical Society in 1900 predicted that the United States would be running on solar by the 1970s.When did it become an orphan child? Did it have anything to do with World War II, the nuclear developments, militaristic interests, and so forth? What are the reasons for that? You could write a paper just on that observation. The other observation: “Solar’s not very intellectually challenging.” What is intellectually challenging to these people? They seem to relish something complicated, hazardous, difficult, and risky, something that requires high technology and big money. They seem to have a real attraction to that sort of thing. I’m not a psychologist, but I came as close to psychologizing during the CONAES (Committee on Nuclear and Alternative Energy Systems) study as I ever have. I had on my resource team a couple of physicists, a computer technologist, one sociologist, an economist, an engineer—not many social scientists. They were a diverse group, willing to experiment with a variety of different futures. We started out with the idea that energy demand was not going to expand by 2010; it would stay at 70 quads. We found this work was easy. The challenge was, could you go from 70 to 70 without changing amenities, in such a way that people wouldn’t be disturbed or disrupted in their lives. The value system, essentially, wouldn’t change. One economist reported that it was impossible to go from 70 to 70. We asked him, “Have you concluded that it’s impossible because you’re using growth models?” What do people think is possible? Why are people so tightly constrained? Our 70-to-70 scenario is fairly easy to carry out, with little disruption in people’s lives. Essentially what we focused on was technical efficiency. Cars get more miles to the gallon; refrigerators give you the same service but use less electricity. We had gimmicks that people could use to turn on and off their gas and oil in the house; lots of little things that added to a fair amount of saving with very little change.

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Going from 70 to 70 was easy, because there’s so much waste in the system, so we decided not to go from 70 to 110 as directed, but down to 50 instead. We got some interesting reactions to that. Who ever heard of going down without going backward? We described a society that was high technology and low energy. People called it irresponsible and impossible then, although now we may be getting a bit more blasé about such talk. At a meeting at Woods Hole, someone said that expecting people to use 50 quads was going against the grain of human nature. Imagine telling that to an anthropologist. My reply: “Anthropologists and other social scientists study societies that operate at zero commercial quad.” Don’t tell me that it’s against human nature. Say you don’t like it. Don’t tell me you can’t do it. Say your value preferences are different. Americans have very clear conceptions of the past: they either hate it or love it. They think of it as either all good or all bad. It seems to me that people in scientific and technical fields tend to think the past is terrible. They cannot visualize things as being good if they are similar to anything in the past. Some things were good about the past; some things were better than today. For example, the air in Connecticut was better in 1900 than it is today, with all of the pollution coming in from New Jersey and New York. Our mass transit system was more efficient than now in many parts of the country. Perceptions of the past, the future, and the present are intimately tied to what you feel is possible, what you are optimistic or pessimistic about. We realized, in studying a high-technology, low-energy society, that the decisions we all make now about energy are not simple. The directions that we go in are not solely related to whether we have oil or not, to “the energy crisis” in the narrow sense. They will be related to a lot of other things that are happening in this society. For example, there seems to be a loss of commitment to economic growth as we know it in a variety of places around the United States. Communities are beginning to cut. They don’t want any more people in them. They don’t want any more growth, because they are beginning to realize that more is not always better. More is better to a certain point, and then it becomes worse. The question is, when is more better and when is it worse? Anyone who has ever eaten an excessively large meal knows that more is not always better. You get indigestion if you eat too much. When we advanced this theory, the supply people challenged us. We did a little side study, “Energy and the Quality of Life.” We looked at different periods of growth, and at things that people believed naturally went together. For example, many people believe that GNP (gross national product), energy consumption, and quality of life all go up together.

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Is it true? Is it an untested assumption? If you look at the past fifty years or so in this country, you find that from 1930 to about 1950, GNP and energy expenditure went up, and so did quality of life indicators. We used the usual indicators, from the number of toilets, radios, TVs, and so forth; to health and to crime statistics. However, from 1950 to 1970, GNP and energy expenditure kept going up, but the quality of life indicators that I just mentioned started dropping. When did more become less? Many people misunderstand the direction of change and the ways society changes. In the 50-quad scenario, most of the responses to problems are bottom up. The reason that many people can’t understand that scenario is that such professionals in this country tend to think top down. Even where this does not happen, where there is ample evidence of the direction of change, people in power believe that change comes from the top down. Major changes in demographic factors, for example, are not top-down changes. They are individual decisions made in households all around the country. The invention of the car was a dramatic change that started as a small industry and diffused. This 50-quad society was a bottom-up change scenario. We made it that way on purpose. It was not a utopia; it was an exercise to make people think a little differently. We may not even want to live in such a society, but we wanted to juggle people’s thinking about it. We wanted to point out, first, that it is possible, and second, that change can come from more than one direction. At the last solar conference I attended here in Washington, there was a very wide gap in thinking between the people from DOE (Department of Energy) and the people working in the communities. Community people were bottom up and DOE had a top-down view of change. Of course, both top-down and bottom-up change happen. But many commitments to solar energy are like the commitments to lower the birth rate—they are private decisions. What were some of the changes made by the 50-quad scenario? First, we had many of the same things that we had in the 70-quad scenario to decrease the use of energy: solar heating methods, increased use of duplexes, fast trains, very restricted use of disposable materials, and advanced telecommunications equipment. We had all this and more for people who really like fancy, high technology systems. We had decentralization. People would live closer to their work. The city would spread out to the country a little bit to include small farms. Lots of small service trucks, like mobile grocery trucks, would run errands and make deliveries so that people wouldn’t have to use private cars for small errands. To assure that these changes continued, we decided that we had to change something about the work structure. One of the things you notice

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at any professional conference you go to today is the absence of diversity in thinking. People fall into line. It’s really striking if you come in from the outside. Lawyers, anthropologists, engineers, physicists, or whatever think like the other members of their group, or at least the range of disagreement is very narrow indeed. I believe that this has to do with training for the structure of work in this country, and as well with the promotion systems. One of the most profound changes in the structure of work came into our lives almost unnoticed. It is rarely ever talked about by sociologists or historians or anybody. About 1840, our population was about 75 percent self-employed. Today the share of self-employed is about 5 percent and shrinking. When the whole world becomes a company town, something happens to the thinking process: it becomes standardized. In our scenario, we went from 5 to 30 percent self-employment to make sure there were enough oddballs in the society so that more diversity in thinking and in behavior would be tolerated. While we were working, no matter what we sent to Washington, we’d be asked for more tables and less prose. We finally got an exasperated note that said, “More tables, less prose. These guys don’t read.” We know there’s a literacy problem among the young, but less recognized is another serious problem in this country: managers do not read and they do not write. They hire people to do it for them. The overview committee on the CONAES panel could not agree on an energy policy. John Holdren, the young professor from Berkeley that I mentioned earlier, innocently suggested, “Why don’t we all write a paragraph describing the kind of world we’d like to see in the year 2010.” He picked up his pencil, but he was about the only one who did. He was the youngest person there. The vice president of a bank doesn’t take pen to paper; maybe he’d dictate to a secretary. This put real limits on the kind of reports that could be produced. For people who want it all in tables, I ask: “How do you talk about freedom in tables? How do you talk about democracy in a table? How do you talk about most of the things we care about in a table?” We compromised: we used both prose and tables. It’s probably one of the few reports from CONAES written in standard English. As a result, it’s probably one of the few reports that’s going to circulate among the tax-paying public. The CONAES project was the hardest field work I’d ever done. I’ve worked among Indians in southern Mexico, Shiite Moslems in southern Lebanon, and a variety of places in this country. This was, by far, the most difficult work. I think it’s important to understand why. People in technical areas work with objects or with numbers. They don’t work with human beings. When you have people who never work

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with humans thinking about our future, sometimes humans are treated like objects. The kinds of statements that I heard at CONAES might not seem strange to you, but I want to repeat them because they are very strange. In the Risk Panel, a well-known risk specialist, in reporting his conclusions, said, “Fifty thousand people die in car accidents every year. We know how to build cars so that doesn’t happen. There are X number of people who die in dam breaks, from household accidents, and from various other accidents. We know how to prevent those deaths. If we prevented those deaths, then we could afford to have a nuclear disaster.” I understood why, when I came home from this work, I would head for the shower before I would greet my children. That kind of thinking is truly polluting. The absence of diversity leads to serious problems. To start with, male professionals in this country are very macho. I don’t say that facetiously. I really did not envy the men on that committee. I’d never watched men operate in groups like that, because although anthropology is still predominantly male, it’s very heavily coed. Something happens to same-sex groups: they vie with one another. You can see this in the non-human primate literature as well. Same-sex groups are very competitive. In this case, big is better. Hazardous is interesting and intriguing. I learned in Los Angeles that conservation is considered feminine. Isn’t that interesting? That must make nuclear a very masculine endeavor. When this kind of mentality operates in human groups, people are treated like objects and the research is less than scientific. I presented a paper recently at an international conference in Honolulu; Wolf Haeffele was in the audience. When I was through, he said, “I heard what you said, I still like the breeder reactor. So what?” Of course, he illustrated my point that we’re deciding on the basis of values, not scientific evidence. If we are, let’s say so. When we met face to face, I asked him why he got so mad at me, and he said, “I am the father of the German breeder.” So he’s the father of the German breeder and Seaborg is the father of plutonium. I’m not psychoanalytically trained, but these things suggest parental relations between persons and objects which might impair scientific objectivity. I asked him, “In your book, The Factual Basis of Energy, do you include people?” “No,” he said. “Do you remember the reason for the nuclear disaster in Idaho, the first in this country?” “Yes,” he said, “it was a double murder/suicide.” The “accident” is said to have happened like this. A technician discovered that his wife was sleeping with another technician. He told the lover,

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“I’m going to blow you up along with the whole damn state of Idaho.” It was reported in the newspaper as a technological failure. We have scientists and engineers who aren’t used to thinking in terms of people problems. They build backup systems that don’t consider the possibility of sabotage. To prove how easy sabotage could be, one scientist drove into a nuclear plant in an ice cream truck. He was waved into the plant, stayed inside two and a half hours, and got out and made his point. Anybody could have spent two and a half hours in the plant. Until a very few years ago, nobody had considered questions of sabotage. People problems must be dealt with. Engineers must consider questions like What are you going to do if there’s a nuclear disaster outside New York? Can you really evacuate New York in two to four hours, as has been suggested seriously? Has anyone been asked to see if that’s possible? After the CONAES study, I worked on yet another study. The DOE gave some money to University of California groups to do a study of what’s called soft energy paths (Amory Lovens’s term) in California. Can we go to soft energy paths, soft meaning non-nuclear, meaning decentralized, meaning solar usually? We began a similar kind of futures exercise that we were doing with CONAES. Again and again I saw people’s methodologies getting in the way. They were using old methodologies that were appropriate to other problems like growth modeling, to see what it was going to be like with less in the year 2010. They were tripping all over their methods and coming out with fancy computer statements. Shamans would evoke more confidence. As an anthropologist I find this wedding to numbers fascinating. The belief is so strong, it’s like numerology—the belief that numbers in themselves are useful. Numbers are useful, of course, but not in and of themselves. In a controversy, when one side gets a numbers person and the other side gets another numbers person and the two sides fight with numbers, and count coup, numbers have lost their utility. At one point in the CONAES study, I visited a breeder-reactor group meeting at EPRI (Electric Power Research Institute). At that time, I worried about losing my objectivity, so I took a linguist with me. We heard things like this. Jack says to Bill, “Bill I like your numbers, they agreed with mine.” Bill beams and says, “How about Jim? Has Jim generated any numbers yet?” Jack says, “No. Why don’t you send your numbers over to him before he gets his ego involved with generating his own.” I couldn’t have made up these lines. Another young man came up to me and said, “I understand what you’re doing is philosophy.” I said, “Well, that’s interesting. I haven’t released anything, so I’m not sure what I’m doing, yet. What are you doing?” He said, “We deal with real numbers.” I asked him,

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“What do you mean by philosophy?” One man said, “Philosophy is when you can’t quantify it.” Another gentleman said, “Philosophy is based on your own opinion.” The only time I have ever been screamed at publicly is by hard scientists or engineers who really get defensive and upset with non-numerical analysis. I was speaking to an energy group at Stanford, a talk which was on closed-circuit television, broadcast to Livermore and Berkeley. A man stood up and screamed, “You’re awful. We should never have invited you. You didn’t put any tables on the board. You talk to us like you were talking to your next-door neighbor.” I replied, “That’s what I’ve been saying; you illustrate my point about the culture of professionals; how they think influences the way they work, which influences the conclusions that they come to.” He didn’t understand. Another time, right in front of a reporter, the head of the environmental division at the Lawrence Berkeley Laboratory said, “You irritate me, young lady.” He was ten years my junior. “I can’t help it if I’m a male.” It sounded like male hysteria! In a way I’m glad that there’s humor in this, because there is so little humor in the whole energy question. But I don’t want the humor to mask the importance of such observations or their consequences. In the California soft-paths study, we took a look at two kinds of change: top down and bottom up. We looked at the mandated solar code; that was top down. We looked at the possibilities of distributed energy, which was bottom up. People could create their own wind and electrical systems and then feed it into the grid. I found myself looking at work patterns again. The code we looked at dealt with encouraging solar energy use, natural gas, insulation, glazing, and so forth. The people who wrote the code, I think, were inadequately aware of the human component. However, it became quite clear, in talking to the different people involved with this code, that certain people will determine if that kind of a mandate works or doesn’t work. We interviewed a wide range of people from different housing and interest groups: bankers, contractors, architects, building inspectors, and realtors. Each type of worker belonged to a particular subculture of work, with an organization and values all to itself. They each had almost unique ways of looking at building codes. It was extremely difficult for anybody we interviewed, except members of the general public, to see the whole picture. Everybody saw the picture that impinged on their individual self-interest. We analyzed court cases for objections to codes. We found the major legal arguments were about high construction costs; inflexibly prescribed behavior; prescriptive mandates; lack of materials; lengthy payback pe-

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riods; and the collapse of certain industries, such as the ones that manufacture electrical resistance heating devices. Behind the objections stated in court were certain conditions, very often conditions characteristic of the building industry. As a group, architects react critically to codes. They see them ·as a hindrance to their creativity, particularly if they mean more paperwork. Building inspectors, who are already overworked and understaffed, worry about even more work. Realtors are doing well as they are, so why should they endorse codes? Government bureaucrats are straitjacketed by the organization, and only able to work within their mandates, even if the solution to their problem might lie outside that mandate, as narrowly defined. The utility planners had a similar difficulty. They found it hard to think of utilities as generators or sellers, rather than as buyers, of energy. None of our material on workers is new data, but look at the meaning of such data for transitions we’re coming into now. Realize that these very difficult times are not because of any natural resource scarcity but because of such facts as self-interested workers who aren’t rewarded for deviating or changing. They’re rewarded for doing things the way they’ve always done them. We say that the energy crisis is a social and political crisis. Who will be the change agents? In the nineteenth century, the paradigms we’re working with now were set when this country was industrialized. The change agents then were those who stood to gain, those who had the capital to invest in land and industrialization. Today, who stands to gain from change? For the most part, not people in power. Those who stand to gain will be the people under economic and social stress: the disenfranchised professionals, the unemployed college students, the frustrated workers and the general public. These people are likely to be the agents of change. Solar takes a real pioneering spirit, willingness to try something new, a tolerance for diversity. It needs those characteristics more often than it needs a lot of money. As I look at change in this area as an anthropologist I realize that leadership is not going to come from government and industry. Government and industry desperately need leadership by those who are affected by their work. New ideas generally come in from the periphery. Look at the New Deal. Many new ideas that governments have worked with were borrowed from communities of people who had a lot more flexibility than people in set, structured jobs. I think we must realize that workers in industry or government or in professional societies are often not free to create new structures. It’s no wonder that self-reliance is a key value of those working in solar and conservation technology. It’s no wonder that the pro-nuclear people on the CONAES study were most intrigued by the 30 percent self-employ-

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ment figure that we posed. They were really attracted to that, I think, because they feel trapped. Their leaders couldn’t change if they wanted to. The people around them, the social status, and the constraints of position wouldn’t allow a change of position. The constraints of the position don’t allow change, unless we’re dealing with extraordinary leaders. We must look at change strategies that don’t challenge entrenched power or add burdens to already overburdened workers. We have to think about this when we plan new directions. Uncertainty in the work place makes for conservatism. We should plan directions that would reduce uncertainty. Not long ago, I attended a conference about solar in the cities. The enthusiasm for solar in the cities is very promising. It gives a chance to use abandoned buildings, to use portions of the city which are a mess because nobody’s using them. Remodeling abandoned portions of cities with a labor force of unemployed or disaffected workers would not only rejuvenate the cities but would also provide successful models of development. These models would allow other segments of the population to become less entrapped and less fearful of trying new possibilities. Our country prides ourselves on ingenuity, on trying new things. I wonder whether that wasn’t associated with an era of self-employment, where people had less security but more independence, more selfesteem and daring and willingness to take real risks. If I were an anthropologist from New Guinea, observing the energy efforts of the past several years, I would note a wide gap between what the leadership says and what it does in this country. I would note that the government had no serious interest in solar. All the solar conferences the government is sponsoring I would see as rituals of reconciliation. In the absence of true innovation and change, we have one conference after another. Because of the way American leaders are handling the problem, I may theorize that the society is having a nervous breakdown instead of an energy crisis. I would be struck by the presence of solutions in the absence of will. One conservation researcher at the Lawrence Lab cut electricity use over 40 percent in a major building without anybody noticing. Yet most of our federal structures have not begun serious conservation. Conservation isn’t sexy. It’s not hazardous; it’s not risky; it’s obvious. We have gotten to the point in our society where we can no longer entertain obvious solutions. This is where anthropologists come in. The coming era will require practical, general, earthy types of thinkers. People who can look at mundane and straightforward problems. People who will not choose complicated solutions when simple ones are available. The energy problem is not a technological problem. It’s a social problem. We must build technologies that recognize human frailty. If there’s

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one thing that social science has documented, it’s that people make mistakes. They’re going to continue to make mistakes. Build that into the technology, and accept and reject technologies on that basis. You must look at the concept of progress and decide whether, in fact, simple progress is what we have now. Anything we do we label as progress. We must decide whether progress as a concept should be reserved for something that improves the quality of life. The toughest problem will be getting professionals to look inside themselves, to see what their mindset problems are. What is it about my anthropological training that makes me see things in a certain way? What is it about your engineering training that makes you see certain things and not others? No one is comfortable exploring these questions about themselves, but it’s part of the job that has to be done.

NOTE “Barriers to Thinking New about Energy” was a speech delivered at the University of California, Berkeley, as part of the MITRE Lecture Series, at The MITRE Corporation, McLean, Virginia, on 6 November 1979. It was also published in Physics Today 34:9 (Feb. 1981), pp. 1–17. Copyright ©1981, American Institute of Physics, reprinted with permission from Laura Nader.

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E c ha p te r 3

The Vertical Slice Child-Rearing and Children

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hild-rearing in modern societies has been linked, on the one hand, with synchronic studies of the family (Lasch 1977) and, on the other hand, with historical research on the rise of children and youth as distinct social groups (Aries 1962; Bendix 1964; Eisenstadt 1956; Harbison and Myers 1963). In his book Haven in a Heartless World (1977), Lasch reviews the role social scientists have played in developing public policies about the family, or at least in supporting the dominant views of their day. Discussing sociological studies of families in the 1920s and 1930s, Lasch is surprised that a “discipline concerned with the study of society so systematically excludes social influences on marriage and the family, preferring instead to lay almost its entire stress on the individual’s ‘attitudes,’ on ‘unrealistic expectations,’ and on ‘cultural lag’” (p. 43). Carle Zimmerman is seen as an exception who refused to treat the family in isolation and who insisted on relating the decay of the family to the growth of the welfare state and to other phenomena such as social mobility (Zimmerman and Frampton 1935). The picture Lasch paints supports his assertion that social scientists have been biased toward an analysis of the intimate family environment. Himself a historian, Lasch points out that historians, too, have failed to consider how broader public policies have impinged on the family and helped to destroy family life. Sociological studies of childhood, however, have a different emphasis. Some have investigated the linkages between children and the state (Bendix 1964; Boli-Bennett and Meyer 1978). Other research has considered areas where children have organizationally distinct relations: for example, with the law, the economy, the educational system, and leisure institutions. Some scholars see the development of separate institutional linkages with children as repressive (Aries 1962); others see it as liberating (DeMause 1974). The anthropologist’s job is to document the nature

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of these linkages in order to describe their structure and the dynamic role they play in the lives of children and families. Anthropologists have already studied child-rearing in modern societies in relation to the groups, networks, and personal interactions of a residential community. But studies like the one of Orchard Town (Whiting 1963, pp. 873–1010) must extend beyond the residential community to include the separate institutional linkages and hierarchies that affect child-rearing even when they seem hidden or distant, and even if including them as part of a holistic model means that parents will seem to play the role of passive intermediaries. Thus, when we ask the same questions we would ask in smaller societies—who is feeding the children, who is clothing them, who is sheltering them, who is entertaining them, and who is determining their genetic legacy—the answer depends what part of the institutional hierarchy we are looking at: the family, McDonald’s, or General Foods. A Nigerian anthropologist, John Ogbu, once remarked that America is probably the only country where children are expected to raise themselves. From another perspective, every major institution in this country can be seen as part of the child-rearing organization. Research into child-rearing in modern industrial states therefore brings with it the same kind of challenge that the stateless society brought to anthropologists seeking to understand primitive government. In this paper, I shall focus on the impact of present institutional arrangements and show how we might begin to understand the complex linkages between children and institutions. To do so, we must first acknowledge the informal hierarchies that affect our lives, as well as the recognized bureaucratic hierarchies. A quick glimpse at history will help to make the point.

A Historical Perspective For decades, social scientists have noted the diminishing functions of the American family. In the early history of this country, families were selfreliant; they were grocery stores, schools, medical clinics, and places of employment all rolled into one. When our country was an agricultural society, family farms predominated, and during the period of home industry that followed, the family remained a viable unit of production as well as of consumption. But with the industrial revolution, many family members began working away from home and away from each other. As the nation industrialized, protective laws were enacted that encouraged women to stay home and that removed children from the work

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force. Both were reduced in economic importance and men became increasingly dependent on wage labor. The family became a unit of consumption, but not of production. The “helping professions” expanded and flourished. The previously self-reliant family became a market for big business and a responsibility of an expanding government. Parents, who earlier had both power and responsibility for their children, found their legal responsibility increasing at a time when their power over the intimate home environment was declining. Although some social scientists have begun to investigate the effect of this sprawling division of labor on children, such studies have generally been of limited scope. Researchers studying schools, for example, have looked at interaction in the classroom and at training for an industrial society, but few have looked at the effect of school budgets. On the other hand, those who study the workplace and its effect on the family (Kanter 1977) or the relation of industrial capitalism to the family (Zaretsky 1976) are raising questions ethnographers should answer by detailed study of the hierarchical relationships between children and the major institutions of our society. One distinct feature of the modern home is its physical separation from the work place, but there is another kind of separation, too—the separation of loyalties. Work raises questions of loyalties when the goals of business clash with the goals of the family. Such a conflict, for example, has been regularly dramatized for millions of corporate and government workers who must grapple with the question of job relocation. For most company employees, the decision not to move requires either outright resignation or stagnation on the career ladder. Moving has its problems, and is undoubtedly related to an increased incidence of alcoholism, drug addiction, and child abuse, and to the fact that 76 percent of all minor and major tranquilizer drugs are consumed by women in this country. Talented people are continually moving in and out of our towns and cities as corporations relocate executives. Their leadership potential is sabotaged. The relocation of entire industries can deeply affect families and communities for generations (Nader 1978). The structure of work is particularly important in a society where wage labor is the primary source of income, status, family stability, and future insurance. It is crucial in a society in which most people inherit so little, in which there is no land base, in which the family is organized around “isolated” households, and in which there is an absence of support from extended families, the neighborhood, or childcare facilities. A farming household usually had at least a mother and a father at home, as did a household pursuing home industry. With the development of large-scale industry, the family dispersed: the father absented himself first and the

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mother increasingly followed. The peer group became important. Parent time and child time became discrete. But what happens to children in modern America is not merely a result of what their parents do. While children have become an economic liability for parents, for industry and the professions and industrial sectors of American society the children are big business. Multinationals like Nestle market milk substitutes around the world. In addition, they can now profit from the belief that mother’s milk is often polluted to dangerous levels. The historical functions of the family were not removed for altruistic reasons, but rather for economic and political ones (Bendix 1964; Harbison and Myers 1963; Katz 1968). Since the state, the business community, and the professions all have a hand in child-rearing, to understand children we must investigate the ways in which they are linked to the social security administration, the courts, the insurance industry, and so on. The real estate industry, for example, has played an important role in age segregation in the United States. Realtors and housing developers build tracts for young couples and “elephant graveyards” for their grandparents. By denying loans on geographic or racial terms, banks have helped realtors segregate the old from the young, the rich from the poor, and the blacks and browns from the whites. Margaret Mead once noted that America would have very different public policies if grandparents lived next door to their grandchildren. Social scientists, then, must not ignore the connection between the real estate industry and the problem of intergenerational ties. Although the consequences of age segregation may be as great as those of racial segregation, for the most part we have not yet analyzed their institutional sources. If we had studied the impact of housing policies on children, we might have discovered an obvious linkage between age segregation and the problems of alienation, anomie, and our inability to pass on knowledge. American children suffer from little sense of history. Professionals have also encouraged a separation of generations. Today’s children often have a different doctor than their mother or their father. Modern families do not even share the same dentist; there are adults’ dentists and children’s dentists. Our historical perspective thus helps us to understand the conditions underlying a rapid shift in structures. A picture of children with few effective ties outside the family changes into a picture of children with organizationally distinct relations with a whole variety of separate institutions. These institutions are structured either to manage children or to affect them in the process of “doing business.” The following section on technological impact deals with some of the consequences of these hidden hierarchies.

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Technological Impacts on Children We are becoming increasingly sensitive to the human impact of technologies used in the workplace. The Occupational Safety and Health Act of 1970 specified that all workers must be guaranteed a safe and healthy place to work. Occupational health specialists regularly report on the work environment (see, for example, Hricko and Brunt 1977), and many of their findings are relevant to children. Lead, for example, has been shown to cause chromosome aberrations which could affect future offspring; it is also correlated with an increased risk of spontaneous abortions in women and with abnormal sperm production in men. Research has also shown that children of female and male operating-room personnel were more likely candidates for miscarriage and birth defects. Although we know that work environments affect children, some employers fail to consider child impact data. Distancing mechanisms, which conceptually separate policy from impact, are characteristic. In the case of Allied Chemicals, which manufactured a chemical, Kepone, that poisoned workers and families in Hopewell, Virginia, during the late 1970s, company policy-making was kept separate from considerations of the policy’s effect. Children are often more at risk than mature organisms. For example, they are more susceptible to air pollution, yet ambient air quality standards for seven major pollutants were based on what healthy adults can tolerate. For some pollutants, such as lead, which has a particularly devastating effect on small children’s brains, blood, and kidneys, no standard was set until early 1978. In planning for children’s health and safety, the most obvious facts have been ignored: that children are nearer to the ground and more active than adults. The concentration of some of the heavier pollutants is greatest at lower levels; yet pollution monitoring stations are set between two and fifteen meters above ground, high above a child’s breathing zone. Children’s needs are ignored in other areas as well. Many early childhood deaths result from car accidents, yet child restraints (seat belts and harnesses) are not legally mandated. Distancing mechanisms suppress the knowledge that the world of the child suffers from the hands of the adult. The story of children and industrial organizations continues: childbirth drugs are invented to allow the hospital to run more smoothly and birth defects increase; formula feeding becomes big business and simultaneously malnutrition increases. In spite of sophisticated improvements in medical technology, infant mortality remains high. The food industry now provides Americans with over five pounds of additives a year, most of which have unknown effects (Schroeder 1974). The same industry persuades children to consume sugar, salt, and starch in quantities that are

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known to be bad for their health. The cigarette ad “You’ve come a long way, baby” has succeeded in getting more women between twenty and thirty years (heavy childbearing years) to smoke than ever before, and has done so consciously. The story of Tris, a carcinogenic chemical used in children’s pajamas as a flame retardant, reveals government ineptitude and the chemical industry’s self-interest. The carcinogenic and sterilizing effect of this chemical has been well documented (Blum and Ames 1977), and the Consumer Product Safety Commission banned Tris. However, a technicality was found and the resultant court challenges set the ban aside, only to have it reimposed soon after. The evidence is still muddy as to the health effects of present retardants. Over the past several decades, case after case of chemical disaster has caught the attention of the press. In 1962 the world was shocked to learn that thalidomide, a drug commonly prescribed for insomnia and nervous tension, was capable of producing malformations in a fetus. The hazard was unmasked when physicians in West Germany and Australia noted a sudden, startling increase in “seal limbs,” infant malformations encountered only rarely before (Mintz 1967). There is also the much discussed diethylstilbesterol (DES), a synthetic estrogen that has been used as a “morning after” contraceptive pill. Vaginal and cervical cancer have appeared in over 100 teenage daughters whose mothers took DES during pregnancy, thinking—as did obstetricians—that it would prevent miscarriage (Herbst et al. 1971). A more recent study shows that male children are also affected (Bibbo et al. 1977). Recent investigations have aroused suspicions about the teratogenic potential of widely prescribed tranquilizers, such as Equanil, Miltown, and Librium, when taken during the first six weeks of pregnancy (Milkovich and van den Berg 1974; Safra and Oakley 1975; Saxen 1975). To document the teratogenic time bomb further, we need only look at the abnormal incidence of throat cancer in adults who received x-rays as children during the 1930s. We can learn by listening to children. Over half of the 175 letters written by children to consumer advocate Ralph Nader expressed worry about the state of the environment (Dundes n.d.). Another group of children was concerned about the content of food. Others were worried about the epidemic proportions of drug use and called attention to the ways in which society unwittingly encourages abuse. The message from less articulate children appears in another medium: accidents, homicides, and suicide now account for two-thirds of all fatalities among children over eleven years of age. Over half of the serious crimes in this country are committed by children under seventeen, many of them attacks against the older generation.

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In sum, government and business have created an environment in which children are considerably independent of their families and dependent on government and other large-scale institutions. As nonproductive citizens, children are not consulted about how things should be. Women supposedly know more about child-rearing than men, but government policies are made principally by males. Many of these policies have operated on the basis of myth more than reality. Households of a single parent and one or more children, previously characteristic of lower-income families, are increasingly common, but the government blithely ignores their concomitant childcare needs. Our hiring practices still assume that a man supports a wife and children, that women who divorce and are awarded child support actually receive it. Corporations feed our children, clothe our children, and help determine their genetic legacy. The important link is between the child and General Foods, Gerber, and Beech-Nut, as well as the Food and Drug Administration. These are but facets of the hidden hierarchies. What is the role of anthropology?

The Vertical Slice In 1972, I published a paper entitled “Up the Anthropologist: Perspectives Gained from Studying Up.” In that essay I discussed anthropological research in a stratified, complex society. My concern was the mindset whereby social scientists tend to study down, analyzing the poor, the ethnics, the downtrodden. I was particularly struck at the time by a study of a Washington, D.C., ghetto (Hannerz 1969), which viewed underemployment, heavy drinking, and chronic illegal behavior as characteristics of the ghetto. Surely, I thought, if the author had taken a vertical slice he would have had to conclude that, while such features may have described his ghetto community, they also described much other behavior throughout Washington. At about the same time, I read a paper by J. Boissevain (1968) that pointed to another mindset: the focus on groups. Since the 1960s there has been a developing literature on nongroups, on networks, but only very slowly has the challenge to take a vertical slice (i.e., to apply the network model vertically rather than horizontally) been applied to anthropological subject matter. There are some examples, however, in reference to children. The rubella epidemic of 1963–64 added almost 20,000 deaf children to the U.S. population. These children, dispersed across the country, are isolated from one another except when they are brought together by in-

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stitutions our society has designated as the managers of the deaf. Using the life history technique, Thomas and James Spradley (1978) published a book, Deaf Like Me, about the social meaning of being born deaf in America. The Spradleys analyzed the organization of hierarchies that families dealt with in coping with their children’s problems: the medical specialists themselves, the knowledge systems and how they are organized and diffused, the teaching and research hierarchies. Deaf Like Me illustrates the consequences of relying on institutions whose major goal is their own survival. The notion of responsibility in these institutions is primarily related to organizational goals, and the linkage between parents and institutions reflects the parents’ lack of power. In Galanter’s terms (1974), the parents are not repeat players. Because they were novices, the parents in the Spradleys’ study initially trusted the experts. But a physician assured a young couple that all would be well when it would not, and later that all was well when it was not. Deafness experts convinced parents that they should not communicate with their deaf children through gestures, and their advice led to years of absent communication. However, as horizontal ties among members of the deaf community increased, parents were able to circumvent the predominant theories of how the deaf learn. Although years of experience were not enough to free parents and their children from “helping professions” that did not help, the horizontal links with other parents altered the dominance of the deafness specialists. In the Berkeley Complaint Project, which sought to understand how Americans complain about products and services, we investigated a complaint about one child and one law (Gerzon n.d.). An eight-year-old child with his shirttail hanging out was engulfed in flames within two to three seconds after a match touched the cloth. The surgeon who treated the child’s severe burns was disturbed. He could not believe that clothing so flammable that it sticks plastic-like to the skin and causes third-degree burns could legally be marketed in America. He suggested that the victim’s parents complain to the Consumer Product Safety Commission (CPSC). Their letter to the commission asked simply: “Why did the shirt burn so rapidly?” One month later the CPSC replied: “Your information has been turned over to appropriate members of our staff who will evaluate it and, if necessary, obtain an official sample of the product for analysis. We will take whatever action is indicated.” The parents’ question remained unanswered. In our subsequent field research, we examined the roles of the federal flammability laws, W. T. Grant (the retailer), the National Detail Merchants Association, the American Textile Manufacturers Institute, the Senate Commerce Committee, the Cone Mills Corporation, the Depart-

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ment of Commerce, the White House, a presidential campaign finance chairman, the Consumer Product Safety Commission, the Federal Trade Commission, and other hierarchies organizationally related to the child that suffered the burns. This research uncovered an incredible amount of interaction between industry and government groups, with each organization intent on organizational survival, while the relationship between these organizations and the family and child affected by their actions was minimal. It was only because the family had persisted and written a letter that they were finally contacted by a Consumer Product Safety Commission field investigator who tried to explain why nonflammable children’s shirts were unavailable. The investigator described the technical problems associated with polyesters, which become “hard” to the touch when treated with flame-retardant chemicals and lose the soft texture that (according to the CPSC official) consumers want. Interestingly, the lack of vertical interaction between the family and the government agencies returned the parents to the store where the product was purchased. They filled out insurance forms, and once more delay followed. If the parents persisted in their suit (and we do not know how this case has ended), the manufacturer probably settled out of court. As the general counsel for the manufacturer said, “The jury will invariably go with the child; big business doesn’t have much of a chance against children in court.” The parents’ question, “Why did the shirt burn so rapidly?” was one that the CPSC was not willing to face. The full answer is as complex as America itself. In tracing a case such as this one, the anthropologist becomes aware of the constraints that organizations place on the people working within them, and of the importance that direct interaction has in influencing decisions. Most large organizations are not set up to be responsive to the public or, in this case, a child. Some organizations have one-way communication with the child: for instance, the testing companies that have so influenced the content and format of schooling, defining the proper direction of cognitive development. One could say that these companies have a direct tie to the children, but in large part neither parents nor children are aware of these seemingly distant and hidden hierarchies. Think about this observation. A private and unregulated testing service such as the Princeton Testing Service has the power to decide who becomes a doctor, lawyer, anthropologist, biologist, or nearly anything else in this country. It is, indeed, a gatekeeper. The relationship between the Princeton Testing Service and its young clients is worth studying, particularly for anthropologists. Are there cultural biases implicit in the testing procedures? What happens when the best and the brightest as defined by the Princeton Testing Ser-

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vice enter our law schools and medical schools? Do our medical and legal systems improve? What would be the consequences of other selection procedures? Sometimes the links between hierarchies and children become more direct by virtue of the law, as in Freitas et al. v. Baker/Beech-Nut Corp., a case begun when some 760,000 women received personalized letters from Beech-Nut warning them of the risks of homemade baby foods. This letter came hard on the heels of a Consumers Union report that homemade baby foods are, on the whole, more nutritious and wholesome than commercial foods (Consumer Reports, August 1975). The legal doctrine of “persons in loco parentis” becomes important here. The doctrine, recognizing the special responsibilities required by children’s incapacities, places affirmative duties on people who find themselves performing the rearing function. In the nineteenth century, the period when other institutions were beginning to compete with the family in the rearing of children, in loco parentis was transformed so as to remove the burden of affirmative duties from the parents and at the same time protect those who acted in lieu of parents from being scrutinized by the state. In school cases of the 1960s, however, the courts decided that the nineteenth-century understanding of in loco parentis must be overthrown. Cases such as Freitas et al. v. Baker/Beech-Nut Corp. raise the question of whether in loco parentis applies to corporations. Good ethnographic research will contribute to this discussion. After all, feeding a child is still feeding a child.

Conclusion As modern society has differentiated, as specialized institutions have formed, the technologies that have developed have had a profound effect on American society and, more specifically, on American families and their children. One could say that Americans have been positive in their acceptance of new technology; but we have only just begun to look at what the impact has been. As intermediaries, parents have begun to feel they have little or no control over the effects of technology on their children. In the absence of research there are disagreements: some people praise all technology, others castigate it. Both positions are wrong. Ethnographic research can contribute both to theories of technological effects and to practical changes. Until now, technological impact has often been better reported in the press than in social science literature. Headlines asserting that food companies steadily eliminate breastfeeding; that asbestos and lead in the dust of the city damage children’s health; that decaying housing in ghetto areas increases the chance of

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poor children ingesting lead; that drugs such as Valium have effects on pregnant women; that household pest-control gimmicks emit nerve gas; that children in New Mexico drink radioactive water; that food companies promote foods which cause hypertension, diabetes, nutritional deprivation, cancer, and caries—all these should be but starting points for the anthropologist. Taboo subjects, an anthropologist might say, are those closest to the sources of power. If matters like those just mentioned have been taboo in social science, it is not a new phenomenon. Bright people used to insist, for example, that America was classless. Much of what now preoccupies social scientists would once have been thought unworthy of serious attention. The vertical slice, the ethnography of the relations between hierarchies and children, can increase our understanding of power and powerlessness, of distancing mechanisms, and of the evolution of responsibility among all the people involved in feeding, clothing, and sheltering our children.

NOTE This chapter was originally published as: Laura Nader, “The Vertical Slice: Hierarchies and Children.” In Hierarchy and Society: Anthropological Perspectives on Bureaucracy, Gerald M. Britan and Ronald Cohen, eds., Philadelphia: Institute for the Study of Human Issues, pp. 31–43.

REFERENCES Aries, Philippe. 1962. Centuries of Childhood. New York: Vintage. Bendix, Reinhard. 1964. Nation-Building and Citizenship. New York: Wiley. Bibbo, M., W. B. Gill, F. Azzizi, R. Blough, and V. S. Fang. 1977. “Follow-up Study of Male and Female Offspring of DES Exposed Mothers.” Obstetrics and Gynecology 9: 1–8. Blum, Arlene, and Bruce Ames. 1977. “Flame-Retardant Additives as Possible Cancer Hazards.” Science 195: 17–23. Boissevain, Jeremy. 1968. “The Place of the Non-Group in the Social Sciences.” Man 3 (4): 542–56. Boli-Bennett, John, and John W. Meyer. 1978. “The Ideology of Childhood and the State: Rules Distinguishing Children in National Constitutions, 1870–1970.” American Sociological Review 43: 797–812. DeMause, Floyd. 1974. The History of Childhood. New York: Psychohistory Press.

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Dundes, Alison. n.d. “An Analysis of Children’s Complaint Letters Written to Ralph Nader.” Unpublished manuscript. Eisenstadt, S. N. 1956. From Generation to Generation. Glencoe, IL: Free Press. Galanter, Marc. 1974. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” Law and Society Review 9 (1): 95–160. Gerzon, Mark. n.d. “One Child and One Law: Kevin Miller and Federal Flammability Laws.” Unpublished manuscript. Berkeley, California. Hannerz, Ulf. 1969. Soulside: Inquiries into Ghetto Culture and Community. New York: Columbia University Press. Harbison, Frederick, and Charles Myers. 1963. Educational Manpower and Economic Growth. New York: McGraw-Hill. Herbst, A. L., H. Ulfelder, and D. C. Poskanzer. 1911. “Adenocarcinoma of the Vagina: Association of Maternal Stilbestrol Therapy with Tumor Appearance in Young Women.” New England Journal of Medicine 284: 878–81. Hricko, Andrea, and Melanie Brunt. 1977. Working for Your Life: A Woman’s Guide to Job Health Hazards. University of California, Berkeley: Labor Occupational Health Program. Kanter, Rosabeth. 1977. Work and Family in the United States: A Critical Review and Agenda for Research and Policy. New York: Russell Sage Foundation. Katz, Michael. 1968. The Irony of Early School Reform. Boston: Beacon Press. Lasch, Christopher. 1977. Haven in a Heartless World: The Family Besieged. New York: Basic Books. Milkovich, L., and B. J. van den Berg. 1974. “Effects of Prenatal Meprobamate and Chlordiazepoxide Hydrochloride on Human Embryonic and Fetal Development.” New England Journal of Medicine 291: 1268–71. Mintz, Morton. 1967. By Prescription Only. Boston: Beacon Press. Nader, Laura. 1972. “Up the Anthropologist: Perspectives Gained from Studying Up.” In Reinventing Anthropology, ed. D. Hymes. New York: Random House. ———. 1978. “Hit and Run: Multinationals on a Collision Course with Humanity.” In Responsibilities of Multinational Corporations to Societies, vol. 1. Washington, D.C.: Council of Better Business Bureaus. Safra, M. J., and J. P. Oakley. 1975. “Association between Cleft Lip with or without Cleft Palate and Prenatal Exposure to Diazepam.” Lancet 2: 478–540. Saxen, I. 1975. “Association between Oral Clefts and Drugs Taken during Pregnancy.” International Journal of Epidemiology and Community Health 4: 37–44. Schroeder, Henry D. 1974. The Poisons Around Us: Toxic Metals in Food, Air and Water. Bloomington: Indiana University Press. Spradley, Thomas S., and James P. Spradley. 1978. Deaf Like Me. New York: Random House. Whiting, Beatrice. 1963. Six Cultures: Studies of Child Rearing. New York: Wiley. Zaretsky, Eli. 1976. Capitalism: The Family and Personal Life. New York: Harper and Row. Zimmerman, C., and M. Frampton. 1935. Family and Society: A Study of the Sociology of Reconstruction. London: Williams and Norgate.

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E c ha p te r 4

A User Theory of Law Fourth Annual Alfred P. Murrah Lecture

A

nthropologists who work in other cultures often return to their own culture and society with a perspective that makes them question the obvious and see things that, had they never left home, they might never have seen. Having studied in other cultures, I am particularly struck by anomalies within certain observations about the American judicial system and its use: how has it come to be that we have a legal system that is closed to the majority of potential plaintiffs? How is it that the legal system has evolved its business such that most of the lawyers work for a few of the potential users of the system? Why is it that the rank and prestige of a lawyer is associated with working not for the poor and needy, not for the implementation of civil rights, not for the public interest, but for the affluent and for the corporate interest? Why has the role of the plaintiff atrophied in the evolution of legal relations? How is it that so many law professors and students are so uninterested in corporate crime? And how is it that an idealized system of rights has been able to hold together in spite of the absence of remedies? Such observations are in need of continued clarification and explanation. Two movements are afoot that address some of these observations. One is the dispute resolution movement, which states as its intent the approximation of idealized law by matching rights with remedies provided through alternatives to the judicial system. The other movement is mainly critical and analytic in posture and does not point to reform but to an understanding of law as ideology—perhaps in the belief that the basic changes in inequities of the law are impossible today without changing the economically based ideology of law as a product. My work spans both the dispute resolution research and the study of legal ideology. Throughout my published work I have argued that law operates in the context of a social order, that it is not independent from

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that order, that law is not God-given, but created by the dominant users of the law, and that law is a principal instrument of both order and justice in a democratic state. In this lecture I would like to discuss a user theory of law, one that describes the growth of law as an organic process that in some societies results from broad plaintiff activity. In virtually every kind of endeavor today we are witnessing a struggle with issues that determine what kind of a democracy we shall be. In the fields of science and technology, for example, the debates have been fierce. Are science and technology as presently constituted antidemocratic, or as some say, incompatible with democracy as espoused in our Constitution? In the humanities and social sciences, questions are being raised as to the degree to which law is unable to help protect us, or indeed the degree to which law may be part of a movement toward a Brave New World in which indirect, private controls such as standardized testing and standardized workers supersede public and legal controls. In biology, questions of who controls the decisions to carry out bioengineering technological research erupted first in city governments such as in Cambridge, Massachusetts, or Palo Alto, California, where questions of democratic control were argued. In the law, the contemporary debate over democratic control has been of a different nature and intensity, maybe because law schools today are less places of Commons debate and more technical training grounds. The technical perspective on law is bound to stand in the way of being able to see law as partial to an understanding of the political role of law in a democratic society.

A User Perspective on the Judicial Process In my remarks today I would like to outline a user perspective on the judicial process. In earlier social science work, our analyses of court decision-making has been filtered through the concept of judicial decision-making, implying that law was being made by judges, and by judges alone. Others have described the judicial process from the defendant point of view, but for the most part the plaintiff role has not been elucidated in terms of its contribution to the process of the growth of law in the courts. In my work, I have used an interactive model for understanding what goes on in courts, one that would include all of the immediate users of the judicial system—the third parties or judges and the litigating parties, which would refer to the defendants or plaintiffs as a minimum participant group. A user theory of law would embrace the view of law as being made and changed by the cumulative efforts of its users and would argue that

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the law is being moved in a particular evolutionary direction by the dominant users. Such unconsciously generated cumulative movements may be considered as separate from and yet equally as important as any consciously created ones attributable to legal engineering. The analogy in medicine may make this point clearer: if one hospital decides to receive only cancer patients and another opens its doors to any patients that require medical care, over the decades the two hospitals are going to develop different kinds of expertise, technologies, philosophies, etc.; and so it is with the courts. The users of courts make the litigation process either marginal or central. When the litigation process is marginal, the process deals only with a limited part of the potential litigating activity. The array of litigating parties is also marginal in that litigation touches the lives of only a few members of the society. As an anthropologist, I have worked in a society in which the law might be described as central—in the sense that the courts dealt with a wide range of litigating activity much like the general hospital, and in the sense that it personally touched the lives of the many members of that society that used the courts. The Zapotec Indians that I studied are located in southern Mexico, and it is as a result of my work with them that I have come to be interested in the role of all the users or potential users of the legal system, and particularly in the way in which active plaintiffs contribute to the organic growth of law, much as Jefferson envisioned our law as growing before modern professionalization had set in. The Zapotec were my laboratory, and for present purposes I analyze their situation as a system for the most part closed from the influence of the Mexican state (Nader 1964). The place I worked had a population of slightly over two thousand people, and my research material spanned the period of a decade (1957–1968). My attention was focused on case materials collected during this decade and the analysis focused on the court from the perspective of the users—the court, the defendant, and the plaintiff. It was in the active role of the plaintiff that these people most differed from the profile of court use in the United States. In looking at the case materials, I wanted to find out who uses the town courts and for what, and in the process to determine whether the Zapotec court system could be described as an institution central or marginal in that society. Embedded here is a hypothesis about how law grows or changes. If we observe that the users of Zapotec courts participate in making law, and if the users reflect the diversity in the population, then the law will maintain a generality of function close to the daily round in life. The fit between the court and people’s needs will be a close one. In addition, I believed that the legitimacy of law would be ensured by such

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a broad use pattern. On the other hand, if the array of users and use is by constraint a narrow one, then conditions of social and political stresses might lead to a legitimacy crisis in law that might be reflected in, for example, an increase in violence. The mountain Zapotec court is a place where resources are gathered and competed for. The spirit of the court is tenacious if anything. The town officials as users see both plaintiff and defendant as potential sources of funds and labor for town projects (fines include money and labor). In addition, and by virtue of their mandate to protect citizens from violence and predation, they see the court as a source of legitimation for their authority. The plaintiff uses the court to make people do what he wants—to gain compensation or to dispense punishment. The defendant, although often an unwilling participant, uses the court as an asylum, a safe place in which to vent his anger, a place for rebuilding a damaged reputation by fair and accommodating behavior, and a place to take away the potential resources of the local court by appeal to the Mexican district court, which undermines local authority. The process of resolving conflict in this town affords room for user maneuverability, and thus controls against the frivolous use of the courts. Individuals may enter a case in the role of witness, but as the case proceeds they begin to add their own complaint to the record, and in this way become plaintiffs. A person or the court may initiate action and be greeted by a counter-complaint that makes him or her the defendant. In analyzing case samples, I looked at sex, age, relationship, and class to find out whether men or women avail themselves of the court’s remedies, to discover the ages of court users, to test hypotheses about court remedies among the land-rich and land-poor citizens, and to examine the degree to which repeated use of the courts was a pattern and an issue in deciding cases. The cases furnish us with some sense of the status of citizen uses of government law, and as such enables us to picture more closely the place of the courts in the lives of these people (Nader n.d.). The findings on use patterns were relatively straightforward. The patterns of court use by sex were clear-cut and consistent—both men and women use the courts as plaintiffs in equal proportion to their number in the population, although men use the courts as defendants in greater proportion than women. Age is a second important characteristic of the user. Among the Zapotec, people seem to get into trouble with their fellow citizens and town officials principally between the ages of thirty and fifty for both plaintiff and defendant. Also, it is in this age range that the litigant users are plagued by both persons and property matters. In general, younger people are involved with litigation over personal cases and older persons over property cases. Along with sex and age, class is

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popularly assumed to affect court usage. In Western industrialized societies, the law has often been used to promote powerful interests and to control the activities of the poorer classes. Although this Zapotec town is a relatively homogeneous place, it has both rich and poor, and the degree of poverty is usually measured by the amount of land one has. The distribution of landed versus landless litigants suggests that the Zapotec poor probably use the courts as plaintiffs and defendants in proportion to their numbers, in both cases dealing with persons and property, and are uninhibited in exercising their rights to court remedies. The range of complaints found in these courts is broad and indicates that the courts function not as specialized courts, but rather in a more general sense as institutions that handle the daily life problems of a rural mountain agricultural community. The range of complaints among the different users of the courts indicate the range of rights and duties that are shared and about which there are conflicts: debts, slander, land, and physical abuse. In the majority of cases the finding is most commonly against the defendant; the next most frequent decision is reconciliation and agreement. In the three town courts, decisions against the plaintiff are rare; the court here seems to be biased in favor of the plaintiff. The overall view of the judges in these courts is of people who are operating within the same set of norms as are the folk in the general population. The users operate in the courts with a high degree of know-how and familiarity and likely as not they are repeat players. For these mountain Zapotec, the court has been central rather than marginal in terms of the array of complaints and people who use the courts. In particular, the plaintiff users in Zapotec courts are a rights-conscious people who push hard for remedy. Important insights about how the law “grows” are derived from treating all the participants in the disputing process as deserving of sociological attention: the court reflects the developmental cycle of its users.

Users in an Industrial Society In discussing U.S. legal history, Willard Hurst observed that, in the nineteenth century, state court business involved only limited sectors of American society (Hurst 1980–81). He also observed that the array of litigating parties changed little from the nineteenth to the twentieth century. In both centuries, people of small means were not often plaintiffs except in tort or family matters. The ideology of triviality and of the extraordinary case reigned supreme. Such observations have at times led to reform movements in the United States, legal reform movements that is. Over the past ten years, such a reform movement has been stimulated from

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the offices of Chief Justice Warren Burger of the U.S. Supreme Court. Burger’s influence on law school faculty who train legal professionals has been considerable. The subjects of attention were the potential and actual users of the courts who for a number of reasons have not traditionally had access to law—the consumers, the minority groups, blacks, women—for the redress of their grievances. The interest of the legal profession in dispute resolution and alternatives to the judicial system came at a time when consumers, women, blacks, and American Indians were beginning to make headway in courtroom litigation. Just when the move to make the courts central to what had been marginal concerns was gaining momentum, the alternative movement was developing to remove these newcomers from the courts. The policy to develop alternatives to the judicial remedy has been explained in various ways. The most popular explanation was that alternatives were more efficient. Unloading cases from the courts became of importance to the chief justice in particular to make room for those cases that could not be sent to alternatives. Others saw the state as expanding its control over the populations that had been marginal to court use and at the time creating a dual system of law. Still others saw the movement as a response to mounting corporate criticism of the high cost of lawyers and the inefficiency generated by the increasingly legalistic context in which businesses were operating. In an industrialized nation such as the United States, there has been increasing contact between strangers of unequal power—for example, between a buyer in Iowa and a seller in Detroit. This situation has not been experienced by human beings before the communications revolution. It appears that when most of the actual and potential disputes are between strangers rather than between parties who know one another, certain structural changes occur both in law and other social control systems. For example, we observe that courts decline in personnel relative to population growth and need, and their function, as several scholars have shown,1 shifts from dispute settlement to facilitating economic transactions; access to public complaint institutions decreases. From an evolutionary perspective, the plaintiff role atrophies and the true plaintiff becomes the victim; the state becomes the plaintiff in criminal matters. In addition, the law becomes a business, and users are selected from payers, especially in relation to economic grievances (Hurst 1980–81). The historical events that have resulted in the present economic grievance process in the United States are a necessary part of any contextual descriptive theory of complaining. Three hundred years ago, most people living in what is now the United States were both consumers and producers; dependency was not a critical variable. As the country’s primary

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activity changed from subsistence agriculture to industrialization, and as the roles of consumer and producer became separated, the balance of power shifted between potential users of a judicial system. The absolute power that consumers had previously enjoyed diminished with the separation of consumer-producer roles. By the latter part of the nineteenth century the greater power of producers over consumers could be measured by their organization of personnel and resources, effective political lobbying, the number of complaints received and left unsettled, and the number of social institutions created to remedy this power shift, such as the small claims courts, the regulatory agencies, and legal aid. In the evolution of legal relations concerning the expression of grievances about products and services, there was a movement from dyadic to unilateral procedures, from disputing to actions of voicing complaints or resorting to avoidance or self-help strategies. As the social gap between parties to economic grievances widens, the aggrieved are compelled to seek out their adversaries and, as we shall see, to do battle using weapons designed by the latter. By the twentieth century, both organized producers and organized government have considerably more power than dispersed consumers, and the strength of each of these parties varies in part with legal services. The state, however, did not become active in mediating issues raised by consumers until the latter part of the nineteenth century and into the twentieth. The Hatch Act of 1887 was aimed toward the maximum contribution by agriculture to the welfare of the consumer. Food and dairy commissions emerged in order to control the quality and price of agricultural produce. The Food and Drug Administration was created in 1906. The rise in prices during the first decade of this century spurred government investigations, as did the issues of distribution and truth in advertising. These issues were viewed by the government as a set of concerns common to a class of people, the consumers. They were addressed not as individual problems but as class problems to be remedied by legislative and regulatory means (Sampson 1980). Presumably the consumer movement of the 1960s developed because public law enforcement services were not keeping pace. Procedures set up by the political government were not structured to handle minor economic complaints; alternative procedures set up by what we might call the economic government were based on an ideology and structure designed to minimize long-term gains for the complainant. With the increased erosion of the consumers’ status and influence occurring alongside further government bureaucratization, the one-by-one approach to complaints gained widespread favor in the popular culture. The question was no longer class justice but individual justice, for as producers became dis-

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tanced from consumers, so too consumers became distanced from one another. It is no accident that the dispute resolution model came to be used by reformers and social scientists at a time when concerns of microjustice superseded the interests of macrojustice. As we know from many studies now, most complaints about goods and services have no place in the judicial system. The so-called minor injustices are the very stuff that is moving the potential court user population in the direction of increased complaining or resort to informal justice mechanisms. And as I have argued elsewhere (Nader 1980), the informal justice mechanisms may be adequate responses to grievances between people of equal power, but not between those of unequal power. The work we did on alternative complaint mechanisms revealed a rather discouraging pattern for grievances dealing with economic justice: the trade association consumer panels that operate under the constraints imposed by conflicts of interest cannot act as neutral parties. If the party settling the case is also the party being complained against, the complainant has little chance of success. And, in general, we concluded that although voluntary organizations and department stores had developed some successful forums, without the intervention of the judicial system to enforce settlements as a last resort, third-party complaint handlers are of limited use (Nader 1979). In other words, the system of hearing consumer complaints in the United States, regardless of its manifest form, is at best a system of negotiation between parties of dramatically unequal status and power, and at its worst, a system that receives unilateral complaints. As the plaintiff role has atrophied, we have moved from disputing to complaining (Nader 1979, note 4). Most extrajudicial complaint mechanisms are based on a model designed to serve producers’ needs in several ways: first, they aid producers in meeting their short-term goals, which are essentially to increase profits as measured quarterly; and second, they enable producers to maintain and legitimize their position of power, rank, and prestige because they permit them to circumvent complainants’ requests without fear of sanction. The absence of true dispute-handling systems in or out of the judiciary renders the dispute paradigm useless for purposes of analysis, and at this point I turn to research on ideology.

Ideologies as They Affect Users Let me return to a previous observation that producers, not consumers, create and determine the shape of extrajudicial complaint mechanisms in a way that affects the use of dispute mechanisms more generally. In

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working with the American complaint materials, I noticed that various controlling ideologies curtail the development of bilateral or consumerstructured complaint mechanisms. These controlling ideologies stand in the way of finding block solutions for classes of complaints that are either preventable or remedial, and create an environment of secrecy, intimidation, and distancing. In addition, such controlling ideologies preclude the use of the experience that business has accumulated from product and service complaints. Government law provides a process that may be used to distribute or centralize power or to legitimate and maintain present power groups; in the complaint arena, the law tends to maintain existing power groups and extrajudicial processes do the same (Abel 1983). In disputing, the cost advantage is on the side of the business group; for example, business legal expenses are tax-deductible, consumer legal expenses are not. While fines can inflict painful wounds on real persons, they do not have the same effect on the corporation. The ideologies that I have barely begun to sketch seem to interrelate in various ways, reinforcing the dominant users of the judicial system and rejecting its potential users. The drift of law moves with the dominant users. The relation between controlling ideologies and use patterns is complicated, or at least not a simple affair to unravel. For example, many people would probably say that in the American legal system it is the proper role of the attorney general or the district attorney to act on the public’s behalf and that private parties should concern themselves only with furthering their own interests. Such a view echoes the traditional legal doctrine of most Western nations, which permits only the state to bring legal action to protect the welfare of the general public. It is an accepted principle today that private individuals may not sue to restrain a public nuisance; such suits can only be brought by the state. When Aileen Adams of Washington, D.C., felt that advertisements claiming that Excedrin was two times as effective as aspirin were false and misleading, and she sued Bristol Myers Corporation to stop their ads, arguing, among other things, that they amounted to a public nuisance, the court did not have to decide whether the ads were in fact a public nuisance. It answered Adams by reminding her that she, as a private person, had no right to bring action for a public nuisance. By contrast, in England and on the continent before the twelfth century, private parties were the sole avengers of wrongs committed against them. In thirteenth century England, representative bodies of the public could initiate nuisance actions in some of the courts, but these forums went into decline in the fifteenth and sixteenth centuries in response to the growth of royal institutions. Self-help, the oldest method of dealing with public nuisances, was a lawful extrajudicial remedy in England until

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the middle of the nineteenth century. The California Supreme Court relied on those doctrines as late as 1851. Gunter v. Geary2 held that since a common nuisance is an injury to the whole community, “every person in the community is aggrieved and consequently every person has the right to abate the nuisance” (Abel 1983, p. 467). The mountain Zapotec would agree. As the state developed, criminal prosecution came more and more under its control; the European Renaissance was a crucial period in this shift. The state monopolized social control both by denying private parties the right to sue and by prohibiting individuals from taking the law into their own hands. The division between public law and private law received a special justification within the nineteenth-century ideology of liberal democracy and the free market. The public welfare was to be promoted by the cumulative effect of individual self-interested activity in the market, private individuals being restricted to the pursuit of their private interests. The state was to play only a limited role in furthering the public interest. The emergence in this century of new public or collective rights, consumer protection, labor relations, and urban development is one of the most remarkable of recent legal developments. This growth springs partly from a realization that the market economy cannot by itself prevent economic oppression and misallocation of resources in the modern world. The outstanding problem for the individual today is how to cope with large-scale organizations. The laissez-faire market system was never expected to control government organizations, and, in the private sector, market pressures are effective only when products and services are simple and do not change rapidly, when firms are numerous and well known, and when information flows freely among consumers so that the mistakes of some can guide the purchase of others. These preconditions can no longer be taken for granted, if they ever could be. But who should be able to use the legal system to enforce these rights? In the decade of the 1970s there was a push to permit consumers, for example, to sue government agencies for not enforcing the laws or to force them to comply with the existing laws. But the traditional model lingers on. The state still has a monopoly over many areas of public-interest law; the awarding of adequate attorneys’ fees to private attorney generals is disfavored or prohibited; class actions continue to be regarded as aggregated private actions; and most importantly, the legal system underrates the importance of minor consumer claims because it views them as merely private affairs. A tradition in our law favors the handling of legal complaints one by one. An institutional fit exists between such a tradition and the manner in which lawyers have evolved their businesses and, indeed, the way that

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Christopher Columbus Langdell, the first dean of the Harvard Law School, imagined the teaching of law would most profit its students. The case method of legal education is predisposed to the custom treatment. It also has a functional fit with the individualistic spirit of our culture and the pursuit of economic self-interest in the market. The consequence of such an ideology is that legal thinking has been preoccupied with microjustice, a focus on particular plaintiffs and defendants, rather than with macrojustice, a perspective in which cases are viewed in the aggregate and the broad consequences of law and legal institutions are analyzed. Eric Steele’s description of a state consumer fraud bureau that was set up to deal en bloc with the problem of consumer fraud and over a ten-year period conducted most of its business by righting the wrongs of individual customers illustrates how strong the ideology of custom treatment is (Steele 1975). The Federal Trade Commission during the 1950s and 1960s concentrated on individualized complaint resolution to the neglect of corrective action and law revision. Also, at the national level, congressmen deal with most of their constituents’ complaint individually. So deep is this custom treatment ideology that we insist on it even when the chances of users achieving justice are hampered, as they may be in a search for a pattern of fraud that can emerge only when cases are viewed together. At a time when interest groups and the chief justice were complaining about congestion in the courts, the same groups were unfriendly to the idea of class action suits or other aggregate solutions. Part of the control inherent in liberal ideology is solving cases one by one rather than making structural changes, such as mandating simplicity in product design when possible. The ambiguities in the sentence “Everyone is equal before the law” are a source of user control. Intrinsic to our idea of the rule of law is the premise that the law should be applied impartially, with no exceptions made for parties with high status or special power. But in our culture, we concentrate attention on rights, often to the exclusion of remedies. When it comes to remedies, concepts such as caveat emptor rest on the assumption of equality in buyer-seller relations both outside and inside the courts. Although there are exceptions, such as in the California Consumer’s Legal Remedies Act,3 most aspects of the complaint process, in both the extrajudicial and judicial spheres, claim to treat the consumer and business as basically equal, with the result that business is given an advantage whenever time, resources, or know-how are required, as in filling out forms, gathering evidence, learning the law, securing expert factual information, going to hearings, and presenting a case. The result often discourages the potential user. The consumer bears the burden of

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initiating each step of the complaint process; in small claims it falls upon the plaintiff to collect on a judgment; in arbitration it is up to the plaintiff to go to court to enforce an award if the defendant does not pay. There are other examples of ideological controls that constrain use, which I describe in my book No Access to Law (Nader 1979, note 7). Caveat emptor is one such control. In medieval England the doctrine of caveat emptor was held in little regard, and despite its Latin name the term first appeared in law reports only at the beginning of the seventeenth century. In the early days of the United States, caveat emptor gained a secure place. Because buyer and seller were presumed to have equal bargaining power, the judicial system thought it best to avoid any interference with what it regarded as “freedom of contract.” The courts reasoned that because the buyers could seek out exactly what they want in the competitive market, they should be allowed to take their own chances. The courts ignored the fact that buyers were having an increasingly difficult time judging the rapidly changing goods in the market. In The Folklore of Capitalism, Thurman Arnold (1937) wrote a chapter on the personification of the corporation. Arnold’s point was that our system of symbols had allowed the corporation to fit neatly into the creed of “rugged individualism”: “The laissez faire religion based on a conception of a society composed of competing individuals, was transferred automatically to industrial organizations with nationwide power and dictatorial forms of government” (pp. 188–89). Ideologies such as caveat emptor can provide continuity of power by effectively blocking reform and by discouraging the organic growth of law by means of a wide array of users. The ideologies that we are tracing interrelate in various ways, forming a thick net. Caveat emptor is based on a belief in equality between buyer and seller; protection of confidentiality is connected with the personalization of the corporate entity and contributes to a reliance on the custom handling of complaints; handling individual cases one by one encourages the belief that public rights should be in government hands, and so on. Together, the ideologies induce a passivity that helps reinforce marginal use and a marginal array in the courts. Because these and connected ideologies have not been examined and questioned, movement in new directions seems not only difficult but contrary to the nature of things. Organizational reforms are weakened from within by the assumptions on which they are based. But causation moves in both directions; incremental changes in the user system should make themselves felt in ideology, as shifts in thought and symbol work their way into the structures of the system. It may in addition take de-professionalization (being taught by the users) for any changes to appear in law school curriculums.

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Discussion One cannot understand or develop a user theory of law, a theory which states that a law drifts in the direction of its dominant user, without an understanding of the relationship between law and the socioeconomic order. An understanding of the different modes of dispute resolution will only be possible if dispute resolution structures are seen as a subset of a larger system of control. The real dilemma of dispute processing is the search for alternatives to the official legal system while keeping the system of relations untouched. A user theory of law carries us beyond the expectation that law can serve only those who pay and pushes out of the framework the idea that a user is a payer. If law is an instrument of justice, we have to go beyond the fees and retainers. When law is a product, like a product it meets a demand, and law viewed as a product is commercialized. Money then dictates who the users of the system are to be. If law is to respond to justice—to human needs and the distribution of rights, opportunities, and remedies—then the manner of practicing law is different. What if the user cannot be a payer? New institutions are appearing: the consumer utility boards, nonprofit charters, consumer groups who hire their own lawyers, the Lawyers for Public Justice (donating $1000 a year each for nonprofit purposes), the litigation group dealing with the issue of polluted waters of Woburn, Massachusetts, and the Equal Justice Foundation idea of tithing new graduates; income can mean that lawyers can contribute beyond the corporate and business firm. Lawyers have a contribution to make—to contribute to negotiating the end to the arms race, to eradicate discrimination, to clean up polluted waters that are violations of law, to protect federal trust and maintain safety standards, and to examine the consequence of an atrophied plaintiff role. Legislation is presently in Congress that further restricts plaintiff rights. The move is to codify state common law, to standardize product liability law. Such a standardized code will be unable to grow or expand and will be susceptible to political influence rather than be protected by the courts. There is massive lobbying by corporations for this act. Under the guise of promoting uniformity, the Uniform Product Liability Act places further burdens on noncorporate litigants. The courts have increasingly not been used for disputes since the nineteenth century. Today there is a growing attack on the contingency fee and punitive damages, part of a trend to further strip plaintiffs of user remedies and then to ignore them as victims.

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An analysis of legal ideologies shows them to be interwoven with economic and political realities and shows them to operate, manage, or control the disorder that may arise from those realities. We should be concerned about the consequences of plaintiffs opting out of the system. Litigiousness is hardly the problem. It may be, to use the medical analogy again, that suppressing the symptoms is putting us seriously out of touch with the signals of the state of health of our society.

NOTES This speech was delivered at the Southern Methodist University School of Law, Dallas, Texas. 29 March 1984. It was also published as: Laura Nader, “A User Theory of Law,” pp. 951–963: from Fourth Annual Alfred P. Murrah Lecture, Southwestern Law Journal 38:4 Nov. 1984. Copyright ©1984, reprinted with permission from Southwestern Law Review.   1. See authorities cited in L. Nader, “From Disputing to Complaining,” in Toward a General Theory of Social Control, ed. Donald Black, pp. 71–94 (New York: Academic Press, 1984).   2. 1 Cal. 462 (1851).   3. Cal. Civ. Code §§ 1750–1757 (West 1973 & Supp. 1984).

REFERENCES Abel, R., ed. 1982. The Politics of Informal Justice. New York: Academic Press. Arnold, T. 1937. The Folklore of Capitalism. New Haven: Yale University Press. Hurst, J. W. 1980–81. “The Functions of Courts in the United States: 1950–1980.” Law & Society Review 15, 401. Nader, L. 1964. “An Analysis of Zapotec Law Cases.” In Ethnology 3: 404–19. ———. 1979. “Disputing Without the Force of Law.” Yale Law Journal 88 (5): 998–1021. Special Issue on Dispute Resolution. ———. 1980. No Access to Law, Alternatives to the American Judicial System. New York: Academic Press. ———. n.d. “To Make the Balance: A Study of Zapotec Law and Order.” Unpublished manuscript. Sampson, P. 1980. “The Emergence of a Consumer Interest in America 1870– 1930.” Ph.D. Dissertation, University of Chicago. Steele, E. 1975. “Fraud, Dispute, and the Consumer: Responding to Consumer Complaints.” University of Pennsylvania Law Review 123 (5): 1107–86.

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E c ha p te r 5

The Subordination of Women in Comparative Perspective

Introduction Anthropologists are in a good position to make comparative use of the interdisciplinary research on women. Our discipline is comparative, and much of the research in gender studies has been interdisciplinary. Crosscultural comparisons are particularly useful in illuminating processes that may otherwise remain invisible. For example, while it has been observed that male dominance structures are widespread in the nations of the world, we still have not specified the range of dominance structures. Different dominance structures are bound to reflect different forms of adaptation or resistance. This paper is an attempt to disaggregate what we sometimes refer to as male dominance structures. Comparisons of these structures of dominance in their variety will allow us to unravel some of the intellectual disagreements in international feminist writings as they relate to national, cultural, and disciplinary outlooks. In this paper, I am interested in processes of female subordination, processes that seem obvious as well as those that enter more indirectly. I use the data of two scholars to make my argument. One examines the ways in which linguistic control acts reflect the relative power position of parents and children. The other reports on women who use the ideology of motherhood as a tool in political participation. The first illustrates the relative power position of mothers and their children by examining forms of requesting in a selected sample of homes in the United States. The second demonstrates how feminist strategies in a Mexican village conform to particular contexts and thus questions the universal applicability of feminist strategies. In both instances juxtaposing the materials in relation to arguments pertaining to subordination introduces a processual model that poses a challenge to what Edward Said (1978) calls “positional supe-

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riority,” a principal that insures seeing others through our own cultural grid.

The University of Subordination Two theses have been examined since women became a subject of serious study in American anthropology. The first thesis (after Simone de Beauvoir 1953) argues that the subordination of women is universal. This position is well elaborated in the early work of Rosaldo and Lamphere, editors of a book called Women, Culture and Society (1974). In this volume, there is a clear connection between the awakening of American women scholars to the condition of women in the United States, and the motivation to explore the world of gender relations. Yet mention of the subordination of American women in relation to American men is indirect and certainly not the book’s centerpiece. The thesis of universal female subordination was also supported by Evans-Pritchard in his 1955 Fawcett Lecture to the women students of Bedford College (referred to in Etienne and Leacock 1980, p. 1). Evans-Pritchard is quoted as saying that “primitive societies and barbarous societies in Europe and the East exhibit almost every variety of social institutions, but in all of them, regardless of the form of social structure, men are always in the ascendancy, and this is perhaps the more evident the higher the civilization.” Then, as Etienne and Leacock (1980, p. 1) note, Evans-Pritchard continues accumulating contradictions in his lecture because he “does not … associate servility with high civilization.” Both ambivalence and contradiction seem to characterize the thesis of universal subordination. A second thesis found in the feminist literature is partly an attempt to refuse the work of the universal subordination theorists, and part of the movement to put history and the temporal dimension more generally, back into the research. In their book Women and Civilization (1980), Mona Etienne and Eleanor Leacock develop a strategy of relating gender roles and status to specific historical formulations and most especially to Western colonizing processes. The presence of Western women is there in a shadowy form, and although they are speaking of the effects on women of Western colonization practices as they relate to the spread of industrial capitalism around the world, there is no article in the book dealing with the first victims of Western colonization and industrialization of their own people, European and American women. However, such research is now beginning to take hold as indicated by June Nash’s work in progress on a New England mill town.

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There is, however, a tradition of comparison in anthropology that brings out findings back home in the form of cultural critique, contrast, or scientific comparison (Marcus and Fischer 1986). Such comparative critique or contrast is relatively rare. Even in the writings of American feminist scholars, there is a hint of the same viewpoint held by the general population—that while it may be bad here, somehow it is really worse in the Middle East, or Africa, or Asia, or Latin America. And sometimes it is worse, but, as anthropologists have pointed out, not always. I might also add that this absence of comparison does not hold true for other aspects of scholarship, such as child-rearing practices, disputing processes, medical practice, ethnicity, language, and other subjects that include Western and non-Western descriptions within the same framework. The pattern of keeping feminist literature on the Third World separate from comparison with the First World materials extends to feminist scholars whose agenda is also political. At the Wellesley conference on the international status of women (1975), of the dozens of papers presented, only one dealt with status and condition of American women in relation to female technologies. In the Third World, however, the view of where the American women really are in relation to their men is changing rapidly, particularly among women concerned with the indigenous identity. Educated Third World women and those who watch television are now increasingly aware that American women carry a double workday. They are alert to the rising rape rate in the United States, to increasing concern about pornographic businesses, and they know that there is an increase in the number of women being jailed. Yet, the rigorous comparison to where American women and men really stand relative to the Third World (irrespective of standard of living questions) has yet to be made. For although American feminist scholarship on the plight of American women is both rich and rigorous, there is a quality of “how can you talk about types of societies in the same breadth” that has impeded comparison. In oral presentations on other women, comparison with the country of origin of the anthropologist are sometimes made, but the comparisons do not become part of the published record. My point is that although authors such as Joan Kelly (1984), Mona Etienne and Eleanor Leacock (1980), and many others recognize that these are difficult times for men and women in their relations to one another because of rapidly changing economic roles both here and abroad, somehow the two scholarly literatures—on the First Word and on the Third World—have been brought together mainly indirectly. An example of the indirect link between First and Third World studies on the status of women is revealed in Ester Boserup’s (1970) work. She argued that with the spread of Western capitalism the status of non-

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Western women drops. Yet, the connection between Western industrial capitalism and the status of women is made in one direction. Boserup’s study helped demolish the myths about economic development in relation to women. These development myths, still popularly believed, assert that economic development brings Western education, increased work options, and an inevitable pull away from traditional, patriarchal values. Thus the net result of development is supposed to be women’s emancipation from traditional forms of gender tyranny. Economic development would, in such a view, free women from their oppressive, backward, and patriarchal cultures and introduce them to the progressive and egalitarian relations allegedly existing between the sexes in the industrialized world. Women would then be liberated from domination by their fathers, brothers, and husbands and from their own self-colonizing conservatism as if Western industrial capitalism had accomplished this at home where it all began (Sachs and Scheper-Hughes 1986, p. 177). Ester Boserup’s work, which provided an antidote to these development myths that still abound, was followed by two decades of gender research. For example, the essays published by June Nash and Maria Fernandez-Kelly in Women, Men, and the International Division of Labor (1983) elaborated upon and confirmed Boserup’s original conclusion. Case studies of the apparel and microelectronic industries show that the expansion of industrial production to areas of Asia, Africa, Latin American, and the Caribbean changed women’s lives, but not necessarily for the better. Instead, these women as wage workers, like those in Boserup’s (1970) study, became increasingly dependent on men and were found to be carrying a double workload. In retrospect, two things puzzle me about this work. Why were Boserup (1970) and those who followed her compelled to go all the way around the world to find what they could have found if they had stayed home, where women as wage workers are also increasingly dependent on men and doing most of the work? And why was the most prevalent explanation for what they found the onslaught of industrial capitalism? For if we include the Eastern bloc, ranging from communist to socialist governments, or if we include the example of Chinese communism, the situation for women in these varied locales is one of subordination to men, although there is variation in structures of subordination. A comparative perspective leads us to recognize that, irrespective of the varieties in types of government and economies, the nation-states of the world are all male centered and all share an ideology or construct of male domination. This is not to say that all men dominate, or that all women are dominated—rather, that the predominant dogma is both male centered and male dominant.

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The rich and rigorous research on women and on gender more generally has thus challenged the notion that Westernization improves women’s status in the Third World. We have yet to complete the picture. A comparative frame that includes both the Third World and the First World could allow us more mileage from this same research and generate greater insight into the processes at work by forcing a confrontation with the implicit “positional superiority” that peoples of Western European heritage are taking vis-à-vis the condition of women in the Third World.1 Basically, my argument is that the nation-state government, which is almost universal on the planet today, is constructed along male-dominant lines, if only as evidenced by the predominant participation of men, rather than women, in governments everywhere (see Sacks 1976). In other words, in all nations of the world, irrespective of political, religious, or economic differences, the male construct predominates. Thus, we find a basic similarity worldwide, which supports the thesis of the universal subordination of women. The differences in forms of male construct are, however, a direct consequence of the differences in political philosophy, religious dogma, or economic ideology. Thus, while the United States and the countries of Latin America share the experience that their governments and dominant cultures are male dominant, and that relations between women and men are dominant-subordinate, the way in which the status of women is kept subordinate and the domains in which dominance is exercised differ from one society to another and, as we see, through time. In both the United States and the countries of Latin America, female scholars have documented the evolution and perpetuation of male dominance (e.g., Butler-Flora 1984; Dinnerstein 1976; Friedan 1965; Nash and Safa 1980; Schmink 1981). The outlines are clear. Both cultures have patriarchal origins, and as mentioned before, both have male-dominant governments, male-dominant family structures, and, in both societies, women work longer hours than the men. In both areas, women and their children constitute the poorest segment of society. Although across the Americas there are ideologies that glorify the status of women, in both places the lower status of women is explained as due to their inherent inferiority. In other words, in both U.S and Latin American cultures, women’s subordination is institutionally structured and culturally rationalized, exposing them to conditions of deference, dependence, powerlessness, and poverty. Having said this, what could comparison, even micro-comparison, reveal to us about the way in which women are subordinated in both cultures? Both examples that follow make use of data about mother and mothering in the United States and Mexico and are presented as if both cultures were separated and isolated from each other, which they

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are not. In addition, both examples deal with very limited samples that are suggestive of patterns which may or may not be widespread.

Deference, Demeanor, and Mothering There has not been an anthropological examination of patriliny and patriarchy that compares with the studies of matriliny resulting from a Social Science Research Council conference led by David Schneider and Kathleen Gough in 1961. In what follows, there is an observation about the influence of patriarchy in the context of the isolated nuclear family. Because I have worked and lived in the United States and conducted field work in Mexico and the Middle East, I have been sensitive to the pattern of idealized male dominance in the nuclear households of these three societies and to the mechanisms which perpetuate such idealization. I am also aware of behavioral variation within and between these broad and varied cultural areas in terms of ethnicity, class, and geography. Nevertheless, I would classify nuclear families in all three areas as characterized by male dominance, even though there are American anthropologists, including those who have devoted a large part of their lives to studying the social organization of families, who would disagree that American families are ideologically male dominated (see Fischer and Fischer in Whiting 1963; personal communication with John Whiting, 1984). In order to narrow this observation, I will focus on three categories of family members in the households of Mexican and U.S. families: father, mother, and children. Since most families that are nuclear by definition have a male (father), a female (mother), and children, I am leaving out of the picture for the moment the large number of what used to be called incomplete families: single parent child households. Since 1950, I have spent approximately three years living in urban and rural Mexico. If I were asked to rank the three categories of participants in Mexican middle-class families along the dimensions of deference and demeanor, I would hypothesize that in urban areas fathers are accorded the highest deference and demeanor, with mothers second, and children last (see Hubbell 1972 for corroborative data). Among Mexican Indian families, I might argue that males and females receive a more equal amount of deference and demeanor, or if there were any differences, it would be because the highly respected position of the father is mitigated by a sentimental relation with the mother that is more expressive of emotion. Nevertheless, children generally treat their parents with respect in both rural and urban Mexico. Very often the Spanish pronoun “you” is formalized for the father (the use of usted), sometimes for the mother,

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but even if tu is used for the mother, respect is an important part of the demeanor accorded her. In the village that I studied and worked in for over eighteen months, court cases involving children and parents were often decided on the basis of respect. Did the child show respect? Did the child realize that the father has no duty or obligation to provide the child with anything? Cases where the child accused the mother were invariably decided in favor of the mother, and the child was invariably reprimanded for not respecting their mother’s “house.” Cases that were carried to the district court that involved children accusing parents were not accepted as proper cases because it was inconceivable that children had rights over their parents. It seems almost “natural” that in male-dominated societies, while the first rank was accorded the father, at least the second rank and deference would be accorded the mother by both the father and the children. I would have expected this to be true in all male-dominated family situations. However, three years ago I attended a lecture by a psychologist, Susan Ervin-Tripp, who described another kind of patriarchal family, where it appears that the mother sits at the bottom of the family-ranked status, with the children above her and the father at the top of the short ladder as measured by the pattern of requesting used by children. Ervin-Tripp, O’Conner, and Rosenberg’s research2 was carried out in Berkeley, California, among four middle-class families who were interviewed, observed, and videotaped for over a year. Ervin-Tripp, O’Conner, and Rosenberg (1984) concentrated on forms of requesting—how children make requests of their primary caretaker. Although limited to a small sample, their findings were remarkable: The children recognize and use the fact that mothers in their culture are supposed to be responsive to their wants and discomfort, since they routinely use their assertions of helplessness or of their wants as a means of getting mothers to comply, even under conditions of high cost. This assumption that mothers are there to provide for one’s needs may explain the following attempt by a seven-year-old to gain his mother’s compliance with a request: if you don’t give some now, I won’t want any later. This strange utterance would function as a threat only in a social situation where the mother is assumed to derive benefit from fulfilling the care giver role. (pp. 129–30)

As Ervin-Tripp, O’Conner, and Rosenberg (1984, p. 118) noted earlier, “A speaker who is high in esteem has the right to receive verbal deference from others and can make control moves boldly, without offering deference to those who are lower in esteem.” The researchers found that children address their mothers and fathers differently. Children use the less polite forms to their mothers, while using more mitigating expressions

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with their fathers, and, as they point out, children internalize at an early age the nuances of the social structure: The mothers in our sample were an important exception to the pattern of power and esteem correlating with age. In their role as care givers, they received nondeferent orders, suggesting that the children expected compliance and believed their desires to be justification enough. They were right; the mothers cooperated, even when the tasks were difficult or intrusive. … Though based on a small sample, these findings suggest many areas of family interaction that provide the training ground for later patterns of social behavior. In many respects, the structure of power and deference in adult life is prefigured in the families. (Ervin-Tripp, O’Conner, and Rosenberg 1984, p. 135)

They also found that mothers were less likely to respond to polite requests than to nondeferent orders. Unfortunately, their succinct and fascinating observations are not further elaborated. If it were generally true that middle-class mothers occupy the bottom rank in American nuclear families, how did this occur? And what does it mean in relation to my earlier reference to Evans-Pritchard’s observation (in Etienne and Leacock 1980, p. 1) that “men are always in the ascendancy, and … perhaps the more evident the higher the civilization.”3 If the preceding observations represent a widespread pattern, then we are seeing a shift in the relative power relations in U.S. nuclear families, with children replacing their mother as second in rank after father. Without knowing the cause of such shifts, I would guess that with the extension of U.S. cultural influence into Latin America, the idea of mother as maid, and therefore of lower rank than the father and children for whom she provides maid service, may also be exported along with American goods, services, and information. In addition, exported technologies carry values associated with male dominance or carry with them the necessity to reorganize social relations (Cowan 1983). This situation might be reinforced by feminist ideologies that question the value of women identifying themselves as mothers in a man’s world if they wish to achieve more egalitarian relations with men. Although Dally (1983) has revealed the complex consequences of Inventing Motherhood, the uses made of her observation that motherhood has become devalued in the West, especially the uses made abroad may go beyond her original intention, which was to chronicle the changes that brought about the motherhood ideology, which justifies the social isolation of mothers and children in the United States and which buttresses the feminization of poverty. At any rate, while motherhood as ideology has been present in the feminist literature of North Americans, south of the border, motherhood is being used as a political tool by women.

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Political Participation and the Argument over Mothering In a paper on “Patterns in Mexican Women’s Political Participation,” JoAnn Martin (n.d.) presents an analysis for contemporary argument between Latin American women and North American and Western European feminist scholars. Briefly stated, North American and Western European feminist scholars interested in political behavior and gender suggest that women in Latin America lack a feminist perspective (Chaney 1979; Jacquette 1982). The data they use comes from researchers who have observed that when Latin American women enter the political arena, they maintain gender stereotypes—that is, women are involved in issues dealing with women and children, social welfare, art, education, and health. These feminists are arguing from the perspective that it is women’s roles as mothers that keep them out of domains largely controlled by men. They thus believe that the cost of mothering is high. As Martin (n.d.) explains, These views of the cost of mothering to women’s participation in other domains are based primarily on the experiences of women in the United States and in Western Europe. In the United States and Western Europe the dominance of the nuclear family often leaves mothers isolated with few other women or men to assist them in child rearing. Such patterns of isolation are becoming more common in the Third World, however, as development and industrialization divides families (p. 2). … The critique of mothering, which has been important in the development of feminism in the United States and Western Europe, has prompted many Latin American women to reject the feminist label.

Martin (n.d., p. 2) cites Mattelart’s (1980) study in Chile, where in 1973, the right wing won women’s support for its overthrow of Allende “by appealing to women’s roles in the family as wives and mothers.” According to Martin, Bustos (1980) among others, interprets Latin American women’s hostility to a “feminist” perspective, which includes a critique of women’s roles in the family, as an expression of the strength of male domination through ideological control. In her paper, Martin examines the Mexican women’s use of mothering symbolism in the context of Mexican political culture. At the outset she notes, “Paradoxically, the political consciousness that women develop under the umbrella of motherhood enables Latin American women to be more assertive and aggressive in the political arena, and more independent and autonomous in their relations with men” (p. 4). Martin elaborates the standard feminist explanations for the Latin American use of motherhood in politics by exploring the meaning that motherhood has for Latin American women who parti-

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cipate in politics: “Women believed that their position in the family gave them a unique perspective on national and international politics. The mother ‘feels’ all of society’s ills for she is in charge of the care and protection of the children” (p. 16). In speaking about the increased incidence of health problems relating to nerves (nervios), Martin quoted one women as saying that nerves were on the increase because women were bearing the pain of Mexico’s financial crisis. She argues that the personal perspective—relating to the provision of land, the buying of children’s food and clothing—gives women a stake in political participation. As women, they defend their political action from charges of self-interest by stressing their role as mothers. Theirs is a morally justified politics. Their political work is done in the interest of community, the future of community members, and not just for the moment at hand. “Women enter this arena carrying the banner of motherhood proudly as they believe that their roles as mothers have led them uniquely prepared for caring for their community” (p. 25). In some ways these Mexican women sound like American feminists of the nineteenth century, a period when women in the United States drew on their roles in the family for the purposes of developing and extending their political participation. But the twentieth-century women’s movement is, as Martin (n.d., p. 26) says, “oriented toward the development of a ‘self’ free from the constraints of gender stereotyping.” In Mexican women’s politics, self-realization is not nearly as important as community development, partly because they still have community. What is interesting in the order of happenings in both countries is that, while in the United States, the women’s movement shifted away from a concern with community to the development of “self,” the Latin American women utilize a strategy of feminism more comparable to that used in the United States during the nineteenth century, when industrial expansion was just beginning. At the end of her analysis, Martin (n.d., p. 26) concludes that in Mexico “women’s political groups gain strength not by challenging gender stereotyping but by calling on the positive values attributed to their gender.” In essence she closes her analysis of the argument between North American and European feminists and Latin American women by saying that given the Mexican context, Mexican women’s strategies are politically sound. And of course, by analogy, given the context of the North American and Western European women, where nuclear families are isolated, the cost of playing the Mexican game would be high indeed. Thus one is left feeling that the critique of mothering has been important in the development of a North American feminism because of cultural and environmental factors, but not for Latin American women because their

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economic and political context is different. In Latin America, the nuclear family is not isolated and women are not isolated from each other. Yet neither strategy on the face of it seems to have accomplished much for women—neither the altruistic strategy of nineteenth-century American women and twentieth-century Mexican women, nor the more egoistic strategy of twentieth-century United States women. In fact, a win for the moment has been achieved rather than something dramatically structural, like trading hierarchical for egalitarian relations between men and women. If there has not been any dramatic progress in either country, why are feminists from the north so sure that what hasn’t worked very well for them will help their Latin American sisters? From where do they get their “positional superiority?” Where do their feminist strategies come from?

The Origin of Feminist Strategies It seems obvious that profiles of feminist strategies in any society would reflect particular social, economic, and cultural situations, and that although subordination of women seems to be a worldwide feature of nation-states, the variation in patterns of subordination necessarily indicates that feminist strategies would not be universally applicable. In the case of the United States and Mexico, the presence or absence of community, the decline in kinship associated with the prevalence of the isolated nuclear family, the separation and isolation of mothers and their children, and, of course, the overall conditions of industrialization all create a wide variety in forms of subordination. Under such circumstances, one could argue that feminist strategy is not feminist in origin, but is rather directly related to the shape of the male power structure. And of course the reverse would also be true, that male forms of domination are associated with the patterns of insubordination or resistance found among women. In the example of motherhood, we are dealing with situations that are new in the United States and elsewhere: non-wage-earning mothers and their children are separated and isolated at home during their children’s preschool years. Machinery was placed in motion that made this appear normal. As Dally (1983, pp. 10–11) has argued, “When large numbers of mothers have never before the mid-twentieth century been shut up alone with their small children for most of the working hours, suddenly it appeared that this was the ideal, the norm, essential for the healthy psychological development of the child and a demonstration of feminine normality in the mother … [and] the attitudes of the oppressor enter the

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minds of the oppressed so that women become the means of their own oppression.” And she reveals further consequences of the realization of the mother role. The idealization of the mother in the context of the isolated nuclear family is a “catch-22,” and leads to what Ervin-Tripp, O’Conner, and Rosenberg observed: that the mother becomes a caretaker, a position that could easily be handled by a maid. Under conditions of isolation, the idealization of motherhood leads to disillusion. Mothering inhibits women and inhibits their broader participation in society. It is no wonder that the idea that motherhood is an instrument of oppression and burden from which women must be freed is now found in today’s feminist literature. However, the “catch-22” is that by trivializing motherhood, mother ends up being a maid. In spite of the consequences of trivializing the modern construction of motherhood, feminists will argue that mothers who use their power as derived from their idealized status lack a feminist perspective, even if, as we saw in the example from Mexico, it is practical in achieving goals (Chaney 1979). Middle-class women in the United States are therefore kept in a subordinate position by the particular cultural construction of motherhood and by their rebellion against it. The mother is no longer idealized. And when she is at home full time, she is now the maid to be given orders by her children (as well as her husband). In Latin America, the catch is no less severe. Women are kept in a subordinate position by the idealization of motherhood, and if they were to rebel against this idealization they would be relegated to a category akin to women of the street. Thus, one could argue that feminist strategies originate from the particular conditions of subordination, or as Haraway (1983) has argued, from the conditions of domination. In either case, feminist strategies are not creations separate from the prevailing construct of male dominance. It does not appear that the full impact of the observation that forms of domination vary from one male-dominated system to the other has been appreciated, although the anthropological literature is replete with evidence of this variation (Nash and Fernandez-Kelly 1983; Nash and Safa 1986). By implication, of course, the strategies invented and used to counter domination and to resist forms of subordination also vary. But what is good for one goose is not good for the other. When feminists from the northern spheres critique the feminist strategies in other locales, it might be useful for them to examine just how effective their own strategies have been. If the strategy to destroy the modern construction of motherhood results in mothers being treated like maids, this can hardly be considered an improvement over our Mexican sisters, although it is in fact more comparable to the status of Mexican maid.

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What I would propose instead is an overall strategy that is comparative and introspective in nature. International conferences on women’s issues are often fraught with tensions between women of the so-called First World and women of the so-called Third World. These tensions sometimes result from an unintended positional superiority expressed by First World women. Somehow, whether directly or indirectly, First-World women communicate the sense that while they have to struggle, they are closer to equality with men than their Third-World sisters. Some of the feisty sisters from the Third World, however, do not accept this superior position, unintentional though it might be. Tensions and miscommunication result, but most importantly, taking a position of superiority that suggests that “Latin American women are not truly feminist because they use as identifying symbols that which connects them to their biology— mothering” not only does not work as a remedying strategy, but hastens women’s isolation because it is the rejection of mothering that is disruptive of community in the Third World from the perspective of the Third. Throughout the Third World there is active discussion of the disruption caused, not by feminism, but by feminism of the U.S. and Northern European kind. It may be that a feminism that is self-oriented rather than community-based is part and parcel of the isolated nuclear-family package. This feminism is not invented independently of the system of male dominance that is associated with Western industrialization and that also asserts the principle of positional superiority. In conclusion, women’s movements, whether Western or non-Western, operate with a male-dominated social and cultural paradigm which argues (1) that Western economy development and industrialization will improve the condition of Third World women; and (2) that women in the United States and Western Europe are better off than their sisters in other societies because they are more “developed.” On the other hand, within the Third World, non-Western women who are part of nationalist or local ethnic movements carry a different belief, one associated with another male construct, that they are better off than their Western sisters. In order to move beyond, to transform male-female relations toward greater egalitarianism characterized by mutual respect, our task is to break down this paradigm based on positional superiority or the idea that whatever is Western is best. Indeed, I have sometimes thought that a positional inferiority strategy might be better. Women in the United States and Latin America could each claim to have more inferior roles vis-à-vis their men than women from the other area. If feminist strategies are indeed part and parcel of the ideology of male domination in both cultures, such behavior would undermine the legitimacy of this particular male-dominant ideology. That is, if the place of women in Western society is further se-

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cured by taking a superior position that compares them as better off than their Latin American sisters, then let us reverse the process. What I am arguing is that a position of positional superiority impedes the movement to improve women’s position in any nation.4

Acknowledgements I am grateful to Susan Ervin-Tripp and JoAnn Martin for critical discussion and for use of their data in this paper, to Aihwa Ong for her assistance in mining materials relevant to the final discussion, and to Suzanne Bowler and Laurel Rose for their support and help with the paper.

NOTES This chapter was originally published as: Laura Nader, “The Subordination of Women in Comparative Perspective”. Special Issue: Women in the Americas: Relationships, Work and Power, pp. 377–397 (Fall–Winter) 15(3–4) (1986). Urban Anthropology and Studies of Cultural Systems and World Economic Development, A.S. Barnes, ed. Reprinted with permission from Urban Anthropology and Studies of Cultural Systems and World Economic Development © 1986.   1. Westerners are not the only people who do this, as I made clear in a paper delivered at Amherst College in the spring of 1986 titled “Orientalism, Occidentalism, and the Control of Women” (see chapter 8 in this volume).   2. The researchers selected four cooperative middle-class families with two or three children whose ages ranged between two and eight, and who included eight females and three males. A total of 891 control acts by the children were coded from ten thousand utterances during the period of research. This study focused on the internal structure of requesting rather than following a sociological approach and was a pilot study that is suggestive but not necessarily inclusive. The intent of the researchers was not to talk about the entire U.S. population but about a process of behavioral pattering. Although I do not think the interactions described are a perfect mirror of middle-class families, they nevertheless illustrate a sequence of events that may be widespread.   3. Analyses of nuclear members rank relative to one another, and they can be done from an insider or outsider perspective. It might be argued that mothers may be (1) lowly ranked by members of the nuclear family, but highly ranked by members of the larger society; (2) highly ranked by members of the nuclear family and lowly ranked outside; or (3) lowly ranked both inside and outside the family. E. A. Hammel (1969) argues that Serbians rank their mothers highly but otherwise rank male relations higher than female relations, using the criteria of influence, capability, successfulness, and like-

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ability. Ervin-Tripp, O’Conner, and Rosenberg’s data seem to fit option 3: ranked low both inside and outside. There is some evidence from Bedouin data that girls rank mothers higher than boys (personal communication, D. Cole, 1987).  4. L. Nader, “Orientalism, Occidentalism, and the Control of Women,” paper presented at Amherst College, spring 1986.

REFERENCES Beauvoir, Simone de. 1953. The Second Sex. New York: Alfred Knopf. Boserup, E. 1970. Women’s Role in Economic Development. New York: St. Martin’s Press. Bustos, J. G. 1980. “Mythology about Women, with Special Reference to Chile.” In Sex and Class in Latin America, ed. J. Nash and H.J. Safa, pp. 30–45. New York: J. F. Bergen. Butler Flora, C. 1984. Socialist Feminism in Latin America: Women and Politics 4 (1): 69–93. Chaney, E. 1979. Supermadre: Women in Politics in Latin America. Austin: University of Texas Press. Cowan, R. 1983. More Work for Mother: The Norms of Household Technology from the Open Hearth to the Microwave. New York: Basic Books. Dally, A. 1983. Inventing Motherhood: The Consequences of an Ideal. New York: Schocken Books. Dinnerstein, D. 1976. The Mermaid and the Minotaur. New York: Harper and Row. Ervin-Tripp, S., M. O. O’Connor, and J. Rosenberg. 1984. “Language and Power in the Family.” In Language and Power, ed. C. Kramarae, M. Schultz and W.M. O’Barr, pp. 116–35. New York: Sage Publications. Etienne, M., and E. Leacock. 1980. Women and Colonization: Anthropological Perspectives. New York: Praeger Publishers. Fischer, J., and A. Fischer. 1963. The New Englanders of Orchardtown. Vol. 5 of Six Cultures: Studies of Child Rearing, ed. B. B. Whiting. New York: John Wiley and Sons. Friedan, B. 1965. The Feminine Mystique. Harmondsworth: Penguin Books. Hammel, E. A. 1969. “Structure and Sentiment in Serbian Cousinship.” American Anthropologist 71 (2): 285–93. Haraway, D. J. 1953. “Class, Race, Sex, Scientific Objects of Knowledge: A Socialist Feminist Perspective on the Social Construction of Productive Nature and Some Political Consequences.” In Women in Scientific and Engineering Professions, ed. V. Haas and C. Perucci, pp. 212–29. Ann Arbor: University of Michigan Press. Hubbell, L. J. M. 1972. The Network of Kinship, Friendship, and Compradrazgo among the Middle Class Women of Uruapan, Michoacan, Mexico. Ph.D. thesis, University of California Department of Anthropology, Berkeley.

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Jacquette, J. 1982. “Legitimizing Political Women: Expanding the Options for Female Political Elites in Latin America.” In Perspectives on Power: Women in Africa, Asia and Latin America, ed. J. F. O’Barr, pp. 27–36. Durham, NC.: Duke University Center for International Studies. Kelly, J. 1984. Women, History and Theory. Chicago: University of Chicago Press. Marcus, G., and M. Fischer. 1986. Anthropology as Cultural Critique. Chicago: University of Chicago Press. Martin, J. n.d. The Women’s Touch: Patterns in Mexican Women’s Political Participation. Berkeley: University of California Anthropology Department. Mattelar, Michele. 1980. “Chile: The Feminine Version of the Coup d’Etat.” In Sex and Class in Latin America, ed. J. Nash and H. I. Safa, pp. 279–301. New York: J. F. Bergin Publishers. Nader, L., and J. Collier. 1978. Justice: A Woman Blindfolded? In Women in the Courts, ed. W. Hepperle and L. Crites, pp. 202–21. Williamsburg, VA: National Center for State Courts. Nash, J., and M. P. Fernandez-Kelly. 1983. Women, Men and the International Division of Labor. Albany: State University of New York Press. Nash, J., and J. Safa, eds. 1980. Women and Change in Latin America. South Hadley, MA: Bergin and Garvey Publishers. Rosaldo, M., and L. Lamphere. 1974. Women, Culture and Society. Stanford: Stanford University Press. Sacks, K. 1976. “Stare Bias and Women’s Status.” American Anthropologist 78 (3): 565–69. Sacks, K., and Nancy Scheper-Hughes, eds. 1986. Introduction. Special Issue: “As the World Turns: Women, Work and International Migration.” Women’s Studies 13 (3): 175–82. Said, E. 1978. Orientalism. New York: Vintage Books. Schmink, M. 1981. “Women in Brazilian Politics.” Signs 1981–83: 115–34. Schneider, D., and K. Gough 1961. Matrilineal Kinship. Berkeley: University of California Press.

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E c ha p te r 6

The ADR Explosion Implications of Rhetoric in the Legal Reform

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n this essay the author evaluates the current attraction to alternative dispute resolution (ADR) in North America and with it the adoption of harmony ideology. The author asks three questions. One, what is the process which launched the ADR movement in America, which up until present has placed heavy reliance on an adversary system? Two, what conclusions can be drawn from the embracing of harmony ideology on society’s attitude toward law, litigation, and litigants? Three, what have been the consequences of the shift from adversarial modes to ADR on the handling of disputes in America? In answer to the first question, the author sees the Pound Revisited Conference held in 1976 as being pivotal in institutionalizing harmony ideology. Through extensive reference to the addresses of America’s elite delivered at the conference and, in particular, by then Chief Justice Burger both at the conference and in subsequent Annual Reports, she highlights the rhetoric with which harmony ideology was extolled. In response to the second and third questions, the author suggests that harmony ideology seeks to transform disputes about facts and legal rights into ones about feelings and relationships. Adversarial litigation is seen as being discordant and threatening to the values of a presumed homogeneous society. Finally, the author suggests that adaptation of harmony ideology is inextricably interwoven with the control of power. Harmony ideology promises the pacification of democratic processes of which adversarial litigation over rights is but one part. The uses and abuses of litigation and the litigation process have been the target of analyses by legal scholars at least since the beginning of nation-state legal systems and probably before. Legal specialists and others have recognized the frivolous uses of litigation and have built controls

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to discourage such uses. At the same time, legal professionals have often noted barriers to the use of litigation (as with excessive use of discovery procedures, cost, or loss of time) and have participated in movements to improve access for those in need of the rule of law. Less attention on the part of legal scholarship has been accorded to an understanding of the harmony legal tradition and its impact on the reception of an adversary legal model (Auerbach 1983). It is my contention that an absence of understanding of the harmony legal tradition has rendered the legal profession vulnerable. In the United States, lawyers and judges have been enveloped during the past decade by a wave of antagonism against litigation as a model for dispute resolution and enthusiasm for alternative dispute resolution mechanisms known as ADR. These alternatives, you may have noticed, are cloaked in a desire for harmony, efficiency, and access to mechanisms that are cheap and that operate without undue delay. Lawyers and judges in the United States and elsewhere (although not unanimously) have embraced the harmony legal tradition as an answer to modern concerns of how to deliver law to the masses, and I believe they have done so without critical evaluation of what it means to adopt ADR as legal policy. In the United States there has been a growing understanding of how dispute processes work (Abel 1982; Nader 1980; Tomasic and Feeley 1982). The academic literature has explored the meaning of ADR and the assumptions undergirding the ADR revolution. In addition, there has developed an ADR constituency, practitioners who have generated their own literature on how to do ADR. This paper deals with three questions that have had less attention on the literature and in the many conferences on alternatives: (1) What was the process that launched the ADR movement and that enlisted lawyers and judges as partners in a critique of the adversary system in a country where the rule of law has been paramount? What is the nature of the persuasion used to get legal professionals to turn on themselves and on their profession, and in the course of a decade to successfully introduce the harmony legal model? (2) What are the broader meanings of harmony ideology in relation to change or the maintenance of the status quo, and specifically how has harmony been used in dealing with unequal relationships? and (3) what have been the consequences of this shift from adversarial to harmony ideology in terms of change and in the manner in which disputes are being handled in the United States? It may be parenthetically noted that the uses made of a harmony legal tradition have been documented for those parts of the “Third World” have been conditioned by religious and political colonialism. In Africa, justice carried by Christian missionaries has left its mark on indigenous

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law in the form of a customary law characterized by legal compromise (Chanock 1987). In the Pacific (see, e.g., Schieffelin 1981), missionaries of the Mormon and Seventh-day Adventist and other sects have introduced harmony ideology and the accompanied morality of disputing and have changed the manner in which disputes are being heard from Tonga to New Guinea, often from a confrontative model to a consensual model. In nineteenth-century California, Mexican harmony legal tradition collided with the adversary tradition being carried to California by New England entrepreneurs (Langum 1987). Earlier in seventeenth- and eighteenthcentury New England, a similar clash of legal traditions appeared between town and city (Zuckerman 1970). Changes from harmony to confrontational or adversarial law models and back have been documented by historians for a number of societies (see, e.g., Kagan 1981), but the speed with which the alternative dispute resolution movement was institutionalized in the United States and the virtual explosion of ADR rhetoric is more suggestive of ideological struggle than a response in the legal system to economic and demographic changes, for example. In the ADR literature, I am struck by the powerful uses of harmony ideology as a path to control rather than as a way to increase access to justice or the availability of remedies and rights.

The Shift of Legal Tradition from Justice to Harmony From 1960 to the present, law-reform discourse in the United States has shifted from a concern with justice and root causes to a concern with harmony and efficiency, from debates over right and wrong to programs of treatment and a public debate over “too much litigation.” The process whereby ideologies that are forces of change are shaped through discourse is an interesting one and goes far beyond the law to include the links between law and community constituencies. The sixties have been described as confrontative, a time when many social groups felt encouraged to come forward with their agendas: civil rights, consumer rights, environmental rights, women’s rights, and American Indian rights. It was also a period of sharp critique of law and lawyers in relation to issues of rights and remedies. The law was declared unsatisfactory in dealing with the explosion of rights consciousness (Cahn and Cahn 1966). Two reform agendas emerged: those who thought that Americans might improve legal services (Danzig 1973; Wasserstein and Green 1970), and those who thought that Americans were becoming too litigious and who sought to remedy what they saw as a confrontational mode (Burger 1976; Shonholtz 1978; Wahrhaftig 1978). Solutions were proposed to

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meet the needs of these various and often opposing constituencies, and although there were a plethora of experiments, the sum total began to be known as alternative dispute resolution. Alternative dispute resolution usually encompasses programs that emphasize nonjudicial means for dispute handling: the focus is commonly on mediation and arbitration. Alternative dispute resolution came to be known as informal justice, a justice that promoted compromise rather than win or lose, that replaced confrontation with harmony and consensus, war with peace. It was hoped that such alternatives would be efficient, speedy, and inexpensive. Law schools that had been staunchly training lawyers in the adversarial method in the 1960s and early 1970s were made to feel shame for encouraging parties to dispute, and they were encouraged, at least in terms of updating their curriculum, to include training in alternative dispute resolution mechanisms. Throughout this period, there gradually came a change in the manner of thinking about rights and justice. The production of harmony, the rebellion against law and lawyers—often by lawyers themselves—the movement against the contentious, and the movement to control litigation were constructed. Ironically, the work of social critics and legal reformers was used to construct an ideology that is directed to control the very people the liberal reformers wanted to have access to law. By means of harmony ideology, potential plaintiffs are conditioned to treatment. The elements of control that evolved are far more pervasive than the direct extension of state control (Abel 1982; Harrington 1985; Hofrichter 1977 and 1982). Harmony ideology has become embedded in the way we look at the world more generally. It is commonly accompanied by an intolerance for conflict and an intention to prevent not the causes of discord but the expression of it. An intolerance for strife seeks to rid the society of those who complain—“love it or leave it”—and by various means to create consensus, homogeneity, agreement. The harmony model was to effect a dampening of controversy, thus protecting the courts from the “garbage cases.” The rationalization for how well harmony works was often sought in the anthropological literature (Gibbs 1963; Nader 1969), but the expression of the reform agenda was by means of public rhetoric. It was at the Roscoe Pound Conference on “Perspectives on Justice in the Future,” held in St. Paul, Minnesota, in 1976, that the turning point was declared (Levin and Wheeler 1979). In St. Paul, harmony and efficiency ideologies both came to replace the litigation and justice model. The St. Paul conference was to adumbrate a cultural shift that had ramifications for social relations, for the structural problems of inequality, for solutions to needed procedural reform. The event was what anthropologists have called a key social drama.

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It was the year of the bicentennial celebration of the United States—a historic occasion. The Pound Conference was also historic and held in the same place where Roscoe Pound had delivered his memorable 1906 talk to the American Bar Association on “The Causes of Popular Dissatisfaction with the Administration of Justice.” The conference was to be a symbolic vehicle for a serious and comprehensive examination of needed procedural reform (Levin and Wheeler 1979, p. 6), “an opportunity for public exposition and dramatization to advance markedly the reform movement” (Levin and Wheeler 1979, p. 9), to be accomplished by the year 2000. The tone was conveyed in a quote from Victorian Chancellor Lord Herschell: “Important as it is that people should get justice, it is even more important that they be made to feel and see that they are getting it” (Levin and Wheeler 1979, p. 10). The year 2000 as a deadline gave the legal profession a little more than twenty years “to accomplish the great acts of reconstruction that have to be wrought in order to maintain the rule of law as the principle of order in our conflict-ridden and ever-changing society” (Levin and Wheeler 1979, p. 14). The conference was described in the foreword to the resulting volume as having served to arouse “a new spirit of zeal for fundamental procedural reform, a new optimism about the possibility of creative innovation in the administration of justice” (Levin and Wheeler 1979, p. 15). The participants were concerned with public perceptions and with the use of harmony and efficiency to improve the administration of law. What is the character of these new attitudes toward the adversary process? Several of the presenters at the conference were singled out in the foreword: Robert Bork, Francis Kirkham, Simon Ritkind, Leon Higginbotham Jr., Walter Schaefer, Alvin Rubin, and Frank Sander. All presenters were law trained, and their messages covered the common theme of procedural reform. It is worth summarizing their points. Robert Bork spoke to the problem of how to allocate types of disputes in order to deal with the alleged overload crisis in the courts: We are forced, I think, to the conclusion that only a reallocation of disputes among types of tribunals offers any long-run hope for the federal judicial system. … An increasingly regulated welfare state generates an enormous amount of litigation. The programs may have great social importance but the issues presented are in large measure legal trivia. … The categories of cases I have in mind include those rising under the Social Securities laws, the National Environmental Policy Act, many prisoners’ suits, the Clean Air Act, the Water Pollution Control Act, the Federal Employers’ Liability Act, and the Food Stamp Act. (in Levin and Wheeler 1979, pp. 151, 156)

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Then Bork proposed a new set of tribunals for such cases which would speed up the process, handle cases informally without counsel unless desired, and which would remove well over twenty thousand cases from the federal district courts. Francis Kirkham (Levin and Wheeler 1979, p. 53) took another tack; he sharply criticized the excesses of runaway discovery that are clogging the courts. Criticism of discovery practices, however, receded to the background in terms of conference priorities. More central was the notion of how the public perceives the law, and Simon Rifkind argued that the American public perceives courts as places to furnish the answers to whatever may trouble them (in Levin and Wheeler 1979, p. 53): “Should we build nuclear plants, and if so where? Shall the Concorde fly to our shores … a lawsuit was recently filed … seeking to prevent the U.S. Postal Service from issuing a commemorative stamp honoring Alexander Graham Bell—on the grounds that someone else invented the telephone.” Rifkind goes on to say that the problem is aggravated due “partly to the litigious character of our citizenry, partly in the relative ease of access to the courts, and partly in the peculiar character of the American judge.” Alvin Rubin discussed the usefulness of “cumulative tinkering,” and Frank Sander suggested alternative forms of dispute resolution to which court business might be diverted. Cases would be assigned to differing processes. Walter Schaefer urged an end to the use of the jury in the trial of civil cases, arguing that although jury trial was better than ordeal, trial by battle, or compurgation, “a static procedural system is quite as unsatisfactory as a static body of substantive law” (in Levin and Wheeler 1979, p. 186). The picture was one of accelerating demands that the courts could not meet without drastic procedural reform. Of all the presenters, it was Judge Leo Higginbotham who moved the dialogue to issues of social injustice. He got to the point when he noted that Roscoe Pound was not interested in Band-Aid solutions which would mask the “wounds of injustice.” Pound was interested in causes (Levin and Wheeler 1979, p. 87). Judge Higginbotham ended his address with the comment, “By all means let us reform that process, let us make it more swift, more efficient, and less expensive, but above all let us make it more just” (in Levin and Wheeler 1979, p. 110). Although I have left the chief justice’s keynote address to the end, I should say that it came first in order of presentation. It was delivered as a challenge to think about fundamentals, not specifics and details, a call to action: “There is nothing dangerous about studying and considering basic change. … There is nothing incompatible between efficiency and justice” (in Levin and Wheeler 1979, p. 32). And he reminded us that “Pound

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challenged the exaggerated contentiousness of the adversary system … that Pound said was perverting the adversary idea into a sporting contest” (in Levin and Wheeler 1979, p. 31). The chief justice’s recommendation was straightforward: we must find new ways to deal with minor disputes, to change our assumptions that were no longer valid (Levin and Wheeler 1979, p. 35). He invoked the English roots of the common law: “Ever since the Magna Carta, common law lawyers have recognized that the law is a generative mechanism sharing with nature the capacity for growth and adaptation. The changes in seven and a half centuries since then demonstrate that change is a fundamental law of life and even our need for stability and continuity must yield to that immutable law. What is important is that lawyers fulfill their historic function as the healers of society’s conflicts and fulfill their responsibility to preside over orderly evolution” (in Levin and Wheeler 1979, p. 35).

The Role of Rhetoric in the Production of Harmony The discourse at the Pound Conference was rich with examples of how people use language to select, construct, communicate, or obfuscate, and by so doing induce action. A most characteristic concern of rhetoric is the “manipulation of men’s beliefs for political ends” (Burke 1969, p. 41). By the end of the meeting, it was clear that exhortation had won over reasoning, and rhetoric over substance. There was little room for discussion of victims’ plights, although Higginbotham reminded the participants that, in his own time, Pound took issue with what he called “the stock saying that litigation ought to be discouraged.” But the discourse at this conference moved to extol the virtues of alternative disputing mechanisms governed by the ideologies of harmony and efficiency. The stage was set for the alternative dispute resolution movement: the courts were crowded; American lawyers and the American people were too litigious. New tribunals were needed to divert cases generated by the regulated welfare state, and “cumulative tinkering” was encouraged as a strategy. Alternative dispute agencies were described as being agencies of settlement or reconciliation, and people who stood in the way of such procedural reforms were said to suffer from “status quoism.” In the years following the Pound Conference, alternative dispute resolution rhetoric burgeoned among members of the American judiciary, the leaders of the American Bar Association, and the newly developing and maturing group of alternative dispute resolution professionals. The public was immersed in alternative dispute resolution rhetoric. The salient features of this rhetoric was one in which language followed a restricted

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code and formulaic that combined clusters of meaning as political control (Bloch 1975). Speakers in favor of alternative dispute resolution followed the pattern of assertive rhetoric by making broad generalizations, being repetitive, invoking authority and danger, and presenting values as facts (Bailey 1983). In all, their language demanded assent, a primary function of assertive rhetoric. Because of his authoritative position as chief justice, Warren Burger set the tone for the language that characterized the speeches and writings of many others. He warned that adversarial modes of conflict resolution were tearing the society apart. He claimed that Americans are inherently litigious, that alternative fora were more civilized. In his Annual Report on the State of the Judiciary (1982a), Burger presented his “Isn’t There a Better Way?” speech. Following the peremptory style of assertive rhetoric (Bailey 1973), the opening line reads, “The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts” (Burger 1982, p. 7). To legitimize his argument, Burger (1982, p. 2) quoted a public interest law school dean: “The idea of training a lawyer as a vigorous adversary to function in the courtroom is anachronistic.” According to Burger, that type of training was related to the current litigation explosion. Burger (1982, p. 2) grounds the use of arbitration with reference to “the time of Homer,” characterizes it as “a settled part of Athenian law,” and points to the early use of arbitration in the United States and the role of “Yankee ingenuity” in this nation’s historical progress. Later in 1982b, the chief justice delivered a speech at New York University reiterating his “there must be a better way” arguments: “the cold figures of the federal courts” led him to conclude that “we live up to the statement that we are the most litigious people on the globe.” Burger (1982b, p. 12) also warned that “the filings of the Supreme Court have almost trebled in my time as a federal judge, and the workings of many courts are falling into disrepair.” There was much common sense in Burger’s speeches and a good deal of reasonableness, but these were mingled with unsubstantiated statements about the general nature of the problem. Later on in 1982b, “Litigation Explosion” appeared in his title, this time with quotes. He commented on possible disagreement with his viewpoint. He reassured readers that there had been a steady increase in the number and variety of alternative dispute resolution programs and observes, “This reflects the view that courts are not the appropriate forums for the resolution of many problems, regardless of the condition of their dockets” (Burger 1982, p. 12). He also reported on the Multi-Door Dispute Resolution Centers, which coordinate efforts in alternative forums. In 1983, Burger delivered remarks in England that evoke the imagery of

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lawyers as healers and plaintiffs as patients needing treatment; there was no talk of rights and remedies. The framework of the harmony ideology was beginning to take hold. The parallel is drawn between lawsuits and war, between arbitration and peace, invoking danger and suggesting that litigation is not a healthy process. During 1983, Burger was also quoted in the New York Times (1 June 1983) as declaring that “the nation was plagued with an almost irrational focus—virtually a mania—on litigation as a way to solve all problems.” In 1984, the chief justice criticized his fellow lawyers in his Annual Message: We Americans are a competitive people and that spirit has brought us to near greatness. But that competitive spirit gives rise to conflicts and tensions. Our distant forebears moved slowly from trial by battle and other barbaric means of resolving conflicts and disputes and we must move away from total reliance on the adversary contest for resolving all disputes. … Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected. No other nation allows the adversary system to dominate relationships to the extent we do. … we ought to be healers—healers of conflict. … Healers, not warriors. Healers, not procurers. Healers, not hired guns.

Many of the above statements are not supportable. The chief justice did not pay adequate attention to scholarly arguments about the forms and limitations of adjudication (Fuller 1978). In his speeches, he was not bothered by the fact that most lawyers are not doing work which carries them anywhere near the courtroom contest. Nor is there any evidence that we are “relying on the adversary process for resolving all disputes.” Americans negotiate primarily and only rarely move to third-party handlers (Nader 1980). In 1985, the chief justice spoke to three professional associations for which I have text. In his talk to the American Law Institute, Burger reverted to assertive rhetoric in another “Isn’t There a Better Way” paper by quoting eminent historical figures. He quoted Abraham Lincoln as having said, “Discourage litigation.” He further quoted Billings Learned Hand as being in agreement with Lincoln’s sentiments. Then he returned to the question of why Americans are litigious: “Are we addicted to litigation because it is exciting? Because it gives the advocates’ egos full rein? Is there any connection between volume of cases filed and the increasingly high profile of the litigation process?” (Burger 1985a). Psychologisms become a way of avoiding the sociological causes; “addicted,” “exciting,” and “egos” are all psychological terms. His words do not include the so-

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cial needs that courts are designed to meet for parties of unequal power. There is no talk of justice, nor any elaboration of abuses; on the contrary the chief justice attacks the victims who use the law. In his talk to the Advisory Council for the American Arbitration Association, Burger (1985b) once again began with the obligation of the legal profession to serve as healers of human conflicts, read the quotes from Lincoln and Learned Hand, spoke of protracted cases, the increase in case load, discouraged solutions of the sort that call for more judgeships and new courthouses and again asked if there were not “better ways of doing it.” His remedy was privatization: “We must move toward taking a large volume of private conflicts out of the courts and into the channels of arbitration, mediation, and conciliation.” His (1985c) talk to the American Newspaper Publishers Association was more of the same. Burger’s (1985d) year-end report was an attack on critics: “Those who would prefer the known evils of the status quo to the unknown benefits of proposed court improvements.” His tone was urgent: the court’s problems are worsening; critics ask the impossible; it is unrealistic to be a perfectionist—“In a democracy we must constantly seek approximate solutions to insoluble problems.” Burger continued to denounce critics in his May 1986 speech to the American Law Institute, still without mention of specific people, thereby removing them from the domain of reality: “Occasionally I have seen new accounts of some individual who has purported to make a study of the whole system of justice in the United States and come to the conclusion that what has been called the litigation explosion is largely mythology. Those researchers or scholars, if they can appropriately be called such, must have been studying the figures originating in Guam or Luxembourg, but surely not the hard figures open for everyone to see in the United States.” Then he mentioned, by name, the work of a person who supports his position: “Steven Daniels, project director at the American Bar Foundation, wrote recently, ‘The United States is presently experiencing a legal explosion.’ … Mr. Daniels studied and had access to more data than I have time to analyze, but he is far more near the bull’s eye than those optimistic library analysts who say that the litigation explosion is a myth.” The rhetoric of the chief justice was heard all over the country, and his message reiterated by others. The chief justice’s chief aide (Cannon 1986) published an article which asserted that “The legal explosion saps the strength of our economy by drawing much of the nation’s best young talent into law, rather than into productive invention, innovation, and entrepreneurship.” His argument mainly associates alternative forums with community, and litigiousness with loss of community. At the same time he explains a lagging economy.

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The ideology of harmony begins to be believed and institutionalized along with the idea that Americans are too litigious. By 1987, you could read almost any newspaper, listen to major political speeches, listen to evangelical radio stations, or read the latest insurance copy, and you were bound to read or hear some commentary on “Americans being too litigious, the U.S. having too many lawyers, our courts being overloaded,” and comment on the litigation explosion. Anti-litigation rhetoric is ubiquitous in the business news. Embedded in what you hear and read is a good deal of emotion, talk of changes in legal policy, a feeling about harmony that is against contentious behavior, and not much data. There are also a number of false comparisons with cultures such as Japan and China, countries with very different social and political structures for social control. At one point I stopped to collect the key words that were being used. Binary opposition was common: peace and war, adversarial, nonadversarial, confrontation, insensitivity, destruction of trust and cooperation and only losers (just like a nuclear war), versus “gentle and sensitive,” “healers of human conflict which produce only winners.” Alternative dispute resolution is portrayed as a more humane way of resolving disputes than legal dispute resolution, a way of mending the tears in the social fabric caused by disputes and their settlement through litigation. It is “warm and nurturing,” also “cool and rational.” By contrast, the litigation process is emotional. Alternatives were associated with being modern—“creating the courthouse of tomorrow today,” “the wave of the future”—while the adversary process is depicted as status quo. Alternative dispute resolution is also seen as essential to democracy because the parties are afforded the opportunity to deal with the real issues rather than to be entrapped in lawyers’ rhetoric. In fact, some might argue ADR is oriented toward status quo by definition, for it does not address the inequality of power, thereby contributing to the maintenance of systems of inequality. The rhetoric of the chief justice and his supporters all formed part of the formula which is central to building a movement and the institutions necessary for implementing a harmony ideology of legal reform, but historical precedent helped as well. Historical records from the seventeenth century indicate the strength of the harmony concept and the relentless manner in which individual assertion of right might be criticized. Many of the early American colonies operated without courts or lawyers and relied instead on community or church mediation or arbitration to resolve disputes, as did the ethnic groups that came in waves in the nineteenth and twentieth centuries (Auerbach 1983). In the twentieth century, the constituencies in support of extrajudicial mechanisms were diverse, and

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since the early 1970s extrajudicial processing of disputes has become institutionalized into a mainstream legal reform movement with support now coming from the bench, the bar, the community, the business world, and professional and religious communities as well—groups united in their support of alternative dispute resolution, although representing different interests in changing access to legal resources. Business groups were intent on reducing the millions spent annually on intercorporate litigation and discovery. In addition, corporations are finding alternatives useful to manage disputes with their employees. The therapeutic community is also supportive of a harmony ethic. The interests of various Christian communities are part of a long religious tradition that associates harmony with the culture of Christianity. In other words, there is a close fit, an interlocking interest, between Chief Justice Burger’s rhetoric and the ethic of Christian harmony as well as the interests of corporations, psychologists, and other vested interest groups. A continuing question is, why do these various institutions come together to institutionalize harmony, and does it have to do with pacification? The chief justice had set the tone. His rhetoric that our litigious society was in need of peace and harmony was pervasive in some quarters. He was encouraging people to avoid legal action, and also constructing a social order that exercised injunctions against conflict and against voicing disputes. The ADR movement could also be interpreted as a license to violate or ignore law, and could be construed as both anti-legal and a powerful control for enforcing harmony.

Examining Alternative Dispute Resolution It is important to consider the various critics of the alternative reform movement before mentioning the consequences of reform and the breadth of impact of ADR. The critical literature is abundant, a small portion of which is cited here. Some critics sought to examine the political transformation of law with the advent of informal justice (Abel 1982; Tomasic and Feeley 1982); others (or even the same scholars) examined the central arguments for alternatives, seeking to separate myth and rhetoric from substantiated evidence. In one study of justice systems in seven industrial democracies (Johnson and Drew 1978)—United States, Canada, England-Wales, France, Italy, Sweden, and West Germany—some interesting information appears: U.S. judicial manpower is smaller than all but two of the countries; over the thirteen-year period studied (1960–73), the United States spent half as much per capita on its courts than West Germany and 20 percent less

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than Sweden; more money has been spent in the United States proportionately on police and prosecution than on courts and this is in contrast to all the countries studied; public investment in legal aid in the United States is much lower than in England, Sweden, and Canada; and after controlling for population growth, litigation measured by civil findings or dispositions have remained relatively stable in the U.S., while comparable to the rate per 1,000 population in England, Sweden, and West Germany. The overall conclusion of the Johnson and Drew study was that compared with six European industrial democracies, the U.S. system of justice has inadequate public investment. A series of critiques followed. Richard Abel’s (1982) book on The Politics of Informal Justice is an early pivotal critique, and the questions he asks are designed to understand the contours and the significance of the change: Do the following phenomena have anything in common: the attack on professionals, the state, and bureaucracy; calls to deregulate the economy; the advocacy of decentralization; demands for the decriminalization and delegalization of private behavior (drug use, divorce); deinstitutionalization (in education, care of the mentally ill, restraint and punishment of the delinquent and criminal); the preference for informality in hearing complaints and processing disputes? What is it that is really changing. … Is the ambit of state control contracting or expanding? What impact will these changes have on fundamental social, economic, and political structures? Or is it all a lot of talk, with minimal significance for anyone except those who manage the legal system?

An article in the Yale Law Journal (Fiss 1984) turns the ADR argument around and argues that the purpose of lawsuits is more than resolving disputes; law has a public function of using state power to bring reality closer to our chosen ideals. A Harvard Law Review article (Alschuler 1986, p. 1818) argues that the crisis in our courts “may be a product of an inadequate supply of adjudication rather than of the excessive litigiousness of our society.” Two widely influential articles appeared to further question the assumption of a litigation explosion. Marc Galanter’s (1983) “Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About Our Allegedly Contentious and Litigious Society” and in 1986 a follow-up article, “The Day After the Litigation Explosion,” examine the numbers. In the first piece, Galanter concludes his analysis with the observation that there is no litigation explosion, although litigation had become a symbolic presence, feeding perceptions of a litigation explosion because of changes in governmental activity, in the organization of legal work, and in the relation of media to law. According to Galanter, the evidence that Chief Justice Burger and others

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present for the litigation explosion consists of the growth in filings in federal courts, the growth in size of the legal profession, accounts of monster cases that seem atrocious, and “war stories” from managers who complain about litigation impairing their effectiveness. The majority of dispute cases taken to court are disposed of by abandonment, withdrawal, or settlement without full-blown adjudication. Most civil cases in American courts are settled, as in automobile injury claims cases, and an increase in filings is not equivalent to increased litigation rates. While warning of the problems of cross-cultural comparison, Galanter finds that per capita use of regular civil courts in the United States was comparable to that of England, Ontario, Australia, Denmark, and New Zealand in 1975, and somewhat higher than Germany and Sweden, and far higher than Japan, Spain, and Italy. In the end, he concludes that the “litigation explosion” is more an item of elite folklore than an objective fact. In his follow-up article Galanter continues to unravel fact from fiction to understand why some people have concluded that Americans are increasingly litigious, showing, for example, how some product liability cases, as with asbestos or the Dalkon Shield cases, come in and out of the system, swelling the caseloads when they come in, but presenting no indication that Americans are increasingly litigious. Further on he notes that increased filings in federal court originate from businesses suing one another over contract disputes rather than from citizens attacking corporate defendants. The articles are thoughtful analyses which leave the reader to wonder how it came about that a vast reform movement could be built on folk sociology. Richard Hofrichter (n.d.) sees these new dispute arrangements as representing a significant restructuring within the capitalist state, a relatively new type of political domination or hegemony. The transformation in state power, which he refers to as the informal state, is embedded in the practices of everyday life. He sees the alternative movement as an alternative to politics and community organization in general. But while the critics continue to examine ADR and its consequences, the movement proceeds at full speed relatively untouched.

Consequence and Purpose of Harmony Ideology Attention to the rhetoric of the Pound Conference makes clear the use of language in producing a harmony ideology. In addition, the critics of ADR explore its consequences by examining its practice in everyday life and looking into the institutionalization of harmony ideology. In one of the few field studies of a neighborhood justice organization supported by both public and private funds, J. Rothschild (1986) makes some key ob-

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servations about the ideology of mediation. The ideology, she argues, depends upon a negative evaluation of the traditional legal system; it does not attend to substantive aspects of conflict, nor identify standards of justice. Disputants are encouraged to associate litigation with alienation, hostility, and excessive costs, and to visualize mediation as a “process that encourages civic and community responsibility for dispute resolution and empowers communities by bringing people together to fashion mutually acceptable terms of agreement” (p. 19). In the intake process, disputes are reshaped as “communication problems,” rather than conflicts over values, interests, behaviors, or needs (p. 25). Unequal power does not enter the paradigm. If a dispute is nothing but a problem of communication, the goal of dispute resolution must be to “repair the lines of communication between the disputants” (p. 43). In addition, Rothschild illustrates how disputes about facts and legal rights are transformed into disputes about feelings and relationships. Conflict is personalized and problems are localized in the realm of emotion. An “ethic of caring” predominates. Coupled with this is a view of conflict as dysfunctional and threatening to the social order, a thing to be diffused. This notion of conflict presumes societal consensus about rights and values, which in turn leads to the operation of mediation without explicit standards of justice. When mediation is a process of communication, justice is defined “not in relation to rights or explicit standards, but rather in relation to implicit standards of conformity” (p. 16). There is an absence of agency where disputants “are encouraged,” and where disputes are “reshaped” as communication problems. The issue of justice becomes irrelevant. A second study of a private justice institution in the California Bay area was completed in the same year. B. Claeson (1987) studied a business that manages worker’s compensation claims for a major corporation and provides benefits to that corporation’s injured workers. In Claeson’s study, justice is fully privatized. Prior to the installation of the worker’s compensation law in the beginning of this century, workers injured on the job could only recover lost wages and medical expenses by the negligence of their employers through tort litigation. The court model was replaced by an automatic “nofault” insurance plan whereby the injured worker was to be compensated whether or not his injury was proven to be the result of employer negligence. However, the injured worker has had to relinquish his right to bring a civil lawsuit against his employer. The injured worker is no longer a plaintiff, and it is the injury or illness of the employee that has emerged as the object of dispute. According to Claeson (1987, p. 5), this reformulation of disputes in which attention is shifted from the employer to the injured worker sets the stage for

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the privatization of justice, which is the concern of his ADR study: “The worker as an object of scrutiny—the focus on his injury or illness—activates the healers of conflict who fulfill their function—to avoid conflict and preserve harmony—by means of interpreting, explaining, evaluating, defining, and ultimately making decisions about the worker’s situation … [and] injured workers are further transfigured. They are no longer victims. Instead, in an environment of healers, they are defined as patients in need of care and treatment.” In such a paradigm, there is no focus on the behavior of the employer or on how the injury happened. There is no record, for alternative dispute resolution keeps no record, no legacy, as do the courts whose recorded cases allow us to understand the etiology of injury. In his conclusion, Claeson points out that the ethic of treatment has replaced the ethic of right and wrong. Treatment by means of the harmony model facilitates a control of injured workers by fictionalizing the conflict between the worker and the corporation. According to the “healers,” in this situation of privatization conflict is nothing but confusion and misunderstanding that can be dissolved by proper communication. Anthropologist Carol Greenhouse (1986) has examined the question of how it is that conflict acquired its negative value in the local southern Baptist community of Hopewell, Georgia. Her work provides us with some of the cultural meanings of an ADR explosion. She suggests that the contemporary equation of Christianity and harmony in Hopewell began during the years between the first white settlement in the county and the Civil War. Law avoidance, law aversion, and the value of consensus and harmony were important for community survival in Hopewell. Greenhouse reconstructs the way in which local Baptists built their ethic from elements that were available in the culture at large and so developed “a strategy that transformed conflict so effectively that it no longer threatened the local church’s survival but instead essentially guaranteed it” (p. 183). The struggle for harmony, she tells us, obviates the need for human authority, which is to say that harmony guarantees some fundamental equality for all believers. What was thought to be good for the religious community is now being applied to the democratic state in a corporate economic context. Claeson believes that a transformation in ethics from right and wrong to treatment had its beginnings at the turn of the century and concludes that “when the ethic of treatment is dominant, the existence of conflict is no longer relevant for determining a course of action” (p. 78). As one historian described eighteenth-century New England villages, “The culture … could not contain conflict. … Harmony required homogeneity; there

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was no possibility of structural diversity” (Zuckerman 1970, p. 139). The parallels in different American historical periods are striking. Yet, there is a paradox—the society is not uniform in its responses to alternative dispute resolution. A New York Times article (29 May 1983) quotes an official from the Institute for Environmental Mediation as saying, “Despite its attributes, mediation is being ‘oversold and underutilized.’” A meeting (in 1984 at Vermont Law School) on barriers to the use of alternatives noted, “In spite of enthusiastic support, the processes are not used as widely as they might be.” But the hard sell continues, not only in law schools but in school mediation programs, in business organizations, in locales where skills for daily interpersonal peacemaking are taught. The emphasis is on a social relations, which functions together as a team to solve “vital problems and manage complex situations.” An MIT conference in 1984 was titled “Coastal Zone and Continental Shelf Conflict Resolution: Improving Ocean Use and Resource Management,” a conference that could “shift the emphasis from a win-lose to a balance-of-interest approach.” Since the 1976 Pound Conference, the institutionalization of the harmony model had moved into almost every level of American life, from the schools and home environment to the board tables. In a companion piece of research on efficiency ideology, “Closing the Door on the Public: Controlling Processes in Arbitration,” S. Dart (1987) draws the parallels between the goals of the modern American corporation and the contemporary development of arbitration models: “There is a great concern for time savings, cost savings, reduction in excess procedure, and finality: all features which correspond directly to the aims and theories which drive profit making corporations. Arbitration is modeled after the corporation model and justified by the cost benefit analysis.” One of Dart’s informants, a district court judge, analyzed the situation: There is very little absolute justice in arbitration. In the courtroom the judge or jury decides who’s right or wrong and they assign responsibility for that wrongdoing. The arbitration panels are not set up for the vindication of an absolute right. They find a little fault. That is the problem. … In our system we say “You did wrong, you pay this much.” In arbitration the wrong-doer pays half, with no identification of the wrong-doer. If you are innocent you pay half, if you are guilty, you pay half. It is a psychopathic system where no one is responsible. And in our society if you don’t make them (responsible), they won’t be. (in Dart 1987, p. 57)

Arbitration facilitates the payment of debts and shifts the definition of dispute away from right and wrong into a definition of debt obligation. The efficiency model defines the disputing process and serves, as Dart

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notes, as a mechanism for the reclassification of disputes. Dart also distinguishes between the meaning of arbitration for the individual (whether a person or a corporate individual) for whom arbitration is a necessary device to alleviate backlogs in the court system, thereby reducing time and financial loss to the individual disputant, from a second perspective that tracks the meaning of contemporary arbitration as a strategy favoring the capitalist class. Dart argues that arbitration allows disputes “which may concern society at large, to be settled in private forums thus keeping the truth raised from clashes of interest out of the public eye” (p. 59). By means of the efficiency model, a disputing process is created which is “binding with very limited appeal, constructed of a streamlined procedure, and which provides no record of the hearing or of the reasoning behind the decision” (p. 59). Experts replace lay persons in the proceedings. The justification for arbitration comes in many forms, but at the base is the stated need to stem the presupposed tidal wave of cases and to reduce litigiousness in the United States (see Spatt quote in Dart 1987, p. 50). These examples illustrate that both harmony and conflict may have different meanings to different people and classes. Sally Merry (1982) has made a similar point specifically in relation to mediation. The key differences between harmony ideologies revolve around whether harmony is used as means or as goal, as expressive or as oppressive or repressive. Disputing may be a means to harmony and to autonomy; harmony may be both the means and the goal and is phrased in opposition to conflict; for other conflict is part of the struggle in life, normative behavior. For those spearheading control policies, harmony is an ideology of pacification and a way to civilize populations. For those leading the present legal reform movement, harmony is as opposed to conflict as peace is to war, and it is by means of harmony, a harmony based on the belief that everyone should share the same goals, goals that are central to the contemporary large-scale institutions. Harmony and efficiency ideologies are tools used to create different cultural forms. It is interesting to see how harmony as perceived by the folk fits with the prevailing social science theories. In equilibrium theory, social relations must be kept in balance; in liberal theory, law is a response to social demands in which harmony is seen as social justice; in Marxist theories, law is seen as a product of the capitalist ruling class, as in the example of the alternative dispute resolution law reform movement; or in conflict theory, disputing is normative behavior, part of the struggle between groups. In other words, the meaning of harmony ideologies is as problematic as is its use and consequence.

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Discussion Over the past decades, anthropologists of law and legal historians have observed that with the development of Third World colonialism harmony ideology replaced feuds and wars, a form of pacification. With the development of the new nation-states in the Third World, the harmony ideology, so commonly associated with the colonial period, was being replaced by the adversary. In the old nation-states of Europe and the New World, the situation appeared to be moving in the opposite direction. In 1969, Wilhelm Aubert reported that Norway had moved toward a harmony model and away from the adversarial one, and a decade later, in the 1970s, the harmony model was also center stage in the United States. The concern with compromise, with mediation, and with court avoidance was widely broadcast. These observations indicate that cultural values underlying the disputing processes change over time and circumstances, and extant evidence suggests that they are profoundly political. The question remains. Are we seeing strategies of pacification that were common to colonial situations of indirect rule being applied to the U.S. population? The political context of the 1960s and early 1970s was one of vigorous public political activity in the United States and elsewhere. Power was what people spoke about—and who has it, who does not, and what are the responsibilities that accompany both public and private power. The late 1970s and the 1980s have been subdued and apathetic by comparison. The conservative revolution, ushered in even prior to the Reagan revolution, shifted discussion of power by means of indirect controls and, I contend, by means of harmony ideologies. Even party politics is touched. In a 12 July 1987 article in the Los Angeles Times, political writer Ronald Brownstein wrote about the dispassionate politics toward which the bulk of the Democratic field is drifting: “This campaign is witnessing the full emergence of post-confrontational Democrats—pragmatic candidates who tend to be less polarizing, less critical of business interests and inclined toward solving difficult problems with compromises that avoid creating clear winners and losers … What is occurring, particularly on economic issues is the Hands­ Across-Americanization of Democratic politics … building their appeal on the premise that everyone shares the same goals and need only be encouraged to hold hands and work together to solve the nation’s problems.” The issue for Brownstein is whether this soft post-confrontational mode will submerge confrontational Democratic politics. When theorists speak about hegemony as a form of cultural control, they are speaking of constructed culture that moves out from a center to effect change incrementally. By itself, the concept of cultural control leads neither to explanation nor to understanding. On the other hand, Gramsci’s idea of hegemony is useful for us to look at the institutions through which domi-

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nant belief systems are transmitted (Greer 1982). Concepts like the informal state, or economic government, help us to visualize the motivation of organizations and professions who seek control through pacification. But the struggle from pacification or the struggle for freedom and autonomy may better utilize concepts such as class or community. When “over-litigiousness” and declining productivity are presented as a causal relationship, corporate interests are at hand. When debate in government is considered a negative, government interest is at hand. A departing Securities and Exchange chairman, John Shad, was recently interviewed by the Washington Post (14 June 1987). Upon the occasion of his leaving the commission after a six-year fight against insider trading, he was asked, “What has been your biggest disappointment at the commission?” His response was quoted: “I think there is an awful lot of adversarial debate going on here, which I don’t really think is the way to improve the securities laws. It gets politicized when it shouldn’t. This is not a political agency … the job could be done better with a recognition of our common interests and objectives rather than just the idea of constant criticism.” “Constant criticism” has become a disease for some, while others believe that a clash of ideas and views is what fuels a political democracy. The serious study of harmony is only now underway. For the most part, harmony has been taken as a given, a prima facie assumption not examined in terms of purpose or consequence. In examining harmony ideology in relation to the ADR explosion, its function as pacification stands out as a challenge to the idea of rule of law. In China, to rule by law is to admit the loss of virtue and the inability of a rule of men. In Islam, justice can only be attained by establishing the rule of God. The rule of law is one of the philosophic and political cornerstones of Western society. We might well ponder the implications of a rhetoric of consensus, homogeneity, and agreement that is incompatible with litigation in light of the idea of a rule of law as the principle of order in society, and rethink the limits and possibilities of both harmony and adversarial legal traditions in relation to equal and unequal power distribution, and in relation to a future law reform movement which is preventive.

NOTE This paper was originally presented as the sixth Annual Lecture in the Distinguished Scholars Program on Access to Justice at the University of California of Windsor, 13 October 1988. It was also publsihed as: Laura Nader, A User Theory of Law, pp. 951–963: from “Fourth Annual Alfred P. Murrah Lecture,” Southwestern Law Journal 38:4 Nov. 1984. ©1984, reprinted with permission from Southwestern Law Review.

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REFERENCES Abel, R. L. 1982. The Politics of Informal Justice. Vol. 1, The American Experience; Vol. 2, Comparative Studies. New York: Academic Press. Alschuler, A. 1986. “Mediation with a Mugger.” Harvard Law Review 99: 1808. Auerbach, J. 1983. Justice without Law? New York: Oxford University Press. Bailey, F. 1984. “Dimensions of Rhetoric in Conditions of Uncertainty.” In Politically Speaking, ed. R. Paine. Philadelphia: Institute for the Study of Human Issues. Bloch, M., ed. 1975. Political Language and Oratory in Traditional Society. London: Academic Press. Brownstein, R. 1987. “Where’s the Political Heat? Democrats Lose Their Fire.” The Los Angeles Times, July 12. Burger, W. E. 1976. “Agenda for 2000 A.D.: A Need for Systemic Anticipation.” Federal Rules Decisions 70: 83. ———. 1979. “Keynote Address.” In The Pound Conference: Perspectives on Justice in the Future. Proceedings of the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, ed. A. L. Levin and R. R. Wheeler, p. 37. St. Paul, MN: West Publishing. ———. 1982a. “Isn’t There a Better Way?” in Annual Report on the State of the Judiciary. Remarks of Warren E. Burger, Chief Justice of the United States at the Midyear Meeting, American Bar Association, Chicago, Illinois, January 24, 1982. ———. 1982b. Remarks of Warren E. Burger, Chief Justice of the United States, at New York University and the Institute of Judicial Administration, New York City, 18 November. ———. 1983. Remarks of Warren E. Burger, Chief Justice of the United States, at the Dedication of Notre Dame London Law Center, London, England, 29 July. ———. 1984. Annual Message on the Administration of Justice, Warren E. Burger, Chief Justice of the United States, at the Mid-year Meeting, American Bar Association, 12 February. ———. 1985a. Remarks of Warren E. Burger, Chief Justice of the United States, at the American Law Institute, Washington, D.C., 14 May. ———. 1985b. Remarks of Warren E. Burger, Chief Justice of the United States, at the Twin Cities Advisory Council of the American Arbitration Association Luncheon, St. Paul, MN, 21 August. ———. 1985c. Remarks of Warren E. Burger, Chief Justice of the United States, at the American Newspaper Publishers’ Association Convention, Miami Beach, FL, 7 May. ———. 1985d. Year-End Report on the Judiciary by Warren E. Burger, Chief Justice of the United States. ———. 1986. Speech to American Law Institute by Warren E. Burger, Chief Justice of the United States, Washington, D.C., 13 May. Burke, K.1969. A Rhetoric of Motives. Berkeley: University of California Press.

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Cahn, E. S., and J. C. Cahn. 1966. “What Price Justice? The Civilian Perspective Revisited: Symposium on Justice and the Poor.” Notre Dame Lawyer 41: 927–60. Cannon, M. 1986. “Contentious and Burdensome Litigation: A Need for Alternatives.” Phi Kappa Phi Journal, 10–12. Chanock, M. 1987. Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia. Cambridge: Cambridge University Press. Claeson, B. 1987. “The Privatization of Justice: An Ethnography of Control.” B.A. honors thesis, Department of Anthropology, University of California, Berkeley. Danzig, R. 1973. “Toward the Creation of a Complementary, Decentralized System of Criminal Justice.” Stanford Law Review 26: 1–54. Dart, S. 1987. “Closing the Door on the Public: Controlling Processes in Arbitration.” B.A. honors thesis, Department of Anthropology, University of California, Berkeley. Fiss, O. 1984. “Against Settlement.” Yale Law Journal 93: 1073. Fuller, L. 1978. “The Forms and Limits of Adjudication.” Harvard Law Review 92 (2): 353–409. Galanter, M. 1983. “Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About Our Allegedly Contentious and Litigious Society.” UCLA Law Review 31 (1): 4–71. ———. 1986. “The Day After the Litigation Explosion.” Maryland Law Review 46 (1): 3–39. Gibbs, J. 1963. “The Kpelle Moot: A Therapeutic Model for the Informal Settlement of Disputes.” Africa 33: 1–11. Greenhouse, C. 1986. Praying for Justice: Faith, Order and Community in an American Town. Ithaca, N.Y.: Cornell University Press. Greer, E., and A. Gramsci. 1982. “Legal Hegemony.” In The Politics of Law: A Progressive Critique, ed. D. Kairys. New York: Pantheon Books. Harrington, C. B. 1985. Shadow Justice: The Ideology and Institutionalization of Alternatives to Court. Westport, CT: Greenwood Press. Hofrichter, R. 1977. “Justice Centers Raise Basic Questions.” New Directions in Legal Services 2: 168. ———. 1982. “Neighborhood Justice and the Social Control Problems of American Capitalism: A Perspective.” The Politics of Informal Justice, vol. 1, ed. R. L. Abel, pp. 207–48. New York: Academic Press. ———. 1987. “Neighborhood Justice in Capitalist Society: The Expansion of the Informal State.” Contributions in Political Science Series no. 171. New York: Greenwood Press. Johnson, E., Jr., and A. B. Drew. 1978. “This Nation Has Money for Everything Except Its Courts.” The Judges Journal 17 (summer): 3. Kagan, R. 1981. Lawsuits and Litigants in Castik 1500–1700. Chapel Hill, NC: University of North Carolina Press. Langum, D. 1987. Law and Community on the Mexican California Frontier: Anglo American Expatriates and the Clash of Legal Traditions, 1821–1846. Norman, OK: University of Oklahoma Press.

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Levin, A. L., and R. R. Wheeler, eds. 1979. The Pound Conference: Perspectives on Justice in the Future. Proceedings of the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. St. Paul, MN: West Publishing. Merry, S. E. 1982. “The Social Organization of Mediation in Nonindustrial Societies: Implications for Informal Community Justice in America.” In The Politics of Informal Justice, ed. R. Abel. New York: Academic Press. Nader, L. 1969. “Styles of Court Procedure: To Make the Balance.” Law in Culture and Society, ed. Laura Nader, 69–91. Hawthorne, NY: Aldine Press. ———, ed. 1980. No Access to Law: Alternatives to American Judicial System. New York: Academic Press. Rothschild, J. 1986. Mediation as Social Control. Unpublished Ph.D. dissertation, Department of Sociology, University of California, Berkeley. Schieffelin, E. L. 1981. “Evangelical Rhetoric and the Transformation of Traditional Culture in Papua New Guinea.” Comparative Studies in Society and History 23 (1): 150–57. Shonholtz, R. 1977. Review of Alternative Dispute Mechanisms and a Government Proposal for Neighborhood Justice Centers. San Francisco: San Francisco Community Board Program. Taylor, Stuart, Jr. 1983. “Justice System Stifled by its Costs and its Complexity, Experts Warn.” New York Times, 1 June. Tomasic, R., and M. Feeley. 1982. Neighborhood Justice: Assessment of an Emergent Idea. New York: Longman. Warhraftig. P. 1978. “Citizen Dispute Resolution: A Blue Chip Investment in Community Growth.” Pretrial Services Annual Journal 1978: 153–61. Wasserstein, B., and M. J. Green. 1970. With Justice for Some: An Indictment of the Law by Young Advocates. Boston: Beacon Press. Zuckerman, M. 1970. Peaceable Kingdom & New England Towns in the Eighteenth Century. New York: Alfred A. Knopf.

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E c ha p te r 7

Post-Interpretive Anthropology

Introduction The issues I will be dealing with in this paper have their origin in the work of Gregory Bateson’s (1936) Naven: A Survey of the Problems Suggested by a Composite Picture of the Culture of a New Guinea Tribe Drawn from Three Points of View. The point of view that will be outlined here has also been formulated as a result of the history of anthropology as I have known it since the early fifties, and hence before interpretive anthropology as many know it—that is, pre-interpretive anthropology. Interpretive anthropology is often referred to by its practitioners as “post-”—post-paradigm, post-colonial, post-modern, and more—all ways of characterizing what interpretivists do, or what they have been influenced by, or what they are reacting against. My title, “Post-Interpretive Anthropology,” does not indicate a demise of the interpretive approach in anthropology, but rather a maturation that accompanies an abandonment of one-dimensional strategies. We presently witness tensions in the field—between those who seek understanding in empiricism with its attendant focus on “facts” and others who argue that positivist scientific models relinquish the possibilities of new ideas, ideas that might transcend the traditional pursuit of validating findings. A post-interpretive anthropology would be a time when there would be dialogue between opposing views, one that is less cloistered, less defensive, and more intellectually hard-hitting and imaginative in terms of what we study than the present time in anthropology. Discussion of method, and I see interpretive anthropology as method, absent the interesting questions is generally uninteresting. That is, to argue whether anthropology should be quantitatively based or from interpretation is a foolish and unproductive endeavor. But an anthropology of anthropology, or an anthropology of ethnography, is most interesting. An account of anthropological history and how ethnography has evolved,

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how a self-consciousness about ethnography has developed, where ethnography and the value placed on a special kind of concrete knowledge stands vis-à-vis the other social sciences that have increasingly abandoned the concrete (Furner 1976), and vis-à-vis the important questions of constructed culture in this very ideological period in history (Auge 1979, pp. 4–5), must be part of what it takes to be an anthropologist today.

From Bateson to Bali As a graduate student at Harvard in the early fifties, I was fascinated with Bateson’s (1936) discussion in Naven on the process of knowing, on how we know what we know about the Iatmul of New Guinea where Bateson had done fieldwork. Bateson was self-conscious about his own construction of an ethnography when it seemed that hardly anybody else was. It was Bateson who first raised for me the differences between two modes of presenting a culture, the scientific and the artistic. In his first chapter on “Methods of Presentation” he observed, “On the artistic side we have the works of a small handful of men who have been not only great travelers and observers but also sensitive writers—such men as Charles Doughty; and we have also splendid representations of our own culture in such novels as those of Jane Austen or John Galsworthy. On the scientific side we have detailed monumental monographs on a few peoples: and recently the works of Radcliff-Brown, Malinowski and the Functional School” (Bateson 1958, p. 1). Bateson (1958, pp. 1–2) goes on to differentiate the two methods and to point out what can be learned from each approach: The artist is content to describe culture in such a manner that many of its premises and the inter-relations of its parts are implicit in his composition. He can leave a great many of the most fundamental aspects of culture to be picked up, not from his actual words, but from his emphasis. He can choose words whose very sound is more significant than their dictionary meaning and he can so group and stress them that the reader almost unconsciously receives information which is not explicit in the sentences in which the artist would find it hard—almost impossible—to express in analytic terms. This impressionistic technique is utterly foreign to the methods of science, and the Functional School have set out to describe in analytic, cognitive terms the whole interlocking … culture. … But they have scarcely attempted the delineation of those aspects of culture which the artist is able to express by impressionistic methods. If we read Arabia Deserta, we are struck by the astonishing way in which every incident is informed with the emotional tone of Arab life. More than this, many of the incidents would be impossible with a

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different emotional background. Evidently then, the emotional background is causally active within a culture, and no functional study can ever be reasonably complete [without it].

His “Epilogue 1936” is a magnificent essay in self-reflection. He starts, “The writing of this book has been an experiment, or rather a series of experiments, in methods of thinking about anthropological material” (Bateson 1958, p. 257). His second edition was reissued in 1958, and with it an “Epilogue 1958,” in which Bateson pursued his preoccupation with the nature of explanation and the process of knowing. In Naven, Bateson was not just writing an ethnography. He was trying to describe the move from the concrete data to the abstract arrangements of data that fit parts of the jigsaw puzzle together. He realized that theoretical concepts like structure or ethos were really descriptions of processes of knowing, constructed by scientists, and for him the fitting together of data was what he meant by explanation. Bateson was interested in social and cultural structures (inventions of the scientists), and in the role of emotion and the difficulties that ethnographers had in tapping such data and in weaving the levels of abstraction in such a way that the principles of explanation could be revealed and studied. His was certainly a self-reflective and interpretive anthropology, and his influence was being felt in the late fifties. Harvard anthropology of that decade from the 1950s to the 1960s was much influenced by Clyde Kluckhohn, who had just completed a compendium with Kroeber on the concept of culture (Kroeber and Kluckhohn 1952). The creation of the Department of Social Relations brought sociologists, psychologists, and some of the anthropologists together in one department. The rest of the anthropologists continued their work in the Peabody Museum of Anthropology, with Douglas Oliver and Cora Du Bois being the most available social anthropologists. John and Beatrice Whiting were launching their cross-cultural teams to study child socialization practices in six cultures. David Schneider was on the staff in the Department of Social Relations examining kinship pretty much in the British style. Clifford Geertz was finishing graduate school in the Department of Social Relations. The decade of the 1950s at Harvard was a time when scientific and linguistic models were in vogue. Kluckhohn saw the British anthropologists as good technicians, but the exciting work for him was in France with Levi-Strauss and structuralism. Just before the development decade of the 1960s, it was a heady time because of the excitement associated with linguistic models and their potential for the development of anthropological theory. Models and theory were center stage, not reflections on what anthropologists do, and componential analysis based on linguistic mode,

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not interpretive anthropology, was the fashionable ethnographic tool for getting inside the “native’s” head. I moved from Harvard University to a faculty position at the University of California at Berkeley in 1960. Dell Hymes made the same trip. The intellectual climate at Berkeley was rich. Thomas S. Kuhn had just completed The Structure of Scientific Revolutions (1962), and if paradigm was not already in your vocabulary, it soon was. Rheinard Bendix, in the tradition of Max Weber, was pursuing historical particularity and distancing himself from a conception of social science that pursues the validity of findings at the expense of the role of ideas. Dell Hymes was working on the ethnography of speaking (1962), in which he developed the notion that ethnographic description was not mere description, but a kind of description with its own theoretical base. During the early 1960s, I published my first monograph on the Zapotec (Nader 1964). It was written in the social organizational format of the day, except that I had written a preface about what it meant for me to do fieldwork in Mexico. I was told by the editors of the University of California Publications in American Archaeology and Ethnology that they would publish my work but I was to remove the preface; it was too personal. That preface had been responsive to Bateson’s work and Kluckhohn’s position that the ethnographer was the instrument of ethnography and should therefore be part of the analysis. But my reflections on fieldwork had to be filed away for a more receptive moment. The real changes were just surfacing and, at the same time the United States was in social and political ferment, Dell Hymes’ anti-textbook, Reinventing Anthropology (1972) gave many of us the opportunity to reflect on the field in general and on ethnography in particular. Reinventing Anthropology discusses the ethical and political responsibilities of studying others, showing that the assumptions of the discipline had been seriously undermined. I was concerned about what we choose to do ethnography about, and what we ignore, and I still am. My article in the Hymes volume, “Up the Anthropologist: Perspectives Gained from Studying Up,” explored the professional mindset of ethnographers, who unconsciously or not, choose to study down rather than up—that is, they focus on the powerless. I argued that a vertical slice might yield better understandings about poverty, about the status of women, about the environment, about the future for minorities, and in a later piece (Nader 1979) about progress, science and technology and the condition of American children. If one looks at the great social theorists—Karl Marx, Max Weber, Emile Durkheim—their works were inspired by the problems of their day, and we were still working on the problems of their day. The debates over Kuhn’s work and the political climate of the early seventies stimulated the unraveling of paradigms—disciplinary dogmas

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in particular. The meaning of our work was being questioned by many among the younger anthropologists. Self-consciousness was beginning to appear in anthropological outputs. I published a revised version of my earlier unpublished preface on fieldwork in Peggy Golde’s (1970) edited work Women in the Field: Anthropological Experiences, a book that asked whether women do fieldwork differently from men and whether the particular experiences of fieldwork affected our findings. Suddenly, the things that anthropologists of previous times would talk about in the Malinowski kitchen or at anthropology parties were being published as serious work. Reaction to that first wave of reflection and self-criticism was hostile, not engaging, and not congratulatory. During the same period, one of my favorite ethnographies was published. In You Owe Yourself a Drunk: An Ethnography of Urban Nomads, James Spradley (1970) used the best of the linguistic models of ethnoscience while incorporating traditional ethnographic methods to write from “the insider’s point of view.” Spradley was writing about the men on skid row, men who are considered to be public drunks, and at that time counted six million arrests a year. His work is both a contribution to ethnography and to the policy debate over public drunkenness. In 1968, the U.S. Supreme Court ruled in the case of Powell v. Texas on the laws which made public drunkenness an offense in every state. What were Spradley’s ethnographic strategies? Letters he received, written over the period of a year, were used by him to begin to make sense of bizarre and irrational behavior. In addition, Spradley distinguishes between casual conversation and more formal ethnographic interviews. His taxonomic methods are useful in revealing the manner in which our society evaluates those whose life style does not conform to the mainstream. It was a story of mobility, alienation, poverty, and a set of survival strategies. Repeated incarceration ensures affiliation in the world of drinking; loneliness moves the men in a vicious circle. The work speaks for itself; from it we have a good sense of Spradley’s relations with his informants about whom and for whom the anthropologist is writing. And we have a clarity about the ethics of this type of ethnography. Spradley’s work was read by the citizens of Seattle, and local laws of public drunkenness were reviewed and changed—the whole endeavor a model of a solid citizen anthropologist who wrote in a language that at least some of his informants could read. And there were other ethnographies in this genre, such as Michael Agar’s (1973) Ripping and Running: A Formal Ethnography of Urban Heroin Addicts and Carol Stack’s (1975) All Our Kin: Strategies for Survival in a Black Community. Public interest ethnography, Spradley called it. That kind of public interest ethnography—at the same time scientific humanistic, and a public service—was soon to be overwhelmed by a move-

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ment which came to be known as interpretive anthropology: “The explicit discourse that reflects on the doing and writing of ethnography is what we call interpretive anthropology. It grew out of the cultural anthropology of the 1960s, [and] gradually shifted in emphasis from the attempt to construct a general theory of culture to a reflection on ethnographic fieldwork and writing” (Marcus and Fischer 1987, p. 16). The interpretive movement includes a wide variety of work, combining a number of features already intact and a reaction to others. Suspicious of the ability of overarching paradigms to generate critical questions, ethnographers became increasingly aware of the constructed nature of ethnographic description, aware of the biases and ethics embedded in ethnography and the need for the presentation of more than one voice or “multivocality.” Ethnography, according to some interpretivists, was to offer critiques of our society, to be used also as a mechanism of selfreflection and self-growth—to turn out anthropologists who might justifiably reinterpret Spradley’s work as hegemonic and leading to the change from legal to medical treatment of public drunks and thereby moving their status from defendants for whom there could be legal advocacy because they have legal rights, to patients who would be “treated,” something the public interest ethnographers might also have noticed had they been more self-reflective.

From Patterns to Particulars In 1986, George Marcus and Michael Fischer published a delightful and outrageous text, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences, in which they “take a ‘reading’ of what is already happening, distilling the corridor discussions that inform the reception and production of ethnographies today into a series of articulate issues” (p. ix). Marcus and Fischer tell us that “what is happening seems to us to be a pregnant moment in which every individual project of ethnographic research and writing is potentially an experiment” (p. ix). In order to explore new ways of fulfilling the anthropological promise, there needs to be a reconstruction of the basic building blocks of anthropology, assumptions need to be examined, and new styles of sensibility are required. Their words are inspiring: “A period of experimentation is characterized by eclecticism, the play of ideas free of authoritative paradigms, critical and reflexive views of subject matter, openness to diverse influences embracing whatever seems to work in practice, and tolerance of uncertainty about a field’s direction and of incompleteness in some of its projects” (p. x). The ethnographic work was to be free of authorita-

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tive paradigms, free of paradigm-dominated styles of research. Remember, this was following the period of componential analysis, which was self-consciously paradigmatic. There was a playfulness about the experimental ethnography that I see as healthy, and as I noted at the beginning of this paper, the period was to be post-: post-paradigm, post-colonial, post-Marxism, post-modern, post-structuralism. It was paradigm busting at its best. Seamless and systemless, the words and phrases changed. “Discourse,” “dialogue,” “genres,” and “hermeneutics” were new words to replace the old concepts of structure, organization, and the like. Ethnography was spoken of as a semi-literary product characterized by conceptual risk-taking, by construction (Clifford and Marcus 1986). Symbols, meanings, reflections, interpretive text, and other literary devices were in the new vocabulary. Ethnography for some also became personal reflection and the preface that I was not allowed to publish becomes the book (Favret-Saada 1980; Rabinow 1977; Ruby 1982). Our informants become “the Other” and our work is quite consciously addressed to a new audience—intellectuals in other disciplines. It was an intellectual movement, in the broad sense, a movement in which regularities are out and exceptions are in, we are told. The movement was to be away from positivist science, away from generalizing theories, toward problems of epistemology, toward discursive and interpretive forms of representation of the particular, away from behavior and social structure to meaning. Ethnography was more a living literary enterprise than a body of knowledge. Not all write as clearly about interpretive ethnography as Marcus and Fischer (1986) or Scheper-Hughes (1979), or Taussig (1980), for that matter. A key figure in all this—Clifford Geertz (1983, p. 5)—describes the thrust of the work as dealing with “the figurative nature of social theory, the moral interplay of contrasting mentalities, the practical difficulties in seeing things as others see them, the epistemological status of common sense, the revelatory power of art, the symbolic construction of authority, the clattering variousness of modern intellectual life, and the relationship between what people take as fact and which they regard as justice are treated, one after the other, in an attempt, somehow to understand how it is we understand understandings not our own.” This enterprise is sometimes referred to as “her-meneutic.” Although a decade earlier Geertz was raising questions about the problems of understanding and description, his concerns shifted into a more informal style, one which revels in the literary and in the reaction to laws-and-causes social physics, a social science that has promised but not produced prediction, control, and testability. In Local Knowledge, Geertz (1983) argues that anthropology is particularly well-suited to the most advanced modern thinking because anthropology is contextualist, anti-form, and relativizing, comfortable

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with “examining the ways in which the world is talked about rather than the way it is.” For him, social life is organized in terms of symbols: “Once human behavior is seen as … symbolic action—action which, like pronation in speech, pigment in painting, line in writing, or sonance in music, signifies—the question as to whether culture is patterned conduct or a frame of mind, or even somehow of the two mixed together, loses sense. The thing to ask is not what their ontological status is. … The thing to ask is what their import is: what it is, ridicule or challenge, irony or anger, snobbery or pride, that, in their occurrence through their agency, is getting said” (Geertz 1973, p. 10). And how do you do that? Through writing ethnography. Writing becomes important in advancing the interpretive approach and later Geertz (1988) argues that ethnography is a kind of writing, very like the writing of fiction, a literary product. The validity of ethnography then becomes not a product of fieldwork or theory but of writing. In Local Knowledge, as with work since then, Geertz’s (1983) writing is addressed to intellectuals. His style of Germanic, elongated sentences sometimes over fifteen lines long, sprinkled with remarks and references to other intellectuals, seems less likely to improve the understanding of understanding and rather more productive of mystifying understanding. The “confusion of high artistry” may create a “confusion Baudelaire would have relished,” but it often left me uncertain as to what in God’s name he was talking about. At other times the “synoptic observations” produce important insights, but it all makes me yearn for the clarity of a Thomas Jefferson or the earthiness of Mark Twain. In another context, my colleague Elizabeth Colson has noted that this kind of writing is both escapist and mystifying; one might call it clubby as well. I recall reading an interesting article by Sherry Ortner (1984), “Theory in Anthropology Since the Sixties.” At the time it struck me as useful but insular. Although the title was all encompassing, the context was not. In fact, there was hardly any overlap between what the author had covered and much of what I saw as central to the very same period. Marcus and Fischer (1986, p. xi) said it well: the “work addresses less a new generation of graduate students than each other, who are survivors of a period of cutbacks.” For those on the outside, interpretive anthropology appears to have a profile. Anthropologists have moved from insisting that the anthropologist stay out of the ethnography to having the anthropologist’s presence dominate the ethnography. Trash, one scholar called it as he threw down a book that he expected to be about his countrymen. A Japanese scholar reading Favret-Saada’s (1980) Deadly Words: Witchcraft in the Bocage thought it repetitive and narcissistic. Anthropologists have moved from

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assuming the validity of the positivist model for anthropological research to a position that is more explorative and potentially creative in the human sciences. Others say nothing has changed; we are still bound by means rather than ends. Some wonder whether this is not process fetishism. Complaints of a new orthodoxy abound. An objectivist orthodoxy is being replaced by a subjectivist orthodoxy. If anthropology is a narrative art form, one need not be concerned with its role but rather with its expression. But if anthropology is cultural critique, then we need to make explicit choices about what anthropology is to be culturally critical about. Imagine the scene. We have been freed from the grip of paradigm; new ideas begin to flow. We have put the anthropologist into the ethnography. We make a literary exercise of ethnography and give it center stage, and attract a wide and diverse intellectual audience. The ball is picked up by sociologists, psychologists educators, lawyers, and philosophers—and we tell them the “how” of ethnography is in sensibility and in the writing. This is what Paul Bohannan is referring to when he says that culture is loose on the streets. Anyone can do ethnography, and you need not know any anthropology to do it. As one anthropologist put it, “Native culture is the dough and anyone can produce the cookie cutter.” The extreme view, of course, is that there isn’t anything “real” out there; it’s all constructed and it is all in the final analysis “just your opinion.” There is no reality except the irrationality of rationality; that is, until someone hits your toe with a hammer. A graduate student at Berkeley recently bid farewell to the field of anthropology after one semester with a paper he called “Painting Cultures Thin: A Horkheimerian Critique of Geertz’s Vision of Art-as-Anthropology and Anthropology-as-Art” (Ertel 1987). Puzzling over the role of anthropology, Ertel notes, Ironically, Geertz’s escape from the debate over the role of anthropology parallels the position of the Balinese betters [gamblers] who can’t decide which side to back: “Where a man is caught between two more or less equally balanced loyalties, he tends to wander off for a cup of coffee or something to avoid having to bet … a form of behavior reminiscent of American voters in similar situations” (1973, p. 239). … Not only does Geertz deftly dodge debating the role of anthropology in society, but he shows himself to be blind to a rather stark example of mass alienation within his own culture by attributing it to a simple case of “balanced loyalties.”

We have come a long way from Spradley, whose work itself was a dialogue between those anthropological positivists who seek reality and those who see reality as unstable and socially constructed. Life on skid

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row is very real; it is also socially constructed (that is, socially controlled). But Spradley’s work was not of one stripe. And not being a member of one club, he lost both audiences; his unorthodox approach was to operate with more than one model. Like minds attract, but, in the absence of dialogue, backlash is invited and even failure to realize the potential of an anthropological perspective, which would be tragic in my view. It is instructive to note that a few decades back there was dialogue in anthropology between those who have different notions of reality, and even with those, like Sigfried Nadel, who believed that discussions of reality are matters of religion and have no place in anthropology (Tax 1953, p. 113). It is useful to reread The Appraisal of Anthropology Today (Tax 1953) to remind ourselves that anthropology may now be at a point where practitioners at the extreme ends of the field need to dialogue. On another continent is the example of the dialogue that E. R. Leach (1951) has with Claude Levi-Strauss in his prize essay “The Structural Implications of Cross-Cousin Marriage.” Leach (a British structural functionalist) criticizes Levi-Strauss (a French structural “mentalist”) for attempting too much in his Les Structures Elementaires de la Parente (1949). He observes that Levi-Strauss has misunderstood the kinship studies of others, accuses him of inexcusable carelessness, and, after having shorn his work of ethnographic validity, he proceeds to take Levi-Strauss’s thesis very seriously. Leach came to kinship studies from a more natural science tradition; he dialogues with that part of LeviStrauss’s work that he believes he can deal with with his kind of rigor. How many “scientific” anthropologists are dialoguing directly with the interpretivists and addressing their critiques of positivism or vice versa? Where is the dialogue on standards for evaluating the analyses of meaning? I am not willing to rely on the intuitive gifts of the interpreter any more than I would rely on studies that are utilizing solely numbers. Today in anthropology, and in other disciplines such as sociology or economics, feelings on matters involving the “scientific”/interpretive opposition are downright hostile and closed. They can be open to public debate, but they have to be about something more than method; they have to be about questions, about subject matter. Leach was not debating with Levi-Strauss about means except insofar as the means were important in understanding the structural implications of matrilateral cross-cousin marriage.

The Battle over Ethnography In battle, things are not gray. They are mainly black and white. The battle in anthropology over which method is to become paradigm is mainly

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backstage, and mainly black and white. In the battle between the positivists and the interpretivists, no matter who wins, of one or the other, we all lose in anthropology because orthodoxy has no place in deciding which method to use in developing an understanding of the human condition. Again, to use extreme examples, people who use quantitative methods may only want to answer questions that are answerable with numbers. Thus, they may not be interested in studying controlling ideas or emotion, at least not until the study of ideas or emotion is quantifiable. On the other hand, the most interpretivist of anthropologists want to answer questions that cannot be answered with numbers. And while there are exceptions, the most particularist among them may not be interested in the fact that the United States, with 5 percent of the world’s population, is using 50 percent of the world’s output of cocaine. One set of researchers is interested in explanation that implies causation, the other in interpretation that does not. I do not mean to argue against the need for method, only against what has been called the means-obsession. What we should be asking is what are the driving research questions and how did we arrive at these questions? One question that should interest all of us has to do with clarifying the meaning of the human sciences qua science. In order to do this, there needs to be recognition of plurality in science. On one level, this is clear to people, for there is a variety of terms used to describe different sciences contained in our vocabulary: physical, natural, social, or ecological, molecular, or laboratory sciences versus field sciences, or science that is pre- or post-militarization of science in twentieth-century Euro-American culture. A recognition of many kinds of science as applied to anthropology forces us to consider that the study of the human condition requires a division of labor in the research process. A science of the human condition cannot be satisfied with either a lineal or a contextual science. What stands in the way of our recognition of the need for different ways of knowing? If it is orthodoxy, then how do anthropologists escape from dogmatic orthodoxy? They are driven by the research question. The subject matter prevails over method. For Spradley, this meant understanding the human condition of the men on skid row by any ethical research means possible. The question he left unanswered has to do with the uses to be made of ethnographic materials. In her book Advocacy and Objectivity: A Crisis in the Professionalization of American Social Science 1886–1904, Mary Furner (1975) traces the emergence of the principles of impartiality or scientific objectivity and their successful institutionalization in the social sciences in the late nineteenth century. She argues that as the numbers of professionals in university positions increased, a professional culture developed. Profes-

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sionals increasingly used “a technical language that laymen could not easily comprehend.” Advocacy was replaced by distancing, and the replacement of concrete social issues by abstractions. As one scholar of the period stated, “Nobody cared what we taught so long as we dealt in abstractions and investigated only hypothetical cases concerning such mythical characters as Ricardo’s savage. But when we talk about railways, sugar trusts, labor unions, strikes and municipal monopolies, the conversation grows personal” (Furner 1975, p. 159). That was close to a hundred years ago. Anthropology is the only human science left that values description of the human condition for its own sake (rather than for the sake of theory-building, for example), or that has developed understanding by means of ethnography. And as my colleague Nancy Scheper-Hughes has reminded me, in this sense, ethnography is the ultimate paradigm of the natural sciences such as botany and biology, and the ethnographer is the “naturalistic observer.” Ethnography cannot be trivialized or made esoteric; nor should it be subordinated to a school of thought such as positivism, nor to an intellectual style that produces ethnographic writing for intellectuals rather than for intelligent lay people. The current Europeanization of American ethnography has taken us away from concrete instances to the interpretations of the mind. And the interpretation of culture makes use of the European great thinkers such as Shakespeare, Hogarth, Joyce, Moliere, Dostoyevsky, and the like for ideas with which to understand native systems of meanings. Native systems are cultural objects, the Other, and unless the Others are part of our tradition, more than ever perhaps they cannot understand what we write about them, whatever our purpose. This may in part be because the language of interpretation and the language of data are different. Some of my interpretivist students argue that while interpretation gives one more freedom to develop an idea, it also generates a problem that it can lose all sense of “data.” I do not think this problem unsolvable.

The Virtues of Breaking Out In my own work, I started by trying to figure out how the mountain Zapotec courts work in southern Mexico. To answer this question, I needed to know something about the organizational context in which they were set, and my early work systematically described the social organization of a Zapotec village and the system of social control of which the courts were a part (Nader 1964). I then became interested in participation patterns in the courts and the data collection became even more systematic, leading

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to the collection of court records and an analysis of these records to answer the “how many” questions. How many people use the courts? Who are they? And what do they use the courts for? The most striking findings lay in the broad array of participation and particularly in the use of courts made by women (Nader 1985). In the process of this counting work, I noticed that a high litigation rate was accompanied by a harmony ideology. Why? There were internalist explanations of a structural-functional sort: that the people were so divided that they needed a culture of harmony to hold them together, or some such explanation related to cultural control. I could see no justification for setting the problem up as a hypothesis for testing. Harmony is a cultural theme that penetrated the talk of village life, but not the behavior observed in courtroom encounters. It finally struck me that I could not adequately address this question by thinking harder about the Zapotec data I had collected, or by collecting more data. The answer was not to be found in an internalist analysis, whether structural-functionalist or mentalist. It struck me that different ways of knowing do come in waves in anthropology when they might be used simultaneously. Eric Wolf (1982) had published his work on Europe and the peoples without history, in which he noted, “The more ethnohistory we know, the more clearly ‘their’ history and ‘our’ history emerge as part of the same history” (p. 19). It is at this point that the interest in small-scale and seemingly autonomous communities gives way to comparison between seemingly autonomous communities, and later to an interest in the diffusion of ideas pertaining to law, which has us emerge as part of the same history as that of the contemporary Zapotec. While I am able to describe law and the uses of harmony among the Talean Zapotec, my analysis gathers power only when the particular is placed in a global context, one in which Christianity and colonialism and the resistances and adaptations to these global movements are incorporated and brought to bear on our understanding of the small-scale microcosm (Nader 1989). It was the search for higher levels of understanding that inspired me to move from local to global. The methods became an eclectic combination, more in the style of a natural science approach. The questions were driving the methods. To understand the meaning of harmony within a persistently litigious population, I had to examine the historical literature for data on colonial and contemporary interactions between missionizing Christians and styles of disputing. To comprehend the worldwide diffusion of an ideology of harmony required a keen comparative consciousness and awareness of the diffusion of idea systems, and a realization that the mountain Zapotec village that I was studying reflected hundreds of years of colonial experience continuous to the contemporary period. I

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had moved from mechanisms of social control to mechanisms of cultural control, mechanisms that may have emanated from locales a far distance from the isolated mountain village. New realization made me rethink the critiques of the structural-functionalist approaches. The “enduring structures” described by anthropologists were part of the presentation of self of the natives to outsiders, part of their adaptation to systems of domination. Viewed in this light, indigenous legal systems appear as equilibrium, or balance, or harmony. The realization that the social and cultural fields were broader than the small community forced me to include forces that played upon and affected community contours that were not constructed by the mountain Zapotec, but that were now being used by them. I recognize that harmony can come in many forms, that it may be part of a local tradition of intimacy and interconnectedness, or it may be part of systems of control that have diffused across the world along with colonialism, Christianity, and other macro-scale systems of cultural control, such as therapy. The basic components of harmony as ideology are the same wherever it appears as cultural control: the emphasis on avoidance, conciliation, the recognition that resolution to a conflict is inherently good, and its reverse—that continued conflict or controversy is bad or dysfunctional, that peaceful orderly behavior is more civilized than confrontative behavior, that consensus is of greater survival value than controversy (see, e.g., Baumgartner 1988). The story of ideological formation is at the start nebulous. In the case of harmony among the Talean Zapotec, I speculate about how ideologies of control evolved from a colonial Spanish America, and later I extrapolate from the comparative evidence on colonialism and customary law more generally (Nader n.d.). There is little doubt that the missionary activities in Oaxaca and the zeal of the missionary orders affected the basic ideological structures of the native population. The conquest was in good part a spiritual conquest (Ricard 1966), and the “missions of penetration” spread into areas where Spanish political control had not yet been installed. An examination of village social organization and the workings of village law courts among the mountain Zapotec reveals the heritage of penetration. The processes of internal and external forces appear in the interconnectedness of social organization and in the actual disputing process. We come to understand the broader sense of the meaning of the use of harmony and equilibrium as political strategies and as ideologies. We also come to understand how such processes of equilibrium and conflict come to influence the theories of the people who study them—the anthropologists. In the case of the Talean Zapotec, I have come to the conclusion that the harmony tradition stems from Spanish and Christian

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origin, and it is this idea that leads me to propose that the uses of harmony are political. But can I further check this understanding? By what means can I confirm my interpretations? Anthropological theory is shaped not only by the Western world, but by the ideologies presented by informants. That such ideology may have had Western origins in the first place makes it even more interesting as we attempt to trace the sources of anthropological ideas and to answer the question of why Taleans employ the principles of harmony and balance in dispute settlement and in dealings with outsiders. Although in earlier papers I focused on how the “natives” use harmony, the issue has brought me to an exploration of harmony ideology as a tool of cultural control introduced by missionaries in colonial and neocolonial contexts. In a critique of anthropological work, Tom Beidelman (1974, pp. 235– 49) refers to missionaries as “the most ambitious and culturally pervasive of colonialists,” and Judith Shapiro (1981, pp. 130–49) points out that when anthropologists discuss missionaries, they treat them as part of the setting, peripheral to the real objectives of anthropological research. I searched ethnographies on law for evidence of the impact of Christian missionaries on local dispute processing. There were only bits and pieces in the early African ethnographies of law on the role of missionaries, who were mostly, as Judith Shapiro would have suspected, outside the real objectives of an anthropology of law. The missionaries were there. They were hearing disputes. And they played an important role in the construction of an African “customary” law (Chanock 1986). However, later ethnographies from New Guinea offer a clearer idea of the way in which the introduction of Christian morality affects the disputing process. New Guinea people affiliated with missions abandoned the forceful authority of New Guinea councilors. They “had no rules to follow to bring the case to a successful conclusion, apart from praying that people’s anger would ‘die’ and trying to make them shake hands” (Reay 1974, pp. 219–20). According to Marie Reay and others, the important role that the missions have had was pacification. Edward Schieffelin (1981), in an excellent article, “Evangelical rhetoric and the transformation of traditional culture in Papua New Guinea,” was able to penetrate the drama and rhetoric of the evangelical process as it relates to disputing processes. Traditionally, the regulation of conduct between individuals was a matter to be settled by those involved, guided by the canons of reciprocity and sanctioned by the threat of retaliation or revenge. With Christianity, one’s conduct toward others is no longer a matter between two persons but between individual and God: “The fundamental direction of moral reciprocity was moved from the horizontal plane between people to the vertical between man and God mediated by pastor and church organization” (Schieffelin 1981,

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p. 155). In another context, Norman Forer (1979) examines the historic roots of the process of legal imposition on American Indians and notices that the United States supported church missionaries in their task of persuading the Indians to accept private entrepreneurship and resettlement. In India the state in the guise of the Company Raj, Imperial India, or modern India has promoted “arbitration” and “compromise,” an ideal most persistently expressed as “panchayat justice.” The history of the rise and spread of the idea of “panchayat justice” is still being written, but it is generally conceded that its political intent is pacification, a quieting of the population (Meschievitz and Galanter 1982). Carol Greenhouse’s (1986) book Praying for Justice again illustrates how closely tied to disputing processes are religious tenets. The book about Georgia Baptists is of special interest to those anthropologists who wish to understand the way in which Baptist Protestant Fundamentalism fits into political and legal reform movements at the national level. For these Georgia Baptists, all conflict is inner conflict. Public remedy gives way to God’s remedy. People deal with conflict by internalizing conflict, and by seeking internal remedies. Conflict derives from a person’s character and from a rejection of God. Baptists refuse to concede the adversarial element; the alternative to disputing is a brotherhood that is anti-authoritarian and egalitarian. Dissent is eliminated by “withdrawal.” Christianity is equated with harmony and the rejection of adversarial disputing. The Zapotec that I studied have a conception of harm that requires them to litigate to find harmony. Among Greenhouse’s informants it is the silencing of disputes that needs understanding. Greenhouse presents us with an idiom of powerlessness: people cannot do anything; only God can do something about auto accidents, nuclear accidents, poison in our water, and more. Harmony ideology is significant in the light of expanding Protestant Fundamentalism in the United States and in the light of an alternative dispute resolution law reform program that may serve to silence disagreement for the sake of consensus, a worldview where facts and legal rights are transformed into feelings, relationships, and community writ small. The question—why do Zapotecs talk about harmony while litigating like crazy?—took me away from a small village in Mexico and into an examination of the meaning of Christian colonization in Africa, Latin America, Fiji, New Guinea, and the United States. My book manuscript (Nader n.d.) is my dialogue between views I see as opposing. It is a combination of inductive and deductive perspectives and involves the interpretive, ethnographer-conscious approach as well. It is the beginning of a post-interpretive formulation. A study of the uses of harmony as control led from a particular ethnography dealing with styles of disputing to a

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cultural analysis of a style of religion in politics that Americans saw elaborated in post-confrontational politics in the 1988 U.S. elections. The cultural study of harmony control has taken me and my students into work places, dormitories, mental health settings, classrooms, and into African villages—places where harmony ideology is commonplace, where conflict may be thought of as principally due to communication problems, or when contention is questioned. Have I been doing “scientific” anthropology or interpretive anthropology throughout these past thirty years or is this all part of the natural science tradition? I will leave it to others to label the work, but the real questions should be about the substance and the quality of the substance, which cannot be predetermined by any particular method. In the 1980s, the study of hegemonic movements is of particular interest to anthropologists who have been enmeshed in what we thought of as more traditional culture. Hegemonic culture is constructed not by anthropologists, but by global power holders for whom we sometimes unwittingly work. While anthropologists have dealt with questions of ideology and hegemony before, something is different. Certainly in my own work and also in that of Ong (1987) and others, the ethnographic work is carried out in a less paradigmatic fashion, with greater freedom to follow the questions once examined.

A Final Note The autobiographical nature of this paper was intended to illustrate several points. First, the dissatisfaction with the process of doing ethnography has been building since the thirties, and has exploded into an experimental moment along with the realization that positivist science is a cultural system that can inhibit the exercise of the anthropological imagination and the creative process in anthropology. Second, there is no question that the past decade has allowed more intellectual freedom and that that climate has been good for my anthropological research. In a way, the best of both worlds is not bad, and the tragedy may be not to have the training of an earlier period combined with the experimental moment. That is what I would hope for in a post-interpretive period. It is ironic that while many would agree that no single anthropologist can master what it takes to be truly holistic, we are more polarized and less tolerant to a division of talent in ethnographic research. It is not possible for each of us to think with three or four different brains. Keeping the way open for cooperation and synthesis means discouraging writing that is obscurantist, or tables that are, for that matter. (Also, writing for

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intellectuals may not be our greatest source of imagination.) It also means discouraging a method obsession. If it appears that some are against method, it is in part because method obsessions easily overshadow our reason for being—to think critically upon the nature of the human species, which requires tools that are both instrumental and expressive.

Acknowledgments This paper was first presented at the American Anthropological Association Meetings in Phoenix, Arizona, November 1988. The author appreciates the critical reading of the paper by her colleagues Professors Nancy Scheper-Hughes, Aihwa Ong, and Jack Potter, and the valuable comments of my students and an anonymous reader. It was also previously published as: Laura Nadar, “Post-Interpretive Anthropology”, in Anthropological Quarterly 61:4 (Oct. 1988), pp. 149–159. REFERENCES Agar, M. 1973. Ripping and Running: A Formal Ethnography of Urban Heroin Addicts. New York: Seminar Press. ———. 1982. The Anthropological Circle: Symbol, Function, History. Cambridge: Cambridge University Press. Bateson, G. 1936, 1958. Naven: A Survey of the Problems Suggested by a Composite Picture of the Culture of a New Guinea Tribe Drawn from Three Points of View. 1st ed., Cambridge: Cambridge University Press; 2nd ed., Stanford: Stanford University Press. Baumgartner, M. P. 1988. The Moral Order of a Suburb. Oxford: Oxford University Press. Beidelman, T. O. 1982. Colonial Evangelism: A Socio-Historical Study of an East African Mission at the Grassroots. Bloomington: Indiana University Press. Chanock, M. 1985. Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia. Cambridge: Cambridge University Press. Ertel, C. 1987. “Painting Culture Thin: A Horkheimerian Critique of Geertz’s Vision of Art-as-Anthropology and Anthropology-as-Art.” Paper submitted to Anthropology 196, University of California, Berkeley. Favret-Saada, J. 1980. Deadly Words: Witchcraft in the Bocage. Cambridge: Cambridge University Press. Forer, N. 1979. The Imposed Wardship of American Indian Tribes: A Case Study of the Prairie Band Potawatomi. In The Imposition of Law, ed. S. Burman and B. Harrell-Bond. New York: Academic Press. Furner, M. O. 1975. Advocacy and Objectivity: A Crisis in the Professionalization of American Social Science 1865–1905. Lexington: University Press of Kentucky. Geertz, C. 1973. The Interpretation of Cultures. New York: Basic Books.

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———. 1983. Local Knowledge: Further Essays in Interpretive Anthropology. New York: Basic Books. ———. 1988. Works and Lives: The Anthropologist as Author. Cambridge: Polity Press. Golde, P. 1970. Women in the Field: Anthropological Experiences. Chicago: Aldine Publishing Company. Greenhouse, C. J. 1986. Praying for Justice: Faith, Order, and Community in an American Town. Ithaca: Cornell University Press. Hymes, D. 1962. “The Ethnography of Speaking.” In Anthropology and Human Behavior, ed. T. Gladwin and W. C. Sturtevant, pp. 13–53. Washington, DC: Anthropological Society of Washington. ———, ed. 1972. Reinventing Anthropology. New York: Pantheon Books. Kroeber, A. L., and C. Kluckhohn. 1952. Culture: A Critical Review of Concepts and Definitions. Papers of the Peabody Museum of American Archaeology and Ethnology, vol. 47, no. 1. Cambridge, MA: Harvard University. Kuhn, T. 1962. The Structure of Scientific Revolutions. Chicago: University of Chicago Press. Leach, E. R. 1951. The Structural Implications of Matrilateral Cross-Cousin Marriage. Journal of the Royal Anthropology Institute 81: 23–55. Levi-Strauss, C. 1969. The Elementary Structures of Kinship. Boston: Beacon Press. Marcus, G. E., and M. Fischer. 1986. Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences. Chicago: University of Chicago Press. Meschievitz, C. S., and M. Galanter. 1982. “In Search of Nyaya Panchayats: The Politics of a Moribund Institution.” In The Politics of Informal Justice, ed. R. L. Abel. New York: Academic Press. Nader, L. 1964. An Analysis of Zapotec Law Cases. Ethnology 3 (6): 404–19. —— 1972. “Up the Anthropologist: Perspectives Gained from Studying Up.” In Reinventing Anthropology, ed. D. Hymes. New York: Pantheon Press. ——. 1970. “From Anguish to Exultation.” In Women in the Field, ed. P. Golde. Chicago: Aldine Publishing Company. ——. 1985. “A User Theory of Legal Change as Applied to Gender.” In The Nebraska Symposium on Motivation: The Law as a Behavioral Instrument. Lincoln: University of Nebraska Press. ——. 1989. “The Crown, the Colonists and the Course of Village Law.” In History and Power in the Study of Law, ed. J. Starr and J. Collier. Ithaca: Cornell University Press. ——. n.d. Harmony Ideology and the Construction of Law. Manuscript. Ong, A. 1987. Spirits of Resistance and Capitalist Discipline: Factory Women in Malaysia. Albany: State University of New York Press. Ortner, S. 1984. “Theory in Anthropology since the Sixties.” Comparative Studies in Society and History 26: 126–66. Rabinow, P. 1977. Reflections on Fieldwork in Morocco. Berkeley: University of California Press.

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Reay, M. 1974. “Changing Conventions of Dispute Settlement in Minjarea.” In Contention and Dispute: Aspects of Law and Social Control in Melanesia, ed. L. Epstein. Canberra: Australia National University Press. Ricard, R. 1966. The Spiritual Conquest of Mexico: An Essay on the Apostolate and the Evangelizing Methods of the Mendicant Orders in New Spain: 1523–1572, trans. L. B. Simpson. Berkeley: University of California Press. Ruby, J. 1982. The Crack in the Mirror: Reflexive Perspectives in Anthropology. Philadelphia: University of Pennsylvania Press. Scheper-Hughes, N. 1978. Saints, Scholars, and Schizophrenics: Mental Illness and Irish Culture. Berkeley: University of California Press. Schieffelin, E. L. 1981. “Evangelical Rhetoric and the Transformation of Traditional Culture in Papua New Guinea.” Comparative Studies in Society and History 21(1): 150–57. Spradley, J. 1970. You Owe Yourself a Drunk: An Ethnography of Urban Nomads. Boston: Little Brown & Company. Stack, C. 1975. All Our Kin: Strategies for Survival in a Black Community. New York: Random House. Shapiro, J. 1981. “Ideologies of Catholic Missionary Practice in a Postcolonial Era.” Comparative Studies in Society and History 21 (1): 130–49. Taussig, M. 1980. The Devil and Commodity Fetishism in South America. Chapel Hill: University of North Carolina Press. Tax, S., L. Eiseley, I. Rouse, and C. F. Voegelin. 1953. An Appraisal of Anthropology Today. Berkeley: University of California Press. Wolf, E. 1982. Europe and the People without History. Berkeley: University of California Press.

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E c ha p te r 8

Orientalism, Occidentalism, and the Control of Women

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resently there is a worldwide concern for improving the status of women. Some of this concern has come from the West. However, the implementation of strategies to “improve” women’s lives has moved out from national policies to the agenda at the United Nations. A central dogma1 in both non-Western and Western states is that Western economic development and industrialization will improve the condition of Third World women. There is also a widespread belief that women in the United States and Western European countries are better off vis-àvis their menfolk than their sisters in societies that are not “developed.” These assumptions are challenged on many levels. One source of challenge comes from the increasing number of studies conducted by Western and Third World scholars that question the definition, aims, means, scope, and results of development.2 Another challenge to Western assumptions comes from women who are part of nationalist, religious, or ethnic movements in the “Third World.” These women believe that they are better off than their exploited Western sisters. Such assertions and counter assertions are important parts of the Eastern and Western discourses. They have great implications, some of which will be dealt with here. This paper is not about scaling societies to prove which is better or worse, nor is it geared toward answering questions of improved status for women. In fact, it steers away from such simplistic notions of “progress” and “improvement” so prevalent among Westerners and Eastern elites, and which are worthless tools in comparative research. My aim here is to identify how images of women in other societies can be prejudicial to women in one’s own society. Although male dogmas are common in contemporary nation-states, the patterns vary. It is this variation which is so important to the maintenance of different patriarchal systems. In other words, misleading cultural comparisons

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support contentions of positional superiority, which divert attention from the processes that are controlling women in both worlds (Hatem 1989). An examination of East-West critiques of gender relations forces us to consider the use of comparison in gender construction. Critique of the other may be an instrument of control when the comparison asserts a positional superiority. The questions are twofold: (1) how does critique of the other operate as a key to the process by which civilizations and nation-states control their women and the women of other cultures; (2) how are the dynamics of male dogma controlled by notions that women’s place vis-à-vis men improves with the development of civilization, or the contrary view—that the higher the civilization, the increased ascendancy of men. These two questions will combine to address the dynamics of male dogma operating in contemporary and interacting world systems: how could images of women in other cultures act as a control to women in one’s own society? The theoretical framework for this research stems from the concept of hegemony, the notion of “true discourse,” and the idea of positional superiority. The notion of hegemony, as developed by Gramsci (1971), implies that systems of thought develop over time and reflect the interests of certain classes and/or groups in society who have managed to universalize their own beliefs and values. These beliefs or dogmas are produced and reproduced through the work of “intellectual elites,” and, according to Gramsci, the resultant control is structured in terms of consent rather than force or domination, through “civil society” rather than “state-as-force.” Foucault’s analysis shifts attention from theorizing about ideology to “a consideration of the relations of truth and power which is constitutive of hegemony” (Smart 1986, pp. 160–61). His notion of “true discourses” (Foucault 1972) refers to the restriction of discourse on alternative conceptions of reality and provides a set of concepts with which to understand the exercise and the operation of power in its different forms. Both Gramsci and Foucault agree that a hegemonic relationship is established “not through force or coercion, nor necessarily through consent, but most effectively by way of practices, techniques, and methods which infiltrate minds and bodies, tastes, desires and needs” (Smart 1986, pp. 160–61). Said (1978) approaches the relation of East and West with these Gramscian-Foucaultian concerns. He questions how in a specific historical and cultural context a hegemonic discourse has resulted from a play of “power” and “truth.” Posed this way, Said moves the domain into the comparative realm and posits a relationship between the East and the West in which he asserts the latter has come to situate itself as “positionally superior” to the former. This paper extends Said’s observation that the Moslem world exists “for” the West, to include the notion that the

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West also exists “for” the Islamic world and serves as an important contrastive comparison that restricts and controls women’s resistance. The ideas of hegemony and the notions of restricted discourse and positional superiority are used as complementary theoretical devices to illuminate the juxtaposition of dogmas of female subordination in the United States and Western European writings to those in the Arab Islamic world and will enable us to provide materials with which to understand the dynamics that emanate from homogeneous and formulaic images of the other. The model I am introducing explains gender construction as a result of interactions between two large world regions—the European West and the Arab East. Feminist strategies are so often part of the controlling male dogmas, not feminist in origin, but directly related to the shape of the male control structure (Reiter 1975). And of course, the reverse might also be true, that male forms of control may be associated with patterns of adaptation (or submission) and resistance found among women.

Cultural Hierarchy and Processes of Control In his 1955 Fawcette Lecture to the women students of Bedford College in England, Evans-Pritchard is said to have argued that “primitive societies and barbarous societies and the historical societies of Europe and the East exhibit almost every variety of social institutions, but in all of them, regardless of the form of social structure, men are always in the ascendancy, and this is perhaps the more evident the higher the civilization.” The two editors that quote from Evans-Pritchard’s lecture then note that his lecture is full of contradictions because he “does not … associate servility with high civilization” (Etienne and Leacock 1980, pp. 1–2). That Evans-Pritchard stopped short of associating servility with high civilization is an example of a comparison redolent in ambivalence and contradiction. What Said calls positional superiority is evoked not only on the political level between cultures, but it also works itself into the structure of knowledge. If ambivalence and contradiction characterize the thesis of universal subordination, apologists for civilizations East and West deal with the contradictions by the use of what Said calls “positional superiority.” Edward Said’s controversial book Orientalism was published in 1978 as a critique of Western writings about the Orient. It was perceived by many reviewers as an attack on Orientalist scholars. Said had been deeply influenced by the work of Michel Foucault, and his was an analysis of scholarship as cultural control. Orientalism is about the mechanisms through

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which the West managed its relation to the East. As he himself stated the process, “Orientalism—a way of coming to terms with the Orient that is based on the Orient’s special place in European Western experience. The Orient is not only adjacent to Europe; it is also the place of Europe’s greatest and richest and oldest colonies, the source of its civilization and languages, its cultural contestant and one of its deepest and most recurring images of the other. In addition, the Orient has helped to define Europe for the West as its contrasting image, idea, personality, experience” (Said 1978, p. 7). Said describes Orientalism as a “Western style for dominating, restructuring, and having authority over the Orient.” Orientalism is a form of discourse, a way of dealing with the Orient “by making statements about it, authorizing views of it, describing it, by teaching it, settling it, ruling over it … an accepted grid for filtering the Orient into Western consciousness.” Said (1978, p. 7) continues: “[Orientalism] puts the Westerner in a series of relationships with the Orient without ever losing him the relative upper hand.” For Said, the strategies of Orientalist scholars were apparent. Their writings are shot through with various kinds of racism, and a dogmatic view of the Orient is portrayed as an ideal and unchanging abstraction.3 The concept of an “accepted grid for filtering the Orient into Western consciousness” is a concept akin to thought control. What filters through is all we are allowed to know about the Orient from scholars and experts. Although Said does not have much to say directly about the condition of women either in the Orient (most Orientalists are male) or in the Occident, I would like to use his notion of the Orientalist grid to show how women are maintained as a subordinate class in both the Eastern world and in the Western world. In addition, I wish to point out that writers of the East also use a grid through which they filter the West and by which they react to the West. The “other” is not mute, in either direction. The Orient’s grid, which we might call Occidentalism, also operates as a controlling process over Eastern women.

The Specificity of Eastern and Western Grids Although, as we will see, Orientalism and Occidentalism both impact women, the two represent quite different processes.4 Orientalism is a construction that we can deconstruct. Occidentalism is not a historical or ideological category that we know a lot about. Notions about the Occident are not coalesced in a large body of scholarship. There are very few books and articles written by contemporary Arab scholars about the West. A comparable literature to Orientalism is nonexistent. There

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is much spoken about the West, and there is an Islamic fundamentalist view of the West that we can delineate, but even here hardly shared by all Muslims. There are “grids” through which the West is filtered, but an explication of how the East filters the West is barely understood. The word Occidentalism is nonexistent in Arabic, although it can be derived. The derivative—esteghrab—is rarely used, and when used has to be contextualized, because the common use of esteghrab is in the meaning of wonder and astonishment. Orientalism, on the other hand, is partly defined by the proliferation of books on the Orient. In a century and a half, 1800–1950, it is estimated that sixty thousand books were published on the Arab Orient alone.5 That these books were one of the most effective mechanisms through which the Orient was filtered into Western consciousness (especially with the higher literacy rate in the West) calls attention to the various means available for “filtering” other cultures: books, newspapers, radio, television. These means are important to explicate, for they are an expression and also a consequence of the nature of the relationship between the Occident and the Orient. Today the West is accessible to the people of the Orient through modern communications technology. The East is not. The West presents itself by means of soap operas (as for example through Dallas) or movies of the Wild West, or by the nightly news. The West also presents their construction of the East through the variety of media that portray Arabs as terrorists whose women are veiled. While people are fascinated by the technological advances of the West, they are also aware of its social problems. News of scandal, rape, drugs, murder, and molestation in the West occupy considerable space in the major news media of the Arab Middle East. Such problems are rarely commented upon, a very effective mechanism by which Eastern conservatism is maintained. Common sense and public oratory lead people to believe that they are spared the social problems of the West because of their religion. Knowledge about the West has a strong bearing on the position of women, for it is through this knowledge that the grip on women is justified in many countries of the Middle East. Women are no longer treated as Arab women, but as “potential Westerners,” posing a severe identity crisis. How Arab women should act, and what they should want to achieve is no longer a matter of consensus, and differs within the varied frameworks of Arab political and religious nationalisms. Arab Muslim women resent Western models of aspiration as they encroach on their lives and are used as justification of Muslim “fundamentalism.” Some religious leaders have put the entire matter into an internalist perspective. Instead of blaming the West for exporting its ills, they are searching for

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the agencies that import them.6 This adds up to a kind of “siege mentality” in which stripping Arab women of their rights has been claimed to be well justified, and condoned as a protective act. The “siege mentality” has theoretically reversed a long-maintained Eastern view of Westerners as “potential Muslims.” Muslims adopt religious dichotomies in which peoples of the world are either Mu’minoon (believers) or Kafironon (nonbelievers). If the Orientalists’ view of the Orient is redolent in racism, as Said (1978) maintains, for Muslims, at least in theory, nonbelievers are not inherently “bad” or “inferior,” they only need the “right” religion. Consequently, Muslim positional superiority is not based on intrinsic qualities specific to a certain race, but on the acceptance of religious ideas that can be shared by all humans.

Positional Superiority, Thought Systems, and Other Cultures Evoking positional superiority as a method of control between and within civilizations takes different forms and makes use of different mechanisms. In the West, positions of superiority are translated into development programs for transforming the lives of those technologically underdeveloped, and the mechanisms used are related to programs of economic development (see Rihani 1978). Development then becomes a strategy by means of which the West can help promote and spread progress and the technological society that symbolizes progress. In the East, evoking positional superiority as a method of control takes a quite different shape, in rhetoric claiming to be more philosophical and less materialist. The modern Islamic movements concern themselves with a “theology of universalism, a monolithic religion, a perfect blueprint for a just society” (Stawasser 1987, p. 4), a vision which is meant to be a challenge to the West in particular and a hope for the large numbers of impoverished Muslims. The intent is messianic for both the Western and Eastern positions. In this context, female subordination increasingly comes to be rationalized or maintained in terms of the “other.” By taking a position of superiority vis-à-vis the “other,” both East and West can rationalize the position of their women and manage their relation to the “other,” at least as long as they can keep the fiction of the other in place. Under conditions of modernization and cultural diffusion of Western forms, it becomes increasingly difficult to assume positional superiority.7 When the East borrows Western technology, a lifestyle accompanies these new forms and Western gender relations travel with the technology. The crisis that ensues complicates the situation for Eastern cultures and for its women, and stimulates some to search for solutions in Islam.

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The crisis for women arises from the discrepancy between development beliefs and development results. In the West, economic development arguments support the beliefs that with the spread of Western educational systems, modernization of the work force, and by strengthening the individual, women would be free from domination by men governed by traditional patriarchal values. With economic development would come progress and increasingly egalitarian relations between the sexes. Ester Boserup argued to the contrary in her critical book Women’s Role in Economic Development (1965). Her conclusions that development was decreasing women’s self-sufficiency, that it was increasing dependence on men while adding a double burden to women’s workdays, were startling.8 In the two decades of gender research that confirmed Boserup’s original conclusion, case studies such as those of the apparel and microelectronics industries, and studies of the expansion of industrial production to areas of Asia, Africa, Latin America, and the Caribbean, confirmed Boserup’s conclusion that women’s lives were changed, but not necessarily for the better (Boulding 1976; Chaney and Schmink 1976; Dangler 1976; Nash and Femandez-Kelley 1983; Ong 1987; Rogers 1980; Tinker 1976). In spite of these findings, the argument that economic development contributes to the emancipation of women in the less developed countries is still popularly believed and operates as a basic building block in organizations such as the World Bank and the U.S. Agency for International Development programs. The positional superiority of Western women as symbolic of the positional superiority of the West is a deeply ingrained idea. The contrastive mechanisms by which such beliefs are continually imprinted are interesting in themselves.

Ways of Seeing and Comparing: East and West The ways in which other cultures are filtered are important to explicate, for they are an expression and a consequence of the nature of the relationship between the Occident and the Orient. Sandra Naddaf’s (1986) comparison of an Egyptian scientist’s description of his travels to Parisian cafes of the 1830s and an English traveler’s description of Cairo during the same period suggests that he may hide his existence in the scene he describes as a detached observer or he may reflect both subject and object.9 The Egyptian traveler includes his own reflection in the cafe mirror as integral to the scene he describes. His representation of another culture, as Naddaf points out, does not become a means of distancing oneself from the other, rather it becomes a means of integration.10 The Egyptian assumes the role of translator between the two cultures finding

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the common points of reference. The English traveler holds the mirror to reflect Egyptian society without being a part of the reflected image. Naddaf’s observations provide a useful analogy to the pattern of keeping feminist literature on the Orient separate from comparison with the literature on Western women “as if Muslim women represented a species apart, one subject to its own unique laws and imperatives.” (Rassam n.d.) Indeed, it is revealing that American conferences on the international status of women usually focus on women in the Third World. Margaret Mead, in her 1926 book on Sex and Temperament, certainly sought to implicitly compare the role of non-Western women vis-à-vis their menfolk with that in the United States. However, the tradition of juxtaposing the position of women in other cultures with women in the West has, in anthropology since Mead, been implicit. In Women and Colonization, Mona Etienne and Eleanor Leacock (1980) relate gender roles and status to Western colonizing processes, and although they write about the effects on women of Western colonization practices with the spread of industrial capitalism, there is no article dealing with the large literature on the first female victims of Western industrialization—European and American women. The absence of explicit comparison is a controlling process suggestive of the idea that while it may be bad here, it is really worse in the Middle East or elsewhere. The rigorous comparison of where Western women really stand vis-à-vis their men relative to Third World men and women has not been made, perhaps because to deconstruct the basic building blocks of Western positional superiority would constitute a threat to our relations with the developing world. In the Islamic world, the deconstruction of the building blocks of positional superiority was accomplished by an expansionist, colonizing West. Since the beginning of the colonial encounter with the West, the Islamic world has had to face Western standards of modernism that were often foisted upon it from the outside. However, both internal and external efforts to modernize brought increased dependence upon and domination by the West. In The Islamic Impulse (Stowasser 1987), the contributing authors attempt to chronicle the crisis that results when the positional superiority of Islamic civilization is confronted by a secularism that challenges the very core of Islam.11 According to these authors, Islamic fundamentalism is not a program in the Western sense, as with development programs, for example. It can be understood as a mood, a search for an Islamic meaning in the modern world, a movement directed toward self-improvement (inward), not toward changing others (outward), as is the case with development programs.

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“Religious Ideology, Women, and the Family: The Islamic Paradigm.” (Stowasser 1987) introduces a contemporary interpretation of the role, the rights, and the responsibilities of the Muslim woman. Stowasser studies a popular guide for the Muslim woman by Egyptian Shaykh I-Sha’rawi, who published his guide as the ideal paradigm by which a woman’s life may be measured as truly Islamic in Cairo in 1982. Although the entire article is a fascinating account of strategies of internalist controls, I will concentrate my attention on the strategy of positional superiority used by Shaykh I-Sha’rawi. In the selections that Stowasser presents, there are recurrent derogatory references to the West. Such references may be designed to present the Islamic paradigm in the most favorable light, to respond to provocative criticisms from the West, or simply to correct the record.12 In regard to women’s rights, Stowasser (1987, pp. 267–68) presents the following comparisons made by Shaykh Sha’rawi: Islam … provided the woman with complete civil rights which do not exist in any other religion. The Jewish woman is subject to the guardianship of her father before marriage and to her husband after marriage. In French positive law, she does not have the right to stipulate individual property for herself against her husband. If we were to take a good look, we would find that Western civilization deprives the woman of her particular attributes. What are the primary characteristics of the human being? They are shape, characteristic features, and name. When a woman marries in Europe, she calls herself by her husband’s name. She does not have the right to retain her name or her father’s or mother’s name. As a result of the infatuation of the “imitators” with the West at the beginning of the Renaissance, women found themselves compelled to eliminate their fathers’ and their families’ names and retain only their own. This was difficult to do, although in Europe and America a woman relinquishes her name altogether and is addressed by the name of her husband and his family as a matter of course. What equality exists there for a woman after she has been deprived of her name? In Islam, however, even the wives of the Prophet—what was the noblest of all creation and whose name to carry would have honored every single one of them—were not called Madame Muhammad ibn ‘Abd All, or wife of Muhammad, but ‘A’isha bint Abi Bakr, Hafsa bint ‘Umar. … They retained their names and those of their fathers. But the West does not give the woman any rights, neither concerning her name, nor concerning her wealth. Rather, the freedom that women obtained there came about only because of the war, when the males were soldiers and needed the women to replace them in their civilian jobs; so they gave them some rights to benefit from their labor. Socrates, for instance, has said that the woman is not prepared by her nature to understand rational knowledge … but that she is pre-

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pared to cook, and raise the children. Plato gave her a share in education, which made him unpopular. The satirist Aristophanes made fun of educated women in his play “The Pedantic Women,” and Moliere after him wrote a play entitled “The Women’s Parliament.” Indeed the Prophet has said that “the pursuit of knowledge is a religious duty for every Muslim man and woman.”

In his discussion of polygyny, Sha’rawi once again defends the Islamic order by comparison with the West: Once, I asked some people in America who put this objection to me— that men can have several women but women cannot have several husbands simultaneously—whether prostitution was legal in America and they answered that it was in some states. I asked them how they took precautions so as to ensure public health, and they said that these women are medically examined twice a week to protect them and their customers against venereal diseases. I asked if they had to examine married women … and they answered: no, since the married woman is exposed only to the husband’s semen … and that venereal disease only occurs when the semen of many men come together in one place. I said that, therefore, God was right to permit plurality of wives, but not of husbands. I also asked them since they had these places for young men to find release for their sexual drives, why did they not have them for young women. Why was there no place staffed with young men that young women could visit to release their sexual tensions? They said that this had never happened and I answered that this was proof that it would bring disgrace upon the woman. (in Stowasser 1987, pp. 280–81).

Sha’rawi continues to note that as mothers, women find themselves in high regard in Islam while the European thinkers found that the children were forgetting their mothers and failed to protect them hence they designated one day in the year on which the children should remember their mother. We, however, are celebrating “Mother’s Day” as every moment of the year. … Hence, we do not need this festival; still we have adopted it, as if it were a glorious feat of the West, while in reality it is a disgrace. In Europe, the son abandons his mother to live in a home for the aged, while his father lives somewhere else. Islam, however, has given us the principle of mutual support and solidarity, according to the parents’ need. The mother is thrice more entitled to a son’s companionship and support than the father. … This is so because the father is a man who could survive even if he were reduced to begging; not so the mother. (in Stowasser 1987, p. 281 ).

Sha’rawi’s use of intercultural dialogue from a distance across time is itself worthy of analysis, as is his use of comparison as a method of con-

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trol. Stowasser comments that Sha’rawi is a highly visible media personality, an example of the contemporary traditionalists who are rearming Islamic women to spearhead the construction of a social order that will counter the impact of the West. The motivation is not necessarily against Western capitalism, rather, it is a reaction to the Western devaluation of Eastern women, which encourages conformity with Western ideas more generally. Stowasser questions the faithfulness of the Islamic paradigm that is being constructed in the popular press, and she is correct in assuming that interpretations of the Koran are constructed, and that they change in their interpretation of the place of men and women in Islam, but that is not my main point in presenting these excerpts. What the excerpts show is that the West plays an important part in the construction of Islamic gender paradigms and in holding them in place. Paradigms are legitimated by their contrast with the West, especially a barbaric, materialistic West. Sha’rawi is not a theologian, nor a revolutionary; rather, he is a religious man who is popularizing ideas about the role of women in contemporary Egyptian society. The women who listen to him are women who believe that Western women in general, and U.S. women in particular, are not respected as a class. Such women recount that American women are sex objects and cite the multibillion dollar pornography industry as evidence. Women in the West are said to be under daily threat of rape; not so in Cairo. U.S. incest and family violence rates are cited, and always we are reminded that the portrayal of women in American magazines is disrespectful of women. And we in the West reciprocate. There is much in the American media that is critical of the manner in which Islamic society treats their women, and we regularly discredit and discriminate and dehumanize and stereotype Muslims, and with them Muslim women, as backward.13 In large measure, stereotypes of the Muslim woman are of a pitiable, downtrodden woman. Usually these stereotypes are formed by focusing on selected areas of contrast: Muslim women wear the veil, a symbol of subordination for the Western observer; Islamic society fixates on the cult of virginity and stigmatizes women who are not virgins, thus promoting a double standard; Islamic societies abuse children of the female sex by various techniques such as Jabr or forced marriage, or by clitoridectomy, a form of sexual scarification that is said to limit sexual satisfaction for women; polygamy and easy divorce are used in subjugating women psychologically and materially; and attention is paid to spirit possession and the manner in which women’s resistance takes form. There are political implications to such stereotyping.14 The Middle East is backward and deserving of cultural disrespect, needs to be modernized

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and in the process civilized. The grid through which we rank the humanity of the area is based on how we perceive their treatment of their womenfolk. The way in which we construct the place of Arab women is one of the keys to the control of others, and the converse is true as well. The West is more civilized by the status and rights of its women. According to Muhsin Mahdi, the former director of the Middle Eastern Studies Center at Harvard, “Middle Eastern women have been the object of the most malicious campaign of defamation in human history, a campaign that was initiated in early anti-Muslim theological tracts” (Mahdi 1977). In this context, it would be interesting to learn that Muslim women describe themselves as proud and active participants in their culture. They are entrepreneurs in business ventures, many are professionally trained, and others form intellectual and literary groups.15 The University of Khartoum Law School in the Sudan hired their first woman law professor before Harvard Law School began to hire women professors, and the University of Rabat in Morocco had in 1980 approximately fifty percent women faculty with maternity rights and equal pay, a condition that did not exist at many American universities including the one in which I teach. An understanding of the veil as a symbol of subjugation misses the observation made by anthropologist Fadwa el Guindi (1981, p. 465) after studying veiling in contemporary Islamic movements in Egypt, when she notices that “a new Egyptian woman is emerging—educated, professional, non-elitist and veiled. The veil is part of an assertive movement with a powerful message symbolizing the beginning of a synthesis between modernity and authenticity.” Identity becomes relevant to the plight of women for it offers the possibility for women to be related to and judged by their own history and culture, not by Western women’s standards. In both the West and the East one can realize the evolution and perpetuation of female subordination. Both East and West have patriarchal systems of control. Both are publicly male-dominated societies, and more specifically both have male-dominated governments. In both East and West, women work longer hours than men as a class, and in both cultures women and children constitute the majority of the poor and impoverished.16 Although in both areas there are ideologies that glorify the status of women, in both places the lower status of women is explained as due to the inherent inferiority of women. In both the East and the West, women’s subordination is institutionally structured, culturally rationalized, and leading to situations of deference, dependency, powerlessness, and poverty. Yet, in both cultures, the manner of gender construction whereby the inside culture is idealized in comparison to the outside culture allows members of both East and West to feel superior to the other, while ignoring common traits.

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Comparison requires comparative consciousness, which steers away from comparisons that are only of a dichotomous nature, comparisons that draw on the differences between us and them as is evident in the Eastern as well as Western discourses. We must also compare to find points of convergence and commonality. Dichotomies tend to stress the unique features of each in which the West not only appears to possess the highest standards of technological apparatus but is also made to seem as morally and spiritually superior. Goody’s (1983) analysis of historian Guichard’s characterization of the contrast between Western and Eastern structures is pertinent. Goody describes a method of comparison in which the compared features are looked at not only from the standpoint of the East or the West, but also from a third angle, such as Africa south of the Sahara. Seen from this vantage point, not only do the differences that Guichard asserts seem rather slight (in Goody 1983, pp. 10–12), but also our sensitivities are raised as to the nature and purpose of comparison (Marcus and Fischer 1986).

The Controlling Role of Ideas Ideas have played an important role in the persistence of female subordination. The control of women in the West depends heavily on the concept of progress; the idea of progress also plays a central role in the diffusion of Western female subordination patterns. The key notion that comprises the concept of progress is the idea of change as incremental, while, in fact, evidence to the contrary is both overpowering and denied. In 1970, a report of the subcommittee on the status of academic women on the University of California, Berkeley, campus was published. In this most thoughtful and detailed study, the authors observed that the figures for female faculty appointments are not incremental, although they are for male faculty. The percentage of women in ladder positions (Senate members) rose during the twenties and thirties, especially for assistant and associate professors, but has declined during the last twenty years. The percentage of women professors has gone back down to 2%, the same as it was in the twenties, although it was more than 4% during the fifties. The percentage of women associate professors has decreased to 5%, comparable to the late twenties. The decrease in women assistant professors is the most striking—now only 5% are women, which is half the figure of the early twenties and less that one-third the percentage for the period 1925–1945. Indeed, the number of women assistant professors is now only 16, about the same as it was

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in the twenties, while the number of men assistant professors is 305, more than three times its early value.17

Many who read this report on the status of academic women on the Berkeley campus had our assumptions shattered. The idea that progress operates on an incremental model is deep: somehow things always improved.18 But what significance did the idea of an incremental progress have? As long as one believed that it was better than it was (the incremental model), one could feel relieved and anxiety would be reduced. In addition, political apathy was to be expected. The incremental model functions as control. Those who perceive the status of women as sometimes one of gaining ground and at other times of losing ground are closer to reality. In the United States today, political apathy describes the mental set of many women who perceive that we have made gains and cannot lose them, while others—including the institutions that predominate— act as if the improved status of women progressed too fast and too far since the 1960s. On the other hand, in the media and in academia there are those who argue that in some realms women may have lost more than they have gained over the past two decades, and there is evidence of a similar downward trend in women’s status after women received the vote in the United States (Knudsen 1969). In 1969, sociologist Dean Knudsen of Purdue University published an article in the journal Social Forces on “The Declining Status of Women: Popular Myths and the Failure of Functionalist Thought.” Knudsen shows that women’s status had declined in the United States during the thirtyyear period from 1940 to1970 as evidenced by occupation, income, and education as indicators of status. Knudsen argues that status is relative to men’s status, and that any apparent improvements must be compared to improvements for men in the same area. In most cases, the author found that men gained significantly more than women over time, and that women had suffered a loss in status. Beyond Knudsen’s central empirical finding, he makes two additional observations which are instructive. Knudsen poses the first in the form of a question: “In the face of an official equalitarian normative structure, and the later reinforcements of legal sanctions, what explanations can be offered to account for this evidence of apparent incremental inequality? Further, how does one account for the persistent failure of social science to reveal this trend?” (emphasis mine). Knudsen’s second observation describes the thought patterns that justify the sources and perpetuations of institutionalized inequality as to what are thought to be “appropriate sex roles.” He concludes that “the conservative nature of modern social

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science also has contributed to this development, through the use of an individualistic perspective and the dominance of functionalist interpretations” (Knudsen 1969, p. 191). Knudsen continues: “Given the conviction that women should not pursue occupations in competition with men, women and employers together develop a self-fulfilling prophecy. … The effect is the perpetuation of a belief that sexual equality exists and that only effort is lacking, to which social scientists have offered their support (p. 192). In a personal communication, Knudsen reported that he had had a difficult time in finding a journal willing to publish his findings because they were not believable or because they were obvious. Social scientists are caught in the same mindset as others in their culture, and if they attempt to deconstruct, as Knudsen did, justification for not publishing such work will be plentiful, and in failing to do so doing the status quo control of women will remain intact.

The Use of Revolution in Gender Control Status quo is not always the goal in relation to controlling processes. In many revolutionary governments, the opposite is sought—to change the traditional control over women as part of the transfer of power over women from the kinship group to the state. The strategy of positional superiority is then enveloped by the strategy of modernization, a form of progress, sometimes by means of legal engineering. Gregory Massell (1968), an American political scientist, published a classic article on “Law as an Instrument of Revolutionary Change in a Traditional Milieu.” Massell describes the mid-1920s Soviet experiments to break up the Muslim family. The assault was a deliberate attempt to stimulate and manipulate “sexual and generational tensions that would help to induce an upheaval in a traditional system of values, customs, relationships, and roles, beginning with the primary cell of that system: the extended, patriarchal Muslim family” (Massell 1968, p. 196). Although the Soviet experiment was considered a failure, some years later a similar experiment was conducted by another revolutionary regime, that of the Libyans under the leadership of Mohammed Khaddafy, under an Islamic umbrella. Khaddafy’s experiment seems to be more successful in the destruction of women’s support groups as well as in the breaking of traditional systems of values. In a preliminary study of the change in control over women in Libyan society, Saddeka Arebi has written “Powerful Mothers, Powerless Daughters: Libyan Women and the Bitter Fruits of Change.”19 Arebi uses ideal types to look at the changing position of women in Libyan society by

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comparing the experience of mothers and daughters at different points over two generations. The mothers were born from the 1920s and the daughters from the late 1940s and early 1950s. At the outset she notes that “the change in women’s position is not considered as a process of transformation from tradition to modernity, but rather from tradition to alienation. The latter refers to a situation whereby the culture structure is no longer able to offer a means to integrate, create and make meaningful new experiences” (Arebi 1984). She observes that social change in Libyan society “has stripped women of their powerful independent position and has resulted in dependency and subordination … my conceptualization of mothers’ and daughters’ positions extends beyond the politics of interpersonal relations to account for the impact of the broader social, political and economic systems that structure and control their experiences (Arebi 1984, pp. 1–2). The discovery of oil in late 1959 resulted in a high rate of internal migration, which transformed Libyan society from 80 percent rural in 1956 to 80 percent urban by 1969 and brought a large number of foreigners to work for the oil companies. Arebi (1984) tells us that change for Libyan women was symbolized by the shift from veiled women living within their homes to young women dressed in the latest Western styles, driving their cars, working outside of the home in offices, schools, factories, and hospitals, and attending the universities and entering the military. Arebi sees three sets of variables as important in expanding, contracting, or redefining women’s rights and obligations: the impact of institutionalized education, the effect of the emergence of the nuclear family (and I would add the concept of the couple), and finally the impact of women’s work outside the home. By an examination of these variables, Arebi demonstrates how women’s subordination is institutionally structured to bind women to situations of deference, dependency, and powerlessness. Schools mean that the family no longer provides primary socialization and the loss of family life experience that was previously exchanged among women of different age groups. School peer groups become important in constructing a life outside of the family, which includes the reading of romance novels. These novels stress the search for individual identity and personal freedom unencumbered by the constraints of family and society. The novels glorified Western marriage and its emphasis on companionship and shared activities, and fit well with the move toward the nuclear family, itself an outcome of a high rate of internal migration. The emergence of the conjugal unit, Arebi argues, did not always work to the advantage of Libyan women. Although the form was Western, the

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content was Eastern—husbands and wives still tended to lack shared interests and emotional bonds characteristic of Western ideal couples, and could not change the fact that the Libyan man is first and foremost attached to his mother. Living in a nuclear family meant giving up women’s groups which formed the source of mutual aid and exchange and companionship, all of which were important to the mothers’ generation. In fact, she tells us, the isolation from personal networks of female solidarity changed the women’s position from autonomy to dependency and the show of deference to one’s husband. The situation of complete isolation of women from female networks enabled men to exert total control. Arebi quotes the mothers who sense their daughter’s dilemma: “We used to be free … go wherever we want and visit whomever we wish, we never were under men’s mercy the way you are … women of today (Arebi 1984, p. 27). Men have come to make decisions in domestic matters that were once reserved for women, and women to depend on their husband for their status in society. Such changes lay the grounds for a hierarchical relationship between husbands and wives in contrast to the traditional egalitarian relations resulting from an interdependent division of labor for men and women. In her final assessment of the meaning of women’s work outside of the Libyan home, Arebi is even more emphatic about women’s loss of power and control over their lives. Going out to work for Libyan women further enhanced the control of men over working wives. In the mothers’ generation, women’s control over their own property was institutionally based. In the daughters’ generation, women are “allowed” to work while still completely responsible for the home and children. Men control their wives material resources as well as their definition of themselves.20 In the Libyan case, education, the conjugal family, and work outside the home have all operated as controlling processes that restrict the range of options for women and that confront them with dilemmas that they are having to solve alone and without their women’s support group. In addition, the perception of the mother in the mind of her child is changing: The change in the whole pattern of social networks has affected the socialization process of their children. Children, isolated with their mothers, also lose touch with those intergenerational gatherings which functioned as an important socialization agent a generation ago … [and which] reinforced children’s sense of their mother’s high position. Activities such as sport clubs and scouting have become the new agents of socialization. The perception of the mother in the mind of the child is determined by and confined to the nature of her relationship to them and to the father. (Arebi 1984, p. 22)21

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Multiple Systems of Female Subordination Different systems of repression sometimes exist side by side. One can compare the lives of women living under pastoral conditions (Abu-Lughod 1986), where they are under the protection of their fathers and brothers and where they may experience the solidarity that comes with being segregated by gender, with urban women who live under strict Islamic conditions, which include husbands (along with father and brothers) in positions of protection and control, and whose resistance to control may be supported by women’s groups (Altorki 1986, pp. 99–121; Rugh 1984.) Under the conditions of a modern nation state, the laws are written to include the state as a protector of women’s rights, “and there are also the unwritten laws of the modernizers, the developers whose systems destroy women’s support groups” (Joseph 1982; Rassam 1983). Some women get trapped by the most repressive part of each system. For those women who are caught up by the male-dominant extremes of the East and the West, there is resistance in the form of Islamic movement either as a retreat or as a way to regain control over their own destinies. Others gather the modes of resistance and the support groups of each system and live a life of their choice, often without men (Jansen 1987). Nikki Keddie (1979, pp. 225–40) underscores the need for an extension of historical and comparative understanding of the experience of Eastern and Western women: The transition to a modern and Western-influenced life structure has not been a simple progressive one for Middle Eastern women. Too many scholars use “modernization” as a simple equivalent to the more obviously ethnocentric “westernization,” retaining the implication that modernization is essentially a straight-line progressive process, which either immediately or very soon improves everyone’s way of life. … It should not be expected that there will necessarily be a single answer to the question of whether the Western impact, or modernization, made things better or worse even for a single class or group. Regarding women, even in Western Europe we find the rise of capitalism in the seventeenth century removing women from many productive tasks and sources of income that had been theirs since the Middle Ages, but the same century saw the voicing and advancing of the first feminist ideas as another side of the rise of Capitalism. … The influence of Western and indigenous capitalism in the Middle East was similarly two-sided. … Female peasants, nomads, and city craft workers have increasingly lost their productive role as the goods they made came to be purchased from distant producers, although a very few women’s products … found greatly increased markets.

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Keddie also points out that Middle Eastern men tied to Western businessmen who wanted to qualify as modern were supportive of women’s demands for liberation when it meant modern education, unveiling, and professional careers. A difference in lifestyles gradually emerged between upper- and middle-income urban women and the women of lower income groups whose men saw no advantage in the change of customary ways. While Keddie describes the separate evolution of different classes of women in the Middle East, in the West the presence of multiple immigrant groupings creates a situation in which a woman may be caught between two or more forms of female subordination systems as in the example of a Mexican-American woman married to an Egyptian male and living in the United States in an isolated nuclear family, without association to a women’s solidarity group. By virtue of the diffusion of female systems of subordination into central urban centers and by virtue of the absence of comparable movements of women’s support groups (which are usually rooted to locale and not easily moved) and the ubiquitous presence of the isolated nuclear family, conditions for women may be worsening in both the East and the West. Anthropologist Evans-Pritchard (in Etienne and Leacock 1980, p. 1) may have been correct in asserting that regardless of the differences, “in all societies men are always in the ascendancy, and this is perhaps the more evident the higher the civilization” (my emphasis). The manner in which Evans-Pritchard stated the case was imbued with the contradictions spoken about earlier. If progress is incremental, then the place of women continuously improves, and evidence to the contrary is either minimized, or denied, or dealt with by turning the lens to the image of women in other cultures. Common sense tells us that change is incremental, that things should have improved. As I have argued elsewhere (Nader 1987), explicit comparison between the First and Third Worlds may begin to loosen the hold of an ideology of progress so that we can see more clearly what is actually happening. By focusing on the similar plight of women in both the West and the East, we may recognize sources of bias which are yet obscured. Two examples of this kind of comparison come to mind. In “Subordination and Sexual Control: A Comparative View of the Control of Women,” Gita Sen (1984) examines the impact of sexual control on women’s place in family, community, and labor-market in India and the West. She distinguishes the Indian direct or noncommodity form of sexual control with that of the West, which is more impersonal and commodified sexual control. With diffusion, both forms end up in India. In a second article on women’s role in economic development, Lourdes

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Beneria and Gita Sen (1981, p. 289) indicate that “capital accumulation may weaken traditional forms of patriarchal control over women and introduce new forms.” In Southeast Asia, “patriarchy within the family has been replaced by a capitalist control that takes patriarchal forms; young women’s lives and sexuality are circumscribed by the firm’s labor control policies” (Beneria and Sen 1981, p. 289).22 In addition, increasing male migrations may give women greater autonomy in the area of subsistence farming, but with land shortages a new situation emerges in which women become dependent on male wage earners. Female subordination ideologies and organizations diffuse with Western production technologies, and feminist scholars, as I have indicated, have been alert to the impact of the global economy on women’s lives. Scholars have also realized the importance of technologies that are soft. The idea systems that spread with the export of American goods and production technologies play an important part in the diffusion of ideologies of female subordination, as, for example, with the isolated nuclear family, the concept of the couple, the idea of mother as maid, and the idea that dyadic relations between mothers and their daughters are somehow inherently antagonistic rather than cooperative (Nader 1987, pp. 377–97). The ideal of mother-daughter separation was, according to some authors, well-suited to the social mobility of Americans, whereas attachment was an impediment to mobility (Low 1984, p. 1). Mother-daughter separation was also compatible with the ideal of the couple. Let me indicate how such ideas work in both the East and the West with further examples from ethnographic works. Changing Veils: Women and Modernization in North Yemen (Makhlouf 1979) is a study of women in a traditional, stratified, complex, yet isolated society. It deals with changes in ideologies, sexual segregation, veiling practices, and women’s power since the 1962 revolution in North Yemen. Carla Makhlouf analyzes the changes that came with modernization, indicating that the key to women’s changing position is the transfer of solidarity from women to husbands, or more specifically a shift from mother-daughter to husband-wife relationships in which the husband is the most powerful. As these changes penetrate Yemeni society, the Yemeni start celebrating Mother’s Day (not Father’s Day), an indication that the role of mother has declined. Mother’s Day dramatized a role that is of lesser importance as women become increasingly dependent on their husbands rather than on their children for future welfare and present status.23 Yemeni women are westernizing their lives, and because of such change they will be able to exercise greater power over their personal lives, in the area of choice of marriage partner, for example. However, as Makhlouf’s study indicates, women are exchanging solidarity with their

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natal family and with others of their sex for individuation and increased dependence upon their husbands. Women are now torn between a new ideal of attachment to husband and a traditional pattern of attachment to mother and other female kin. The ideal of mother-daughter separation and the introduction of the concept of the couple is not particularly wellsuited to the social mobility of Yemeni men, unlike the earlier argument for American parent-child separation patterns (Low 1984). Yemeni men who migrate to work, leaving their wives and children behind, will increase isolated nuclear families with father absent. It has been interesting to recognize how the pressure toward coupling and mother-daughter separation works in the West. At the time of the birth of my first child, I was teaching at the University of California, Berkeley, where there was no maternity leave. The child was born three weeks before the beginning of the academic year, and my mother came to help. Her stay was accompanied by four greetings during the four successive first weeks: “Mrs. Nader, isn’t it nice that you are here”; “Mrs. Nader, are you still here?”; “Mrs. Nader, who is taking care of Mr. Nader?”; and “When are you leaving, Mrs. Nader?” My parents’ reactions were simple and indicative of Eastern structure—“Laura is Mr. Nader’s daughter too; and I will stay as long as Laura needs me.” And my father’s response, “Are they foolish to think that I can’t take care of myself when Laura has just had a baby and is teaching full-time?” For those who think in terms of the couple and mother-daughter separation, it was natural that husbands should attend their wife’s birthing, while the mother could not. Actually, there is another time prior to the event of a birth when parent-children separation is insisted upon in the United States—when the child goes to college. At colleges across the country, parents invited to campus are told that they must let go of their children if the children are to grow up and develop into mature adults (Coburn and Tree 1988). Parents are told early on to let go; the colleges believe that en loco parentis is an outdated concept. The anthropological literature is replete with examples of the difficulty and high cost that breaking with kin has for family relations.24 When there is a separation of mother and daughter, there is a break in the dissemination of women’s culture from one generation to another. At the individual level, the consequences are serious as illustrated by the prize-winning work of Nancy Scheper-Hughes, who while working in northeast Brazil discovered that daughters without their mothers do not know how to nurse their babies, one result of which is undernourishment (1985). At the level of modernization strategies and centralized government, breaking kin relations facilitates the introduction and acceptance of new forms and new ideologies.25

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Thus, in addition to control by means of positional superiority, there is the control that accompanies the development of global economy, the widespread migration of peoples, and the development of the nationstate. As dogmas of female subordination spread, the control over women multiplies. As previously noted, for women, coping with subordination or mobilizing against gender inequalities is often tied to women’s support groups. Women’s support groups are commonly localized and break up with the mobility of women. Beliefs related to gender travel more easily and are more likely to stay intact; female solidarity that is rooted in groups does not transfer so easily. The result, I believe, is increasing subordination of women. The cumulative effect of the multiple systems of female subordination patterns results in a crisis in gender relations which is not the creation of particular men or particular women, but a result of the evolution of a set of ideas about gender relations that do not include the adaptive responses (or the resistance) of women which are linked to enduring structures.

Colonialism, Development, Religion, and Gender Control Although the main cultural arm of European gender control today is economic development, gender control was often key to political control under colonialism. Political scientist Peter Knauss (1987) describes the persistence of patriarchy in Algeria. Under the influence of French colonialism, the French were driven to “civilize” the Algerians by “cleansing” them of Arab patriarchy. As part of the civilizing mission, the French directed themselves to dismantle Islam, its economic infrastructure, and its cultural network. In the process, “everything possible was done to make the Algerian male ashamed of the fate that he metes out to women” (Knauss 1987, p. 27). Arab patriarchy—a hierarchy of authority that is controlled and dominated by males and in which women are subordinated to the role of permanent minors—persisted as part of an Islamic longing, as part of the structure of the revolution, and after the revolution as part of the socialist effort to decolonize or to restore an Arab, Muslim Algeria. Those most threatened by cultural assimilation and changing roles for Algerian women were the new middle peasantry and the new urban petite bourgeoisie. Knauss reports that as conditions worsened for the Algerians, as the system of Islamic education was destroyed or allowed to collapse, as the peasants lost their lands and moved to employment and the money economy, a Muslim consensus slowly developed that reaffirmed Arab patriarchy. The revolution evolved, and ideas of liberating women were subsumed into the new revolutionary patriarchal family.

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Algerian women became dual victims of colonialism and of the revolutionary patriarchal family. Post-revolutionary Algeria places women in a double-bind situation. Over two hundred thousand Algerian women have employment outside of the home, yet they are expected to play the traditional role of custodians of Arab-Islamic values. Their dissatisfaction became manifested in mass demonstrations over the Family Code of 1981, only to be silenced when it was reenacted in 1984 in the wake of the revival of Muslim fundamentalist activity. Neocolonialism of a Western sort penetrates by manipulating the control of women, as Rehnema (1988) titled her article, “Under the Banner of Development.” Under the banner of development, there is a universal model of life that represents the ultimate any society can hope to attain, a replacement for the no-longer-viable forms of social organization, such as is represented by segregated societies where women wear the veil. As I mentioned earlier, developers export technologies that carry gender ideas, as with farm machinery that was to be run by men because of the assumptions that farmers were always male, or with the export of the female technologies such as “the pill,” which carries with it the idea that women are to be responsible for population control (even though the pill might endanger their health), or with Western cosmetics, which are often the first step in a process that is socializing women to a certain conception of beauty that implicitly carries a command for women to complete the rest of the fashion picture (which may include not aging as rapidly as their mothers) and to acquire the behavior that accompanies the form of dress.26 In the East, the Islamic movements function as counter-hegemonic resistance to Western patterns of gender control. By means of religion, opposition to Western forms of gender control are articulated. With such opposition, economic policies that are “open door,” as with Sadat in Egypt, or the “closed door” policies that preceded Sadat under Nasser, are recognized as conditioning the way in which gender relations are being structured. Needless to say, open-door policies invited in gender constructions that competed with Arab constructions, while closed-door policies discouraged multiple systems of female subordination. The reverberations of gender structure will inevitably, as with the examples previously presented (Saddeka Arebi for Libya, and Makhlouf for Yemen), have a bearing on parent-child relations. The battle for the colonization of the mind is inevitable, and each form of domination inevitably brings a response that may be different for the men and women of East and West, but in both places the discourse on gender is restricted. Looked at with some detachment, it becomes clear that part of the competition between East and West is over the control of Eastern women, who play a key role in maintaining a continuous Eastern tradition.

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History is helpful in understanding the dynamics of competition between males of different cultures.27 Knauss’s (1987) technique is to examine Algerian patriarchy and its persistence through four time periods—traditional, modern, and neotraditional, revolutionary, and post-revolutionary socialist Algeria. The dilemmas, the resistance, and the adaptations for women take on different forms and meanings in each period. History provides a window for us to see that part of the contemporary Middle East that is a product of a precolonial period. Historical research that extends back to the period prior to Western colonization provides a test of the theory that the mingling of Eastern and Western cultures has produced two patriarchies for women rather than an amelioration of their condition. Ethnographic work on the past or contemporary ethnography in areas isolated from colonialism allows us to test assumptions regarding the contemporary and colonized Arab world. Historians are exploring life in the premodern Islamic world that is at some variance with the usual stereotypes, as earlier reference to Keddie’s work indicates. Another example comes from the work of Abraham Marcus (1985), who examined the court records for mid-eighteenth-century Aleppo, Syria, (home of a hundred thousand people), and the administrative capital of a large Ottoman province. The Islamic court was the official clearinghouse for disputes dealing with property, and both men and women of all classes and neighborhoods used the courts as plaintiffs. An unexpected finding of his analysis concerns the position of women in relation to home ownership and real estate dealings. For women, real estate was one of the more available avenues for investment, and it appears that the spirit of material accumulation was not incompatible with the emphasis on female segregation. Marcus’s work forces a rethinking of assumptions held by contemporary scholars about phenomena like modernization and industrialization as they affect roles and relationships between people. The relationship between men and women in Aleppo may appear extraordinary only because we harbor certain assumptions about the role of women in Islamic society (Nelson and Olesen 1977). But in eighteenth-century Aleppo, both men and women seem to have been comfortable in matters of real estate, money, endowments, and the like. In this context, it is instructive to see how capital formation and the productivity of women are effected by dual economies in Third World countries more generally (Boulding 1976; Tucker 1986).

Conclusion: The Need to Separate Identities To understand dogmas of female subordination in a dynamic perspective, we must examine gender ideologies in the larger framework of attempts

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of nations and societies to maintain separate identities within the context of increasing interaction. In short, female subordination can be viewed as attempts to maintain moral authority in nations that are increasingly threatened by the dynamics of international power relationships. In this context, gender ideologies emerge not only as a product of internal debate over inequalities between males and females in a particular society, but also out of debates between prevailing ideologies of different societies. Gender arrangements are complex wholes that can be related to macrolevel distinctions between “us and them.” Ruth Benedict (1934) was one of the first anthropologists to suggest that distinctions between “our group” and “outsiders” reinforced in-group moral authority. Benedict’s idea gains new significance today in Said’s (1978) work, in which he suggests that the Muslim world is constructed by Westerners for their own purposes. Missing from Said’s work is a consideration of the way images of gender relationships fit into Western views of the Muslim world or the ways in which the Arab Muslim world constructs visions of the West. These issues become crucial when we approach constructions of “the other” with a desire to understand changing structures of economic and political dependence and interdependence. A major challenge to studies of the cultural construction of gender identity is the failure to take into account changes in gender ideologies. Cultural analysis of gender at times produces static images which are no less deterministic than biological explanations of male/female roles in society. Sanday (1981, p. 15) suggests that “the logic of sex role plans is transmitted from one generation to the next almost intact” unless there is a serious disturbance in the social and economic environment. With expansion of the United States and Western European influence on the rest of the world, however, there are few places in which gender roles have not been altered dramatically by economic and political change, and certainly the Middle East has been a partner in change as a result of contact. In this essay, I suggest that historical and comparative methods are useful in illuminating processes that may otherwise remain invisible, processes that inhibit knowledge as well as action. Strategies of resistance are often not feminist in origin, but are directly related to the shape of the male power structure. When women’s conditions in both the Western and Arab worlds are analyzed as part of a common discussion and when they are examined in juxtaposition to the other and to global economic movements, it becomes clearer the extent to which male forms of domination are associated with patterns of male competition (as between East and West) and the view that, by virtue of their custodial positions, women are key to larger indigenous control systems. In the West, both governments and business corporations have created and consolidated a cultural hegemony and disseminated it to its own pop-

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ulation and to the Arab world by means of media, education, and developmental organizations. In the East, nationalism and then religion have been powerful agents in the construction of gender hegemony as well as in counter-hegemonic efforts. The dynamic of both processes catches women in a spiral. By not discussing both systems as part of an interactive process, the Arab world is discriminated against because of the way we construct their treatment of women. At the same time, a self-satisfied incremental view of progress is perpetuated in the West, which serves to divert attention from the varied mechanisms of gender control in Western Europe and the United States. Images of women in other societies reinforce norms of subordination of women in one’s own society. Also, there may be an overall decline in the power of women with the rise of centralized states and the evolution of multiple systems of female subordination. There is strong support for both the appearance of multiple systems of female subordination in single locales, which serve to exacerbate the condition of women, and the appearance simultaneously of increasingly vocal critiques of conditions of female subordination as expressed by men and women of the other society. Resistance appears in the form of co-occurrence of indigenous critique with a westernized form of feminism. If mechanisms of subordination are to be found in developmental programs and short-term optimism in the West, and religious fundamentalism in the East, then the academic or anthropological means to an approach unencumbered by filters of the Orientalist or Occidentalist sort are to be found in a change in thinking about women, a conception in gender studies that is historical, comparative, and geared toward assumption testing. Cultural theory, and in particular hegemonic theory, provides some help in understanding how particular idea systems operate as control and how they may appear as common sense to a set of group interests. While the principle of “internal contrastive comparison” has been productive in understanding gender arrangements (including the power of women) in societies, more attention should be given to how whole complexes of male/female relationships can be organized around contrastive comparison between societies of the First and Third Worlds so as to illuminate the controls inherent in positional superiority strategies.28

Acknowledgements The author acknowledges with gratitude those who have worked on ideas related to this paper. In the 1970s Andree Sursock and Seteney Shami

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and in the 1980s JoAnn Martin and Saddeka Arebi were of enormous help in searching out and arguing with me about the comparative materials. Saddeka Arebi was my research assistant while preparing this manuscript. The need to explore the idea of Occidentalism first crystallized in a conversation with Professor Ashraf Ghani of Johns Hopkins University. Comments from Drs. Mondher Kilani, Soheir Morsy, and Guita Debert were most helpful, as were the audiences at U.C. Davis, U.C. Berkeley, University of Auckland, Harvard University, Claremont Colleges, and other academic institutions where I have presented these ideas. Lori Powell helped with final preparations. NOTES This chapter was originally published as: Laura Nader, “Orientalism, Occidentalism and the Control of Women,” pp. 323–355 from Cultural Dynamics, II:3 (1989). July 2(3). (Reprinted and transl. “Orientalisme, Occidentalisme et contrôle des femmes.” Nouvelles Questions Feministes–Revue 25(1): 12-24, (2006). Internationale francophone sexism et racism: le cas francais, 25(1): 12-24, 2006. Reprinted in Culture and Dignity (2012) Copyright © 2015, Wiley- Blackwell. All rights reserved.  1. Throughout the text, I use dogma advisedly, to highlight the problem of meaning in such descriptions as “male dominance” or “female subordination.” Many times these are used as an article of faith, assumed but not examined. Among attempts to explicate different types of “male dominance,” see Peggy Sanday’s Female Power and Male Dominance: On the Origins of Sexual Inequality (New York: Cambridge University Press, 1981). Foucault (1978, p. 93) points out power “is not an institution, and not a structure: neither is it a certain strength we are endowed with; it is the name that one attributes to a complex strategical relationship in a particular society.”   2. See May Rihani’s Development as if Women Mattered: An Annotated Bibliography with a Third World Focus, Overseas Development Council, Occasional Paper No. 10, (Washington, D.C.: New TransCentury Foundation, 1978), which contains 287 studies that address these various themes. Important also in this regard is C. Nelson and V. Olesen’s 1977 article “Veil of Illusion: A Critique of the Concept of Equality in Western Thought,” Catalyst 10/11: 8–36.   3. There have been many reviews and criticisms of Orientalism. See for example, the reviews of Talal Asad in The English Historical Review 95 (July 1980): 648–49; Charles Butterworth in The American Political Science Review 74 (1980); Bayle Winder in The Middle East Journal (1980): 615–19; or a review essay by James Clifford in History and Theory 19 (May 1980): 204–23.

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  4. The differences between Orientalism and Occidentalism were brought to my attention through a fruitful discussion of texts that were written in Arabic on the West, with my graduate student Saddeka Arebi. I have also developed this point in my seminar in the spring of 1988 on Orientalism and Occidentalism. In this context, it is instructive to refer to Eric Wolf’s Europe and the People without History (Berkeley: University of California Press, 1982). Wolf argues that the categories of East and West encourage us to create false models of reality. However, the indigenous peoples of the East and the West use these two categories as folk categories which describe “the other” (pp. 6–7).   5. See Ghassan Salama’s article “Aseb Al-Istishrag” (The Essence of Orientalism) in Almustagbal El-Arabi (The Arab Future) 23 (January 1981): 4–22 (published in Beirut, Lebanon by the Center for Arab Unity Studies).  6. In fact, one factor that helps various religious groups gain legitimacy for their political activities among populations of many Muslim countries is this tendency to hold their governments responsible (at least partly) for bringing these “ills” home.   7. Perhaps it is closer to the truth to say that it becomes increasingly difficult to assume the same forms of positional superiority. For, in reality, the West has always maintained its assumed superiority, at one time or another through religion, science, technology, political system, etc.   8. While this is generally true, Boserup’s study is thought to be advocating policy prescriptions that are not different from those of development agencies. See, for example, Beneria and Sen 1981.   9. Naddaf’s analysis is based on Rifa’ah Rafi al-tahtawi’s text, Takhlis al-Ibriz fi talkhis Baris, vol. 11 of Al-A’mal al-Kamilah Li-Rifa’ah Rafi Al-tahtawi, ed. M. Amara (Beirut: Al-Mu’assasah al-Arabiyah Lif-Dirasat wal-Nasher, 1973). It is not clear, however, when or where the original text was published. 10. A number of contemporary critics of anthropological writing make this same point. See, for example, James Clifford and George E. Marcus, eds., Writing Culture: The Poetics and the Politics of Ethnography (Berkeley: University of California Press, 1986); Johannes Fabian, Time and the Other: How Anthropology Makes Its Object (New York: Columbia University Press, 1983); and George Marcus and Michael J. Fischer, Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences (Chicago: The University of Chicago Press, 1986). It is also instructive to refer to Gerald Sider’s “When Parrots Learn to Talk, and Why They Can’t: Domination, Deception and SelfDeception in Indian-White Relations” Comparative Studies in Society and History 29 (1): 3–23. In this article, Sider argues that Columbus’s identification of natives with parrots not only implies a total denial of their humanity, but also points to how cultural domination could be built on deception and selfdeception, whereby the European ends up “parroting” their own fantasies of the natives. A fundamental contradiction is created between the “necessity of creating the other as the other—the different and the alien—and incorporating the other within a single social and cultural system of domination” (p. 6).

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11. See B. Stowasser, ed., The Islamic Impulse, p. 4. This, however, is an overstatement by Stowasser regarding the degree of challenge Islam faces. For secularism is a two-edged notion, and the assessment has to be not only in terms of the “challenge” but also in terms of the “response,” to use Toynbee’s twin terms. 12. The male bias in ethnographic reporting is being documented. See for example, Cynthia Nelson (1974), “Public and Private Politics: Women in the Middle Eastern World,” American Ethnologist 1 (3): 551–63, and C. Pastner (1978), “Englishmen in Arabia: Encounters with Middle Eastern Women,” Signs: Journal of Women in Culture and Society 4 (2): 309–23. See also reference to R. S. Rattray, Ashanti (1955, 2nd ed.), p. 84, quoted in Susan Carol Rogers, “Woman’s Place: A Critical Review of Anthropological Theory” Comparative Studies in Society and History 20 (1): 145. When his informants commented that they did not stress the role of women to the anthropologists because “the white man never asked us this; you have dealings with and recognize only men, we supposed the Europeans considered women of no account and we know you do not recognize them as we have always done!” 13. See, e.g., Frantz Fanon, The Wretched of the Earth (New York: Grove Press, 1963), and A Dying Colonialism (New York: Grove Press, 1967). 14. See, e.g., Vern Bullough, The Subordinate Sex (Baltimore: Penguin Books, 1973), especially pages 134–35. Stereotypes, by definition, may carry part truths or no truths. These areas of seeming contrast are based on the assumption that veiling, the cult of virginity, forced marriage, clitoridectomy, and polygyny are characteristically “Islamic.” These institutions predate Islam as Herodotus reported in the fifth century B.C., and cross-cultural research reveals that they are known to different religions and cultures in Latin America, India, sub-Saharan Africa, Sri-Lanka, and Europe. 15. A recent exhibition in the College Library at Harvard University arranged by Alice C. Deyab reports that women in the Arab world have published their own magazines for almost a hundred years and in the present these magazines number over three hundred. In contrast to the owners of Western women’s magazines, who are predominantly male, some 95 percent of those who own, publish, edit, and write Arab women’s magazines are female (Harvard University Library Notes, 24 March 1988). 16. The fact that women constitute the majority of the poor and impoverished is evident enough in American culture. See, e.g., Hilda Scott’s book Working Your Way to the Bottom: The Feminization of Poverty (London: Pandora Press, 1984). In the Third World the same is true. See, e.g., Rosemary Sarri’s report, World Feminization of Poverty (Ann Arbor: University of Michigan’s School of Social Work, 1985), in which she discloses that while women comprise more than half the world’s population, they own less than 1 percent of its property and earn only 10 percent of its income.   Modernization is a “process by which specific clusters of institutions and contents of consciousness are transmitted” (Berger, Berger, and Kellner 1973, p. 119). The literature on women and development in which modernization is

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traveling as a “package” is replete with facts on the feminization of poverty in the Third World (Rihani 1978). Modern technologies created and exported by males has implied a preference for male employees and had led to a developing gap in wage-earning power among males and females (Tinker 1976). The industrialization process revolves around goods that were once produced in the family unit by women (Chaney and Schmink 1976). A study that examined the economic participation of women in twenty-one developing countries showed that gender-linked as well as economic dualism increasingly deprives women of access to resources and hinders their capital formation (Boulding 1976). In some societies, as traditional systems of support are breaking down, women may lose their economic independence under ideological guise, as in the Libyan case (described by Arebi 1984); working outside the home becomes a mechanism by which women are deprived of their own wealth, traditionally formed through inheritance and considered untouchable by the husband. The appropriation of a woman’s wealth has become justified as compensation for the man for his wife’s absence from home. 17. E. Scott, S. Ervin-Tripp, and E. Colson, Report of the Subcommittee on the Status of Academic Women on the Berkeley Campus, University of California, Berkeley, May 1970. 18. See Stanley Diamond, In Search of the Primitive (New Brunswick: Transaction Books, 1974) for a discussion of the notion of progress as inherent in Western civilization. 19. This paper was written for my seminar on Controlling Processes at the Department of Anthropology, University of California, Berkeley, fall 1984. 20. See Arlie Hochschild’s book, The Second Shift (New York: Viking Publications, 1989) for an analysis of the double-shift problem for American women wage workers. 21. See also S. Ervin-Tripp, M.O. O’Connor, and J. Rosenberg, “Language and Power in the Family,” in Language and Power, ed. C. Kramarae, M. Schultz and W.M. O’Barr, pp. 116–35 (New York: Sage Publications, 1984). 22. See also Aihwa Ong’s recent book, Spirits of Resistance and Capitalist Discipline: Factory Women in Malaysia (Albany: SUNY Press, 1987), which describes how the different roles of men and women are made to conform to Japanese and American corporate culture. 23. See Miriam M. Johnson, Strong Mothers, Weak Wives: The Search for Gender Equality (Berkeley: University of California Press, 1988) for a discussion of the dynamics of these two roles in American culture. 24. One may refer here to earlier work on Native American girls brought up in boarding schools. 25. See, e.g., Ashraf Ghani, Order and Conflict: Consolidation of Power through Law: Afghanistan 1880–1901. Unpublished manuscript. 26. See Jane Collier, “From Mary to Modern Woman: The Material Basis of Marianismo and its Transformation in a Spanish Village,” American Ethnologist

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13, no. 1 (February 1986): 100–7. Collier provides an example of how fashion enters in to control even the anthropologist’s observation of what is beautiful. 27. Fanon’s A Dying Colonialism illustrates how the French colonialists planned and based their strategies and tactics in Algeria on this conception of women as a key to culture. 28. For an example of positional superiority, see the front-page article in the San Francisco Chronicle, 27 June 1988, “Women Called Poor, Pregnant and Powerless,” in which a recent study is summarized concluding that in a worldwide study of the status of women using Western categories of wage, numbers of children, and levels of schooling, Western societies are among the top dozen societies, while not surprisingly the women of Muslim societies are found at the bottom of a ladder that looks very much like a nineteenthcentury unilineal model of social evolution.

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Dangler, S. 1976. “The Poor Rural Woman and Western Development Plans: A Perspective.” In Development As If Women Mattered: An Annotated Bibliography with a Third World Focus, ed. M. Rihani (1978). Overseas Development Council, Occasional Paper No. 10, Washington, D.C.: New TransCentury Foundation. El-Guindi, F. 1981. “Veiling Infitah with Muslim Ethic: Egypt’s Contemporary Islamic Movement.” Social Problems 29 (4): 465. Etienne, M., and E. Leacock, eds. 1980. Women and Colonization: Anthropological Perspectives. New York: Praeger. Foucault, M. 1972. The Archaeology of Knowledge. Translated by A.M. Sheridan. 1st American ed. New York: Pantheon Books. ———. 1978. The History of Sexuality. Vol. 1, An Introduction. Translated by Robert Hurley. New York: Vintage Book Edition. Goody, J. 1983. The Development of the Family and Marriage in Europe. London: Cambridge University Press. Gramsci, A. 1971. Selections from the Prison Notebook. Translated and edited by Quinton Hoare and Geoffrey Nowell-Smith. New York: International Publishers. Jensen, W. 1987. Women without Men: Gender and Marginality in an Algerian Town. Leiden: E. J. Brill. Joseph, S. 1982. “The Mobilization of Iraqi Women into the Wage Labor Force.” Studies in Third World Societies 16: 69–96. Keddie, N. 1979. “Problems in the Study of Middle Eastern Women.” The International Journal of Middle Eastern Studies 10 (2): 225–40. Knudsen, D. 1969. “The Declining Status of Women: Popular Myths and the Failure of Functionalist Thought.” Social Forces 48 (2): 183–93. Knauss, P. R. 1987. The Persistence of Patriarchy: Class, Gender and Ideology in Twentieth Century Algeria. New York: Praeger. Low, N. 1984. “Mother Daughter Relationships: The Lasting Ties.” Radcliffe Quarterly (December): 1–4. Mahdi, M. 1977. “Forward.” In Middle Eastern Women Speak, ed. E. W. Femea and B. Q. Bezirgan, p. xi. Austin: Univ. of Texas Press. Makhlouf, C. 1979. Changing Veils: Women and Modernization in North Yemen. Austin: University of Texas Press. Marcus, A. 1985. “Real Property and Society in the Premodern Middle East: A Case Study.” In Property, Social Structure and Law in the Modern Middle East, ed. Ann Elizabeth Mayer, pp. 109–28. State University of New York Press. Marcus, G., and M. Fischer. 1986. Anthropology as Cultural Critique: An Experimental Moment in Human Sciences. Chicago: University of Chicago Press. Massell, G. 1968. “Law as an Instrument of Revolutionary Change in a Traditional Milieu: The Case of Soviet Central Asia.” Law and Society Review 2 (2): 179–228. Mead, M. 1926. Sex and Temperament in Three Primitive Societies. New York: W. Morrow and Company.

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Naddaf, S. 1986. “Mirrored Images: Rifa’ah al Tahtawi and the West: Introduction and Translation.” Alif, Journal of Comparative Poetics 6 (spring): 73, 83. Nader, L. 1987. “The Subordination of Women in Comparative Perspective.” Urban Anthropology 15 (3–4). Nash, J., and K. Fernandez. 1983. Women, Men and the International Division of Labor. Albany: State University of New York. Nelson, C., and V. Olesen. 1977. “Veil of Illusion: A Critique of the Concept of Equality in Western Thought.” Catalyst 10 (11): 8–36. Ortner, S. 1974. “Is Female to Male as Nature is to Culture?” In Woman, Culture and Society, ed. M. Z. Rosaldo and L. Lamphere. Stanford: Stanford University Press. Rahnema, M. 1988. “Under the Banner of Development.” In The Tragedy of Development: Tradition and Modernity Re-examined. A Reader. Peace and Conflict Studies 119.5. University of California, Berkeley, spring 1988. Rassam, A. 1983. “Political Ideology and Social Legislation: Women and Modernization in Iraq,” Graduate Center in Queens College, CUNY, New York. ———. n.d. “Toward a Theoretical Framework for the Study of Women in the Arab World.” Manuscript. Reiter, R. R. 1975. “Introduction.” In Toward an Anthropology of Women, ed. R. Reiter. New York: Monthly Review Press. Rihani, M. 1978. Development As If Women Mattered: An Annotated Bibliography with a Third World Focus. Overseas Development Council, Occasional Paper No. 10. Washington, D.C.: New TransCentury Foundation. Rogers, B. 1980. The Domestication of Women: Discrimination in Developing Societies. London: Tavistock Publications. Rugh, A. 1984. The Family in Contemporary Egypt. Syracuse, NY: Syracuse University Press. Said, E. 1978. Orientalism. New York: Vintage Books. Sanday, P. 1981. Female Power and Male Dominance: On the Origins of Sexual Inequality. London: Cambridge University Press. Scheper-Hughes, N. 1985. “Culture, Scarcity and Maternal Thinking: Maternal Detachment and Infant Survival in a Brazilian Shantytown,” The 1985 Stirling Award Essay, Ethos 13 (4): 291–317. Sen, G. 1984. “Subordination and Sexual Control: A Comparative View of the Control of Women.” Review of Radical Political Economics 16 (1): 133–42. Smart, B. 1986. “The Politics of Truth and the Problem of Hegemony.” In Foucault: A Critical Reader, ed. David Couzenshoy, 157–74. New York: Basil Blackwell. Stowasser, B. F., ed. 1987. The Islamic Impulse. London: Croom Helm. Tinker, I. 1976. “The Adverse Impact of Development on Women.” In Women and World Development, ed. I. Tinker and M. Bo Bramsen, pp. 22–34. Washington, D.C.: Overseas Development Council. Tucker, J. 1986. Women in Nineteenth Century Egypt. Cairo: American University of Cairo Press.

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E c ha p te r 9

From Legal Process to Mind Processing

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rading justice for harmony is one of the unrecognized fallouts of the 1960s (Nader 1992). So is trading law process for mind processing. In an effort to quell the rights movements (civil rights, women’s rights, consumer rights, environmental rights) and to cool out the Vietnam War protestors, harmony became a virtue extolled over complaining or disputing or conflict. Concern was not with the justice issues raised by rights movements but with the need to get the “garbage cases” out of the courts. Since the early 1970s, law schools have shifted from only training in the adversarial method to training in the alternative dispute resolution (ADR) mechanisms of mediation, or “med-arb,” a combination of mediation and arbitration. The concern with harmony was accomplished by silencing disputes; Americans were said to be too litigious (Nader 1989). The process of harmony was to be achieved by the movement against the contentious, the movement to control the disenfranchised. The loss of concern with rights created a model of law intolerant of power or conflict, its causes and its expression. An intolerance of strife seeks to rid the society of those who complain, and by various means, sometimes coercive, attempts to create consensus, homogeneity, and agreement. Then, as if oblivious to the consequences of such legal reform, as with the riots after the Rodney King verdict, such planners of peace wonder where the violence came from and why? The ADR movement was architected during the decade of the 1970s under the inspiration of Chief Justice Warren Burger. His reforms were procedural. To be more civilized, said the chief justice, Americans had to abandon the centrality of the adversary model. The harmony law model would replace “no win” solutions of the adversary process. Alternative dispute resolution would provide access, help resolve overcrowded court-

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rooms, and decrease American litigiousness. There were plentiful assertions but not much data. Relationships, not root causes, and interpersonal conflict-resolution skills, not power inequities or injustice, were and are the crux of the ADR movement. In such a model, plaintiffs end up being patients needing treatment (Nader 1989). In the tradition of global theorists such as Wallerstein (1974) and Wolf (1982), legal historians and anthropologists turned their attention to the influence of world economics, politics, and religions on the transformations of legal systems. Legal historian Martin Chanock (1987) used the term “missionary justice” to call attention to the spread of compromise models of dispute settlement in Africa. Nader (1990) used the term “harmony ideology” to refer to the use of compromise, consensus, and like mechanisms to control and stifle conflict. Greenhouse (1986) described the context that nourishes the notion that lawyers should become “healers of human conflict.” Baumgartner (1988, p. 127) used the term “moral minimalism” to describe a daily life “filled with efforts to deny, minimize, contain, and avoid conflict … [and concluded that] the pervasive moral minimalism found in the suburbs contrasts sharply with claims that American society is particularly violent or litigious.” Harmony ideology is an effective scheme of pacification. The American adversary and harmony models of law reflect different values and consciousness. The first generates an activism based on the notion of injustice and on an understanding of power differential and recognition that organizing pressure on the political and economic forces that generate their disputes is primary. Issues of class, race, and gender are salient. The harmony model comes together around values of consensus settlement and the management of social disorder through “healers of human conflict” that minimize power differentials (class, race, and gender) and articulates the notion that disputes are generated in relationships by the failure of individuals to act as they should. Cultural values underlying disputing processes are profoundly political (Yngvesson 1988). Conflict managers, as they are now called, are concerned with anger and, as one ad for a volume on negotiation said, “to rid ourselves of the turbulent environment.” San Francisco Community Boards (Rothhschild 1986) provides a perfect example of how disputes became shaped as communication problems. Conflict is seen as dysfunctional and threatening to the social order, whereas harmony ideology is seen as functional and with little consequence for democratic process. The dispute resolution movement is still expanding. The whole movement has taken on a professional style that is increasingly coercive, one that increasingly values means over ends, harmony over justice, and efficiency over due process. It means new jobs for people and new domains

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of control. When means have become ends and “justice” mechanisms are unregulated and uncontrolled, moral decay sets in. The assumption that change is to be achieved preeminently through individual reformation is so deeply embedded in this culture that there is a cultural blindness to the importance of social and cultural structures that produce problems in the first place. Where are the prevention measures? Where are the neighborhood justice centers that deal with absentee landlords, toxic waste, or rampant consumer problems—all problems high on citizen action lists. Justice is more than a technique for dispute resolution. Disputes are more than a lack of communication, and incivilities in the litigation process refer to style rather than justice. With this as preface, let’s get down to questions bearing on family and conciliation. In the early 1960s, Lon Fuller, then professor of jurisprudence at Harvard Law School, wrote a manuscript, which was broadly circulated, titled “The Forms and Limits of Adjudication.” Upon rereading it recently, I was struck by the careful social thought and insight that was neither blatantly ideological nor defensive. Fuller (1961–62, p. 1) discussed adjudication in the broadest sense: “As the term is used here it includes a father attempting to assume the role of judge in a dispute between his children over possession of a toy. At the other extreme it embraces the most formal and even awesome exercises for adjudicative power.” The questions he asks are answerable empirically: “What, if any, are its proper uses? What are its peculiar limits and dangers? … What are the permissible variations in the forms of adjudication? When has its nature been so altered that we are compelled to speak of an ‘abuse’ or a ‘perversion’?” (p. 1). It is in the field of administrative law that the issues dealt with in Fuller’s paper become most acute. The goal is to see whether “they fall within the proper limits for adjudication.” Fuller understood that adjudication is a form of social ordering, a form of regulation between parties in controversy, organized by common aims and by reciprocity—the basic components of a society. His language was not psychological but societal (and also androcentric); no mention was made of cultural diversity. His main thrust in examining different forms was to argue that different problems require different solutions, and he walked us through his thinking processes. For Fuller, there is nothing inherently humane about one form or another—it depends on what is before the “tribunal”; it also depends on the consequences that follow. Trina Grillo (1991) made the same point about mediation but from a completely different vantage point. Grillo is powerfully aware of the consequences of mediation and, in particular circumstances, the dangers. She is not speaking about philosophy. She speaks of experience. The promise of the form—in this case, mediation—is measured against real

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cases rather than the abstract rules and hypothetical cases of Fuller’s scholarship. Society is barely an issue. What is central for Grillo is the law in relation to the promises of mediation—centrality accorded to context, to emotion as well as rationality, to participation of the parties in determining their futures. The work is a brilliant critique of mediation in action, not in the books. It is about how mediation operates as control—control in defining “the problem,” control of speech and expression—an antithesis to the promise of mediation, confidential rather than open. She concludes that it is hardly the panacea alternative to an adversarial system. She is concerned with “the actors” (she calls them clients), not society, with the fostering of androcentric values, not with the securing of a patriarchal system, and with context, not principles. She is concerned with cultural control, whereas Fuller was concerned with social control or social regulation. Her findings are replicated in a number of ethnographic studies in California (Claeson 1987; Dart 1987; Rothschild 1986). Grillo’s cultural analysis is pointed in her assessment of formal equality as a destroyer of social context, in her discussion of destroyers of rights assertion by limiting the discussion of fault and the past, in her framing of the problems as equal control with unequal responsibility. Important also are her keen observations on the suppression of anger, especially the prohibition of female anger and the notion of separateness that accompanies expression of anger characteristic of a coupled society. In addition, she states that choice of process is sabotaged by forced engagement, mandatory mediation, a dangerous environment where patriarchy and prejudice can flourish. Grillo is analyzing a system of control—what I have called Harmony Ideology (Nader 1990). I think it a brilliant essay because it is difficult to grasp such control and to understand it. One has to be both subjective (immersed in it) and objective (standing outside and looking in at assumptions and levels of action, abstract or real). In other words, one has to think anthropologically as well as legally, to participate and observe. Grillo’s is a profound argument against mandatory mediation and a case for truth in advertising. When the masses are perceived of as “patients” in need of help, public policy is invented for the good of the “patient” (as in Claeson 1987). Policy is often articulated in simple ways; sometimes, it sounds ideological if the complexities are not thought through. In the ADR field, ideological expression runs rampant. I have explained why elsewhere (Nader 1989). Essentially, the manner in which ADR exploded onto the stage and the rhetoric by which Chief Justice Burger promoted ADR lent itself to formulaic expression. The rhetoric was seductive and was meant to be so. Who could be against efficiency? Who could be against harmony or civilized behavior or “healing”? The appeal was to a broad audience.

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Josh Rosenberg’s (1991) “In Defense of Mediation” falls into the same formula, which is the style commonly found in political speeches. Following the preemptory style of assertive rhetoric (Bailey 1984), the opening line reads: “Mediation has been hailed by the bar, by numerous participants, practitioners and by scholars as a tremendous breakthrough in dispute resolution” (Rosenberg 1991, p. 2). There is also reasonableness mingled with unsubstantiated statements about the general nature of the problem—statements that are ideological rather than factual because they are sweeping and unsupported by evidence. Indeed, who is it who agrees “that litigation of divorce cases is bad for the parents, worse for the children and brings about results that are often both unfair to and ignored by the parties?” As compared to what? Some people like to litigate, and some people think it healthy to do so. Rosenberg restricts possible disagreement with his viewpoint by equating Grillo’s critique of mandatory mediation as being equivalent to “using a series of stories about physician rape of patients to paint a picture of the practice of medicine in this country.” In fact, one could examine (some already have) psychotherapy from such a viewpoint. He continues with the use of metaphoric imagery: “Mediation as monster” and “Grillo’s horror stories” are his. It is a rhetorical trick to dismiss a serious discussion of consequences by saying “there is much in life that has the potential to do great damage” (Rosenberg 1991, p. 5). Anyone who has read the literature on influence understands that people in life crises are vulnerable to coercive influence—e.g., witness data in the literature on young people in cults (Singer 1990). Mind-control activities operate best in isolation. Mediation is confidential and private, not public. Cases are not usually recorded and, as far as I know, there is little regulation and next to no accountability, something like the situation in psychotherapy, for example. Case-by-case treatment has potential for influence and for maintaining the status quo. Band-Aids are useful but not when they are proposed in lieu of remedying institutionalized sexism or institutionalized poverty for women and children that may result from treating everyone as if they are equal. Prevention and aggregate solutions for repeat legal grievances are well known and unused, perhaps because aggregate solutions such as social family support solutions require structural changes. In sum, it is not mediation that needs defense—it is political and economic freedom. Mandatory mediation abridges that freedom because it is often outside the law, eliminates choice of procedure, removes equal protection before an adversary law, and is generally hidden from view.

NOTE The chapter was originally published as: Laura Nader, “From Legal Process to

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Mind Processing,” pp. 468–473 from Family and Conciliation Courts Review, October 30: 4 (1992). Copyright © 2015, Wiley- Blackwell All rights reserved.

REFERENCES Bailey, F. 1984. “Dimensions of Rhetoric in Conditions of Uncertainty.” In Politically Speaking, ed. R. Paine. Philadelphia: Institute for the Study of Human Issues. Baumgartner, M. P. 1988. The Moral Order of a Suburb. New York: Oxford University Press. Chanock, M. 1987. Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia. Cambridge: Cambridge University Press. Claeson, B. 1987. “The Privatization of Justice: An Ethnography of Control.” B.A. honors thesis, Department of Anthropology, University of California, Berkeley. Dart, S. 1987. “Closing the Door on the Public: Controlling Processes in Arbitration.” Unpublished B.A. honors thesis, Department of Anthropology, University of California, Berkeley. Fuller, L. 1961–62. The Forms and Limits of Adjudication. Unpublished manuscript, Harvard University. Greenhouse, C. 1986. Praying for Justice: Faith, Order and Community in an American Town. Ithaca, NY: Cornell University Press. Grillo, T. 1991. The Mediation Alternative: Process Dangers for Women. Yale Law Journal 100 (6): 1545–1610. Nader, L. 1989. “The ADR Explosion: The Implications of Rhetoric in Legal Reform.” Windsor Yearbook of Access to Justice 8: 269–91. ———. 1990. Harmony Ideology: Justice and Control in a Mountain Zapotec Village. Stanford: Stanford University Press. ———. (1992). “Trading Justice for Harmony.” “Trading Justice for Harmony.” Forum (National Institute for Dispute Resolution) winter: 10–12. Rothschild, J. 1986. “Mediation as Social Control.” Unpublished doctoral dissertation, Department of Sociology, University of California, Berkeley. Rosenberg, J. 1991. “In Defense of Mediation.” Arizona Law Review 33: 467–502. Singer, M. T. 1990. “Cults.” In Comprehensive Adolescent Health Care, ed. S. B. Freedman, M. Fisher, and S. K. Schonberg. St. Louis: Quality Medial Publishing. Wallerstein, 1. 1974. The Modern World-System: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century. New York: Academic Press. Wolf, E. 1982. Europe and the People without History. Berkeley: University of California Press. Yngvesson, B. 1988. Disputing Alternatives: Settlement as Science and as Politics. Law and Social Inquiry 13 (1): 113–132.

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E c ha p te r 1 0

Civilization and Its Negotiations

Introduction Writings on the anthropology of law often rest on notions of social evolution. These works often place dispute-resolution forums on a scale, so that self-help and negotiation are commonly placed at the starting-point on an evolutionary continuum toward civilization. Then, with development, societies are shown to move along from these bilateral means, to mediation, arbitration, and adjudication (see Hobhouse, Wheeler, and Ginsburg 1930). These same works consider the presence of courts as a sign of societal complexity, or evolution, or development, or all of these, while the simplest societies lack mediation (see Hoebel 1954). In the 1960s, social scientists even referred to a “standard sequential order” of legal evolution—each stage constituting a necessary condition for the next (Schwartz and Miller 1964). And in the 1980s, some historians argued that colonial powers considered the development of courts in Africa with third-party mechanisms to be part of their civilizing mission (Chanock 1985). During the same colonial period, the International Court of Justice was promoted by its proponents as the apex of forums for settlement of international disputes by means of adjudication and arbitration, a position ideologically consistent with the works of revolutionary social theorists. However, since the postcolonial 1960s period, there has been a gradual ideological shift away from courts for dispute-handling, accompanied by a preference for “softer,” nonadversarial means, such as mediation or negotiation, which by the 1980s and 1990s have come to be considered more civilized processes by those developing the rhetoric of disputing (see Nader 1989). In this paper, I argue that preferences for ranking dispute-resolution forums change with the “civilizing mission” of major power-holders. Indeed, from a preliminary sampling of international negotiation in water disputes, it appears as if the ranking preference

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for dispute-handling forums changes to mirror the distribution of international power. The interests of power-holders (in this paper dominant nation-states) are furthered by an entrepreneurial spirit among interested professionals such as negotiators. A number of writers, including myself, have documented the ideological shift (Nader 1989) from adversarial forums (courts) to alternative forums (arbitration, mediation, negotiation) within the United States. In this preliminary paper I move the discussion to the international arena, where the scene is striking in its similarity to that of the U.S. alternative dispute resolution (ADR) movement of the 1970s and 1980s—a move which requires an understanding of the elastic nature of definitions of “civilized” behavior. In a chapter on “The Standard of ‘Civilization’ and International Law,” Gerrit W. Gong (1984) summarizes the discourse on international law in the first few decades of the twentieth century. He makes an interesting point at the start: In the minds of the nineteenth-century international lawyers, “civilization” became a scale by which the countries of the world were categorized into “civilized,” barbarous, and savage spheres (p. 55). The legal rights and duties of the states in each sphere were based on the legal capacity their degree of “civilization” supposedly entitled them to possess—the nineteenth-century publicists, and the international legal texts they penned, declared that “civilized” states alone were qualified to be recognized with full international legal status and personality, full membership in the Family of Nations, and full protection in international law. Significantly, the authority to determine the jural capacity of the states in the barbarous and savage spheres also belonged of right to the “civilized” states. Gong makes a key observation about midway when he notes that, “like Sisyphus, the less ‘civilized’ were doomed to work toward an equality which an elastic standard of ‘civilization’ put forever beyond their reach. Even to attain ‘civilized’ status, as Japan was to discover, was not necessarily to become equal. The ‘civilized’ had a way of becoming more civilized still” (p. 63). Gong believes the “new” standards of civilization are related to new human rights standards (pp. 91–93) and standards of modernity and scientific progress (pp. 92–93). In an earlier paper (Nader 1989), I argued a further point: that, in the latter part of the twentieth century, a new standard of “harmony” now ranks adversarial behavior as somehow less “civilized” than negotiating behaviors. Just as ADR in the United States moved the rhetoric from justice to harmony, so too at the international level the notion of “mature” negotiation has been replacing the World Court as the “standard of civilized behavior.” In his book Disputes and Negotiations: A Cross-Cultural Perspective, Philip Gulliver (1979) elaborates the distinction between negotiation and adjudication, the key criteria being the presence in adjudication or the

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absence in negotiation of a third-party decision-maker. He sees negotiation as “one kind of problem solving” (p. xiii), the purpose of which is to discover mutually acceptable outcomes in disputing through means of persuasion or inducement. His attempt was meant to show that “patterns of interactive behavior in negotiations are essentially similar despite marked differences in interests, ideas, values, rules, and assumptions among negotiators of different societies” (p. xv). By his own admission, Gulliver focuses his attention on the process of negotiations, although recognizing that a dispute and its negotiation occur in broad cultural contexts and social situations. He also notes that “a fuller understanding of negotiations will be achieved when they are considered in their full sociocultural context” (p. 270). It is toward such a fuller understanding of negotiation that this paper is directed. Gulliver is mainly dealing with intrasocietal, rather than international, data, whether he examines dispute negotiation among the Arusha of Tanzania or labor-management relations in the United States. His identification of negotiation is sharpened by comparing joint decision-making (negotiation) with adjudication or unilateral decision-making. His stance is more or less detached while focusing on nonjudicial means of resolving disputes, seeking the common patterns that characterize interactive behavior in negotiations. Gulliver does not appear to valorize or rank one mode of problem-solving over another, nor does he see mediation or negotiation as nonconfrontational processes. Such a stance is by no means universal, as others do attach preference to specific forums, often conflating process and outcome. Thus, in the international context, two distinct standards of how “civilized” nations settle disputes have been advanced by Europeans and Euro-Americans. Before the 1960s, the dominant rhetoric held that it was more civilized to adjudicate disputes using third-party judges from the World Court. Gerrit Gong (1984) and others describe this attitude, which is embedded in anthropological, sociological, and jurisprudential theories of evolution. The more recent rhetoric (post-1960s) views negotiation between two parties as more “civilized” or at least more “mature” or more harmonious. As a more “humane” standard, negotiation stands in contrast to the rule-of-law standard mentioned above. The valorization of negotiating that has been part of the dispute-resolution rhetoric since the early 1970s represents a shift in what (in terms of law) it means to be civilized. Why did this shift? What are the implications of this change? When representatives of a more powerful party claim that weaker adversaries prefer less developed, civilized, or humane methods for settling disputes, it behooves us to probe further. Gerrit Gong provides us with an observation on the elasticity of the standard of civilization

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which allows the “civilized” to stay a step ahead of the less “civilized.” Edward Said (1978, p. 7), in the context of the “East” and the “West,” noted that “this flexible positional superiority, which puts the Westerner in a whole series of possible relationships with the Orient without ever losing him the relative upper hand.” What both Gong and Said acknowledge is that the valorization of one cultural form over another is all too frequently linked to imbalances in power or, in other words, now that the “primitives” have courts, we move to international negotiations, or ADR. In the present context, it appears that a new standard of international negotiations is being promoted as the older standard of adjudication/ arbitration in the World Court has become less useful to the more powerful nations of the world. The older standard lost its utility since the emergence in the 1960s of new nations, many of them “Third World” nations ready to use the International Court of Justice to represent new interests. It is even more interesting that the pendulum swing from adjudication and the rule of law to a valorizing of negotiation and harmony coincided with the development of ADR in the United States and its export abroad, often in the guise of expanding democracy through law. What follows are (1) introductory notes on the World Court, illustrating why it no longer appears to be useful to stronger nations; (2) a description of the professional culture of international negotiators, whose activity illustrates how the negotiating standard has been promoted; and (3) key points of a series of international water disputes to show how the alleged positional superiority of harmony practice plays itself out for the benefit of the stronger disputant. The concluding remarks (4) suggest that valorizing negotiation and harmony above the rule of law is part of the radiation of ADR. It functions to hold the line on power redistribution, and is reminiscent of other neocolonialist attempts to maintain and increase hegemony by means of civilizing (or development) missions.

From the World Court to International Negotiating Teams The International Court of Justice, also known as the World Court, is the supreme court for international law. The court is situated at The Hague, having inherited the precedents of the Permanent Court of International Justice, which was a part of the League of Nations. At present, the court operates under statute as part of the United Nations Charter organized after the Second World War. The court consists of fifteen independent judges elected by the Security Council and the General Assembly of the United Nations. Although a series of U.S. presidents supported U.S. membership in both courts, others (including members of the U.S. Congress

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voiced concern that national sovereignty would be threatened. The United States joined in 1946. Since that time, there have been important changes in the court’s composition and in the types of cases it considers. For example, in 1946, two-thirds of the judges were either Americans or West Europeans. With the addition of over one hundred states (many of them postcolonial “Third World” states), the World Court now consists of judges who are often sympathetic to the causes of the newer “Third World” nations (Franck 1986, p. 36). According to Thomas Franck (1986, p. 37), the influence of the Third World in the World Court began to take effect after 1964. A number of decisions that ruled in favor of “Third World” and post-colonial states reflected the influence of these “newly recognized ‘forms of civilization’” (Franck 1986, p. 37). For example, in 1966 the court ruled in favor of Liberian and Ethiopian plaintiffs, and against South Africa; in 1974, New Zealand and Australia were favored in a decision against France; and in 1984, Nicaragua filed suit against the U.S., which withdrew from the case when it was apparent that Nicaragua had a legitimate claim (Franck 1986, p. 37). Shortly thereafter, in 1985, the Reagan administration withdrew the United States’ 1946 agreement voluntarily to comply with the compulsory jurisdiction of the World Court, which effectively ended any serious U.S. commitment to its viability. This was perhaps the most visible continuation of a wider United Nations tendency: for a decreasing percentage of member states to submit to compulsory jurisdiction (Franck 1986, p. 49). This phenomenon has been described by one legal scholar as “the Court’s vanishing clientele” (Franck 1986, p. 47). A gradual diminishment of jurisdiction, coupled with an inability meaningfully to enforce its decision, clearly have limited the court’s role in adjudicating international disputes. Furthermore, the Soviet Union in the mid-1960s and the United States in the mid-1980s, both charter members of the World Court, have both withheld dues, thereby abdicating their financial responsibility and evincing a mood of indifference to international law. The instrument that Calvin Coolidge described as “a convenient instrument to which we could go, but to which we could not be brought” (Franck 1986, p. 47) was no longer convenient, possibly because of its role in several major controversies such as the Iran hostage issue, the use of the CIA to attack Nicaragua, the Iran-Iraq conflict, the Afghanistan war, and the Vietnam-Kampuchea war (Yoder 1989, pp. 116–19). In sum, the U.S. commitment to international law and the International Court of Justice has, for the most part, been declining. The Third World presence in the court has made it generally less beholden to “developed” nations since the late 1960s, and as a result there has been a gradual divergence

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between the court’s decisions and the national interests of the developed countries. As the interests of the “developed” world are at stake, fewer countries are willing to recognize the jurisdiction of the World Court. Thus the U.S. shift in 1986 was away from compulsory jurisdiction. Interestingly, this new trivialization of international adjudication came about at the height of the “ADR explosion” in the United States and its attacks on domestic adjudication. In addition, a number of “Third World” countries have also refused to recognize the court’s jurisdiction because they are unwilling to surrender their newly gained national sovereignty. The recent stimulus for international negotiation teams sprang from a different source than did the International Court of Justice, although negotiation is part of the work of the United Nations. During the Reagan years and the decade before Reagan, there was a movement in the United States away from adversarial processes for dispute settlement and toward dispute management by the use of “alternative dispute resolution” (ADR). It was an attempt to stem the “rights movements” of the 1960s—a pacification scheme in part. In the 1970s, the role of Chief Justice of the U.S. Supreme Court Warren Burger was pivotal in highlighting the rhetoric about what is civilized behavior in dispute processing: “Our distant forebears moved slowly from trial by battle and other barbaric means of resolving conflicts and disputes and we must move away from total reliance on the adversary contest for resolving all disputes” (Burger 1984). His remedy was privatization, to move toward taking a large volume of private conflicts out of the courts. An ADR profession was born and institutionalized. The prime focus was on organizational expansion, with implications for profitable new jobs for professionals, and a new source of repression for American citizens (Grillo 1991).

International Negotiators Who were these new professionals, and what was new about them anyway? ADR professionals come from a variety of fields—law, economics, psychology, political science, therapy—very few from anthropology. What was new was not so much that they were practicing mediation, arbitration, or negotiation—after all, such modes of dispute-processing had been around for a long time, and in the U.S. as well. What some had in common was a distaste for a confrontational adversarial process, for courts as a way to handle the problems of the masses (or we might say the uncivilized), for justice by win-lose methods. Indeed, one of the few anthropologists practicing alternative dispute-resolution, William L. Ury (1990), describes “primitives” as having “softer,” “non-adversarial means”: “There

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is little or no evidence that our hunter and gatherer ancestors were as warlike as we have imagined them to be. Indeed, they may have been more peaceful than we who call ourselves ‘civilized.’ Such ‘primitive’ cultures may have lessons to teach us about ‘dispute-resolution.’” In a light piece called “Dispute Resolution Notes from the Kalahari,” Ury (1990, p. 238) concludes with this statement: “Indeed one might argue that the existence of courts and police in a society is an indicator not of compliance with socially-arrived-at dispute settlements but rather of lack of compliance.” Some were against the adversarial mode because it was thought to be uncivilized for the civilized elites. So, for example, people in this category would prefer to handle interpersonal, neighborhood, environmental, consumer, and women’s cases by ADR means, often arguing it was more dignified, respectful, and fairer. Others would prefer to handle intercorporate cases by ADR means because adversarial processes were less gentlemanly and more costly than ADR. At the time, I thought I was witnessing a forum fetish—the nonrational preference of one forum over another for purposes of dispute-processing. Gradually, I began to interpret such preference as part of a moving escalator in the civilizing mission, activity commonly associated with assertions of superiority. What had been thought to characterize a primitive level of development—negotiation—was now civilized, and what had been thought to be civilized—litigation—was not. Probably the most well-known international negotiator of recent U.S. history is former President Jimmy Carter. Carter published an address on negotiation in a book titled Negotiation: The Alternative to Hostility (1984) in which he states his position. Basically he agrees with and echoes Chief Justice Burger’s publicly proclaimed position: litigation is an “unnatural process”; negotiation is the absence of litigation or war. In summarizing the number and diversity of negotiations that he was personally involved in, he observes that negotiations have become increasingly more prevalent as a means of conflict-resolution than in previous decades. He refers to the most well-known issues: the Panama Canal Treaty, Salt II, majority rule in South Africa, securing the release of hostages in Iran, peace in the Middle East, relations with China. Carter is practiced in his advice and clearly indicates a flexible framework. He concludes in a manner that recognizes power differentials: “Although military, economic and political strength certainly favors the more powerful side, the matter of simple justice is a counterbalancing factor. Once the talks begin, there is at least some presumption that a final agreement will be fair to all affected people.” Jimmy Carter was speaking from practice, experience, and an inclination toward peace that may have been based more on his religious beliefs than on his notions of justice in a civil society.

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Negotiation studies in the academic world start from a different position. The economists who developed process models proceeded with an assumption of “rational” actor-negotiators who were engaging in maximizing their outcome in negotiation. Another approach sought a model that would take into consideration the so-called unconscious factors, factors related to situation and individual differences, some of which were based on culture. The latter group is said to be based in social psychology (Janosik 1987), but in fact has borrowed, although in a jumbled manner, much from anthropology, and usually without attribution. Indeed, the culture-negotiation literature is quite extraordinary, mainly because it is so confused about what culture is and how important it is to negotiation. For example, one article (Rubin and Sander 1991, p. 249) argues that “attempts to resolve disagreements through negotiation increasingly require sensitivity to the possible contributing role of cultural differences.” In the same article, culture is referred to as culture/nationality, “the set of attitudes and behaviors that are broadly generalizable across a national or cultural grouping, and which tend to persist over time.” Yet the same authors see gender, race, and age as additional factors that come into play in negotiation, and conceptually separate from cultural issues. In another book, The Practical Negotiator (Zartman and Berman 1982), in a chapter on “Structuring Negotiations,” the authors observe, “It is difficult to conclude … that there are dominant cultural influences on negotiations … [since] by now the world has established an international diplomatic culture that soon socializes its members into similar behavior” (p. 227). The same authors ask “How can cultural behavior be used or neutralized?” (p. 227) and then note that “there is a whole cultural area that is real but only peripheral to the understanding of the basic negotiating process, and this relates to language, cultural connotations, social rule and taboos, and other aspects of communication.” While showing that Asians are different negotiators from Germans (elastic versus zerosum), and from English (who are non-zero sum), they conclude that it is “still better to find a formula, it is still necessary to define details, and to those needs it is still important to communicate to the other party in signals that he understands” (p. 229). Here, then, culture is being used as an ideological tool. A more global view is that of Victor Kremenyuk, who describes “The Emerging System of International Negotiations” (1988). Kremenyuk observes (as did Jimmy Carter) that international negotiation attracts the attention of many interested parties at home and abroad; consequently this affects the process of international negotiation. When Kremenyuk (1988, p. 212) speaks of an emerging system of international negotiation, he is recognizing that international negotiation is “in the process of ac-

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quiring new and important functions.” Kremenyuk is not referring to the mere number of international negotiations, but to the growing interaction among international forms that is occurring with increasing frequency. He attributes the growth to a number of reasons: the growing interdependence of nations and of disputable issues among them, the increasing failure of traditional conflict-resolution devices such as the military, and the realization that negotiation may be the only possible institutionalized and codified way to resolve international disputes in the absence of a real alternative (Kremenyuk 1988, p. 213). Nowhere is there mention of the International Court of Justice. Instead, the author focuses on the main function of a system of negotiation, “that it should contribute to the stability and growth (optimization) of the system. … The more efficient the functioning of each international negotiation, the more stable and durable is the whole system of international relations” (Kremenyuk 1988, p. 215). He concludes with the comment that the role of international negotiation is no longer a government-to-government activity, but rather an international function of government, nongovernmental organizations, public figures, etc., the main goal of which is international stability. While international stability may be a good thing, it can also mean injustice and continuing inequities. It seems that the author is seeking to replace the International Court, without explicit mention being made of its replacement, by international negotiation. Stability and efficiency are prominent themes, not justice. In sum, the programmatic social science literature on negotiation is a conglomeration of discipline styles, concepts, and content, the total of which sometimes appears both confused and confusing. However, it is somewhat interesting as an example of interdisciplinary borrowings with an absence of the standards of any particular discipline. For example, negotiation and mediation are sometimes conflated, negotiation is equated with bargaining, power differentials are often ignored, culture is confused with social structure, ethnocentrisms are common, and there is little consideration given to the possibility that the dispute may necessarily lead to zero-sum outcomes (especially where material resources are concerned). The overall implication in much of the literature is that anything can be negotiated, and the concepts of anthropologists such as Gulliver are being used as controlling processes. The literature gets truly interesting when the analyst deals with the detail of empirical instances. It is in these specific cases that all mention of “civilized” conduct drops away and is replaced by phrases like “mutual learning,” “information-sharing,” “harmonizing,” and “cooperation.” Zero-sum settlements become “hostile,” and information, analysis, and solution get in the way of “constructive dialogue.” Under such conditions, mind-games become a central component of the negotiation process, and toxic poisoning is transformed into “a perception of toxic poisoning.”

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In the following section, some of the water-resource disputes surveyed are indicative of the transition of dispute-resolution forums that was suggested earlier, away from adjudication/ arbitration and toward negotiation. The progression is best reported in the case of the Danube river basin, and moves from (1) procedures of international adjudication/ arbitration, to (2) basin-wide planning where river basin commissions deal cooperatively, to (3) bilateral agreements resulting from international bargaining, to (4) nongovernmental organizations operating across political and bureaucratic boundaries and working toward the institutionalization of international cooperation (Linnerooth 1990). The transition found in these Danube cases illustrates the progression from third-party adjudication/arbitration to informal bilateral arrangements, to “institutionalized” cooperation through negotiation. Such a transition mirrors the “privatization” of justice through ADR centers in the United States in a genuinely striking manner (see Nader 1989, pp. 282–85). In the next section, on international river disputes, the progressions noted above become apparent. As we see, many of the authors writing on international negotiation imply that there exists a “universal diplomatic culture” of negotiators, a common culture of national governmental administrators, the international “scientific community,” and environmental groups (Linnerooth 1990, p. 637; see also Zartman and Berman 1982, p. 226). What is claimed to be universal is, I claim, a hegemonic perspective on disputing, one developed in the United States during the seventies and exported worldwide, a hegemony that I refer to as “harmony ideology,” and whose primary function is pacification (Nader 1990).

International River Disputes In a manuscript written in the 1960s and published in 1978, Lon Fuller, then professor of jurisprudence at Harvard Law School, wrote about “The Forms and Limits of Adjudication.” Fuller discussed adjudication in the broadest sense: “As the term is used here it includes a father attempting to assume the role of judge in a dispute between his children over possession of a toy. At the other extreme it embraces the most formal and even awesome exercises for adjudicative power” (Fuller 1978, p. 1). He asks, “What if any, are its proper uses?” Fuller argues that disputes that can be reasoned through logical argument are appropriately adjudicated, thereby becoming an issue of infringed rights or an accusation of guilt (Fuller 1978, pp. 368–69). Only a very few international water disputes have been settled by adjudication. The Lake Lanoux case between France and Spain is the classic example from the late 1950s. When John Laylin and Rinaldo Bianchi

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wrote about “The Role of Adjudication in International River Disputes” (1959), both authors were engaged in resolving two international river disputes by negotiation. At the same time, they believed that adjudication could play a useful role in finding solutions for such disputes. They point out what is peculiar to sharing waters of an international river. First, the geographical position of one riparian often is such that it can adversely affect the rights of others without acting outside its own boundaries. A lower riparian has for instance, certain advantages, not enjoyed on the high seas, over the shipping interests of an upper riparian or non-riparian; similarly an upper riparian has an advantage over, say, the irrigation interests of a lower riparian. Although their paper was written over forty years ago, it addresses the issue being raised in this paper—that without the possibility of third-party decision-makers, the more powerful disputant can use ADR negotiation to greater advantage. There is a most striking parallel to the argument I was making in 1979 in discussing disputes between producers and consumers. “Disputing without the Force of Law” (Nader 1979) biases the decision in the favor of the more powerful. Laylin and Bianchi (1959, p. 49) make the same argument in their concluding section, and set a standard for debate about the choice of forum in what follows: “At a time when the forces of law and order need ever increasing recognition in the international arena, the notion that states willing to submit international river disputes to adjudication are ill-advised has a strange ring indeed. For those who are bent on promoting the rule of law in international relations, the cry of inadequacy of courts in this field betrays a nostalgia for a fast-fading conception of international law in which naked power holds greater sway than recognized principles of justice.” They continue to argue that adjudication can play a constructive role in removing obstacles to agreement, something that has been overlooked by those who strongly oppose reference of river disputes to impartial third-party determination. Those who oppose third-party determination focus on the positive advantages of agreement, as if negotiation is the only desirable means to settlement. Laylin and Bianchi make their case for the usefulness of adjudication in reference to the Lake Lanoux case. Lake Lanoux lies within French territory and is fed by waters rising in France. It empties into a tributary which crosses into Spain. France contemplated utilizing the waters of Lake Lanoux in projects that would affect the flow of water to Spain. From 1917 to 1929 France and Spain were unable to come to agreement over French development plans. In 1929, twelve years after the beginning of the dispute, both countries signed an agreement under which they agreed to submit unresolved disputes either to arbitration or to adjudication by the World Court, an agreement which they have since utilized.

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Laylin and Bianchi’s description of the conflicting rights of upstream versus downstream nations, as well as the more obvious right of a downstream nation to enjoy an adequate supply of water, seems to point to a disagreement that was framed in terms of rights. After being cast in these terms, the dispute was successfully adjudicated by a regional tribunal consisting of judges from several European nations. As Lon Fuller (1978) has noted, adjudicated disputes frequently become either issues of violated rights or accusations of guilt. In the Lake Lanoux case, the dispute was presented as a question of infringed rights, and consequently lent itself to settlement by adjudication. When cases that should be adjudicated are negotiated, as illustrated in Laylin and Bianchi’s (1959, pp. 39–41) vignette about a 1940s dispute between the U.S. and Mexico over the Colorado River, the explicit connections between international law and the World Court, water rights, and the advantages of negotiation become obvious. The authors indicate that many U.S. Senators, in a debate over whether or not to act unilaterally, were emphatic about the desirability of negotiating a rapid settlement: one senator states, “I say that we should be advised thereby and not lose one day in stopping Mexico from building up any future right [to Colorado River water]” (Laylin and Bianchi 1959, p. 40). Here we see that “efficiency” in negotiation can really mean minimizing losses. Interestingly enough, Senator Tom Connally (an active participant in the U.S. Senate debate on the World Court) instructs the stenographer to keep this debate off the record: “Lift your pen, Mr. Reporter” (Laylin and Bianchi 1959, p. 40). Connally must have realized how cynical the process of friendly negotiations might appear in the Congressional Record. The tone of the Danube River Basin case as synthesized by Joanne Linnerooth (1990) is in complete contrast to Laylin and Bianchi’s reasoning. Her article links the issues of negotiation (using the formulaic language common to contemporary writings on negotiation) to international water rights, with special reference to pollution in the Danube. Linnerooth recognizes the power imbalances between upper- and lower-riparian countries, but takes the view that the more powerful upstream nations are at a disadvantage if they agree to negotiate “cooperative [water quality] policies,” while weaker nations are at an advantage. Linnerooth does not acknowledge the possibility that the opposite may be true—namely, bilateral negotiation may put the stronger nation at a bargaining advantage vis-à-vis the weaker nation. Indeed, she argues that “some compensating advantage or incentive for the upper riparian states is a prerequisite for co-operation” (Linnerooth 1990, p. 643). She seems unaware of other cases where no enticements to negotiate were necessary. In these kinds of cases, upstream nations often simply wish to minimize their losses by

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avoiding a trial (or third-party involvement) that would prove them to be in the wrong, as was, for example, the cases of India in 1977 (Begum 1988) and the U.S. in the 1940s Colorado River dispute with Mexico (Laylin and Bianchi 1959). Linnerooth (1990, p. 637), like many other international negotiating “professionals,” implies that there is a universal negotiating culture or what she calls a “common culture” composed of national government administrators, international scientific communities, and emerging environmental groups. The language Linnerooth uses in describing how conflicting, adversarial interests might be negotiated is revealing: “mutual learning” and “information-sharing,” as my research assistant notes, sound more like marriage counseling, not unraveling conflicts over river pollution. Therapy talk is a strong influence in ADR. Her “negotiating culture” gives little consideration to disputes that are in fact zero-sum. Linnerooth does not seem to be looking for the limits of negotiation, because in her view anything can be negotiated, even if “perceptions” must first be molded: “Among groups with different perceptions of the problem … a fundamental shift will be necessary to orient negotiation support away from ‘information, analysis, and solution’ to providing the very mechanisms necessary for a constructive dialogue” (Linnerooth 1990, pp. 658–59). The literature on dispute resolution in fact gives us little reason to believe that the stronger nation is going to exert the patience or consideration to “learn” or “share” without the force of law, the threat of litigation, or the presence of mutually recognized authority. The Danube river basin is an interesting example because it is one of the most international river basins in the world. The Danube is Europe’s second largest river, with eight riparian countries bordering (including Germany, Austria, Czechoslovakia, Hungary, the former Yugoslavia, Romania, Bulgaria, and the former Soviet Union). The Danube also transfers water from the nonriparian countries of Albania, Italy, Switzerland, and Poland. Eight countries spanning Eastern and Western Europe have declared the need to cooperate on confronting the mounting problems of water pollution. The Danube Declaration is nonbinding, a step toward a more cooperative ecosystem approach to the management of the river. The contemporary central issues are the deteriorating quality of the water and demands for exploitation of the river for the generation of electrical energy. The Danube river basin is home to over seventy million people, people of different cultures and economic prosperity who have different standards on water quality. The rich upper riparian countries use the Danube primarily for industrial and waste disposal and energy purposes. The lesser-developed lower riparian countries use the river for drinking water, irrigation, fisheries, and tourism (Linnerooth 1990,

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p. 636). As Linnerooth (1990, p. 636) notes, there is a “mismatch between countries which would benefit from pollution control and those with the resources for providing this control.” Recognizing the power asymmetry between upstream and downstream nations and recognizing also the poorly defined issue of water pollution, Linnerooth nevertheless proposes cooperation through bilateral, stepwise negotiations. She believes that it is “unlikely that mini-governments with the power to legislate and implement river basin policies across national boundaries will emerge. The role of transboundary commissions in defining negotiating agendas, linking issues, and facilitating the negotiating process may, on the other hand, have considerable potential promise” (Linnerooth 1990, p. 648). Yet forums do not just “work” or “emerge” naturally. They work because forces behind them want them to work. Nevertheless, she continues to argue that in the absence of an international river basin authority, mechanisms for collaboration are most likely to be mainly bilateral agreements and international bargaining, which are increasingly influenced by nongovernmental organizations operating across political and bureaucratic lines. “Win-win” bargaining is to be accomplished by those who share a certain professional rationality and thus a common overall frame of the issue,” or what she calls “limitedauthority committees” (Linnerooth 1990, p. 657). Negotiating participants may “translate the border”—its imagery, social expectations, and jurisdictional responsibilities and processes, as well as the differences in resources (Linnerooth 1990, p. 659, n. 108). In short, what Linnerooth proposes is the transition from third-party litigation arbitration and enforcement, through informal bilateral arrangements, to the nongovernmental institutionalization of international cooperation (in other words, the “privatization” of international justice), arguing that expanding the authority of the Danube Commission will not work in the absence of an international river basin authority. Within Spain and Portugal, the allocation of water is a less involved case than the Danube, but nevertheless raises some of the same questions regarding asymmetry of power and upstream-downstream issues. In the Lake Lanoux decision, France was the stronger nation, yet Spain succeeded in the arbitration. In the current situation between Spain and Portugal, Spain is stronger than Portugal and has the advantage of having learned a lesson (as the weaker party) from the Lake Lanoux case: if you are an upstream nation, do not agree to adjudicate a water dispute. According to Joseph Dellapenna (1992), the surface water in the Iberian peninsula may be an opportunity for cooperation or a source of conflict. Basically the situation is this: approximately 70 percent of Portugal’s surface fresh water comes from rivers that arise in Spain, while Spain

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receives virtually none of its surface fresh water from Portugal (Dellapenna 1992, p. 807). Thus, Portugal is at a severe disadvantage vis-à-vis Spain, with limited means of persuading Spain to take its interests into account. “Exacerbating the problem are the increased pollution of water coming from Spain and the Spanish plan to place their only nuclear waste disposal site along the Duero/Douro River just above the Spanish-Portuguese border. The proposed nuclear waste facility at Aldeadávila will be less than one kilometer from Portugal, and any contamination of the river will end up in Portugal. Given that Spain has the worst record of noncompliance with European Community environmental directives of any nation in the Community, Portugal has a right to ask why they must share the risk of disposing of another country’s nuclear wastes. Furthermore, the Portuguese construction of the Algueva Dam on the Guadiana River to provide irrigation, hydroelectric generation, and urban and industrial water-supply is threatened by Spanish activities upstream. The Guadiana River rises in Spain, where the Spanish have developed their own irrigation project. Spanish plans would undoubtedly deplete the waters before they reach the reservoir for the Algueva Dam. Portugal has been unwilling to challenge Spain, although the 1927 convention provides for recourse to the International Court of Justice should the parties fail to agree. However, thus far there has been no implementation of a judicial award. The profile from Dellapenna’s writing emerges as follows: the European Community (of which both Portugal and Spain are members) seems reluctant to get involved and advises bilateral negotiation (Dellapenna 1992, pp. 806, 823). But Portugal’s weak approach in dealing with Spain would not bode well for a fair bilateral settlement, literally because of the freshwater power differential between the two nations (Dellapenna 1992, pp. 806, 812, 822). Although a 1927 convention signed between Portugal and Spain provides for recourse to the World Court, this has not been a considered option. In fact, Dellapenna does not advocate the World Court as a solution because he sees for a fact that Spain is in clear violation of customary international law; rather, he believes that a legal regime should be created to manage the common waterways (Dellapenna 1992, pp. 813–25). It is law rather than negotiation that he recommends. ADR recommendations are almost never rule of law. Two articles that were featured in the fall 1991 issue of Natural Resources Journal both deal with southern California water agencies and the plan to line portions of the All-American Canal with concrete in order to reclaim water that currently leaks from the canal into a transboundary groundwater aquifer. However, the Valle de Mexicali, one of the richest agricultural regions in Mexico, relies on this groundwater to support its crops. The Mexi-

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cans are protesting against the lining project as a violation of the 1944 Colorado River Treaty. Douglas Hayes (1991, p. 816), the first author, implores both the United States and Mexico to negotiate and turn the dispute into a “win-win” solution. Hayes (1991, p. 824) chides Mexican officials for threatening international litigation in the World Court or the International Court of Justice at The Hague. He continues: “Such a development goes against the grain of ordered, controlled, international management of resources” (Hayes 1991, p. 824). His main argument is that the international tribunal “would ‘force’ the litigants to equitably apportion these waters anyway. The United States and Mexico should seek to co-operate … without the coercion of an international tribunal” (Hayes 1991, p. 824). Hayes assumes that “equitable apportionment” would be interpreted in the same way in negotiations as it would in an international tribunal. He concludes that the dispute “provides both countries the opportunity to act rationally, logically, and humanely” (Hayes 1991, p. 827) by negotiating. There is no hint that international tribunals might follow substantive notions of justice embodied in law. Thus the contempt for law here is total. The second author, J. Roman Calleros, a researcher from Mexico’s El Colegio de la Frontera Norte, wants to pursue the problem by advocating the equity issue. He does not take a procedural approach, and he does not advocate litigation. He is simply insistent on Mexico’s right to its share of the water. He estimates monetary damage and notes that calls for solutions “from president to president as is the custom in these recurring controversies along the northern Mexico border” (Calleros 1991, p. 834) are a rather fragile and temporary method of resolution. Calleros believes that an information base is “extremely important for our representatives because it will allow them to negotiate on the basis of objectively verifiable data—a long way from Linnerooth’s suggestion that perceptions of conflict should be altered. In an article to which reference has already been made, Dellapenna (1992) points out that even clearly dominant states hold back in taking all the water needed for fear of retaliation against the state’s own water facilities, and he cites the instance of the Jordan Valley. Even in the midst of various phases of Middle East conflicts and wars over the last fifty years “tacit cooperation has been the almost unbroken rule between Israel and its neighbours, particularly Jordan” (Dellapenna 1992, p. 805). Israel and Jordan are the primary users of the waters of the Jordan, which satisfies half of their combined demands (Neff and Matson 1984). The other riparian states are Lebanon and Syria, whose use of the Jordan waters is minor in comparison to that of the others, satisfying about 5 per cent of their total water demand. Conflict over the Jordan River results from a complex

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hydrological structure shared by four states, and from the hostilities of these four states. The Arab-Israeli conflict has overshadowed efforts to reach agreement on joint utilization of the waters. The Jordan River is a complex system: the Dan River, which originates in pre-1967 Israel, discharges into the upper Jordan; the Hasbani River, which originates in south Lebanon, discharges into the upper Jordan; the Banias River, which originates in the Syrian Golan Heights, discharges into the upper Jordan; the Yarmouk River, which forms the border between Syria and Jordan, discharges into the lower Jordan. In the first half of the 1950s, a number of water allocation plans were devised with the active involvement of a third party, U.S. ambassador Eric Johnston, leading to the Unified Plan. The plan was accepted by the technical committees from both Israel and the Arab League, although neither of the groups was able formally to commit itself to the plan for domestic political reasons. In the absence of “impartial monitoring,” these water allocation plans deteriorated. A series of unilateral actions followed. Both countries began development projects, and Israel completed the National Water Carrier project in the mid-1960s. In 1967 and by means of war, Israel occupied the Golan Heights and the West Bank, which effectively gave them control of the Jordan headwaters and the Yarmouk River. Thus the situation went from mediated negotiations to unilateral action to violent conflict, without any consideration of an adjudicated settlement—this in spite of the success of the Lake Lanoux case during this time period. Neff and Matson (1984, p. 45) discuss “secret negotiations” mediated again by the United States between Jordan and Israel. Apparently a series of such meetings took place in the early 1970s as well. The statistics that Neff and Matson (1984, pp. 45, 47–48) present indicate the gross inequities present in the consumption of water by Israel and by the settlers on the West Bank. As the authors indicate, these inequities border on the infringement of human rights. According to one source, the Palestinian average in some areas of the West Bank has gone down since the beginning of the Intifada to less than 44 liters per capita per day—less than the United Nations reckons is necessary for maintaining minimal health standards (Lowi 1992: 43). Like the Lake Lanoux case, this issue can be presented in terms of violated rights, specifically of human rights. For this reason, the Jordan River dispute would seem to be an appropriate case for adjudication. A final case (see Begum 1988) refers to the long-standing Ganges River dispute between East Bengal/Bangladesh and India, and gives a clear example of the politics of international negotiation and the advantages of bilateral negotiation for the stronger party. The Ganges River flows

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from India into East Bengal, and the Ganges river basin supplies it with much of its fresh water. In the early 1950s, the Indian government began planning the construction of the Farakka Barrage, a dam that would divert water from the Ganges River into the Bhagirathi-Hooghly River via a feeder canal. Pakistani officials wanted to be included in the process of developing the Ganges River, but the Indian government continued its unilateral planning. Finally, in 1957 and 1958, Pakistan proposed forming a joint development committee, and also proposed that the United Nations should be involved in the process. The Indian government flatly rejected all proposals. In 1960 they finally agreed to begin bilateral negotiations with Pakistan, but by 1961 India had already begun construction of the Farakka Barrage, justifying their unilateral action by publicly stating that the waters of the Ganges belonged exclusively to India. East Bengal during this period was marginalized. The Ganges water dispute had long been a concern of the primarily agrarian people of East Bengal (which became Bangladesh in 1971). After a series of failed negotiations, the government of Bangladesh brought the case before the General Assembly of the U.N. in September of 1976. The United Nations seemed very reluctant to get involved in this case. The situation became entirely focused on the increased stability of the Bangladeshi government and on the unilateral action of India to withdraw the Ganges water at Farakka. The Bangladesh Supreme Court Bar Association expressed a deep concern at the unilateral and arbitrary withdrawal of waters of an international river by India. This action was followed by protests from all parts of the country. At the United Nations, Bangladesh’s request to include the Farakka Barrage on the agenda of the General Assembly was opposed by India, who argued that it was a “bilateral issue of [an] “essentially economic” nature” (Begum 1988, p. 169). The U.N. did clarify both positions at an international forum: India could not get moral support for pursuing a policy of unilateral action, while Bangladesh, being one of the poorest countries of the world and heavily dependent on foreign assistance, had little clout to use in the international arena. However, as India had adhered to the principle of “bilateralism,” India had to prove that such negotiations could bring about a solution without third-party mediation (Begum 1988, p. 172). Ultimately, it seems that a change of government in India made a difference. Although a five-year agreement was reached in 1977, a final resolution has not been achieved. Each nation has its own preferred solution to the problem. Bangladesh’s solution would involve Nepal’s participation, while India would like to keep the issues of water strictly between itself and a weaker Bangladesh. As described by Khurshida Begum (1988, pp. 204–14), “peaceful”

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negotiations, strictly bilateral, are a hegemonic tool for India. Over the course of the negotiations, a series of “discrepancies” between the facts reported by India and Bangladesh reveals exactly the purpose for which court trials are used—disagreements of fact. As Laylin and Bianchi (1959) have noted, these could be resolved through a third party or by experts independent of the disputants. Also, the serious effects of water shortage claimed by Bangladesh would seem to put this case on the level of human rights violation rather than merely a political tug-of-war in the process of hammering out these agreements. Once again, we are reminded of Laylin and Bianchi’s arguments for “The Role of Adjudication in International River Disputes” (1959) as a means of balancing power discrepancies, while recognizing that adjudication cannot be simply equated with a better outcome for weaker parties.

Concluding Comments In 1991 the American Journal of International Law published an editorial titled “The Peace Palace Heats Up: The World Court in Business Again?” in which the author, Keith Highet, announces that The Hague is busier than ever. Its docket is jammed. Nobody forecast such activity. The voices against the court have been strident, particularly among those supporting the policies of the United States in Central America in the 1980s. The author lists nine new cases brought before the full court in the previous two years, only about half of which are clearly between unequal powers. Furthermore, even “unpopular” states like Libya and Iran are resorting to World Court adjudication, since this is probably one of the few ways of settling an international dispute without the risks of power play. In the same editorial, the author notes that the United Nations Law of the Sea has a provision for the formation of a specialized tribunal—the so-called Hamburg Court. Such a duplicative tribunal, the author continues, might not be necessary in light of the fact that the World Court will be undertaking a large number of these cases soon and setting precedents for future Law of the Sea cases. However, the Hamburg Court has strong proponents—the five permanent members of the Security Council—who support this “alternative solution to existing litigation before the full tribunal” of the World Court (Highet 1991, pp. 653–54). These powerful states are, according to Highet (1991, p. 653), “as ever uncomfortable with the [World] Court’s activities.” The editorial concludes with the idea that perhaps the developed nations are in support of the Hamburg Court because they would have a stronger hand in it. He believes that the real work of the World Court over

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the next decade “will be the reconciliation of the interests of developing countries with those of the “developed countries … however, in the nine recent cases, the litigants have represented a wide range of middle-level powers, not the greater powers” (Highet 1991, p. 653). Thus the piece is hardly reassuring on the role of the World Court as power-equalizer. In a recent journalistic piece, W. T. Anderson (1993) speaks about “Gov­ erning the World without Governments,” noting that there is a “demand for a new system of governance as national governments, inter-governmental organizations and the United Nations fail.” “Global governance” he calls it. The strong interest in alternative systems suffers from a lack of introspection about the alternative experiments to date, experiments biased toward the powerful. Words like “global civilization” sound grand, but, as I have indicated in this paper, the “civilized”—the network of global intellectuals, businessmen, and activists that Anderson speaks about—have a way of diminishing institutions that may function as power-equalizers. What is so powerful about professional cultures is their built-in protection against participating professionals examining the underlying assumptions of their trade. In the literature on “modern negotiation,” there is little to indicate that “modern negotiators” are critically examining their trajectories or assessing the broader significance of their work. They write more like “true believers,” avoiding controversy even at the cost of self-reflection, which would necessarily involve understanding the historical and sociocultural context in which a newly recivilized negotiation serves as hegemonic power. P. Gulliver could afford to focus on the process of negotiation to the exclusion of broad cultural contexts and social situations as long as the subject matter was intrasocietal and micro in scope. However, in the arena of international power-brokers the purpose of negotiation may not be problem-solving, but control.

Acknowledgments The author wishes to thank Roberto Gonzalez for his help in researching this paper and for his critical thoughts about the central ideas. I also appreciate critical reading by Jenny Beer and Ayfer Bartu, and am grateful to Angelle Khachadoorian for preparing the manuscript.

NOTE This chapter was originally published as: Laura Nader, “Civilizations and Its Negotiations,” pp. 39-63 from Understanding Disputes: The Politics of Argument, Pat

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Kaplan, ed. Oxford, Providence, Berg Press (1995) Hart Publishing. Copyright ©1995. Used by permission of Bloomsbury Publishing Plc.

REFERENCES Anderson, W. T. 1993. “Governing the World without Governments.” Pacific News Service, 21–25 June. Begum, K. 1988. Tension over the Farraka Barrage: A Techno-Political Tangle in South Asia. Stuttgart: Steiner Verlag. Burger, W. 1984. “Annual Message on the Administration of Justice.” Warren E. Burger, Chief Justice of the United States at the Mid-year Meeting, American Bar Association, 12 February. Calleros, J. R. 1991. “The Impact on Mexico of the Lining of the All American Canal.” Natural Resources Journal 31 (4): 829–38. Carter, J. 1984. Negotiation: The Alternative to Hostility. Maron, GA: Mercer Press Chancock, M. 1985. Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia. Cambridge: Cambridge University Press. Dellapenna, J. (1992). “Surface Water in the Iberian Peninsula: An Opportunity for Co-operation or a Source for Conflict?” Tennessee Law Review 59 (4): 803–25. Franck, T. 1986. Judging the World Court. New York: Priority Press Publications. Fuller, L. 1978. “The Forms and Limits of Adjudication.” Harvard Law Review 92 (2): 353–409. Gong, G. 1984. The Standard of “Civilization” in International Society. Oxford: Clarendon Press. Grillo, T. 1991. “The Mediation Alternative: Process Dangers for Women” Yale Law Review 100: 1545–610. Gulliver, P. H. 1979. Disputes and Negotiations: A Cross-Cultural Perspective. New York: Academic Press. Hayes, D. 1991. “The All-American Canal Lining Project: A Catalyst for Rational and Comprehensive Groundwater Management on the United States-Mexico Border.” Natural Resources Journal 31 (4): 803–27. Highet, K. 1991. “The Peace Palace Heats Up: The World Court in Business Again?” American Journal of International Law 85 (4): 646–54. Hobhouse, L. T., G. C. Wheeler, and M. Ginsberg. 1930. The Material Culture and Social Institutions of the Simpler Peoples. London: Chapman and Hall. Hoebel, E. A. 1954. The Law of Primitive Man. Cambridge, MA: Harvard University Press. Janosik, R. 1987. “Rethinking the Culture Negotiation Link.” Negotiation Journal 3 (4): 385–95. Kremenyuk, V. 1988. “The Emerging System of International Negotiations.” Negotiation Journal 4 (3): 211–18.

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Laylin, J. G., and R. L. Bianchi. 1959. “The Role of Adjudication in International River Disputes: The Lake Lanoux Case.” American Journal of International Law 53 (1): 30–49. Linnerooth, J. 1990. “The Danube River Basin: Negotiating Settlements to Transboundary Environmental Issues.” Natural Resources Journal 30 (3): 629–60. Lowi, M. R. 1992. “West Bank Water Resources and the Resolution of Conflict in the Middle East.” Occasional Paper Series of the University of Toronto Project on Environmental Change and Acute Conflict, No. 1, 29–60. Nader, L. 1979. “Disputing without the Force of Law.” Yale Law Journal 88, No. 5 (Special Issue on Dispute Resolution): 998–1021. ———. 1989. “The ADR Explosion: The Implications of Rhetoric in Legal Reform.” Windsor Yearbook of Access to Justice 8: 269–91. ———. 1990. Harmony Ideology: Justice and Control in a Mountain Zapotec Village. Stanford: Stanford University Press. Neff, T., and R. C. Matson. 1984. Water in the Middle East: Conflict or Cooperation? Boulder, CO: Westview Press. Rubin, J., and F. A. E. Sander. 1991. “Culture, Negotiation, and the Eye of the Beholder.” Negotiation Journal 7 (3): 249–54. Said, E. 1978. Orientalism. New York: Pantheon Books. Schwartz, R. D., and J. C. Miller. 1964. “Legal Evolution and Societal Complexity.” American Journal of Sociology 70 (2): 159–69. Ury, W. 1990. “Dispute Resolution Notes from the Kalahari.” Negotiation Journal 6 (3): 229–38. Yoder, A. 1989. The Evolution of the United Nations System. New York: Crane Russak. Zartman, I. W., and M. R. Berman. (1982). The Practical Negotiator. New Haven, CT: Yale University Press.

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E c ha p te r 1 1

Coercive Harmony The Political Economy of Legal Models

Introduction Anthropologists have consistently underestimated the role of legal ideologies in the construction or deconstruction of culture writ large. The example I choose to dissect in this essay is the use of the harmony law model as a technique of pacification. In what follows I will trace my understanding of harmony ideology and its coercive functionings in three locales: first, among the Zapotec and other colonized peoples as an instance of cultural control or pacification at first contact; second, in the United States over a twenty-year period of incremental change from 1975 to the present, the invention and use of Alternative Dispute Resolution (ADR) or conciliatory styles as part of a pacification policy in response to the 1960s rights movements; and finally, to the international arena to which these same ADR techniques have migrated in dealing with international river disputes. Anthropologists have examined conflict in many settings and indeed developed theories of conflict. However, we hardly have any full-blown theories of the meanings of harmony; ethnographies have taken harmony for granted while seeking to explain disharmony. Recently, observers of legal anthropology have raised questions about the degree to which, as scientific observers, we have been caught by the thought systems of our own cultures, not recognizing perhaps that disputing styles are a component of political ideologies, and often the result of imposition or diffusion. By virtue of entrapment in culturally constructed and preferred models, it has been difficult for lay persons and social scientists to examine harmony models in a detached manner. Indeed, as is increasingly illustrated, harmony and controversy are part of ideologies on the same continuum, neither necessarily benign or evil.

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The Zapotec and Colonization Techniques I began fieldwork in the Sierra Madre Mountains of Oaxaca, Mexico, in a village that was still recovering from a clash between a small group of Protestant converts and the majority group of Catholic parishioners. The bitterness was still present when I arrived in 1957, yet upon every occasion I was informed of village unity. The contradiction between real conflict and values of harmony was present from the beginning. A solid front was presented to outsiders, not uncommon for Oaxacan villages embroiled in internal disputes. It remained for me to explain the discrepancy between the data that I collected, which was mainly about people in conflict, and the Mexican Zapotec characterization of their culture as conciliatory and harmonizing. Such ideologies of harmony were especially important to explain since harmony ideology turned out to be widely characteristic of anthropological studies of disputing in different parts of the world. Was it because native peoples are inherently more peaceful that they spoke of harmony and preferred compromise solutions? Or was it that anthropologists, as some critics claimed, had accepted the Durkheimian bias on harmony of interests and shared goals. The Rincon Zapotec mountain villages that I studied have been organized by the Spanish Crown to be politically independent, self-reliant, endogamous places that remain free only to the extent to which they can manage themselves. Villages with conflict are more vulnerable to state interference, so Zapotec courts are places where images of the external world are built, and where village autonomy is declared. Disputing is not just about solving problems; it is about the formation of ideologies. In speaking about their courts, Zapotec people often claim that “a bad agreement is better than a good fight.” At the core, the harmony style and associated ideologies are possibly internal accommodations to conquest and domination. As I began to trace the idea of the concept of harmony and especially the harmony law model, I concluded that the harmony law model might have been introduced by the Crown and its missionaries as a tool of pacification. Then in turn it became for the indigenes a tool for restricting the encroachment of external, superordinate power. In such a light, the Zapotec example would appear as counter-hegemonic, their technique a means of controlling the power of the state (Nader 1990). When theorists speak about hegemony or cultural control, they are not usually speaking about all of culture, but rather about a part of culture that is constructed at a point and that moves out much as colonies of people who move to or settle in distant lands. In sixteenth-century Castile, compromise was the ideal and preferred means for ending disputes. Lawsuits were thought to be at odds with Christian belief. Presumably Span-

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ish missionaries carried such an idea to the New World, while according to historians, that same time saw an increase in adversarial behavior in Spain. I needed to unpack theories of harmony and controversy to see if, how, and when harmony legal models were used to suppress peoples by socializing them toward conformity in colonial contexts. I turned my attention to the classic ethnographies on law in former British colonies in Africa, and to ethnographies on the Pacific regions of Polynesia and Micronesia, searching for connections between Christian missionizing and law. What I found at the start was indicative of recent observations by anthropologists—first, that missionaries are the most ambitious of colonialists in their desire to penetrate every facet of cultural life, and, second, that anthropologists had treated missionaries as part of the setting, like rainfall and elevation—peripheral to their research. The preliminary review was tantalizing. But it was a legal historian, Martin Chanock (1985), who synthesized the data on the missionary presence in Africa from the 1830s onward, revealing the early connections between local law and Christian missions. Chanock uses the term “missionary justice” to call attention to the fact that from the early 1800s missionaries were heavily involved in the settlement of disputes according to a Victorian interpretation of biblical law, which they generally fitted with English procedures as they knew them. According to Chanock, the missionaries were glad to be peacemakers and hand down Christian judgment, and with colonization African courts evolved into a law emphasizing conciliation and compromise, operating on principles of Christian harmony ideology, something anthropologists later thought was customary law. The picture becomes clearer when we examine materials from the Pacific. Again, the missionaries arrived there in the 1820s, while anthropologists came much later. However, the recent anthropological research has begun to document the contemporary work of missionaries as they influence the minds and the disputing processes of native peoples. The best materials are from New Guinea, offering insights and specifics on how the introduction of Christian morality—in effect, mind colonization— affects the disputing process, thereby reconstructing native culture and organization. Excellent work by Marie Reay (1974) shows how coercive harmony works to silence people who speak or act angrily, and she tells us that “the missions had been playing a part in pacifying the warlike clans and prohibiting violence in interpersonal relations.” It is difficult for ethnographers to grasp mind colonization because it happens slowly and incrementally, over many years. Perhaps the most penetrating publication was Edward Schieffelin’s 1981 analysis of evangelical rhetoric as it relates to disputing processes, whereby he emphasizes the function of rhetoric as “the vehicle by which the message is rendered into a so-

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cial construction upon reality” (p. 156). There are examples even further west whereby the “state,” in the guise of the British East India Company, promoted arbitration and compromise, later to be called panchayat justice—now generally conceded as politically intending pacification or a quieting of the population. I concluded from this comparative work that harmony ideology is most likely part of the hegemonic control system that spread world-wide with European political colonization and Christian missionizing.

Alternative Dispute Resolution and Nation-State Pacification In the midst of this work on other peoples, observers of the U.S. political scene in the late 1970s, 1980s, and 1990s noticed that, in comparison to the vigorous public political activity of the 1960s and early 1970s, Americans were now apathetic and subdued by comparison. I began to study how harmony ideology is constructed in modern nation-states of the Western democratic sort, and how such ideologies radiate beyond national borders. The process whereby ideologies that are forces of change are shaped through discourse is an interesting one, and goes far beyond the law to include the links between law, business, and community constituencies. The sixties were described as confrontative, a time when many social groups in the United States felt encouraged to come forward with their agendas: civil rights, consumer rights, environmental rights, women’s rights, Native American rights, etc. It was also a period of sharp critique of law and lawyers in relation to issues of rights and remedies. But over a period of thirty years the country moved from a concern with justice to a concern with harmony and efficiency, from an ethic of right and wrong to an ethic of treatment, from courts to ADR. How did that happen? Alternative dispute resolution encompasses programs that emphasize nonjudicial means for dispute handling; the focus is usually on mediation and arbitration. It came to be known as informal justice, a justice that promoted compromise rather than win or lose, that replaced confrontation with harmony and consensus, and war with peace, a justice that touted win-win solutions. It attracted very strange bedfellows—right-wing politicians concerned with the success of the rights agendas, religious communities, psychotherapy groups, businesses tired of paying so much in lawyers’ fees, administrators, and even 1960s activists. The Pound Conference, “Perspectives on Justice in the Future,” held in Minnesota in 1976, was the turning point, a time where harmony and

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efficiency models both came to officially replace the litigation justice mode as ideal. The conference, which was organized from the office of the Chief Justice of the United States, was to adumbrate a cultural shift that had ramifications far beyond law. A manner of thinking—about social relations, about the structural problems of inequality, about solutions to these problems by cultural means—was dramatized. The focal concern that emerged was a concern with harmony by means of procedural reform. It was a change in thinking about rights and justice, a style that was less confrontative, “softer,” less concerned with justice and root causes, and very much concerned with harmony. The production of harmony, the rebellion against law and lawyers—often by lawyers themselves—the movement against the contentious, was a movement to control the disenfranchised (Nader 1988). The elements of control are far more pervasive than the direct extension of state control. An intolerance for conflict seeped into the culture to prevent not the causes of discord but the expression of it, and by any means to create consensus, homogeneity, agreement. As in Aldous Huxley’s Brave New World, the harmony model produces a kind of cultural soma that has a tranquilizing effect. Interestingly, rationalization for how well harmony law models work was sought in the anthropological literature on law mentioned earlier. The discourse at this Pound Conference was rich with examples of the use of language to select, construct, communicate, or obfuscate. The rhetoric extolled the virtues of alternative mechanisms governed by ideologies of harmony: the courts were crowded, and American lawyers and the American people were too litigious, they pronounced. Alternatives were described as agencies of settlement or reconciliation, and people who stood in the way of such reforms were said to suffer from “status quoism.” In the years following the Pound Conference, the public was immersed in alternative dispute resolution rhetoric. Its language followed a restricted code and formula, following the pattern of assertive rhetoric by making broad generalizations, being repetitive, invoking authority and danger, and presenting values as facts. I began to collect key words: ADR was associated with peace, while judicial dispute resolution was associated with war. One is adversarial, the other nonadversarial. In one there is confrontation, insensitivity, destruction of trust and cooperation, and only losers, while in the other there is gentle and sensitive healing of human conflicts, producing only winners. Alternatives were associated with being modern, “creating the courthouse of tomorrow today.” The bench and the bar bought the chief justice’s rhetoric (Nader 1993). Business groups wanted to reduce the millions spent on intercorporate

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litigation and discovery, and they were searching for new ways to manage disputes with employees; Christian Protestant sects bought into it since they were part of a long tradition that valued harmony over contentiousness. Therapy movements fit right in, and the therapy professionals saw their role in support of the win-win rhetoric, as did many groups concerned with “building community.” Needless to say, the conference rhetoric was challenged by social scientists such as Mark Galanter (1993) (and others) seeking to separate myth from substantiated evidence. They found that the United States invests more money into law enforcement than courts and that litigation as measured by civil findings has remained relatively stable. The assumption of a litigation explosion did not stand up, nor did assertions of an allegedly contentious people, although litigation had become a symbolic presence through product liability cases such as the contraceptive device Dalkin Shield or asbestos. But while critics continued to examine the assumptions of ADR, the movement for legal reform proceeded at full speed relatively untouched by critics and moving into every level of American life, from the schools to the work place, the home, hospitals and medical centers, and board tables—and into university dormitories, classrooms, and administration. Environmental conferences met to see if they could shift “the emphasis from a win-lose to a balance of interest approach.” Unions were deluged with quality-control plans where both workers and management could cooperate in harmony, a win-win situation. American Indian reservations were being persuaded by negotiators from Washington to take nuclear waste as a win-win solution—climbing out of their economic misery while contributing to their country. Environmental activist groups are still being pressured with consensus meetings, also supposedly win-win. Family problems are mediated, and in California and many other states such mediation is mandatory. In Washington D.C., there is a government office of consensus conference planning. In ghetto schools, “troublemakers” are taught dispute resolution, never mind filling their stomachs with hot breakfasts. And we now have a president who has been dubbed the “consensus president.” The roots of President Clinton’s position on consensus was documented earlier by anthropologist Carol Greenhouse (1986), who studied a southern Baptist community in Georgia, providing us with the cultural meanings of an ADR explosion. She suggests that the contemporary equation of Christianity and harmony instilled law avoidance, law aversion, and the value of consensus—“a strategy that transformed conflict.” As part of an effort to quell the rights movements of the 1960s and to cool out Vietnam protesters, harmony became a virtue. The chief justice,

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after all, had argued that to be more “civilized” Americans had to abandon the centrality of the adversary model. Relationships, not root causes, and interpersonal conflict resolution skills, not power inequities or injustice, were and are the crux of the ADR movement. In such a model, civil plaintiffs end up being “patients” needing treatment—a pacification scheme. When the masses are perceived of as “patients” in need of help, public policy is invented for the good of the “patient.” As with critics of the assumptions of ADR, critics of ADR in practice speak of consequence and danger. Mandatory mediation in these criticisms is described as control—in defining “the problem,” control of speech and expression, hardly an alternative to an adversarial system that does the same. The same critics describe mediation/negotiation as a destroyer of rights by limiting the discussion of the past, by prohibiting anger, and by forcing engagement. In sum, mandatory mediation abridges freedom because it is often outside the law, eliminates choice of procedure, removes equal protection before an adversary law, and is generally hidden from view (Grillo 1991). Cases are not usually recorded; there is little regulation and next to no accountability, something like the situation in psychotherapy, for example. The critics of ADR push for prevention and aggregate solutions. Still, however, in spite of criticism and growing awareness of consequences that are anything but benign, ADR marches on and now becomes internationalized. In the remaining sections, I would like to summarize my preliminary work on ADR hegemonies principally in relation to international river disputes. What happens when a law reform movement seemingly unfractured by power differences goes international? Let me begin with notions of legal evolution.

Negotiation International River Disputes Legal anthropologists from early to recent times have scaled dispute resolution forums so that self-help and negotiation are placed at the starting point on an evolutionary continuum toward civilization. With development, societies are then shown to move along from these bilateral means to mediation, arbitration, and finally to adjudication (Hoebel 1954). These same works consider the presence of courts as a sign of societal complexity, evolution, development, or all of these. In the 1960s, social scientists even referred to a “standard sequential order” of legal evolution—each constituting a necessary condition for the next (Schwartz and Miller 1964). During the same era, colonial powers considered the development of courts in Africa as part of their civilizing mission, and

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the International Court of Justice was promoted as the apex of forums for settlement of international disputes by means of adjudication and arbitration—positions ideologically consistent with the works of evolutionary social theorists. Yet by the 1980s and 90s, more civilized processes are the “softer,” nonadversarial means, such as mediation or negotiation, similar to the U.S. Alternative Dispute Resolution movement. It appears as if the ranking preference for dispute-handling forums changes to mirror the distribution of international power. One international legal scholar (Gong 1984, p. 73) puts his finger on the elasticity of notions of civilization: “The less ‘civilized’ were doomed to work toward an equality which an elastic standard of ‘civilization’ put forever beyond their reach. Even to attain ‘civilized’ status, as Japan was to discover, was not necessarily to become equal. The ‘civilized’ had a way of becoming more ‘civilized’ still.” Just as ADR in the United States moved the rhetoric from justice to harmony, so too at the international level the notion of “mature” negotiation has been replacing the World Court as the “standard of civilized behavior.” Why this recent valorizing of negotiation? What Edward Said (1978) acknowledges in his notion of “flexible positional superiority” is that the valorization of one cultural form over another is frequently linked to imbalances in power. Now that the “primitives” have courts, we move to international negotiations, or ADR. In the present context, a new standard of international negotiations is being promoted as the older standard of adjudication/arbitration in the World Court has become less useful to the more powerful nations. Since the emergence of new nations, many of them “Third World,” there was a readiness to use the International Court to represent new interests. The influence of the “Third World” in the court began to take effect after 1964. A number of decisions ruled in favor of “Third World” and postcolonial states. In 1966, the court ruled in favor of Liberian and Ethiopian plaintiffs, and against South Africa; in 1974 for New Zealand and Australia and against France; in 1984 Nicaragua filed suit against the United States, who withdrew from the case, and shortly thereafter the United States withdrew from the agreement to voluntarily comply with the court. Both the Soviet Union in the mid-1960s and the United States in the mid-1980s withheld dues, thereby evincing a mood of indifference to international law. Some noticed that the court’s clientele was vanishing. The stimulus for international negotiation teams sprang from ADR. The new professionals came from a variety of fields—law, economics, social psychology, political science, psychotherapy—few from anthropology. What was new about these negotiators was not that they were practicing mediation or negotiation—after all, such modes of dispute processing had been around for a long time. What they had in common was a

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distaste for confrontational adversarial processes, for courts as a way to handle the problems of the masses, for justice by any win-lose methods. Probably the most well-known international negotiator of recent U.S. history is former U.S. President Jimmy Carter. Carter published an address on negotiation in a (1984) book titled Negotiation: The Alternative to Hostility. He refers to most well-known cases: the Panama Canal Treaty, Salt II, peace in the Middle East, relations with China. Jimmy Carter was speaking from practice and an inclination toward peace that may have been based more on his religious beliefs than on his notions of justice in a civil society. Those who write about an emerging system of international negotiations totally ignore the World Court and focus instead on the functions of a system of negotiation, “that it should contribute to the stability and growth of the system of international relations.” For such people, international negotiation is no longer a government-to-government activity, but rather an international function of governments, nongovernmental organizations, public figures, etc., of which the main goal is international stability. While international stability may be a good thing, it can also mean injustice and continuing inequities. The overall implication in much of this northern literature is that anything can be negotiated and should be. The literature gets truly interesting when the analyst deals with the detail of empirical instances. It is in these specific cases that all mention of the International Court drops away and is replaced by phrases such as “mutual learning,” “information sharing,” “harmonizing,” and “cooperation.” Zero-sum settlements become “hostile,” and information, analysis, and solution get in the way of “constructive dialogue.” Under such conditions, mind games become a central component of this ADR negotiation process; we find, for example, toxic poisoning referred to as a “perception of toxic poisoning,” and questions such as “How can cultural behavior be used or neutralized?” A survey of water resource disputes indicates the transition of disputeresolution forums suggested earlier away from adjudication/arbitration and toward negotiation. The progression is best reported in the case of the Danube River basin and moves from (1) procedures of international adjudication/ arbitration to (2) basin-wide planning where river basin commissions deal cooperatively, to (3) bilateral agreements resulting from international bargaining, to (4) nongovernmental organizations operating across political and bureaucratic boundaries. Such a transition mirrors the “privatization” of justice through ADR centers in the United States in a striking manner. Many of the authors writing on international negotiation imply that there exists a “universal diplomatic culture” of negotiators, a common culture of national governmental administrators, the international “scientific

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community,” and environmental groups. What is claimed to be universal is, I claim, a hegemonic perspective on disputing. The most recent hegemony developed in the United States during the seventies and since then has been exported world-wide, a hegemony that I refer to as harmony ideology, a coercive harmony whose primary function is pacification. Two international lawyers (Laylin and Bianchi 1959) put it this way: “At a time when the forces of law and order need ever increasing recognition in the international arena, the notion that states willing to submit international river disputes to adjudication are ill advised has a strange ring indeed … [and] the cry of inadequacy of courts … betrays a nostalgia for a fastfading conception of international law in which naked power holds greater sway than recognized principles of justice.” When cases that should be adjudicated are negotiated, as illustrated by the 1940s dispute between the United States and Mexico over the Colorado River, the explicit connections between international law and the World Court, water rights, and the advantages of negotiation for the more powerful become obvious. The tone of the Danube River basin case is synthesized in complete contrast. The author who synthesized the Danube case (Linnerooth 1990) implies that there is a “universal negotiating culture” or what she calls a “common culture” composed of national government administrators, international scientific communities, and emerging environmental groups. The language used in describing how conflicting adversarial interests might be negotiated is revealing of the influence of therapy in ADR ideology: “mutual learning” and “information sharing” sound more like marital therapy, not the unraveling of conflicts over river pollution. When therapy talk is strong, there is little consideration of disputes that are in fact zero-sum. Nor is there acknowledgement that bilateral negotiation may put the stronger nation at a bargaining advantage vis-à-vis the weaker nation. Indeed, in this view, anything can be negotiated, even if “perceptions” must first be molded and shifted away from “information, analysis, and solution” to providing mechanisms for “constructive dialogue.” The Danube case is interesting because it is one of the most international river basins in the world, with eight riparian countries involved and over seventy million people. The rich upper riparians use the Danube primarily for industrial and waste disposal and energy purposes. The lesser developed use the river for drinking water, irrigation, fisheries, tourism, etc. Again the author calls for win-win bargaining by those who share “a certain professional rationality” who will “translate the order, its imagery, and social expectations.” In short, the privatizing of international justice. In case after case that I examined, it is law that the weaker party looks for while the stronger party prefers to negotiate. The Duoro River just

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above the Spanish-Portuguese border is a case in point (Dellapenna 1992). The proposed nuclear waste facility at Aldeavilla will be less than one kilometer from Portugal, and any contamination of the Duoro River will end up in Portugal. Seventy percent of Portugal’s surface fresh water comes from rivers that arise in Spain, while Spain receives virtually none of its surface fresh water from Portugal. Portugal’s weak position would not bode well for a fair bilateral settlement literally because of the freshwater power differential between the two nations, and especially because Spain is already in clear violation of customary international law. In the case of the Valle de Mexicali, one of the richest agricultural regions in Mexico, the protest is over an all-American plan to limit groundwater leakage, which Mexico needs to support its crops. The American (D. Hayes 1991) who wrote about this pleads for the use of negotiation so that a win-win solution is possible, and the same author chides Mexican officials for threatening international litigation in the World Court, saying, “Such a development goes against the grain of ordered, controlled, international management of resources.” There is no hint that international tribunals would “act rationally, logically and humanely”; rather the contempt for law is total. The case of the Jordan River in the Middle East is even more complex and involves Lebanon, Jordan, Israel, and Syria, with gross inequities in the consumption of water. The situation went from mediated negotiations to unilateral action to violent conflict, without the consideration of an adjudicated settlement. A final case refers to the long-standing Ganges River dispute between East Bengal/Bangladesh and India, and gives a clear example of the politics of international negotiation, and the advantages of bilateral negotiation for the stronger party. The Ganges River flows from India into East Bengal, and supplies East Bengal/Bangladesh with much of its fresh water. In the early 1950s, the Indian government began unilaterally planning the construction of the Farakka Barrage, a dam which would divert water from the Ganges River. In 1960, India finally agreed to begin bilateral negotiations with Pakistan, but by 1961 had already begun construction of the dam. East Bengal during this period had been marginalized. After a series of failed negotiations, the government of Bangladesh tried to bring their case before the U.N. General Assembly. India objected, arguing that the issue of the dam was a “bilateral issue.” India could not get moral support for its unilateral action, while Bangladesh, one of the poorest countries in the world, had little clout to use in the international arena. Each nation had its own preferred solution to the problem. Bangladesh’s solution would involve Nepal’s participation, while India chose to keep issues of water strictly between itself and a weaker Bangladesh. As

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described by Khurshida Begum (1988), “Peaceful negotiations, strictly bilateral, is a hegemonic tool for India.” Over the course of the negotiations, a series of “discrepancies” between the facts reported by India and Bangladesh reveals exactly the purpose for which court trials are used—disagreements of fact. Additionally, the serious effects of water shortage claimed by Bangladesh would seem to put this case on the level of human rights violation. Again we are reminded of the argument for the role of adjudication in international river disputes as a means of balancing power discrepancies, while recognizing that adjudication cannot be simply equated with a better outcome for the weaker party. In sum, a review of these and other writings about the World Court indicates that the voices against the court have been strident, particularly among those supporting the policies of the United States in Central America in the 1980s. However, a 1991 article suggests that the docket of the court is once again indicating use, while at the same time the United Nations Law of the Sea has provision for the formation of a specialized tribunal—the so-called Hamburg Court, basically a duplicative tribunal. The Hamburg Court has strong proponents—the five permanent members of the Security Council who support this “alternative solution to existing litigation before the full tribunal of the World Court,” hardly reassuring of the role of the World Court as a power equalizer. In fact, recent journalism speaks about “Governing the World without Governments,” noting that there is a demand for a new system of governance as national governments, intergovernmental organizations, and the United Nations fail. However, in the literature on “modern negotiation,” there is little to indicate that “modern negotiators”—the new system of governance—are critically examining their trajectories or assessing the broader significance of their work.

Trade Ideology and Harmony Ideology Before I conclude, I will briefly mention very preliminary work on the relationships or possible congruencies between trade ideology and harmony ideology. Much of the language is similar—negotiate, strike a deal, etc.—and we might remember that trade, according to the classical theory of comparative advantage, is a “win-win” situation. The GATT is an interesting case to examine. The General Agreement on Tariffs and Trade (GATT) emerged in the years immediately following World War II. Two schools of thought spearheaded the movement toward a global trade organization (Jackson 1989). First, there were those who thought that such an organization

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would create economic growth through expanded trade. Second, there were those who thought that an international trade organization would promote global stability and prevent war. In 1947, the GATT was drawn up in Geneva, written with the expectation that a formal international organization, the International Trade Organization (ITO), would oversee its implementation. Periodically, GATT sponsors “rounds” or major sets of negotiations. Besides tariff questions, more recent rounds have addressed the question of dispute-settlement procedures. Both the ITO and GATT were conceived during a time in which the “rule of law” was held up as the most highly evolved forum for settling disputes. These were the years of the fledgling United Nations; these, too, were the years of the newly-established International Court of Justice. A number of U.S. officials who were involved in the drafting of the ITO charter and the GATT seemed strongly committed to the rule-of-law principle, contemplating effective use of arbitration and even appeal to the World Court in some circumstances. The entrance of dozens of postcolonial nations into the GATT in the early 1960s prompted a different attitude toward the settlement of disputes, and there are extensive writings on the shift away from legalism and toward pragmatism. Conciliation was the term used to describe GATT activities between 1963 and 1970, when adjudication had been dormant, continuing until the 1970s, when expert panels increased in popularity. By the late 1980s, most nations seemed to be indicating a preference for more legalistic procedures to be implemented. There is a certain irony in the fact that just as the GATT is swinging to a more “rules-based” approach (which would conceivably bode well for the Less Developed Countries), alternative trading arrangements such as NAFTA are being formed. But returning to the GATT we see an international class of negotiators and technocrats shaping policy for an international class of corporations through international trading arrangements, what some have called the strangulation of national sovereignty by the free reign of multinationals. GATT itself has its own training school in Geneva to teach prospective negotiators from new member states / the international negotiating culture. Some speak about seriously manufacturing consensus (Ikenberry 1989). Again, anthropological work such as that by Philip Gulliver (1979) is invoked as scientific justification.

Concluding Comments: The Political Economy of Legal Models The oscillations between the harmony model and the conflict model of dispute handling have been described by a number of authors, and it

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does appear that state construction of alternative dispute settlement processes does function to allay fears of class warfare and racial discord. Similarly, international agencies use dispute settlement techniques to promote world order and stability. The point of calling attention to the use of harmony or adversarial models is not so much to describe the workings of these systems as to understand why fluctuations in legal ideologies associated with a tolerance for controversy or a search for harmony surface from time to time and with what consequence. Certainly the history of exchange of adversarial models for harmony models does not indicate that harmony ideology is benign. On the contrary, coercive harmony of the last three decades has been a form of powerful control exactly because of the general acceptance of harmony as benign. The history of conditions under which dispute settlement preferences are “shifting commitments” shows they usually involve imbalances in power. Ambiguities surrounding the study of the cultural components of law have been plentiful even among anthropologists in whose discipline culture plays a central role. When the anthropologist of an earlier day set out to write about other cultures, culture was a concept used to describe shared traditions passed from one generation to another. We no longer speak about cultures as if they were isolated and consensual wholes. Today, theorists distinguish hegemonic culture, the framing of culture by fundamentally dominant groups. By hegemony, Gramsci (in Boggs in Greer 1982) meant “the permeation throughout civil society—including a whole range of structures and activities like trade unions, schools, the churches, and the family of an entire system of values, attitudes, beliefs, morality, etc. that is in one way or another supportive of the established order, and the class interests that dominate it.” Ideas such as harmony or confrontational politics or efficiency may originate locally, spread, or be imposed, recombined, and used to control or to resist control, and result in distributing power by means of remedy generated. I have argued in this paper that dispute-resolution ideologies are a long-used mechanism for accomplishing the transmission of hegemonic ideas. Disputing processes cannot be explained as a reflection of some predetermined set of social conditions; rather, they reflect the processes of cultural construction that may be a response to demand, a product of ruling interests, or a result of class conflict. Harmony as a general conception for life should be scrutinized in relation to the construction of law, much as conflict has been scrutinized in relation to the development of law. Both should be examined in relation to notions of a new world order so that we may be able to distinguish a world of justice from that of stability. As the late Roger Keesing (1994, p. 306) observed in one of his last papers, “‘Anthropological conceptualizations of culture’ have been—

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shall we say—innocent (in the sense of naiveté, not culpability) in terms of the battle lines of social theory. Our ways of conceptualizing what used to be called the ‘primitive’ world still embody a set of assumptions deriving from the nineteenth century about the collectiveness and sharedness of ‘custom.’” What I hope to have indicated in this analysis is that anthropologists and other social theorists need to use ideas of the cultural adequate to understanding our dynamic world.

NOTE This chapter was originally published as: Laura Nader, “Coercive Harmony: The Political Economy of Legal Matters, Essays on Controlling Processes” pp. 37-41, from Laura Nader ed., Kroeber Society Papers 80. Department of Anthropology publication, Berkeley: University of California (1996).

REFERENCES Carter, J. 1984. Negotiation: The Alternative to Hostility. Macon, GA: Mercer Press. Chanock, M. 1985. Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia. Cambridge: Cambridge University Press. Dellapenna, J. 1992. “Surface Water in the Iberian Peninsula: An Opportunity for Cooperation or a Source for Conflict.” Tennessee Law Review 59 (4): 803–25. Galanter, M. 1993. “News from Nowhere: The Debased Debate on Civil Justice,” Denver University Law Review 71 (1): 77–113. Gong, G. 1984. The Standard of “Civilization” in International Society. Oxford: Clarendon Press. Greenhouse, C. 1986. Praying for Justice: Faith, Order and Community in an American Town. Ithaca: Cornell University Press. Greer, E. 1982. “Legal Hegemony.” In Politics of Law: A Progressive Critique, ed. D. Kairys. New York: Pantheon Press. Grillo, T. 1991. “The Mediation Alternative: Process Dangers for Women.” Yale Law Journal 100 (6): 1545–1610. Gulliver, P. 1979. Disputes and Negotiations: A Cross-Cultural Perspective. New York: Academic Press. Hayes, D. 1991. “The All-American Canal Lining Project,” Natural Resources Journal 31 (4): 803–27. Hoebel, E. A. 1954. The Law of Primitive Man: A Study in Comparative Legal Dynamics. Cambridge, MA: Harvard University Press. Ikenberry, G. 1989. “Manufacturing Consensus: The Institutionalization of American Private Interests in the Tokyo Trade Round.” Comparative Politics 21 (3): 289–305.

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Jackson, J. H. 1989. The World Trading System: Law and Policy of International Economic Relations. Cambridge, MA: MIT Press. Keesing, R. 1994. “Theories of Culture Revisited.” In Assessing Anthropology, ed. R. Borofsky. New York: McGraw Hill. Laylin, J. G., and R. I. Bianchi. 1959. “The Role of Adjudication in International River Disputes: The Lake Lanoux Case.” American Journal of International Law 53 (1): 30–49. Linnerooth, J. 1990. “The Danube River Basin: Negotiating Settlements to Transboundary Environmental issues.” Natural Resources Journal 30 (3): 629–60. Nader, L. 1990. Harmony Ideology: Justice and Control in a Mountain Zapotec Town. Stanford: Stanford University Press. ———. 1988. “The ADR Explosion: The Implications of Rhetoric in Legal Reform.” Windsor Yearbook of Access to Justice 8: 269–91. ———. 1993. “Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement to Re-Form Dispute Ideology.” Ohio State Journal on Dispute Resolution 9 (1): 1–26. Reay, M. 1974. “Changing Conventions of Dispute Settlement in Minjarea.” In Contentions and Dispute, ed. A. L. Epstein. Canberra: Australian National Univ. Press. Said, E. Orientalism. 1978. New York: Pantheon Press. Schieffelin, E. L. 1981. “Evangelical Rhetoric and the Transformation of Traditional Culture in Papua New Guinea.” Comparative Studies in Society and History 23 (1): 150–56. Schwartz, R. D., and J. C. Miller. 1964. “Legal Evolution and Societal Complexity.” American Journal of Sociology 70 (2): 159–69.

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E c ha p te r 1 2

The Three-Cornered Constellation Magic, Science, and Religion Revisited

There are no peoples, however primitive, without religion and magic. Nor are there, it must be added at once, any savage races lacking either in the scientific attitude or in science, though this lack has been frequently attributed to them. … On the one hand there are the traditional acts and observations, regarded by the natives as sacred, carried out with reverence and awe, hedged around with prohibitions and special rules of behavior. Such acts and observances are always associated with beliefs in supernatural forces, especially those of magic, or with ideas about beings, spirits, ghosts, dead ancestors, or gods. On the other hand … no art or craft, however primitive, could have been invented or maintained, no organized form of hunting, fishing, tilling, or search for food could be carried out without the careful observation of natural process and a firm belief in its regularity, without the power of reasoning and without confidence in the power of reason; that is, without the rudiments of science. (Malinowski [1925] 1948, p. 17)

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ith these words Bronislaw Malinowski ([1925] 1948) pursued the polemics of his book, Magic, Science and Religion. “The problem of primitive knowledge has been singularly neglected by anthropology,” he noted (p. 25). Some myths needed to be dispelled by examining “the three-cornered constellation.” Challenged by the dogma that primitive peoples were categorically irrational, Malinowski set about distinguishing magic, science, and religion from each other, and outlining their respective cultural functions. Although he was not the first to make these distinctions, he was probably the first anthropologist to pursue these distinctions in fieldwork. Science is guided by reason, he argued, corrected by observation, and open to all, a common good of the whole community. Magic is made by tradition, impervious to reason and observation. It is occult, not eas-

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ily available except by mysterious initiations, and it serves to bridge the unknown. Religion lifts man above magic to humility and the realization “of human impotency in certain matters” (Malinowski [1925] 1948, p. 19). It “establishes, fixes, and enhances all valuable mental attitudes” (p. 89); focuses on the crises of life, especially death; and thereby ritualizes man’s optimism. Malinowski ([1925] 1948, p. 26) posed this question: “Every primitive community is in possession of a considerable store of knowledge based on experience and fashioned by reason. Can this primitive knowledge be regarded as a rudimentary form of science?” He continued: “Science, of course, does not exist in any uncivilized community as a driving power, criticizing, renewing, constructing. Science is never consciously made. But on this criterion, neither is there law, nor religion nor government among savages” (p. 35). Malinowski argued that whether we are dealing with pre- or postliterate societies, all peoples operate within the domain of the sacred and the profane, within the areas of magic and religion, and of science. A further finding of the Trobriand study was that magic flourishes in settings where man cannot rely completely upon his knowledge and skill. Malinowski’s ([1925] 1948, p. 31) illustration is often quoted: “In the lagoon fishing, where man can rely completely upon his knowledge and skill, magic does not exist, while in the open-sea fishing, full of danger and uncertainty, there is extensive magical ritual to secure safety and good results.” His study also reported that the Trobriand Islanders were able to distinguish magic from science, an observation of potential importance. If they were able to distinguish between science and magical activity, between empirical knowledge and ideas operating under the influence of desire, their entire society shared an understanding of risk and uncertainties of life. Because all were aware of these uncertainties, if they failed, they failed together. For Malinowski, knowledge was related to biological advantage and knowledge was the reason for survival in primitive communities. But there is more to knowledge than biological advantage or utilitarian purpose. In “modern science,” no distinction is made between magic and religion by the main actors. Publics are not aware of the inherent risks and uncertainties of life because magic and religion are not marked as separate or different activities. It is worth hypothesizing that modern scientists practice more magical thinking in their highly experimental and dangerous research work than do the Trobrianders in the rough waters of the Western Pacific. Few anthropologists have pursued the challenge of Malinowski’s provocative essay in the decades that followed its publication.1 In an evaluation of the work of Malinowski (Firth 1957), neither the word “knowledge”

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nor the word “science” appears in the index, although kinship, law, and magic do. Indeed, S. F. Nadel (1957, pp. 189–208) wrote his essay on “Malinowski on Magic and Religion” and made no reference to Malinowski’s work on “Magic, Science and Religion.” Nadel (1957, p. 208) is silent on the subject of science; his own constellation is “magic, religion, and mythology.” In the same volume E. R. Leach (1957, pp. 128–29) writes about “The Epistemological Background in Malinowski’s Empiricism.” Leach takes Malinowski to task for attempting “to impose ‘rationality’ upon his savages.” Malinowski maintained, no doubt rightly, that Trobrianders are at least as rational as twentieth-century Europeans. He stressed that “civilized” as well as “savage” life is packed with magical practices. … Where he seems to err is in maintaining that the ordinary man distinguishes consistently between the magical and the non-magical. … In seeking to break down the dichotomy between savagery and civilization. Malinowski argued that primitives were just as capable as Europeans of making such distinctions. … He would have had a much better case if he had insisted that Europeans are ordinarily just as incapable as Trobrianders of distinguishing the two categories. (Leach 1957, p. 129; my emphasis)

Since Malinowski, anthropologists who have investigated native science or indigenous taxonomic systems began to systematize native knowledge, and others to collate such knowledge. Although their contributions are important, the lessons they have drawn have not always been persuasive. Authors still assume that systematic classification is restricted to societies that have reached a sophisticated level (Morris 1976). For C. R. Hallpike (1979), primitives are impoverished, and it is the impoverished environment that accounts for what he sees as their intellectual retardation. In this paper I examine, as Leach suggested, whether Euro-Americans are more capable than indigenous peoples of distinguishing “science” from “magic” and “religion.” The three-cornered constellation—magic, science, and religion (or desire, reason, and humility)—is a likely universal, and therefore observable among scientists and technologists in the most developed fields of contemporary science and technology.

Experiencing the Problem The closer historians of science look at the great achievements of science, the more difficulty they find in distinguishing science from pseudoscience and from the political, economic and ideological contexts. Scientists’ philosophical views about nature, man, and society

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appear to play a very important part in formulations of the substance of major scientific ideas. … Science is much more like the messy world of social and political intercourse than working scientists care to believe, or are willing to concede. (Young 1972, pp. 103–4)

In the late 1970s I began work on government-supported research dealing with domestic energy policies in the United States. The work was first conducted at the federal level as part of the National Academy of Science’s Committee on Nuclear and Alternative Energy Systems (CONAES), and resulted in several studies, one of which I oversaw—Energy Choices in a Democratic Society (Nader 1980). A second study, Distributed Energy Systems and California’s Future (Nader et al. 1977) was conducted at the University of California, and resulted in several additional reports and publications (e.g., Nader and Milleron 1979). Both experiences stimulated me to scrutinize and question some basic assumptions of scientists and engineers working on energy questions. It was during participation in this energy work that I became interested in the predominant ideologies of energy experts, the social groups and networks of which they were a part, and the equity conceptions that developed as a consequence of their work experiences. In the following pages, I report my observations and the observations on my observations as received from a wide spectrum of physical scientists. I then return to the three-cornered constellation alluded to earlier in order to address the question, “When is science scientific?” My data is taken from the more than one hundred responses from physicists and engineers in the United States and Europe to an article that I published in Physics Today summarizing my findings (Nader 1981) and the difficulties of “distinguishing science from pseudo-science and from the political, economic and ideological contexts” (Young 1972, p. 103). The development of commercial energy through scientific enterprises is a recent phenomenon, one associated with the observation that fossil fuels are being used up at a much greater speed than nature is able to replenish. At the turn of the century, the president of the American Chemical Society predicted in his national address that the United States would be running on solar energy by the 1970s: “The sun directly and indirectly will monopolize the power of the country” (Wiley 1902, p. 163). Yet the energy shortage took on crisis proportions only after the oil embargo of 1973. Since that time, public debate on energy supply has stimulated questions about dominant paradigms in scientific and methodological thought, in which energy sources such as nuclear, solar, coal, or others are enmeshed, in order to understand entrenched manners of thinking about and controlling energy sources. The structure of scientific and technological debates over the capability of

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large and now planetary systems to adapt to changing resource circumstances were (and are) the subject matter in energy research. As part of the CONAES work, I chaired a resource group mandated to consider lifestyle changes that would accompany changes in per capita consumption of energy by the year 2010. What would happen to consumer tastes if energy levels remained the same or increased two- to threefold over several decades? Energy Choices in a Democratic Society (Nader 1980) described two futures. One was characterized by high efficiency, the other by low energy use and high technology. The highefficiency scenario was designed to explore energy use in a society much like our present society projected into the future, without major changes in attitudes, but with improvements in amenities roughly consistent with those in recent decades. In the second instance, we explored a society in which attitudes toward resources change. It is a comfortable society that has decentralized land use and work; its members value thrift and selfreliance and are less vulnerable to terrorism and violence. Our exercise in decoupling tightly coupled beliefs (such as “low energy use indicates aversion to high technology”) illustrated the possibility for a society to have both high technology and low energy use. In the process of doing this work, we unselfconsciously questioned hitherto unquestioned assumptions by providing answers to “problems” and by questioning presumed relationships between the quality of life, lifestyles, and the amount of energy produced and consumed in a given society. First, we observed that there are many, although not limitless, ways to use any amount of energy. Ireland and New Zealand expend about the same amount of energy each year per capita—in very different ways. The Republic of Ireland is frequently used as an example of social and economic stagnation and even misery, while New Zealand is typically seen as a society in which everything runs so smoothly and progressively and equitably that its only fault is dullness. Within any one level of total energy use there are widely varying fluctuations in quality of life. Individuals vary in their energy use regardless of the energy available. Next, we learned that supply technologies such as oil, gas, and solar may be less intrusive than others, such as nuclear. We also learned that an abrupt rise or decline in energy use will have disruptive effects on society, that changes incorporating grassroots input could have effects and results different from those imposed by business or government. Technologies that render citizens’ civil rights, liberties, health, and safety vulnerable require a focus on the supply form and an emphasis upon the necessity for consumers rather than producers of energy to define needs. Furthermore, we found that there was no basis for believing that the continued growth of technology would not dramatically affect changes in lifestyle

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(rather than preserve it, as some believed). Growth changes and will continue to change the fabric of life in all industrialized countries. Contrary to accepted belief, considerations of low-energy, high-technology societies expand the range of choice and increase the time within which we can plan for the age after fossil fuels. Because many of the questions are ecological, attentiveness to context is critical. We were fighting isolating or context-stripping devices of scientific models. Initial reaction to these “discoveries” was denial: we were describing impossible futures. We were planning low-energy futures that “go against the grain of human nature”; we were pursuing “a return to caves and candles.” Further criticism impugned our methodology. Although our resource team represented a wide range of disciplines, many of which rely heavily on numbers, we were told our work was not quantitative enough, and that we were unscientific. I was repeatedly encouraged to turn out “more tables, less prose” because energy experts, it was alleged, do not read. The belief that numbers in themselves are useful was rampant and was attached to a peculiar importance given to prediction. Anthropologist Elizabeth Colson (1973) has observed the role of divination as a decision-making procedure that legitimates the basis for choice. People, “primitive” or “civilized,” wish to minimize risk-taking where the future is uncertain, or at least to legitimate decisions should there be a need for accounting. But while numbers may indeed provide, in the words of Colson’s (1973) title, “Tranquility for the Decision-Maker” in energy affairs, they sustain the illusion of concrete reality, and avoid important issues not amenable to modeling processes. Eventually this use of numbers and modeling sabotages public confidence in the “scientific”: Questions of civil rights, of freedom, of social structure, of democracy, of quality of life, or of equality are not easily discussed numerically or through modeling. Numbers also dilute the dangerous and the unthinkable: the distancing function. Losing 2 percent of the population makes a possible disaster easier to bear than losing thousands or millions of people; thus percentages are preferred to actual numbers of people when discussing nuclear accidents. Scientists and engineers are expected to bring their special skills to a problem that may include leaving behind their human understanding of a situation; like professionals in law, for example, they are trained to rise above sympathy. A summary statement of my observations would include the predominance of groupthink; people who thought differently than the group were told they were off the track. Part of groupthink was a lack of respect for diverse solutions and for diverse kinds of intelligence, an avoidance of technologies other than nuclear or coal, and a preference for abstract rather than concrete thinking (as if figuring out how to dispose of waste

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was equivalent to actually doing it). Memos discussed nuclear, coal, and nonnuclear energy. Nonnuclear meant solar, which was described as “an orphan child,” “not very intellectually challenging,” and “just a bunch of mirrors.” My notebook was full of observations on unexamined assumptions, such as change means maintaining the status quo, progress is equal to growth, more energy expenditure doesn’t change lifestyle while less does, societies only change from the top down, and technological fixes can solve human problems and forestall crisis. In addition, I tried to understand the concept of the Big Toy. In answer to my question, “Why did you go ahead with nuclear energy without having first solved the nuclear waste problem?,” I heard “because it is interesting, it is fascinating, it is fun,” even though the same people would unselfconsciously agree that such a direction takes us into unknown and dangerous waters. What was striking about the science work I observed was that assumptions were often made on the basis of faith (see Kuhn 1970, p. 167, on Western sciences’ rejection of critical attitudes as an element crucial to success). For instance, the connection between rate of increase of energy use and rate of growth of gross national product was assumed (see Nader and Beckerman 1978). In the United States from 1935 to 1955, both energy use and quality-of-life social indicators were positively correlated, but in the period between 1955 and 1975, energy use generally increased while social indicator research shows a decline in quality of life, a negative correlation. Neither correlation shows the true relationship because per capita energy use and quality of life are related to each other in very complex ways, as we indicate. Human affairs do not break down in terms of scientific disciplines, which after all evolved for research and teaching convenience. For purposes of making policy, the boundaries of academic disciplines are limited.

Magic, Science, and Religion Revisited My observations on social and cultural “Barriers to Thinking New About Energy” were published in Physics Today (Nader 1981) and stimulated rich response from scientists and engineers. Letters came from older physicists indicating awareness that the behavior observed is selected for, learned, and transmitted from generation to generation. Although they all had explanations, one blamed the situation on physics education: “Physics texts present the subject matter in an orderly manner but usually fail to indicate how the present concepts developed. Few theories were eagerly adopted when the theories were first announced. … Physics students are given problems with known answers. They are not trained

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to be original … physicists work in groups and often for large organizations.” A scientist from a major research laboratory commented generally about groupthink and the dilemmas of a modern science interested in “results.” He was describing cultural patterns that play themselves out in a Western style of doing science: “I have a deep personal and professional concern about the use of human ingenuity in the improvement of the human condition. It’s clear that when a group of people think alike, most of their brains are redundant. Group thinking has become (maybe it’s always been, I don’t know) so common in the ‘educated’ parts of our society that it’s almost funny. … As far as I can tell, the educational process does little to enhance original thinking and a great deal to stop it. … As a manager of a research enterprise, I try to help create an environment in which creativity can flourish.” A teacher and observer of scientists remarked on the change in scientists as science and technology have become more and more intermeshed in their quest for absolute certainty: As I. I. Rabi said … physics used to be done by people, people with first, middle and last names. Now it is done by laboratories—CERN, Brookhaven, Fermi, etc.—and the individual people are largely faceless, hence not specifically responsible. Having come from a family of physicists, of Rabi’s vintage, and having known many of the men whose names were legend in their time even as they are remembered now in the history of science accounts, I sometimes suggest in full seriousness that most of the practitioners whose attitudes (and blindnesses) you properly decry simply are not physicists at all; they are technicians, perhaps very good ones but technicians none the less. And so I wonder, as Rabi wondered in his talk, whether the age of physicists is over. If it is, then maybe we can understand the kinds of myopia the profession seems to perpetuate. … Changes … will come only as we change our methods, our own behaviors and our own attitudes toward science.

A scientist at a major national laboratory spoke about the process of becoming a scientist, the role of power and money, and the practices that are intricately tied to dominant institutions and their interests: The experience in most universities is that many students enter stating a preference to study hard science yet only a few succeed. Those that leave science do so because they fail to survive the implied and actual rigors of the technical curriculum. Thus, a strong selection process for narrow academic brilliance is in effect. The most creative students often resist the scientific dogma they are taught and fail to survive to graduation. This happened to Einstein and is still true today. The best of the survivors, judged entirely by their academic performance, go to graduate school where they evolve complex yet very narrow research projects, ultimately incomprehensible to everyone

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but the student, for which they are awarded a Ph.D. At this point they have become incompetent to do anything of practical value so they 1) go into industry where they are retrained; 2) join a research group in a national laboratory; 3) teach; or 4) continue to work on the same narrow research project. At this point purely social factors take control as the scientist realizes he will not generate any new, earth-shaking ideas. Thus, he 1) enters management; 2) becomes a research group leader; 3) becomes department chairman; or 4) writes a gigantic research grant proposal to the government. Thus in the final analysis money and power become the end of scientific enquiry. The construction of a large accelerator becomes a highly visible project which can generate great respect for the scientists involved irrespective of the scientific worthiness of the venture. What people do not realize is that very little scientific consideration goes into the generation of most large research projects. … The people you met were not concerned with the energy problem so much as getting a piece of the action.

Yet another physics professor commented on the religious nature of growth assumptions and the mission to modernize American society and the world: “Growth is the American Religion and a religion is something you accept without subjecting it to analytical scrutiny. The growth religion is rare among religions because with the growth religion one can predict the consequences of courses of action. But the true believers don’t wish to see the predictions made. When someone does make the study of the consequences of the growth religion the high priests don’t want to hear heresy.” A Nobel Laureate old enough to have experienced the era before the militarization of science reported that the intellectual climate has changed in ways that have deep cultural implications for science and democracy: “Yes, that’s the way it is, and well guided by an unexpressed system of rewards and punishment. … In the first half of this century we had a generation of monumental physicists—Einstein, Bohr, Heisenberg, Pauli, Schrodinger, and on and on, all of whom knew that what physics is about is reality; and that physics (science) can explore only part of reality and by far the smaller part. That kind of thought is now virtually forbidden in scientific literature.” In fact, I was surprised at the number of responses that mentioned censorship, absence of dissent, or coercion. Some indicated that they were amazed that my comments were published in a science journal. Many of their additional remarks are not peculiar to science, however, for as many of us know they could be generalized to other professional groups, and possibly to our society writ large. The comments are particularly interesting in the context of discussion about science because it has been argued by so many that the very nature of the scientific enterprise

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requires freedom of inquiry. Secrecy is the enemy of science. The chair of a physics department was unusually frank about the daily controls in science work: There are many of us (even males) who agree with your point of view and share your puzzlement at the attitudes and approaches followed and fostered by those who participate in the planning process. Of course, many individuals … are bullied into effective silence by those who prevail in the upper echelons of planning—whether it be think tank, government, or academy based. This is even true to a disappointing degree in the university community. The price of questioning or dissent (or asking questions like “Why not solar?”) can result in professional ostracism. And, of course, for those who aren’t quite sure which way to go, it is clear that the best thing to do is to be tougher than the next tough guy. And toughness doesn’t mean wimpy solutions like less energy use or such “soft” scenarios, but rather showing that we are indeed tough guys who can “overcome nature,” build a bigger bridge, pump water faster, construct a safe structure on a fault zone, build a safe nuclear power plant, walk on the moon, climb the mountain because it’s there, shoot down the other guy’s missiles, build a better accelerator, dump our garbage where it pleases us, keep women and other lesser beings in their place, and do it “my way.”… Of course, not all of the undertakings or concepts I have expressed above are all bad. Some of them stem from the same basic drives that make humankind achieve so many brilliant and wonderful things. But somehow achievement has become linked with production and consumption. And those who are best at these two things are those who determine what the rest of us should do, think, and have.

Numbers of scientists spoke about a bureaucratized science. A staff scientist at a major government laboratory demystified the experience of science work by describing scientists as bureaucrats largely intent on building or maintaining empires. The following story by a retired physicist indicates what can happen to science work in a bureaucratic setting. It is a story that I have heard over and over from highly placed scientists speaking offstage: At one time in my career as a physicist I worked with five other physicists. One day when I was in the office of the head of the project I noticed that he and one of my colleagues were using a foolish and time consuming method of converting the tracings on a chart to numbers for a table. Immediately my five colleagues recognized the truth of my observation. Three of them laughed but the project head did not think that it was amusing. He stated that the reason that I noticed the foolishness of the procedure was because I always wanted to take time to think. He said that he was too busy doing research. … For the

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first three years of our study there was a lively controversy between our leader and theoretical physicists from other organizations. Our measurements did not fit the theory. One day when I was bored doing what I was supposed to be doing I decided to determine the cause of the difference between theory and measurement. I decided to go over every step of our procedure. At step one I found that a coefficient that we used was obtained from a table published long ago. In our great rush to do research the wrong value was read from this table and no one had checked the reading of the table. When the correct number from the table was used our experimental results agreed with the theory. In the great rush to do research three years of heated argument was found to be useless. I was not awarded a gold star for this little piece of work.

Both hierarchy and bureaucracy seem to get in the way of frank and open expression. Science as organized rationality is not what most of these scientists experience. A chemical consultant, in reference to my “delightful account of the experiences of a lady anthropologist in the creative deliberations of a macho bureaucracy,” also commented on bureaucracy: It tells more about what is wrong with American creativity than most of the articles I’ve read, for the reason that only an outsider—in this case, a token female liberal—can open her mouth. If you are a member of the conference sponsor’s organization and depend on it for such things as food and shelter, you had better go along with the conference’s purpose and vote Ja! … The sad thing about bureaucracies, of course, is that the communication becomes “top-down” very quickly as the bureaucracy grows, because no one dares not to pass an idea down, while many a brown-nosing middle manager considers that his sole task.

A distinguished physicist and engineer expressed relief at my depiction of scientists and engineers, and raised the issue of desire and accusations of irrationality: For years I have felt like the ultimate minority. I have been characterized by my peers as illogical, a kook. … I am glad that you have brought up the pathological blinders of the technocratic establishment. I now feel that I am not irrational. I merely refuse to include human beings as numbers in sets of equations. … I have often compared the attitude of physicists and engineers to cowboys, the only difference being that cowboys get drunk and run over people in their jacked-up pickup trucks. Scientists get drunk on technology and may run over us all with their dangerous toys.

The letters are filled with thoughtful observations that belie any attempt to talk about scientists as a homogeneous class, and indicate sci-

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entists’ views about the dominant culture in science and the context in which science work is conducted. The writers of these letters have a capacity for sharp social assessment. The following observation indicates a concern with blinders that result from education and work settings, value preferences, and arrogance. One needs only to remember the record of failure of endless projections of energy futures: I think there are two characteristics of the scientist which are quite pertinent to your commentary. The first unites the scientist with the rest of humanity: cupidity—all other things being equal, there is greater opportunity for personal gain working on billion-dollar projects than on thousand-dollar projects. (I’d wager that the version of solar sometimes called “the power tower” has fairly staunch defenders in scientific or at least engineering circles.) The second distinguishes the scientist from the rest of humanity: specialization—scientific education is an extended process of focusing, learning more and more about less and less. … (In effect, so long as the scientists with whom you worked stuck to central station power, nuclear, hydro, coal, what-have-you, they were the experts—as soon as they had to confront a 4m2 solar collector on a residence, they had no greater skill than the random home owner.)

Science is an omnibus word connoting a body of scientifically validated knowledge, an organized rationality, or an attitude toward knowing. In How Natives Think, Lucien Levy-Bruhl ([1910] 1966) contrasts the native (unable to reason to conclusions) with the modern mind (surrounded by an atmosphere of logical potential). The contexts in which scientists work indicate room for the opposite kind of behavior, however. How scientists set research agendas and how they construct “facts” are all profoundly social and cultural processes (Latour and Woolgar 1979). As a senior physicist observed, I have noticed over the years an apparent irrationality on the part of many colleagues when it comes to discussing matters related to energy. All the data in the world cannot bring about a change in energy strategies, once the person has decided on a particular course. This is all the more strange as many of these people are competent and intelligent scientists who are usually willing to alter their view in the light of new data. What seems to be happening is that many scientists who work in energy policy and energy technology have different social and personal values and these values are rationalized by appeal to numbers and data. Many of the disagreements I have witnessed about energy policy or one technology vs. another, is really a disagreement over values. Normally, a disagreement over values would be stated as such, but I think physical scientists are uncomfortable in the sub-

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jective realm of values. This inability to recognize the true source of conflict leads to the nonsensical and ridiculous statements you mention in your comment.

A science editor lamenting that scientists are not taught about concern for the consequences of their work writes, “Science has two faces. The actual experimentation into which value judgments should not enter and the technological applications of our experimentation into which value judgments certainly should enter.” In a letter to the editor of Physics Today, a reader examines the myths that are propagated, indicating that much more than the scientific method is at work and underscoring the technological dominance of science: Most pure and applied scientists have become protagonists for the myth that what is technologically feasible is also scientifically desirable. … The momentum for rationalizing and propagating this myth has been the economic role of the high technology industries in contemporary society and the intellectual attitudes of scientists who work in these industries. I believe that Nader has correctly identified the source of these attitudes as intellectual arrogance untampered by humanism, an unquestioning acceptance of the value and effectiveness of big aggregated business or scientific “from the top down” projects and contempt for disaggregated “from the bottom up” projects. … The big is good and the bigger is better attitude seems to be in contradiction with the accepted scientific philosophy that Occam’s razor is used to arbitrate between alternate explanations or solutions to problems. It has always been my approach as both a physicist and engineer that the most reliable and safest engineering solutions are usually the simplest: complex solutions should always be anathema to a good pure or applied scientist.

A critical examination of unwarranted assumptions and cultural superstitions leads back to questions of practice particularly in the case of engineers working on “real” problems. One engineer expresses optimism: “It is some dozen years ago since I first questioned the general energy growth assumption before audiences of students, engineers and the public. Naturally, I was ignored or laughed at but my general thesis that ‘the growing demand for energy reflects lack of ingenuity and imagination rather than a real need’ is now listened to politely. Even engineering myths and taboos change with time.” Those who locate the problem of paradigm in bureaucracies seek solutions there also: “There are two fundamental answers to the political, economic, and environmental ills which beset our society. Both require ‘grass roots’ thought, which can come from any intelligent and unbiased individual who will accept the discipline of the scientist rather than the discipline of the bureaucracy.

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They are ‘creative conservation’ … and ‘cooperative decentralization,’ which is the process by which bureaucracies become less bureaucratic, and by which those at the bottom assume a greater responsibility for creativity and improvement in the real quality of life.” There are pleas for obvious solutions: Over the last ten years it has fascinated me that obvious solutions could provide such threats to the technical minds of this country. Even solar has its elite which are disturbed by simple systems. We should hope that those with whom Dr. Nader worked on CONAES continued to ignore simple alternative energy systems because the last thing we need is a gold plated, over engineered, extremely costly government designed system. … While Department of Energy experts were stating that alcohol as a fuel was just too expensive, farmers were putting up their own stills and making fuels at a cost much less than that which the DOE had estimated. … While those at the top argue, those at the bottom build.

Another writer observes that engineers in their pursuit of the dangerous, challenging, and costly have betrayed the ethos of engineering. The general theme for those commenting on solutions is one that calls for breadth, integrated or ecological thinking, what one author calls a category of solution in the true humanizing spirit of “Renaissance Men”: “Realistic solutions demand a breadth of understanding and wisdom. The development of breeder reactors, enrichment processes, fusion reactors, solar power satellites, etc., may involve the solution of fascinating problems of great interest to many physicists but they should not forget that, fundamentally, they are only complex solutions to the energy problem that undoubtedly have simpler, holistic and environmentally and societally benign solutions.” Many scientists might disagree with “Barriers to Thinking New about Energy” and the responses to it, but few wrote about their disagreement. Among those who did write, only one defended standardized thinking as well as nuclear power, and unwittingly recalls LevyBruhl’s ([1910] 1966) contrast between the “savage” and the rational scientific worldview. The author, who does not identify his affiliation, put the argument this way: The question is, whose bias was based on fact and reality and whose was based on myth and fear? More importantly, which bias was purposefully selected by consideration of scientific data involving technology and economics, and which bias was unrecognized. I submit that 1) when a person sees everyone else out of step it is time for them to reexamine their own position, and that 2) physical laws, their measurement and expression in numbers, and economics are valid constraints on human thought where engineering is concerned. …

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Among people who understand nuclear power and the present need for energy independence in this country it is obvious that there is no other viable option. No other energy source can equal nuclear in the areas of safety, economics, and acceptable environmental impact, regardless of the biases one might hold. … I submit that it is available technology, economics, and human need that have determined that the breeder reactor is the way we must ultimately go. … Historically it is people who work with people who cause almost all human suffering. Politicians, religious leaders, ideologists, propagandists, media personnel … it is among these ranks that we find sowers of hatred, distrust, fear, war, terror, etc., that are the dealers in subjective judgement, metaphysics and opinion. They are not physical scientists or engineers, and they do not practice scientific rationality or objectivity. An overview of human history will reveal that those who work with numbers and objects almost without exception have improved the well-being of everyone. … It is entirely proper that in a serious discussion of energy production for today, solar should not be considered. Additionally, it would be ludicrous to not consider nuclear power: the one form of energy generation that economically, socially, environmentally and technically meets the needs of the people.

With rare exception the letters indicate general agreement about machismo, professional blindness, and number running. They overwhelmingly indicate that for myriad reasons, ranging from specialization and territoriality to workplace bureaucracy and entrenched position, contemporary science suffers from self-censorship as well as censorship by others. Both European and U.S. physicists identified with the groupthink problem, or what one person described as the “mind cage”; and many stated that they have observed or inferred much of what I wrote about energy ideologies. It was reassuring to have my comments validated, but worrisome that distinguished scientists felt unable to speak out or to alter their conditions, except offstage. Power lies in hegemonic science, less in individual scientists.

When Is Science Scientific? Every specialized discipline tolerates a certain number of deviants, although central values prevail. Among energy experts, central values are being scrutinized and challenged because energy-demand predictions were wildly off base, as were the most sophisticated assessments of energy supply. Part of what is being challenged because of the perceived crisis is the hierarchy of particular technologies. More important perhaps is the challenge to the doing of science and the creation of policy research that relates to science. Scientists get tied to particular methods.

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Energy research has been torn between isolationist models and the science of totalities. It is as Young (1972) said: “Science is much more like the messy world of social and political intercourse than working scientists care to believe.” European and Euro-American science and technologists are unable to separate “science” work from scientific result, and apparently desire overpowers reason. In an essay called “Knowledge for Survival,” Paul Feyerabend (n.d.) reminds us that the problem of who is to judge the experts was addressed by Plato and Protagoras (and probably by those before them). Plato thought that experts must be judged by super-experts. Protagoras thought that experts should be judged by all, that people must be given the power to supervise experts. Feyerabend notes further that Plato argued that while experts are good in their own fields, they lack a sense of perspective as to how different fields mesh. Protagoras (in Plato’s dialogue of the same name) argues that much knowledge is acquired not by special instruction but by human contact in a rather unstructured way. Protagoras, according to Feyerabend, believed that knowledge acquired in life experiences sufficed to judge the experts: “Like the members of a jury … they discover that experts are liable to exaggerate the importance of their work; that different experts may have different opinions on the same matter; that they are perhaps relatively informed in a narrow domain, but quite ignorant outside it; that they rarely admit this ignorance, often are not even aware of it but bridge it with high sounding language thus deceiving both themselves and others.” The many forms of knowledge, expert and lay, may be requisite for a future. Those who judge experts need to understand that scientific research is subject to political, financial, and entrepreneurial constraints. Because scientists are forced to adapt to the climate in which they work, a “subjective” dimension enters the picture. For these and other reasons, philosophers like Feyerabend argue that science has no special properties that might justify decision-making privileges, even though an important task of the scientist is to establish facts, laws, and theories. Decision-making requires more than expert knowledge, and in this Feyerabend would include love, pity, compassion, humility, a sense of personal perspective, a sense of the “sacred,” and I would also add wisdom. Full humanity, he argues, must become part of the production of knowledge. While Malinowski challenged the dogma that primitive man was characterized by irrationality, Leach was correct to direct us toward examining the widely accepted belief that science and scientists are characterized by rationality. Malinowski found magic, science, and religion demarcated among the Trobrianders; among energy experts we find reason and desire intermingled.

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Today most scientists work as employees, not in universities, but in large-scale government and industrial laboratories, and yet this fact alone cannot explain a good part of why conformity is the rule. As professionals, scientists cannot be an impartial source of knowledge in conflicts between a dispersed public and centralized large-scale organizations, but scientific workplaces are useful contexts for understanding how science culture operates to legitimate the vested interests of industries, utilities, banks, mining companies, and governments. The public has paid for scientific research, but has not required the scientific community to educate them; nor has the public educated scientists with their questions. We have achieved a high level of technological development, yet, most citizens are technological illiterates. We are not the Trobrianders, who as a society shared an understanding of risk and uncertainty. In the past, discussions of equity mostly centered on who had what piece of the pie, but the sheer force of technology has moved us to expand our views. We have developed technologies that are life-shaping, that have the potential for irreversible destruction, and that do not recognize national borders. Anthropologists have been interested in how cultures are born, how they develop, how long they are viable, and how they disintegrate (Yoffee and Cowgill 1988). We have documented examples of long and continuous cultural life spans. Australian aborigines and the Great Basin tribes in the Western part of the United States have continuous histories that run into thousands of years. For cultures more like our own Western culture, the durations run shorter spans. According to A. L. Kroeber (1944), complex cultures average from one thousand to fifteen hundred years; he also notes that Western culture took form about a.d. 1050 or 1100 Anthropologists have recorded the sudden disappearance of civilizations such as that of the Maya of Central America. The reasons for the fall are still unknown, but we do know that their high priests were not able to save the civilization. The anthropologist needs to articulate the principles that allowed the so-called simpler societies to survive when civilizations did not. It is a humbling experience for us to know that civilizations rise and fall, flourish and disappear, and to know also that the same happens with science (White 1979). Great scientific traditions, too, after periods of long productivity, decay. Decay in science sets in with repression, which is why distinguished scientists such as James Bryant Conant (1951) emphasize the “importance of absolutely untrammeled discussion and debate.” The societies that have nourished the extraordinary rise of modern Western science in the last three centuries are those having to face problems for which science has as yet no answers, problems that stem from changes often directly traceable to science and technological achievements. The

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scientific attitude, which both pursues and criticizes the production of knowledge, is not confined to scientists; it may even be an attitude shared with nonscientists.

NOTES This chapter was originally published as: Laura Nader, “Three Cornered Constellation: Magic, Science, and Religion Revisited,” pp. 259–275. In Naked Science: Anthropological Inquiry into Boundaries, Power, and Knowledge. New York: Routledge (1996). © 1996, Taylor and Francis Group LLC-Books, reproduced with permission of Taylor and Francis Group LLC- Books in the format hard cover via Copyright Clearance Center. During the 1980s, earlier versions of this paper were presented by invitation at the Australian & New Zealand Association for the Advancement of Science (ANZAAS) meetings; University of Queensland, Australia; Wellesley College; Massachusetts Institute of Technology; San Francisco meetings of the American Physical Society; and the Gordon Conference.  1. For an example of a recent popular collection of ethnoscience, see Jack Weatherford’s book, Indian Givers: How the Indians of the Americas Transformed the World (New York: Crown Publishers, 1988).

REFERENCES Colson, E. 1973. “Tranquility for the Decision-Maker.” In Cultural Illness and Health: Essays in Human Adaptation, ed. L. Nader and T. Maretzki. Anthropological Studies, No. 9. Washington, DC: American Anthropological Association. Conant, J. B. 1951. “A Skeptical Chemist Looks into the Crystal Ball.” Chemical and Engineering News 29: 3847–49. Feyerabend, P. n.d. “Knowledge for Survival.” Unpublished manuscript. Firth, R., ed. 1957. Man and Culture: An Evaluation of the Work of Malinowski. London: Routledge & Kegan Paul. Hallpike, C. R. 1979. The Foundations of Primitive Thought. New York: Oxford University Press. Kroeber, A. L. 1944. Configurations of Cultural Growth. Berkeley: University of California Press. Kuhn, T. S. 1970. The Structure of Scientific Revolutions. 2nd ed. Chicago: University of Chicago Press. Latour, B., and S. Woolgar. Laboratory Life: The Social Construction of Scientific Facts. Beverly Hills: Sage.

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Leach, E. 1957. “The Epistemological Background to Malinowski’s Empiricism.” In Man and Culture, ed. R. Firth, 119–37. London: Routledge & Kegan Paul. Levy-Bruhl, L. (1910) 1966. How Natives Think. New York: Washington Square Press. Malinowski, B. (1925) 1948. Magic, Science and Religion and other Essays. Garden City, NY: Doubleday Anchor. Morris, B. 1976. Wither the Savage Mind? Notes on the Natural Taxonomies of a Hunting and Gathering People. Man 2: 542–57. Nadel, S. F. 1957. “Malinowski on Magic and Religion.” In Man and Culture, ed. R. Firth, 189–208. London: Routledge & Kegan Paul. Nader, L. 1981. “Barriers to Thinking New About Energy.” Physics Today 34 (3): 9, 99–102. Reprinted in Chem Tech, November 1981. ———, ed. 1980. Energy Choices in a Democratic Society. A Resource Group Study for the Synthesis Panel of the Committee on Nuclear and Alternative Energy Systems for the National Academy of Sciences. Washington, DC: National Academy of Sciences. Nader, L., and S. Beckerman. 1978. “Energy as it Relates to the Quality and Style of Life.” Annual Review of Energy 3: 1–28. Nader, L., and N. Milleron. 1979. “Dimensions of the ‘People Problem’ in Energy Research and the Factual Basis of Dispersed Energy Futures.” Energy 4 (5): 953–67. Nader, L. with N. Milleron, J. Palacio, and C. Rich. 1977. “Belief, Behavior, and Technologies as Driving Forces in Transitional Stages: The People Problem in Dispersed Energy Futures.” In Distributed Energy Systems in California’s Future: A Preliminary Report, vol. 2, 177–238. Berkeley: University of California. Tambiah, S. J. 1990. Magic, Science, Religion, and the Scope of Rationality. Cambridge: Cambridge University Press. Weatherford, J. 1988. Indian Givers: How the Indians of the Americas Transformed the World. New York: Crown Publishers. White, L. 1979. “The Ecology of Our Science.” Science 80 (Nov/Dec): 72–76. Wiley, H. W. 1902. “The Dignity of Chemistry.” Journal of the American Chemical Society unnumbered supplement: 148–64. Yoffee, Norman, and George L. Cowgill, eds. 1988. The Collapse of Ancient States and Civilization. Tucson: The University of Arizona Press. Young, R. 1972. “The Anthropology of Science.” New Humanist 88 (3):102–5.

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E c ha p te r 1 3

The Phantom Factor Impact of the Cold War on Anthropology

Introduction This is a story about the impact of the Cold War on anthropology. It unfolds from a collection of variegated and entangled people and stories: the House hearings on Un-American Activities, the University of California loyalty oath, the Human Relations Area Files (HRAF), the evolution of the Office of Strategic Services (OSS) to the Central Intelligence Agency (CIA) after World War II, self-censorship and fear in the universities, resistance to the Vietnam War, counterinsurgency and the Camelot Project, the Thai affair, radar stations in Canada, nuclear power and the University of California weapons labs, and anthropologists and the people anthropologists study—Native Americans, Guatemalans, Eskimos, Pacific Islanders, Yanomani. This story is about research topics eliminated, area courses not covered, area specialists not hired, about a network of collegial relations relatively invisible to the naïve or excluded, about the numerical expansion of anthropologists. It is about the outlawing of leftist discourse, the invention of a discourse of indirection, a valuation of order, the threat of democracy in action. It is about generational oppositions, positivism versus interpretivism, about archeology, and biological social-cultural anthropology, about the Cold War technologies that revolutionized methods, and about people and professional associations torn asunder. This story is about us, one not written about in history of anthropology texts, which only rarely discuss external factors in the making of anthropology. The wider story is about Sputnik and research funding, jobs and academic freedom, ordinary people and extraordinary evil. I call it the “Phantom Factor.” It is difficult to write an ethnography of anthropology. In this, my colleagues have humbled me—as they have talked about how the Cold War

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had an impact on their anthropology. It was a prismatic experience, one person noted—kaleidoscopic actually. For each of the ten colleagues that spoke in my 1994 seminar about the Cold War and anthropology, the experiences have been different and for an multitude of reasons—age, place of graduate training, area experiences, personal life history. Only varieties of experience can hope to illuminate the phantom factor—the missing links that have yet to be elucidated. Personal accounts can point the way. My colleague, Elizabeth Colson, experienced the Cold War in Africa, England, and the United States during a time when if you were pro–civil rights you were considered pro-Communist, a position that merged pro-Communist with the non-Communist Left. She spoke of colleagues that resisted self-censorship on nuclear policies, on Cuba, on Vietnam, only to be denied full academic privileges. Nelson Graburn spoke about the Cold War from Canada, in northern locales spotted with missile detection stations, well before the small band of Canadian and American anthropologists were sought out for work on the Indian and Eskimo north, a security area. He reminded us that social scientists in Canada were more activist than their U.S. counterparts, more like the Europeans. Sherwood Washburn began his story in 1936 off the coast of Thailand, when the Japanese attempted to bomb his boat but missed. He spoke mainly about race and tests used to establish racial biases, and about military funding during the Cold War that carried with it priorities about hierarchy. Herbert Phillips spoke of Thailand and counterinsurgency accusations, ethics, scholarly independence, the interlinking of private foundations with the U.S. government, and our professional association; while Gerald Berreman, whose experiences had taken him to the Deep South as well as to India, spoke extensively about race and inequality, about the loyalty oath, about the Vietnam War, and about sabotage in response to his candidacy for president of the American Anthropology Association (AAA) (Berreman 1991). James Anderson raised concerns about ecology and the antimaterialist aspects of inward interpretivist ideologies, and about militarized development. After David Szanton introduced us to an intellectual history of Southeast Asian area studies at the Social Science Research Council (SSRC) over a thirty-year period, Paul Rabinow and Sherry Otner illustrated what Vietnam and civil rights meant for them as Chicago graduate students who sought refuge in their generational opposition to positivist science, in favor of interpretive anthropology. At the end of the seminar, John Gumperz brought home the manner in which area studies, originally funded for military purpose, affected how we conduct linguistic anthropology, and along with Gerald Berreman, detailed how counterinsurgency, which assumes

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dissent is insurgency (implying violent insurgency), works on our own U.S. population. But what follows is my story, a limited story covering my experience since the 1950s, enlightened by my Berkeley colleagues, informed by my own participation. What interests me are the events that led me to discover the mechanisms whereby the Cold War had an impact on funding, dissent, academic freedom, nuclear power, weapons labs, area specialties, research tools, and more generally how we anthropologists study what we study. In the final analysis, I am led to think about the unique effects of the Cold War in light of the proposition that repressive and fear-generated events such as the Cold War periodically appear in the history of American universities, thereby facilitating industrial and military regulation of academic affairs—and in the case of anthropology, the absence of autonomy over the direction, content, and style of the field.

From Harvard to Berkeley: From Invisible to Visible Power Networks By the time I attended graduate school at Harvard University in the early 1950s, the Cold War was well underway. Soviet troops had blockaded West Berlin in 1948, which survived by supplies dropped by U.S. planes; Moscow had a stranglehold on Eastern Europe. World War III was thought to be only a matter of time. Already, U.S. nuclear weapons were believed by many to be essential to a military balance of power with the Soviet Union. Political opportunism and public fear stimulated charges of being Red, Pink, or “soft on Communism,” just as it had in 1919 after World War I. As if the Soviet atomic bomb and the existence of Red China were not enough, the psychodrama of purging the “Red Menace” accelerated when North Korean troops stormed across the thirty-eighth parallel in 1950. The belief quickly spread that Moscow sought to dominate the world, and the only way to stop Soviet nuclear destruction was by means of nuclear deterrence. As we know, there were disbelievers. At Harvard, the search for Communist infiltrators and spies was whispered about in every corridor (Diamond 1992). The House Un-American Activities Committee (HUAC), encouraged by the activities of Senator Joseph McCarthy, had already targeted Alger Hiss, a Harvard Law School graduate, East Coast liberal, upper-class lawyer, and New Deal aristocrat; subversives were to be found in the top echelons. The then-presiding president of Harvard, James B. Conant, first expressed fears about the dangers of witch hunts spreading to academia, only to move to a posi-

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tion he had previously resisted—the banning of Communists from the teaching profession. Debates over universal military service were ongoing, with the complete takeover of China by the Communists in 1949 and China’s intervention in Korea. It was a time of deep pessimism and concern in the university. The “military-industrial complex” was real, but it did not mobilize graduate-student resistance. The issues for Harvard were those of President Conant: the Red Scare and academic freedom, the military and classified research, fantasies of nuclear war and nuclear peace, and, in particular, what was happening to science as scientists were lured into military and government-funded projects. He also worried about what was happening to social reformers suspected by reactionary red-baiters who easily equated Communist and leftist New Dealers. Fear spread throughout the university system. The Senate Subcommittee to investigate the administration of the Internal Security Act held hearings in 1952 on Communist influence in New York City schools and colleges. Gene Weltfish, a Columbia University anthropologist, was called as a former member of the Communist Party. In 1956, a congressional committee holding hearings on arms control, nuclear weapons, and civil defense called on another anthropologist, E.A. Hoebel. In 1950, the Regents of the University of California added the loyalty oath to the employment contract. The university was ripped apart: faculty were fired, while others simply left. The heart of the loyalty oath document brings to our attention that there are enemies of the United States, that they are here and abroad—foreign and domestic enemies are equated. In this context, dissident voices were branded as seditious, thereby encouraging a culture of false patriotism and conformity, a society where independence of thought and action are frowned upon. But the McCarthyites, a small part of a wider anti-leftist movement, ostensibly had it in for Harvard—where America’s youth were vulnerable to indoctrination and use of the Fifth Amendment (Hershberg 1993). At Harvard and elsewhere, faculty were called before the HUAC. Harvard waffled on a number of issues, but held the line on banning classified research while insisting publicly that regardless of its views, faculty were to be judged on the quality of scholarly work. The effect of the Cold War as a state of permanent emergency and constant readiness of a national security state to defend civilization from “naked aggression” by powerful Communist forces left students marked. We students of the 1950s were dubbed “the silent generation”—conformist, cautious, passive, paralyzed. President Conant summarized the situation at Harvard when he noted that “student morale is pretty well gone to pot” (Hershberg 1993, p. 546). The same decade also militarized more of American science, and anthropology was part of that science. After Sputnik, defense research was

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at the top of the national science agenda. The National Science Foundation (NSF) emerged, along with the debate over whether it should have a national defense label so as to get more appropriations and personnel. Academics were rightly worried about the domination of scholarship by federal monies, and also about being tainted. Stories concerning the erosion of the academy came out bit by bit in anthropology. The linguistanthropologist Maurice Swadesh could not find a job and eventually relocated to Mexico. According to Elizabeth Colson, Kathleen Gough was considered an embarrassment to Brandeis and not promoted because, according to university officials, she was a bad teacher. Knowing Gough to be an excellent teacher, Elizabeth Colson resigned from Brandeis. Gough and her husband, David Aberle, moved west from Brandeis and later to Canada (Colson 1974). Paul Radin, Marc Borofsky, and Jack Harris were other target cases. McCarthyism was not confined to the United States. In England, following years of army service and employment on the Tanganyika Groundnut Scheme in Africa, Peter Worsley was banned from British colonies by intelligence services and later was refused entry to New Guinea by the Australian colonial authorities. Worsley was forced out of anthropology. Although Conant discouraged classified research at Harvard, he encouraged his faculty to participate in the Cold War research effort. The Russian Research Center was founded in 1947 with an initial grant from the Carnegie Corporation and the blessings of the U.S. State Department, the military, and the newly created CIA—a fruitful collaboration between the intelligence agencies and Harvard (Diamond 1992). The center had as its director veteran OSS anthropologist Clyde Kluckhohn, whose World War II experience involved analyzing Japanese cultures at a distance. The center was to satisfy the requirements of open scholarship and covert government needs by exploring Soviet culture and its military. But the center, which symbolized the growing web connecting government and the university, was a test to peacetime academic freedom that failed, and final proof that the university was not autonomous but indentured (O’Connell n.d.). Political interests interpenetrated scientific research. Involved social scientists included Talcott Parsons, Sam Stouffer, Jerome Bruner, and Kluckhohn. Nearby, Project Troy, a secret study headquartered at Massachusetts Institute of Technology (MIT) explored how the U.S. government could use communications technology to penetrate the Iron Curtain, then expanded to research on political and psychological warfare. For a young graduate student such as myself, the structures of power were invisible. Clyde Kluckhohn was my advisor. I knew that Kluckhohn had close ties to the State Department; his OSS work was less known, yet

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all of us had read Kluckhohn’s 1949 book, Mirror for Man (1985), hardly a reactionary document. His chapter, “An Anthropologist Looks at the United States,” was a critique of the nature of our social and political system, and his dedication to the rights of native peoples was openly discussed. World War II activities had involved “patriotic” anthropologists working in the war effort; however, wartime networks merged into a Cold War period that was something of another character. An ideology of freedom versus totalitarianism created Cold Warrior academics, such as Kluckhohn, academics who acquiesced to external funding authorities. Kluckhohn agreed to political firing and to censorship of his own scientific work, while providing cover for clandestine activity ties. He was startled when I quoted my father—“Those who fund can determine what you study, and what you find, tax free.” Kluckhohn resigned from the Russian Research Center in 1954. I never heard why he resigned, and he never spoke of his resignation. No other anthropologist subsequently joined the center. Earlier, anthropologists had done “good”—writing the document for MacArthur’s entrance into Japan, sharing ethnographic knowledge about the Pacific Islands of the war zone (Ward Goodenough), producing studies of national character (Benedict 1946). Anthropologists had worked in Japanese war relocation camps. This much I knew. After the war, many continued to serve the national security state such as in the work of the Harvard Russian Research Center or in new projects devoted to another purpose: the containment of Communism, work sometimes described as development, sometimes as counterinsurgency. We were not assigned readings on such subjects, and as a profession we barely spoke openly about ethics in the way that Franz Boas at Columbia University had in the period prior to World War II. At Harvard, a group of anthropology students (all older than I)—Alice Dewey, Clifford Geertz, Hildred Geertz, and Bob Jay—joined a group of new nation-builder economists at MIT to work on an ambitious Ford Foundation project in Indonesia, a country that was considered vulnerable to takeover by Communism. All of this I recall was in the background, not in class, not at student meetings, not at parties—maybe on the Peabody Museum steps. The foreground was to come later, but the issues for anthropology were all there in the 1950s: academic freedom and academic fear, temptation, the funding carrot, red-baiting and the McCarthy repression, nuclear power uses for war or peace, and concern for those we study. It was as if we lived in a fog; we saw such happenings as extraneous to the study of anthropology. We had bought into the notion of an uncontaminated sample. Suddenly, the picture changed.

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In the 1960s, when the U.S.–Soviet Cold War turned into a “hot” war in Indochina, when civil-rights unrest and protests against the military draft erupted in the United States, university students and faculty publically mobilized against the specific ways in which anthropology was being used. Those were the years of emerging introspection, and although self-assessment had already begun in the colonialist period, earlier than the Cold War in most parts of the world, most of us were politically naive or ideologically “caught.” The 1960s were years of betrayal and outrage, soul-searching about the persecution of innocent family members, vociferous university meetings, the gassings at Berkeley, and the omnipresence of the police. How could we respond as anthropologists and as citizens. Is there any difference? Should we take money from the government for our research? With Vietnam, what was in the background came to the fore—the brutality of ideological infection by the national security state. As Marshall Sahlins (1965, pp. 266–269) said, “Advanced anticommunism trades places with the enemy.” The disturbing question repeatedly asked by younger anthropology professors like Jack Stauder (1972, pp. 65-89) at Harvard was, “To whom has anthropological work been relevant?” Critics returned to classic monographs such as Evans Pritchard’s The Nuer (1940), whose research was financed by the colonial government of the Anglo-Egyptian Sudan (Evans-Pritchard 1968). Evans Pritchard did not describe the British war against the Nuer, less the nature of British colonial policy. His work was relevant to a peaceful domination, which relied on knowledge about native peoples. Social anthropology was the handmaiden of colonialism, a role documented by Lucy Mair (1961) in her survey of the practical contributions British anthropologists made to colonial administration and economic “development” from 1943 to 1960. Slowly I became aware that most social anthropology research in the colonies was not only financed by the British government, but also by the Carnegie Corporation, the Rockefeller Foundation, the Rhodes Trust, and others who had financial and mineral interests in Africa. Controversy over firing was fierce. Jack Stauder, an anthropologist who had degrees from Harvard and from Cambridge University, and who had completed original work in Ethiopia on subsistence and environment, was fired, then rehired by Harvard; then finally his contract was not renewed. He was banned from teaching the fall semester after the student strike in spring 1969, and suffered the loss of salary in these transitions. The fact that his contract was not renewed was undoubtedly related to difficulties in finding employment during a time when the university had become the object of CIA activity. Stauder became an activist lost to scholarship

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because he analyzed the meaning of anthropology under imperialism, a contribution later generations of anthropologists too easily forgot. It should be said that many anthropologists whose work we were reading probably thought of themselves as doing work that was scholarly rather than aiding practical problems of administration or economic development. Although harmony of interest between ruler and ruled was assumed by some, the exceptions were white liberal reformers who were—as with British-trained Max Gluckman, Ian Cunnison, and A. L. Epstein—thought to be enough of a threat to be denied visas to sensitive areas in Africa, such as the Copperbelt, the Sudan, or New Guinea. Actually, Gluckman’s troubles started when he was in his late twenties. Historian Hugh Macmillan (1995) reconstructed the tales of Gluckman, the Zulu Nation, and anthropological theory, and what it will take to understand the way in which colonialism, racism, Communism, Marxism, structural functionalism, and the Cold War form a whole picture. Gluckman’s (1940–42) landmark Analysis of a Social Situation in Modern Zululand was a contribution to ethnic theory and political practice. According to Macmillan (1995, p. 55), “Gluckman noted the tendency of the South African government to attribute occasional outbreaks of violent African resistance to ‘communist’ influence.” But Gluckman himself was criticized for his methods of dealing with natives, for his sympathies for them, for his Communist affiliations, and for his analysis of the intersection of Zulu and European social systems as they fit into the world capitalist system. Macmillan (1995, p. 55) continues: “There can be no doubt that it was the fear of such accusations which inhibited the academic pursuit in South Africa of many of Gluckman’s themes.” Race and resources were volatile issues. Some anthropologists of the colonial era were writing about their native informants in progressive terms—by stressing common rational humanity and social coherence. Much the same was true elsewhere. Anthropology in the New World was also funded to help facilitate the administration of Native Americans, most recently peoples who worked the uranium mines that fueled nuclear technologies, and who currently are targets for nuclear waste burial sites. My teaching and research on alternative dispute resolution is necessarily interwoven with new instances of persuasion by U.S. government officials. The effect on aboriginal peoples of the exploitation of uranium reserves and the destruction of Indian lands is found in 1960s headlines on Brazil or Venezuela: “Uranium Discovery Threatens Yanomani Tribe”; or in Saskatchewan, Canada: “Save Wollaston Lake—Leave Uranium in the Ground.” People were forced off the land and into dangerous work in the mines. The high capital cost of jobs at uranium mines generated

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little income for native peoples. For the white man’s corporations it was a lucrative business. The Canadian north was almost entirely dependent upon foreign-owned uranium developments for the nuclear industry. The discipline’s problems were inseparable from what was happening to “our informants.” Our access to these cultures was closing. By 1995, hardly an Indian reservation existed in the more than one thousand reservations in the United States and Canada where an anthropologist could do fieldwork without formal application to native authorities.1 Neocolonialism replaced older varieties of colonialism, with the United States as leading power, in Vietnam, Guatemala, Chile, Dominican Republic, Bay of Pigs, and at home. In 1954, the CIA toppled an elected leftist government in Guatemala, leading to decades of turmoil and the genocide of tens of thousands of native peoples and the displacement of thousands more. Academic research began to focus on colonialism, but concepts of neocolonialism or U.S. imperialism were aggregated and presented as Communist propaganda. Appeals to anti-Communist propaganda obfuscated the reality of U.S. imperialism in Latin America and Southeast Asia. In Ralph L. Beals’s (1969, p. 64) Politics of Social Research, the phrasing is smooth: “The growth in U.S. power and wealth and its global foreign policies have led, not without some justification, to identification of this country with imperialism and neo-colonialism. That these terms are the creation of doctrinaire communist propagandists … should not lead us to ignore their partial basis in fact or the extent to which they influence opinion abroad.” The realities of American interests abroad had yet to be faced by anthropologists, when our policies adumbrated the end of the uninvited ethnographer, or even when anthropologists were killed while doing their work in Guatemala or earlier in Indonesia. There is little room for disgust and outrage in the American university. The university buries emotions, and faculty look for “balanced” opinions. Critical anthropologists documented numbers of anthropologists who joined with other social scientists in employment and projects funded by governmental and nongovernmental bodies. Anthropologists worked for the Agency for International Development (AID), the CIA, the Defense Department’s Advanced Research Projects Agency (ARPA), the Center for Research in Social System (CRESS; formerly the Special Operation Research Organization or SORO), and other government research agencies. In addition, private research corporations such as Arthur D. Little and the Atlantic Research Corporation specialized in classified government research. Classified projects were sometimes found in the Congressional Record under project titles such as Rural Village Systems, Republic of Vietnam, Thai-Mal Village Study (Project Agile), and more specifically research interest in

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minority group areas of Thailand. Sometimes such research followed anti-American rioting, as in Panama or the Sudan. What I call the phantom factor, Jack Stauder referred to as “hidden anthropology,” an anthropology that, to this day, is still virtually undocumented and unstudied except for a spate of writings on anthropology and ethics during the Cold War period and reevaluation afterwards.2 From what we do know, it is clear that anthropology was considered useful in the construction of major world events. Otherwise, critics asked, why would the U.S. government and U.S. corporations pay for such knowledge? The Ford Foundation set out “to provide assistance … in designing research so as to be useful to government and business,” and to this end gave $138 million from 1952 to 1964 (Cowan et al. 1958, p. 1). Tom Fallers was the consulting anthropologist. The joint MIT–Harvard project, The Cambridge Project (CAM), was financed by the Defense Department’s ARPA to develop a sophisticated set of computer programming techniques to enable the use of masses of social-science data on the peoples of the world. The HRAF was a similar information retrieval system used during World War II by a U.S. Navy unit working in Micronesia. Questions such as under what conditions do peasants revolt, or information on conditions of stability, were used in managing people as if they were isolated and autonomous actors independent of foreign government interference and international business interests. Project Camelot, one of the more blatant counterinsurgency research efforts in the 1960s, was a baptismal experience. The letter of recruitment read, “The U.S. Army has an important mission in the positive and constructive aspects of nation-building in less developed countries as well as responsibility to assist friendly governments in dealing with active insurgency problems” (Horowitz 1967). For the U.S. Army, the purpose of counterinsurgency movements was to eliminate the means used by people to resist oppression, in this case totalitarian oppression. Project Camelot never got off the ground, but less visible counterinsurgency projects moved ahead, and some anthropologists cooperated. They did so for a variety of reasons, which included “doing good,” patriotism, desire for money and power, awe, and the desire to prove the “worth” of social science. Others summarized the participation as due to “naiveté,” carelessness, callousness, stupidity, or some culpable defect.3 Many participated wittingly, although the majority of anthropologists maintained an arm’s length relationship with the Department of Defense, the CIA, and like groups. On the other hand, the National Institutes of Mental Health (NIMH), the National Institutes of Health (NIH), the NSF, the Ford Foundation, the SSRC, the American Council of Learned Societies (ACLS), and other funding agencies were regarded as less compromising or at least

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not classified—an illusion of free and open funding based on the presence of anthropologists on panels that decide grants and fellowships. As evidence that having an anthropologist on board need not ensure free and unfiltered funding, earlier unselfconscious statements were publicized, such as the following from the Ford Foundation’s African Research Group: “In an age of complex organization and multinational operations, no empire can contain conflicts or manage change without collecting, analyzing, and acting upon detailed information about states and people” (Cowan et al. 1958, p. 1). Stauder (1972, p. 80) was articulate in arguing against the illusion: “Anthropology, as an institutional activity, is not autonomous and not unrelated to other institutions of our social system. … [It is] dependent for its support on the dominant institutions of our society (the federal government, the large corporations and the large private foundations), anthropology is expected to serve the interests that control these and the universities. As these interests extend to foreign countries, anthropological research on foreign people can provide … knowledge.” Stauder continues that insofar as anthropologists see the U.S. government, corporations, and foundations as “promoting genuine and beneficial social change, democracy, freedom, economic development, etc.,” they will not hesitate to serve. Therein lies the rub. Many Americans deny the history of U.S. imperialism or corporate politics; other anthropologists are aware of the contradictions of our work, and we are troubled knowing that our work has been used for harmful purposes. Government-funded projects for counterinsurgency were only part of the picture. Domestically, the relationship between power and discourse in the American academy also took the form of state intervention in the classroom (Ghani 1987). As indicated earlier, there were “subversive” organizations and “subversive” persons ineligible for federal and state employment. There was direct questioning of individuals about the content of classroom lectures. Ex-Communists named names; anthropologist Karl August Wittfogel testified before the House in the 1950s that members of a student study group at Columbia were Communist. Hundreds of teachers lost their jobs, many left the country; some committed suicide. Not surprisingly, in the Selected Papers from the American Anthropologist: 1946–1970 (Murphy 1976) there is not a single citation of Karl Marx. Ashraf Ghani quotes the late Morton Fried as saying, “Very definitely there were many anthropologists, many scholars at that time, who wouldn’t write what they really thought, because they were horrified by the thought of what might be made of what they said” (Ghani 1987, p. 9). Karl Polanyi had to work under conditions of censorship, for his wife, once a Communist, was not allowed to enter America. Ghani noted that

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Polanyi’s claim that the validity of economic theory is limited to the analysis of the society that has produced it was part of an investigation to which Marx’s analysis of money would have been central. He concludes, “Had the times been suitable, Polanyi could have channeled the interests of anthropologists into … a fruitful anthropological confrontation with Marx. Censorship not only forces the suppression of connections. It suppresses the very asking of some questions” (Ghani 1987, p. 21). On the other hand, repression also stimulates the asking of questions. Eric Wolf’s (1969) book, Peasant Wars of the Twentieth Century, originated from a paper on Vietnam that Wolf presented in the 1960s during one of the “teach-ins” on the University of Michigan campus. Ironically, Peasant Wars was not only read by anthropologists but also used as a handbook by Americans involved in developing strategies for counterinsurgency, and later even turned into a comic strip by a guerrilla press in Peru. Peasant Wars was about peasants in six major upheavals in the twentieth century: Mexico, Russia, China, Vietnam, Algeria, and Cuba. Wolf concluded that peasants are more likely to rebel when they both have something to lose and have the means to mobilize. “Tactical power” was key to understanding the revolutionary orientation—the most conservative segment of rural populations can develop effective resistance to the old order. These conclusions, which proved useful to counterinsurgency development, were hardly Wolf’s intent, as can be documented by the battles over counterinsurgency fought out in anthropology’s professional association.

Crossfire at the American Anthropological Association What happened at the AAA now seems very remote for colleagues who have no scars. But such was not true for everybody. A reading of the AAA Newsletter from 1961 would capture the debates and agonizing realities of what Dutch anthropologist Anton Blok refers to as the “naive involvement of American anthropologists in the war in Southeast Asia” (Abbink 1992, p. 13). But one would have to be an anthropologist to read between the lines of the discussions of ethics and morality, or to talk to those deeply scarred to hit a raw nerve in 1995. The innocence of anthropology was lost even before the crossfire began, and so was the unity of professional anthropology. Ten years after the New York Review of Books’ publication of “Anthropology on the War Path in Thailand,” Wolf had this to say: “Yes, they had a lasting effect, because they scared the daylights out of people. It was like raising Genii. Only it destroyed, I am sorry to say, a sense of

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belonging to the same church. All of these co-religionists used to come to the meetings and get drunk happily. Suddenly they had to cope with these things. I suspect it’s in part responsible for driving a lot of anthropologists back to trivia, because one can feel comfortable with trivia” (McBride n.d., p. 126). Trivia was not what captured the AAA in the decade of the 1960s and early 1970s. It was a struggle with realities—the threat of nuclear war or nuclear holocaust. The 1960s began with a call by Margaret Mead (herself fraught with contradiction in relation to the military goals of her country) for the discipline to involve itself in the alleviation of world crisis by a science of human survival.4 The resolutions on war and race came together. There was widespread interest in a fuller use of anthropology in the pursuit of peace (the Peace Corps had recently started) and civil rights. Some argued about the ethical problems involved in participation as a scientist in political-action groups. Yet I thought the ethical problems were about silence among scientists. In 1964–65, the issue of anthropologists being recruited for work in counterinsurgency exploded. Some of us participated in the public unveiling of Project Camelot; I wrote an early warning letter to a member of the executive board outlining consequences of such activity. The unveiling of Project Camelot was followed by a move to develop guidelines on research and ethics for anthropologists, culminating with the Thai affair, the multipurposes of modernization and development projects, the role of the AAA for studying the use of defoliants in Vietnam, and the move by the executive board in 1972 to establish a committee on harmful research. Finally, there came the dissolution of the AAA as we had known it—an association for the whole of anthropology rather than its subdivided specialties. Holism was what distinguished anthropology as a discipline, but integrated perspectives (as the Gluckman example illustrated) are rarely befriended by repressive forces. Some highlights are relevant to my story. The containment of Communism was to be handled through multipronged projects of which modernization/development was only one tool of U.S. military power. Containment was based on a notion of linear evolution, the parts of which included intervention and stability following periods of destabilizing efforts, efforts that were only one of many strategies that involved the United States in Southeast Asia. Anthropologists such as Clifford Geertz accepted the basic assumption of stability and development; there was no critique in his work. The disastrous view of a “balance of instabilities” also recognized that repressive governments in the area could contain Communist expansion; the United States was making sure

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by backing authoritarian regimes and leaving democratic development for the future when we had rid ourselves of the Communist threat. U.S. government interest in academic social science research did not begin with American involvement in the Vietnam War; it had increased since World War II. At Yale, the Institute of Human Relations and its Cross-Cultural Survey collected anthropological data on Pacific Islanders for use by the army and navy. These files became the HRAF. The Office of Naval Research (ONR) also supported social science research before the NSF came into being. But it was the Kennedy administration that pushed the effort to use social science know-how in an effort to contain the Communist threat by countering insurgency, which included behavior ranging from violent and organized rebellion to lesser resistance. Presidents Johnson and Nixon followed suit. For social sciences this meant a lot of money. One estimate observed that the amount allocated for behavioral and social-science research between 1966 and 1970 was between $34 and $48 million under the Department of Defense (DOD). It is difficult to estimate how much of this was spent on counterinsurgency. When Project Camelot came to the attention of the AAA, matters became specific. Project Camelot was the result of a government directive: the U.S. Army should play out its mission to contribute to nation-building projects, which included actively assisting governments in their dealing with insurgency problems. Gossip moves quickly; word got around that anthropologists were consulting on the project—Hugo Nutini of the University of Pittsburgh was widely believed to be involved. Project Simpatico in Columbia and Project Colony in Peru involved work relating to the state integration of peasants, and later of indigenous peoples—all part of a coordinated program of social-science research in support of counterinsurgency. American anthropologists could no longer ignore involvement of anthropologists in counterinsurgency work. Fieldworkers unfairly accused of being CIA agents were in danger of losing their lives. In 1965, the AAA appointed a committee to examine ethics and responsibilities associated with anthropological research for the government. Ralph Beals of the University of California at Los Angeles (UCLA), appointed to head the Committee on Research Problems and Ethics, testified before a congressional subcommittee on government in 1966. His language was ambiguous. On the one hand, he argued, anthropologists should not be involved in intelligence gathering. On the other, Beals did not rule out government use of social-science research to improve decisionmaking. The Beals report, issued in 1967, warned of projects being planned in other agencies. In 1968, the AAA created an ad hoc committee on ethics. The pages of the newsletter indicate the beginning of a divide. Some AAA members were enraged at the “political” direction the AAA was taking;

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others argued for political resolutions; still others were outraged at professional society regulation. The question of anthropology as a value-free science was disputed, and so was the dual role of the anthropologist as scholar and as citizen. For me, the idea of the anthropologist as scholar and citizen made the case for the collective wellbeing of anthropologists and their informants. The committee on ethics invited anthropologists to help build a file of anonymous cases. At this point, the Student Mobilization Committee (on the war in Vietnam) sent an ethics committee member, Eric Wolf, purloined documents from the files of Michael Moerman at UCLA—documents dealing with what seemed to be plans for counterinsurgency activities in Thailand in the event of a future struggle for Thailand. Private organizations were involved; the most well-known was the Institute for Defense Analyses (IDA), which subcontracted through the Pentagon and ARPA, which contracted out to the American Institutes for Research (AIR) in Pittsburgh—a network of agencies and institutes. At the University of California, USAID signed a contract with a group of scholars also dealing with development and counterinsurgency problems in Thailand. Anthropologists working with such missions were named (though not by the ethics committee), primarily Lauriston Sharp, Michael Moerman, Charles Keyes, and my colleague Herbert Phillips among others. The controversy that erupted over the Thailand issue aroused a level of controversy rarely present in professional societies (Voss 1970). Concern ranged from the observation that documents were purloined, to statements about the paramount responsibility of anthropologists to those they study. The late Kathleen Gough Aberle was clear: “We must dissociate ourselves from the acts of governments that seek to destroy the people about whom we have gathered knowledge.”5 She was right. Those who did not agree thought the study of Thai Communists interesting, or thought it our patriotic duty to help the government formulate better policies, even though it was apparent that independent advice was not what was wanted. But the controversy, the subject of a recent publication—Anthropology Goes to War (Wakin 1992)—not only affected the AAA, but also my Berkeley department in particular because our faculty were key players. David Mandelbaum had been chief of the Southeast Asian office at the OSS during World War II. Herb Phillips, who had cut his teeth at the Harvard Russian Research Center, was a Cold War government consultant on the Thai people; George Foster was president of the AAA; Eugene Hammel was a member of the executive board; and Gerald Berreman, a vociferous antiwar activist, and William Shack were members of the ethics committee. The Thai issues were serious and we learned later of horrible government repression of people labeled as

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“communists” in order to liquidate all government opponents. Planning for insurgency in Thailand became a growth industry, and part of it included rural development to meet the Communist challenge. ARPA (Advanced Research Projects Agency) itself had an annual budget of $5 to $12 million. The tragedy, however, was that the AAA investigation was not about the Thai or about Thailand. It was about “one’s own moral business” rather than “something to be established by some external moral authority”; it was about whether Eric Wolf and Joe Jorgenson had exceeded their mandate using the tactics of McCarthyism, sources of research support, purloined documents, responsibilities to colleagues, about U.S. government tactics of neutralizing individual or collective protest. It was also about the perceived threat of democracy in the association when the membership added Gerald Berreman as their nominee for president to that of the nomination committee. The Third World was no longer the central issue. We were sidetracked and we turned inward, or maybe homeward. Thomas Gladwin urged colleagues “to forget such trivia as who released which documents and think now about what they are doing in the Third World. As it gets later we only compound our faults.”6 Paul Bohannan proposed that the concern with ethics was misplaced: “The real issues lie not in the procedures and practices currently being argued, but rather in the larger goal of anthropology, the morality of what anthropology should or should not be about.”7 Meanwhile the consequences of the counterinsurgency efforts of the U.S. and Thai governments lay heavily on the “hill tribes” of the North. Local situations of political resistance were overreacted to and interpreted in terms of the international struggle with communism. In Thailand, the Hmong, one of these groups, were bombed and napalmed in early 1969. We knew this was happening. The Mead Ad Hoc Committee to Evaluate the Controversy Concerning Anthropological Activities in Thailand wrote its report in 1971 exonerating all nonmilitary members of the AAA from the charges that they had acted unethically, an outcome that fits with Margaret Mead’s ambivalence in seriously confronting powerful institutions within U.S. society. The Committee lost its credibility, and the report was rejected by the membership. It was rumored that the Committee destroyed the data. Some said the vote represented an organized body of younger anthropologists rejecting the values of its elders; however, age alone did not predict how people voted. The trust was lost. Looking back, the long-term impact on the Association’s code of ethics was to water down the 1971 AAA Principles of Professional Responsibility. National backlash had already set in. By 1982 the Draft code had made several fundamental changes, including downplaying anthropolo-

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gists’ “paramount responsibility to those they study,” elimination of accountability and the possibility of sanction, and the elimination of the responsibility of anthropologists to speak out “to contribute to an adequate definition of reality”—all changes that reflect the Reagan years, and moves to protect academic careers (Berreman 1991). Although the proposed 1990s version is improved, questions of professional responsibility raised in the 1960s remain largely unresolved, and I have not been involved with AAA business since it in practice stopped being an association of the whole of anthropology. Early on, many of us were pulled in on ethical issues by special missions or committee work. In 1964, just three years from my Ph.D., I was involved with a committee to work out ethics of government interest in social science work for the Latin American Studies Association. More traumatic was the request by AAA president George Foster for South African anthropologist Peter Carsten and myself to travel to Simon Fraser University in British Columbia to investigate the firing of Kathleen Gough. We found that her firing was in no way based on the quality of her research as was claimed by the university. Our investigation indicated a political firing that permanently damaged a distinguished anthropologist and for which Simon-Fraser, censor or no, never claimed responsibility. In 1993, Kathleen Gough’s contribution to analyzing the forces of imperialism and resistance was published posthumously in a special issue of Anthropologica. Her work was a first-class model of responsible researcher. It still makes me angry to think about how easily reputation can be damaged by utterly irresponsible parties, and how easily we were all pulled in at the microlevel. Throughout this period, I was appalled by United States policies and anthropological involvement in Southeast Asia, but not surprised. I grew up with talk of colonialism and imperialism as part of our family dinner conversation, but this was the present. In the Pacific, anthropology and nuclear sciences came together. The effects of nuclear weapons testing in the Pacific since the 1940s silenced a whole panoply of knowledgeable and distinguished anthropologists in the wake of radiation poisoning and the contamination of whole islands, perhaps an expected outcome of referring to other places as “laboratories,” indicating that human experimentation was acceptable. What were we afraid of? Objection was responded to by silence. In 1959, Edward Teller was in Alaska promoting the nuclear excavation of a harbor in the Arctic. The use of wilderness areas and small human populations to test atomic technology is a frightening illustration of the danger of secret and unaccountable science; the Inupiat Eskimo were dispensable for some Livermore scientists.8 Such ideas are part of the deep structure of the modern science that anthropol-

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ogy was part of. I came to recognize this incrementally, as a result of the 1960s ferment and the growing nuclear question. What really changed my level of activism was the knowledge that in the mid to late 1960s the counter-insurgency mind-set was being applied on domestic issues. I had three young children, and they were growing up in this country. Atomic science seemed to be running amok and moving beyond nuclear weaponry; national security now included urban problems previously outside the conventional definition of national security. The organizing forces against poverty became a national security problem, and the evaluation of anti-poverty programs took its start from defense work. Gone was the naïve idea of conducting objective, sanitary science free of politics. The fog began to lift and the sunshine revealed an ugliness. Berkeley was an experimental station. We were gassed from the air (chicken shit they called it, as distinct from tear gas); so were the children of Berkeley. When I complained to the medical doctor in charge of student health he responded, “It serves the students right.” Bay Area Health Departments did not know how to treat the innocent bystander who happened to be in the wrong place, because they did not know what the gas was. Governor Reagan announced on television he did not know who was responsible for the gas air attacks. This was the United States! Domestic and international insurgency were conceptually merged, just as in the loyalty oath. Civil rights leaders were shadowed as were leaders in the American Indian movement. Racial protests, as earlier in Africa, were merged with communist provocateurs. So too, as indicated by my colleagues Berreman and Gumperz, race was intermixed with strategies of counterinsurgency that thwarted indigenous leadership possibilities. A decade later, Gumperz discovered teenage Native Americans were being tracked to adulthood, and sometimes entrapped in criminal behavior, which then became new subject matter for the linguistic anthropologist interested in courtroom behavior. More new subject matter resulted when Charles Murray, who in the 1960s was in Thailand working in counterinsurgency, published (with Richard J. Herrstein) The Bell Curve, and anthropologists came face to face with the new eugenics (Berreman 1991).

Area Research: Who Decides Which Areas? Bruce Trigger (1984) wrote a nice paper arguing that the nature of archaeological research is shaped to a significant degree by the roles that particular nation-states play, economically, politically, and culturally, as interdependent parts of the modern world-system. David Szanton (1981, p. 73), in his article on “Southeast Asian Studies in the United States,”

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addresses how anthropology connects with current affairs: “Any review of American academic interests in Southeast Asia must begin with a recognition that scholars do not work in isolation. American businessmen, missionaries, diplomats, intelligence analysts, military planners, development specialists, and journalists, all have their own interests in Southeast Asia, interests which play a major role in shaping general American perspectives on the region … [and] the research agendas of many academics are inevitably affected by the nature and direction of the interests of their counterparts in those other fields.” He was in a good place to know as staff to the Committee on Southeast Asia, jointly sponsored by the American Council of Learned Societies and the Social Science Research Council. His analysis of doctoral dissertation research proposals submitted to the Foreign Area Fellows Program from 1951 to 1984 indicated that intellectual and national concerns within our country had indeed affected the interests of American scholars in the region: In the decade immediately following World War II, the dominant concern with a Communist menace to the American Way of Life deeply influenced the kinds of questions Americans asked about the rest of the world. … Then followed an overriding interest in economic development or modernization, coupled with a strong sense that America held the answers, the techniques, the models, to rapidly advance the welfare of all people everywhere. Deeply rooted in an old American missionary tradition, aid programmes of various sorts were mounted, often intruding … into the internal affairs of the host countries, with a complex mix of motives (Szanton 1981, p. 74).

American ignorance of Southeast Asia was not unique to world regions, an observation recognized by the U.S. government with increased availability of funds for area study. David Schneider and Jack Fisher, and before them William Bascom, received such monies for Pacific Studies. John Gumperz records how the area thrust funded people like himself, a linguist headed for a career in Germanic languages, by providing fellowships to learn and then teach Hindi to American scholars funded for work in India, a subcontinent also perceived as capable of sliding towards communism. African countries were very hard hit by the Cold War and became of academic interest in the West as the Soviet Union began to invest in selected African countries. So too was the interest in Cuba; the threat of Russian influence through Cuba opened research in Central America, not Cuba. The Canadian north had become a northern hemisphere security area by virtue of its proximity to the Soviet Union; research funds flowed, and area studies in the United States expanded as did anthropology, as more native peoples and lands were destroyed.

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In addition, certain areas were not funded. The USSR was closed to area study, as if it were somehow unpatriotic to know the enemy. Eastern Europe, with the exception of Yugoslavia, was difficult both to enter and to receive funding. China, until the Nixon administration renewal of diplomatic relations with PRC, was not funded. The Middle East was variably funded: North Africa, with the exception of Algeria, was relatively open; the parts under Soviet influence—Syria and South Yemen, and at some points Nasser’s Egypt and Khadaffi’s Libya—were neither easily funded or entered. Needless to say, the fact that the U.S. was utilizing Israeli intelligence networks for Cold War purposes meant that money to the area was carefully channeled away from areas in conflict with Israel. There are side effects, as certainly any quick survey of major anthropology departments would indicate. Anthropologists working in the core Middle East area (Syria, Lebanon, Jordan, Iraq, and Egypt) have not been hired in the top universities. In short, anthropology—the study of humankind—had through area monies uneven access to the peoples and cultures of the world, and as well to indigenous scholarship, some of which came to us via Canada. Notions of world-systems were incomplete. Yet, several generations and many young anthropologists were funded for area fieldwork. Generous funding allowed for an enormous expansion in numbers of anthropologists and of departments of anthropology. The expansion of the field also meant that the number of years of graduate preparation was often determined by availability of funding: shorter years of graduate work meant a different kind of education. In terms of research area, regional training meant a broadening of focus from village or tribe to region, a setting that often encompassed wide varieties of languages and cultures. Regional comparative studies entered the landscape, often of an interdisciplinary sort that was archetypally anthropological. The growth of interest in linguistics and other humanistic fields indicated a need to examine the basic conceptual and aesthetic units from which … societies are constructed.” David Szanton (1981, p. 81) continued: As political events in the [Southeast Asian] region continue to defy predictions, and the problems of development seem to remain intractable, American scholars have grown increasingly disenchanted with models and analyses, essentially based on Western experience, as useful means, of understanding … [and] scholars with strong universalizing or prescriptive tendencies … are backing away. … On the other hand, scholars … who tend to explore the internal logic of systems of ideas or actions, how they operate on the ground and in the particular, and also the processes by which they seem to be changing, are becoming increasingly prominent.

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In a 1994 issue of the SSRC newsletter, Items, an article entitled “Rethinking International Scholarship” points the shift in focus from country and area to theme and context—namely, sensitivity. As an indicator of what that might mean, university-based research funded by the DOD has risen 22 percent in the past four years, while the western megacorporate model is sweeping through Asian economies (Science 1994).

The Legacy of a Forked Road When we look at the impact of the Cold War period on what kind of anthropology we do—or indeed on how we see the role of anthropology, intellectual or other—the picture is not easily sorted out. With distance and availability of period documents it may become easier. In order to start somewhere I’ll focus on generation breaks and writing, and what this might mean for the people to whom we are indebted—our “informants.” No doubt, there was deep disillusionment among 1960s graduate students that could not be ameliorated by the kind of hopeful experience those of us had had growing up prior to the nuclear era, and who now are in our sixties. The future looked bleak for many of the “counter-culture.” The call, as Norman Klein and others have put it, was for mass participation: “Do it—there’s no such thing as a bad tactic.” Or in Abbie Hoffman’s words, “Revolution is the highest trip of them all.” “Revolution for the hell of it” and “Don’t trust anyone over thirty” were slogans of the period (Mervis 1994, p. 22). The graduate students of this counterculture period are now in their fifties. The meaning of such slogans in counterculture anthropology was poignantly put by Marcus and Fischer (1986, pp. xi– xiii): “Their work addresses less a new generation of graduate students than each other, who are survivors of a period of cutbacks [a relative concept] … aware … of the marginality of their discipline … in terms of how little it is valued or how suspiciously it is held … younger anthropologists are not concerned with superficial piety toward their mentors, and not burdened with preserving an authoritative pose for large bodies of eager graduate students.” Marcus and Fischer meant it. History was bunk. Out of 225 references in their book only nine were of pre-1960 vintage. Interpretive perspectives were positioned against older and, from their point of view, exhausted approaches—a transition that was not just a new paradigm juxtaposed against another, “to avoid a rhetoric of a clash of paradigms”(ibd:1986). It was paradigm busting. For them, power had a distinctly subterranean component. Before commenting on the implications of this break, I contrast it to Reinventing Anthropology (Hymes 1972), a book for people concerned

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and critical about the way things are, “who think that if an official ‘study of man’ does not answer to the needs of men, it might be changed; who ask of anthropology what they ask of themselves – responsiveness, critical awareness, ethical concern, human relevance” (Hymes 1972, p. 7). Hymes spoke of reinventing anthropology, not of abandoning it, of having a critical anthropology that takes its ethics and political responsibilities and its trained incapacities seriously. The book about the anthropology of anthropology was summarized in Science by Walter Goldschmidt as “disaffection with Western civilization.” Later Goldschmidt also dismissed Marcus and Fisher’s book—ironic because Goldschmidt’s pioneering work on California agriculture generated accusations of leftist leaning (Klein n.d., p. 312–34). It was in Reinventing Anthropology that I, then among the young guard mediating between graduate students and the older guard, published “Up the Anthropologist,” a call for a more adequate anthropology, one that recognizes the concreteness of power structures (Goldschmidt 1973, 612–13). (We were mostly in our thirties when we wrote these pieces.) Other articles indicated other ways in which anthropological training was “trained incapacity.” Richard Clemmer wrote about the theoretically bare cupboards of American Indian research. A decade earlier it seemed that most American Indians would be assimilated into the dominant culture. Yet suddenly things changed. Indians became “militant,” and, before most anthropologists knew what had happened, journalists were writing about “Red Power.” “Objectivity,” Clemmer argued, “had kept anthropologists from identifying too strongly with the subordinate society they were studying” (Goldschmidt 1973, pp. 612–13). Gerald Berreman wrote about “Bringing it all Back Home: Malaise in Anthropology.” In that same volume, the late Bob Scholte, a Berkeley Ph.D., was arguing for a reflexive and critical anthropology that would subject anthropological thought itself to ethnographic description, including the ideology of a value-free social science. William Willis, an impassioned black anthropologist, wrote a piece on the subjective distortion by anthropologists who have compounded the objective distortion created by colonialism and imperialism. His most piercing critique was that “the closer the anthropologist comes to his own society, the more culture escapes him as a viable concept … not only Afro-American culture that is escaping our grasp but American culture” (Willis 1972, pp. 121–51). Brilliant observation on our penchant for denial. I juxtapose the Hymes and the Marcus and Fischer volumes because they indicate a fork in the transitions of that period.9 Ostensibly both volumes share the need to change something about anthropology. Yet the paths are different—the difference between “ideas and life, theory and

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fieldwork, ethnography as writing or observation, literature or science,” the difference between responsibility and commitment, or the escape of “literary fictions and criticism” (Smith 1991, p. 213). Discussions about Writing Culture captured a reason to reinvent armchair anthropology, and intentionally or not legitimated a retreat from responsibility. Although enthusiasts like Paul Rabinow often recognized the double-talk in Writing Culture on the power and authenticity of the anthropologist—a power that had been lost by Cold War experiences and the movement to destroy the notion of scientific ethnography—others saw it differently. Elizabeth Colson (1974, p. 81–82) responded to the double-binds alluded to earlier: If the anthropologist concentrates upon the formal aspects of political and social structures. … He provides the tools that allow the foreigner to become expert on local usages and so assume the right to arbitrate in local affairs. … If the anthropologist attempts instead to describe the dynamic processes. … This entails exposing the stratagems. … It is perhaps not surprising that so many of our contemporaries have retreated from trying to deal either with events or with rules of procedures and have turned instead to concentrate upon symbolic systems. … These by definition are assumed to be impersonal, above the battle, and to operate by their own logic.

Later, Gavin Smith (1991, p. 213) described fictions and criticisms as a style “by which they [the new ethnographic writers] can remain ethically pure while also staying on the political sidelines.” There was a retreat from standard English that was ultimately a political cop-out, a form of intellectual hubris.10 A path different from what Marcus and Fischer described was about integrating intellectual practice with social life—the awkward outsider crossing boundaries. The citizen-anthropologist (of all people) cannot operate with narrow professionalism. My work on nuclear energy and nuclear war technologies took me into decision-making circles—work referred to by new cultural critique anthropologists as “policy work,” indicating continued cooperation with the system. It makes me wonder which generation was silent. Is arguing with nuclear scientists about objectivity or twenty different kinds of warheads any more policy oriented than arguing about the same with students? In my case, it made a difference that I was teaching at a university in charge of managing two weapons laboratories responsible for designing 90 percent of the U.S. nuclear warheads arsenal. I pursued the question of academic freedom at the labs along with distinguished colleagues at Berkeley. We encountered organized power directly—a military-industrialuniversity complex. In 1991, University of California faculty senates voted to discontinue the contract to manage the labs, using for the first time

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the argument that managing weapons laboratories was bad for the academic side of the university. Significantly, participation of younger and otherwise intellectually active faculty was minimal. The younger Berkeley faculty were self-engrossed. Cynicism was rewarded; the regents ignored the faculty vote. In 1996, the issue of weapons lab contracts was once again being examined by faculty (Gold 1996). As a class, intellectuals have been caught by the military-industrial bureaucracy. We practice what Dorothy Lee (1959 called “un-freedom.” We oscillate between asserting our individualities and serving the ruling powers. Maybe Thorstein Veblen was right—the university has become a factory undermining independence and separating us from social life.11 But the strength of anthropology is to have one foot in academia and one in the “outside” world. The department of anthropology at Berkeley has inspired ethnographers to do this kind of work, looking at development, revolution, or weapons scientists in a critical way; others have self-trained. Paul Farmer (1994) knows you have to speak about arms dealing in order to understand the “Uses of Haiti.” In 1985, over $500 billion was spent worldwide on arms alone. Paul Farmer (1994) understands selective blindness: “If the social is left out of socio-cultural … good analysis is unlikely to follow. … Given history it is difficult to explain current killing by referring only to local actors and local factors.” Farmer is moving against the Cold War generation following Clifford Geertz, who wrote about cock fighting while footnoting massacres; more than a million people were killed in Indonesia. Selective blindness means we missed predicting the revolution in highland Peru because anthropologists largely depended on conceptual categories rather than ethnographic realities (Starn 1994). “Man meets the problems of the atomic age with the biology of hunter-gatherer” is a quote from Washburn et al. and used by Donna Haraway (1991) to discuss the way physical anthropology from 1950 to 1980 made use of the Cold War discourses, nuclear technologies, sexual politics and racism, and ecological crisis. Such were to be found in the bodies of living primates and early man. Haraway (1991) interprets the stress idiom of the biological humanism of that period as part of an anxious discourse, which she finds important but flawed in the struggle against scientific racism. Omissions or denials are due in part to the relationship between anthropology and power, a relationship that became the subject of debate— triggered by issues—in the sixties, but not now. What has been missing in past and current anthropology is the creative impulse that connects us and the institution of academic bureaucracy to a democratic social life. Such a project requires an understanding of the American university and the impact upon it of the military-industrial complex, a story that begins

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long before the Cold War, and the seduction inherent in Cold War tools, especially for archaeologists.

Cold War Technologies: Whose Benefit, Whose Cost? Cold War tools have had variable effects on the subfields in anthropology. Archaeologists are funded to investigate sunken ships, missile-launching facilities, and the Nevada test sites’ historic structures as part of a program to preserve the Cold War legacy (Johnson 1995). Artificially subsidized technologies such as neutron activation analysis (INAA), accelerator mass spectrometry (AMS) or trace element analysis, remote sensing, thermoluminescence (TL) dating, and other technologies were introduced to archaeology as new tools in addition to old ones, or as new tools that should replace older techniques. Archaeologists retooled at locales not usually frequented by anthropologists—Brookhaven Laboratory, Lawrence Berkeley Laboratory, the Oxford University AMS facility, and even nuclear reactor facilities such as the University of Missouri at Columbia. The military technologies were further justified by the addition of academic use. With such developments, archaeologists now have to argue to granting agencies like the National Science Foundation why they were not intending to use such technologies. Methodological pluses and minuses exist, affecting analyses of archaeological data. Some of these technologies merge data that should not be merged and would not be with the use of the traditional, more laborintensive methods. Remote sensing has been used to recognize ancient landscapes, such as canals, and profiles within sites, such as those deeply buried in the Amazon. Ground-penetrating radar has been used to map anomalies. The overall result has been the valorizing of one method over another irrespective of the knowledge gained and, more importantly, the valorizing of quantitative over qualitative data, dramatic over mundane approaches. For example, nuclear submarines are being put into the service of classical archaeology and scholars interested in studying ancient trade routes in the Mediterranean. A U.S. Navy nuclear-powered (NR-1), deep-diving submarine is being shared with researchers excited about the possibilities of going beyond the shallow water work to explore a millennium in deeper waters. Archaeology may have benefited. Satellite-based geographic information systems are invaluable. Remote sensing has become a commonplace tool, facilitating for archaeologists what would have taken decades to discover (Roosevelt 1991). The same remote sensing systems, however, have quite a different impact on social/cultural anthropology. Here the

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story is even more double-edged, not only in terms of methodological preferences of quantitative over qualitative, but in terms of the lives of people that social-cultural anthropologists learn from and about (Madsen n.d.). Computer technologies developed to locate very specific geographic sites (for bombing) provide the base technology for geographic information systems (GIS) being used today. Early in the 1980s, the Bureau of Indian Affairs (BIA) established GIS for ten U.S. tribes. The technology for tribal use in the management of their lands has turned out to be a mixed blessing. The dilemma has been over the concern that GIS maps detailing archaeological and cultural sites fall into the wrong hands, and are then used to deny Indian peoples their rights under existing law, or that they might result in wrongful exploitation. Concern about subjecting indigenous peoples to remote-based imagery and surveillance without proper guarantee of their rights to privacy and self-determination is not far-fetched. On the other hand a GIS system is being developed in Oaxaca, Mexico, as the basis for communal forestry planning among Zapotec and Chinantec communities.12 Elsewhere, the United States has cooperated in the use of its satellite imagery capabilities to combat the drug trade, but drug production areas often coincide with repressed indigenous groups such as the Baluchis of southwest Pakistan, or the Tarahumara of northern Mexico. The Japanese are known to have used GIS data for the deforestation of Sarawak, and GIS data may have been instrumental in locating petroleum reserves in the southern Mexican state of Chiapas in the 1970s. The Mayans probably have good reason to resent PEMEX, the Mexican state oil company, the development projects that built dams along the Grijalva River in Chiapas thereby flooding Mayan lands, and the World Bank’s role in freeing access for American multinationals to land. Elsewhere, as in Iraq, expulsions of people could be mapped directly to areas containing oil reserves. The point here is that data retrieved from the use of GIS technologies affect people’s lives through deforestation and depopulation—the peoples that anthropologists live and work among. Their problems become our problems in a way that is not comparable to other social scientists who may not be directly and intimately involved with the peoples of the world who, in the case of anthropology after all, are our teachers. If places are exploited, the peoples located there will suffer exploitation, expulsion, genocide, and cultural assimilation. Space-based remote sensing platforms, a technology inspired by military goals, comes to ravage human diversity and human rights. The recent French accusations over CIA reports on French bribes to Brazilian officials has reminded us—the line between military and industrial activity is blurred. CIA espionage work helped Raytheon Corporation snatch a $1.4 billion project to build a high-tech radar

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system (CIA and Raytheon Corp 1995, A9). As we move from the Cold War to cultural and industrial wars, “hot” and “cold” are hard to separate.

Postscript: The Military-Industrial Capture What is the reader to make of this story? The issues for the discipline seem obvious. The Cold War had an enormous effect. Our numbers were expanded for Cold War research; our subject matter was channeled and defined by funding agencies; our methodologies were revolutionized by military technology. Leading anthropologists, in the complicitous role of activist Cold Warriors, wittingly participated in or at least condoned formulation of CIA and DOD plans for secret interventions into the internal affairs of sovereign states; testing in the Pacific was condoned by omission. Some anthropologists monitored the political loyalty of other anthropologists and of our informants, created a climate of intellectual repression, or at least encouraged intellectual products that fit with the Cold War syndrome, promoting the opposition between freedom (us) and totalitarian (them) and meeting the intelligence needs of the feds rather than grappling with any notion of a professionally free and unfettered social science. There were objections to the above, but objection was minimally effective; in fact, there was a negative impact on those who objected to corporate and state pressures on academic freedom and to the political shaping of scientific research. The patronage networks linking the academic with the political and social setting produced a mindset compatible with the political interests of the national security state. This situation created a social science generally uncritical of bias and allegiance in dominant paradigms, and unhelpful to reality testing for government. Positivism and later interpretivism—both were flights from facts of power, which expressed denial of domestic repression and U.S. imperialism abroad. Negative ripple effects from the Cold War that became custom are passed on with reward and sanctions of academia. The fiction of an autonomous university becomes transparent especially in historical context. Historians of the American process inform us that antebellum universities taught morals and political economy, and that from the Civil War onwards industrial and military powers began to shape the American university to their ends (Furner 1975). In this light, the Cold War political impact on American universities was no political aberration. There was a silencing of open intellectual debate, and there was sanitizing of concepts like materialism. For anthropology, it meant political management of anthropological work. Today there are probably more anthropologists

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working for military and corporate forces than study those forces in the world. We anthropologists are now wittingly participating in democratic illusions. The phantom factor is the sum total of all the processes and mechanisms of indirect control, which are for most of us invisible. Invisibility is achieved through mind colonization. Wrong seems right or trivial. Killing people becomes patriotic, denied, or just okay. Nuclear testing in the Pacific is viewed as something the military has to do. Unthinkable behavior becomes normalized. Independents who object are considered contentious, finger pointing, jeopardizing funding and jobs. Incrementally, the road is paved to meet the goals of industrial and military powers, goals not often coincident with “patriotism.” Even though more anthropologists work for, rather than on, the corporate world than ever before, this is not even an issue for the AAA except in the “new jobs” domain. In the meantime other anthropologists have been caught up in the diversions—the stylistic or double-edged landmines—of multiculturalism, sexual preference, feminism—issues that are used to displace attention from root problems. Academic radicals all too often are abstract radicals, “epistemological radicals” I call them. Entire books have been written on the American fear of “Reds,” linking this fear to the destabilizing impact of industrialization in the nineteenth century and to perceptions of global and national security in the twentieth century, and finally to reactionary politics and scholarship. None of this is news. But what is new for each era is the form in which professional autonomy gets compromised. In the modern epoch, autonomy is compromised by power and funding, by buying into the mainstream ideology of the Cold War syndrome and the ideology of science as well. The postmodernists have their own version of how they think of themselves. They are free from a single narrative but what have they done with this freedom? In fact, post modernists might read this story and claim that it is nothing more than just another narrative. Or anthropologists can think about the meaning of the proposition that each era has its own version of how autonomy gets compromised in terms of what it means to be a professional. Anthropology is not about the particular or the universal; it is about connecting the particular and the universal. The new social positioning of anthropology must be eclectic and connective and ultimately global. It requires a democratic inspiration because free and unfettered inquiry is a critical scholarship about ethnographic realities. We did not have that in the Cold War period, and we do not have that in the post– Cold War period. Talal Asad (1973, p. 15) once observed “a strange reluctance on the part of most professional anthropologists to consider seriously the power

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structure within which their discipline has taken shape.” The macropolitics of anthropology requires revealing the phantom to know what kind of a discipline we have. To comprehend the pernicious effects of the Cold War on anthropological understandings today requires a renewed realization of what Aldous Huxley meant by Brave New World. Colonization of the mind by self-censorship is the most efficient effect of repression or censorious relationships. Once we have weapons laboratories as part of the university, then the Pentagon views the university as a national security problem. The university responds by selecting administrative heads who will protect the interests of the national security state for whom academics become not an independent force but subsidiaries, a system that requires more conformity than the factory floor. The test is to examine systems of promotion and reward and negative sanction. The national security state demands loyalty. “I keep my mouth shut” translates into respecting taboos, and self-censorship becomes the emissary of a taboo culture. Questions close to the jugular do not get asked. The greatest number of atomic bombs were exploded in the United States. The madness of it all rarely occurred to anthropologists. The national security state has to have adversaries to justify its existence. The inclusive study of humankind places a special responsibility on anthropologists to recognize the forces that shape the anthropological intellect.

Acknowledgements I wish to acknowledge the help of colleagues in anthropology who participated in the Cold War seminar: R. Joyce and D. Price, T. Duster in sociology; research associates R. Gonzalez, T. Milleron, N. Milleron, R. Milleron, and J. Ou; and office of support staff. V. Tung and N. Chaisson. Especially critical was the aid of librarian Suzanne Calpestri, without whom the finding of documents would have been a nightmare. Any flaws are my own.

NOTES This chapter was originally published as: Laura Nader, “Phantom Factor: Impact of the Cold War on Anthropology,” pp. 107–148. In The Cold War & The University: Toward an Intellectual History of the Postwar Years, by Noam Chomsky, et al., New York, N.Y.: The New Press (1997). © 1997 by The New Press. Reprinted by permission of the New Press. www.thenewpress.com

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  1. See Thomas C. Greaves, “Cultural Rights and Ethnography,” in AAA’s General Anthropology Bulletin 1 (2): 3–61, for a full preview of the cultural rights movement.   2. For reevaluation, see Leonora Foerstel and Angela Gilliam, Confronting the Margaret Mead Legacy Scholarship: Empire, and the South Pacific (Philadelphia: Temple Univ. Press, 1992). For writings on anthropology and ethics, see M. A. Rynkiewichand and James Spradley, eds., Ethics and Anthropological Dilemmas in Fieldwork (New York: Wiley Press, 1976).  3. AAA Newsletter 13, no. 1 (January 1972): 2–4.  4. AAA Newsletter 2, no. 10 (1969): 1–2.  5. AAA Newsletter 8, no. 6 (June 1967): 11.  6. AAA Newsletter 12, no. 8 (October 1971): 10  7. Ibid.   8. For the Eskimo versus atomic energy story, see Dan O’Neill’s The Firecracker Boys (New York: St. Martin’s Press, 1994), a riveting report. Anthropologist Glenn Alcalay has written on what atomic testing has meant for Pacific Islanders, their health, and their autonomy. See “Pacific Island Responses to U.S. and French Hegemony,” in What Is in a Rim? Critical Perspectives on the Pacific Region Idea, ed. A. Dirlik (Boulder: Westview Press, 1993), 235–49. A decade earlier, the Anthropology Resource Center, under the direction of Shelton Davis, was publishing on these issues in its publication, The Global Reporter.   9. For a review of current claims over the domain of a critical anthropology, see Robert C. Ulin’s (1991) “Critical Anthropology Twenty Years Later: Modernism and Postmodernism in Anthropology,” in Critique of Anthropology 11 (1): 63–89. 10. In Outline of a Theory of Practice (Cambridge, MA: Cambridge University Press, 1977), Bourdieu of practice theory fame provides us with a sample: “The structures constitutive of a particular type of environment [e.g., the material conditions of existence characteristic of a class condition] produce habitus, systems of durable, transposable dispositions, structured structures predisposed to function as structuring structures, that is, as principles of the generation and structuring of practices and representations which can be objectively ‘regulated’ and ‘regular’ without in any way being the product of obedience to rules, objectively adapted to their goals without presupposing a conscious aiming at ends or an express mastery of the operations necessary to attain them and, being all this, collectively orchestrated without being the product of the orchestrating action of a conductor. 11. For Dorothy Lee, see Freedom and Culture (Englewood, NJ: Prentice Hall, 1959). For Thorstein Veblen, The Higher Learning in America (New York: Hill and Wang, 1957). 12. A. de Avila. Personal Communication. Nov. 1995.

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Haraway, Donna. 1991. Primate Visions: Gender, Race, and the Nature of the World of Modern Science. New York: Routledge. Hershberg, James G., and James B. Conant. 1993. Harvard to Hiroshima and the Making of the Nuclear Age. New York: Alfred A. Knopf. Horowitz, I., ed. 1967. The Rise and Fall of Project Camelot: Studies in the Relationship between Social Science and Practical Politics. Cambridge, MA: MIT Press. Hymes, Dell, ed. 1972. Reinventing Anthropology. New York: Pantheon Press. Johnson, William G., and Colleen M. Beck. 1995. “Proving Ground of the Nuclear Age.” Archaeology 48 (3): 43–47. Lowie, Robert. 1945. The German People: A Social Portrait to 1914. New York: Farrar and Rhinehart. ———. 1985. Mirror for Man: The Relation of Anthropology to Modern Life. Tucson: University of Arizona Press. Macmillan, Hugh. 1995. “Return to the Malungwana Drift: Max Gluckman, the Zulu Nation and the Common Society.” African Affairs 94: 39–65. Mair, Lucy. 1961. Safeguards for Democracy. London: Oxford University Press. McBride, B. (n.d.) “A Sense of Proportion: Balancing Subjectivity and Objectivity in Anthropology.” M.A. thesis, Columbia University, New York. Madsen, Wayne. (n.d.) Protecting lndigenous Peoples’ Privacy from “Eyes in the Sky.” Falls Village, VA: Computer Sciences Corporation. Marcus, George, and Michael M. J. Fischer. 1986. Anthropology as Cultural Critique: An Experimental Moment in the Human Sciences. Chicago: University of Chicago Press. Mead, Margaret. 1942. And Keep Your Powder Dry. New York: William Morrow & Co. Mervis, Jeffrey. 1994. “Defense Bill Targets Universities.” Science 265 (1 July). Murphy, Robert F., ed. 1976. Selected Papers from the American Anthropologist: 1946–1970. Arlington, VA: American Anthropological Association. O’Connell, Charles T. (n.d.) “Social Structure and Science: Soviet Studies at Harvard.” Ph.D. dissertation, University of California at Los Angeles. Roosevelt, Anna C. 1991. Moundbuilders of the Amazon: Geophysical Archaeology on Moraho Island, Brazil. New York: Academic Press. Sahlins, Marshall. 1965. “The Best Torture: Once You’ve Broken Him Down …” The Nation 25 (October): 266–69. Smith, Gavin. 1991. “Writing for Real Capitalist Constructions and Constructions of Capitalism.” Critique of Anthropology 11 (3): 213–32. Starn, Orin. 1994. “Rethinking the Politics of Anthropology.” Current Anthropology 35 (l): 13–26. Stauder, Jack. 1972. “The ‘Relevance’ of Anthropology under Imperialism.” Critical Anthropology 2: 65–87. Szanton, David H. 1981. “Southeast Asian Studies in the United States: Towards an Intellectual History.” In A Colloquium on Southeast Asian Studies: Proceedings of an International Conference held at Kota Kinabalu, Sabah, 22–26 No-

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vember 1977, ed. Tunku Shamsul Bahrin, Chandran Jeshurun, and A. Terry Rambo, pp. 72–87. Singapore: Institute of Southeast Asian Studies. Trigger, Bruce G. 1984. “Alternative Archaeologies: Nationalist, Colonialist, Imperialist.” Man, n.s. 19 (3): pp. 355–70. Voss, John, and Paul L. Ward. 1970. Confrontation, and Learned Societies. New York: New York University Press. Wakin, Eric. 1992. Anthropology Goes to War: Professional Ethics and Counterinsurgency in Thailand. Madison: University of Wisconsin, Center of Southeast Asia Studies. Wolf, Eric. R. 1969. Peasant Wars of the Twentieth Century. New York: Harper and Row.

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E c ha p te r 1 4

Postscript on the Phantom Factor More Ethnography of Anthropology

n February 1997, The Cold War and the University: Toward an Intellectual History of the Postwar Years (Chomsky) appeared, and in it my contribution, “The Phantom Factor: Impact of the Cold War on Anthropology.” An earlier version was delivered as the 1995 Distinguished Lecture of the General Anthropology Division of the American Anthropological Association meetings in Washington, D.C. In both the lecture and published version, I covered the context in which anthropology developed during the Cold War. My focus, however, was primarily on sociocultural anthropology, with some commentary on archaeology, and precious little on physical or biological anthropology. This focus was not purposeful but was rather a result of what I was able to search out. No archaeologist and only one physical anthropologist from among my colleagues came to participate in the Cold War seminar of fall 1994, and those among my colleagues with whom I could have had such conversations were deceased—Bob Heizer and Ted McCown. The result was an incomplete story. In this postscript, I add to the earlier materials but focus on physical anthropology. I posit that without an understanding of the differential impact of the Cold War, there can be little understanding of what today we call “the crisis” in anthropology. “The Phantom Factor” paper itself, although incomplete, was comprehensive. It included the story of government agencies, private foundations, the anthropologists and the people they studied. The issues included external factors critical to the making of anthropology—funding, censorship, freedom, ideology, jobs and opportunities, generational oppositions. The essay was an attempt to document a period in the history of anthropology, but also was an endeavor to understand contemporary sociocultural anthropology, its divisions, and its challenges. The

I

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style was semi-autobiographical, a useful means to underscore how naïve many of us were who lived through the Cold War period and how only slowly we are able to discover the visible and invisible power networks, the making of the field to which we are devoting our life work. The issues were volatile: war, race, resources, genocide, cowardice, innocence. One anthropologist called it the “hidden anthropology,” recognition that the history of anthropology often does not contain critical information about our development. In other words, we discovered that anthropology was not autonomous, that we needed an ethnography of anthropology. For some, anthropology was to be reinvented; for others, paradigm busting became a paradigm itself, and armchair anthropology became respectable again. The retreat from standard English was commonplace, and in the process the Europeanization of American sociocultural anthropology was underway (Nader 1989).

Differential Impact of the Cold War Toward the end of the Phantom Factor essay I included a section called “Cold War Technologies: Whose Benefit, Whose Cost?” In it I called attention to the fact that Cold War tools have had variable effects on different parts of anthropology. I specifically mentioned technologies of military origin: neutron activation analysis (NAA), accelerator mass spectrometry (AMS), trace element analysis, remote sensing, and thermoluminescence (TL) dating, all of which drew archaeologists into institutions not usually frequented by sociocultural anthropologists—the national defense weapons labs and other national laboratories—and into joint research with researchers in the so-called hard sciences. While archaeology may have benefitted from such military-generated technologies and from new colleagues, for sociocultural anthropologists the technology was doubleedged. Geographic information systems (GIS), for example, may be used to locate specific geographic sites for bombing the people anthropologists study, or they may be techniques used by “tribal” peoples in planning and managing their lands. The insistence of government agencies, such as the National Science Foundation, on the use of these Cold War technologies is sometimes oppressive to those archaeologists who do not wish to explain why such technologies are not of use to them. Nevertheless, my point here is that for sociocultural anthropologists, the problems of the people we study become our problems in ways different from archaeologists, if only because we principally study living peoples. In “The Phantom Factor,” I omitted much, including anthropology’s role in military administration (Vidich 1952) and preparation; for instance,

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the Quartermaster Research and Engineering Command funded markets in Africa (Bohannan and Dalton 1962) as assurance of provisions in case of military need (Colson, personal communication). Here I merely mention ethnographic lessons from Central America (Bourgois 1990), the military roots of applied anthropology (Price 1997), and the ongoing work on post–Cold War nuclear reservations in New Mexico (Masco 1995). Philippe Bourgois analyzed how U.S. anthropologists narrowly define ethics in terms such as informed consent and responsibility to future researchers and host nations, rather than working to document political repression, which, when he tried it, was actually condemned as ethically problematic by a distinguished department of anthropology. He asserts that throughout the world, engaged scholarly analysis is not only legitimate but part of the researchers’ social responsibility. Bourgois argues for an understanding of what he sees as a peculiarly American phenomenon. David Price’s work (1997) starts with World War II and the military roots of applied anthropology, including the story of Gregory Bateson, who worked for the OSS, the institutional predecessor of the CIA. As many as one-half of all professional anthropologists worked full-time in war-related work during World War II, while another quarter worked parttime in government agencies such as the Office of War Information and the Office of Strategic Services. Work ranged from bureaucratic drudgery (Bennett 1947) to more adventurous jobs as secret agents (Coon 1980). In his research, Joseph Masco looks at living communities in northern New Mexico—Pueblo Indian, Hispanic/Chicano, Anglo nuclear weapons workers living in and around Los Alamos. He asks the question, how are environmental racism, ethno-nationalism, and the development of new transnational indigenous alliances in New Mexico characteristic products of post–Cold War military and economic restructuring in North America? Since the end of the Cold War, the U.S. government has expanded activities at Los Alamos and promoted Native American sovereignty rights in New Mexico to deal with the radioactive waste disposal problem, issues that concerned the one physical anthropologist working at Los Alamos, M. Pamela Bumsted.

Cold War and Physical Anthropology The impact of the Cold War seems barely to have been noticed by physical and biological anthropologists. An examination of A History of American Physical Anthropology 1930–1980 (Spencer 1982) reveals no entries indexed under military, Cold War, war, or ethics. I am not aware of any public debate among physical/biological anthropologists or archaeolo-

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gists comparable either to the Project Camelot scandal or the Thai affair of the Cold War period. For example, Gabriel Lasker (personal communication) writes, “Either I have been less concerned than you or else physical anthropology is less controversial.” (Spoken like a scientist.) In fact, I shared his impression prior to researching this postscript because, in the discipline, physical anthropologists portray themselves as reserved, objective scientists not responsible for what nonanthropologists do with their work. The issue that Lasker did raise was the profound effects that the presence of the Iron Curtain had on physical anthropology research. Let me summarize. In Russia, physical anthropology was handicapped by placing ideology above empiricism, as in Lysenko’s work. Lasker refers to the Russian use of an old-fashioned concept of race, “the very ideas on which Nazis and other racists had built their writings,” adding that such ideas continued to be expressed by physical anthropologists elsewhere, including the United States. Lasker also noted that Poland was an exception. Poland had large numbers of biological anthropologists who wrote about such things as class differences in growth rates. Similarly, in Cuba, as in Eastern Europe, there was an interest in paternity identification. Lasker also notes, “In the U.S. the most immediate effect of the Cold War on physical anthropology was on applied aspects.” The Quartermaster Corps maintained a program in anthropometry. The air force engaged in “human factors” research with staff anthropologists at Wright Patterson air force base in Ohio. Personal identification from bodily remains was later linked to identification of “desaparecidos” in Latin America. And the research on human adaptations, which was heavily supported by the military, included Paul Baker’s work on the effect that exercising in the heat had on soldiers (black and white), and later his focus on high-altitude research. Lasker reports that “some physical anthropologists worked on the Atomic Bomb Casualty Commission. One of them, Earle Reynolds, later became an anti-bomb activist who sailed into a U.S. H-bomb test zone. He also sailed into Vladavastok to protest USSR testing.” Lasker added, “One geneticist on the commission spoke to me disparagingly about Reynolds’ prior work on the Commission and about his publications on the dangers.” Truth has its costs. In the Spencer volume mentioned above, there is a lead article on “The Effects of Funding Patterns on the Development of Physical Anthropology” (Baker and Eveleth 1982), which documents the period before and into the Cold War. The authors remind us that prior to World War II, there were no large competitive government research programs. They report on the growth of federal funding for studies related to war and military personnel. Anthropologists identified human skeletal remains (includ-

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ing Vietnamese trophy skulls), used primates to study human disease, surveyed developing countries on body size and nutritional condition, and studied human adaptability for the United States Department of Defense. In addition, the Atomic Energy Commission began its long-term research in Japan. The article indicates that the growth in funding was phenomenal. Yellen and Zeleznick (1986) document the steady rise in National Science Foundation support for physical anthropology, while the effective budget for the Anthropology Program decreased over time, especially in archaeology. Nevertheless, since its inception, 40 percent of the Anthropology Program’s physical anthropology awards have related either to human origins or primate evolution research. Nothing is said about sociocultural support by comparison. In spite of the generous increase in funding for physical and biological anthropology, growth in the number of physical anthropologists in the academy did not compare to the enormous growth in the numbers of sociocultural anthropologists because their work appeared to meet the national interest. The military and other powers that sought to “influence” or “control” peoples and movements were necessarily interested in behavioral studies of living groups and in information about the places where people resided. Thus, while it is true that all anthropologists benefited from Cold War funding, the great expansion in sociocultural anthropology caused an imbalance in the relative growth in the academy of each of anthropology’s subfields. For purposes of this postscript, I replayed a tape of Sherwood Washburn’s presentation to my Cold War seminar in 1994. As I mentioned in my original paper, Washburn’s story began in 1936, when he was working in Thailand collecting gibbon cadavers that were brought back to the United States for research. He recalled that the Thais spoke about the coming of a big war, and indeed Washburn’s ship was narrowly missed by Japanese bombs in Shanghai harbor. Washburn emphasized that the United States seemed unaware of the Japanese buildup. That his examples were not limited to the forty-year Cold War period indicated his emphasis on continuities. For example, he told of the presence of military personnel at Harvard Medical School, and the high value they placed on quantification and large samples. This stimulated a bureaucratization of research by physical anthropologists, whether the problem examined was determining the sizes of military uniforms or the dimensions of airplane cockpits. As he said, they had to keep the anthropologists busy. He spoke of the treatment of people in research as commodities and linked this with bias when speaking of the unscientific results of racial studies. He also spoke of the bias in early man studies, as site selections were

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closely linked to colonial boundaries and colonial interest in Africa. Washburn was well aware of the impact of external factors on physical anthropology, and he has never been under any illusion that science was free of politics. At one point in his career, Washburn was in charge of overseeing the reception of cadavers at Columbia University’s medical school. He was struck by the fact that cadavers came from families who could not afford burial, and that most cadavers were black. He also taught military surgeons training to be plastic surgeons. He saw the interest in tropical disease develop in American medical schools where, prior to World War II, such courses were virtually unknown. Clearly science, including physical anthropology, was important to war. Toward the end of our conversation, we urged him to rank the factors that had most influenced physical anthropology during the Cold War. He stressed the revolution in biology, especially its growth, which was accelerated by increased government funding in the wake of east-west competition. When pressed to choose the single most important factor, he again chose funding because of its influence on who is attracted to physical anthropology. Washburn was also concerned with the application of anthropology for human welfare. He had spent many years teaching in medical schools, where the question of human welfare was articulated daily. It was interesting that Washburn’s humanist interest was later adopted by historian of science Donna Haraway. Her attention focused specially on the Early Man in Africa project. Donna Haraway’s (1988) piece starts with a 1974 quotation from Washburn: “Man meets the problems of the atomic age with the biology of hunter-gatherers and many customs of times long past.” According to Haraway, the Early Man in Africa project, sponsored by the Wenner-Gren Foundation, defined the “prototype of the United Nations’ post–World War II universal man.” The project embodied notions of what it meant to be human in the conditions of Cold War, global nuclear and urban proliferation, and struggles over decolonization. She sees the project as reflecting postwar anxieties commonly felt in the Cold War’s “Free World.” Culture was the major human adaptation, and universal man was outfitted with a nature fitting him for world citizenship. A universal human nature was essential to hope for survival and to antiracism. Primate field studies were to lead to a discovery of the characteristics of universal man, and hunting was believed to be the force that drove the evolution of that man. As Haraway reports, the fundamental consequence of hunting was a new kind of social cooperation among males, and from males to the group, in regard to food sharing. What emerged was the natural global citizen, a concept that would ground racial equality and liberal

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democracy. Others (Laughlin 1968 in Haraway 1988, p. 233) thought that hunting was more than subsistence. It was a way of life that served as the “integrating schedule” of the nervous system. Hunting was the “total adaptation” whose major consequence was a worldview. For the new physical anthropologists and their colleagues, the human crisis appeared to be a failure to adapt. The questions were intense: Was “man,” as a result of evolution in a face-to-face hunter-gatherer society, “obsolete?” Had social evolution proceeded too fast? Could science help this stressed species faced with the possibility of extinction as a result of its own tools and weapons? How could the sharing way of life be a road to nonviolent ways of meeting international conflict? The direction of thought is, as Haraway suggests, a liberal response to intense political struggles on campuses over militarism, multinational capitalism, and the politics of race and gender. A whole generation of physical anthropologists was trained in this framework, including Irven De Vore and Richard Lee, Phyllis Dolhinow and Jane Lancaster, and many others at Berkeley. Haraway names them all. Washburn and his students were in the limelight during this period, but they were not the total of physical anthropology, as is indicated in Spencer (1982). Although some physical anthropologists working on evolutionary syntheses tried to show that all men were equal in this universal reproduction of the species, Washburn (1963) and others were reacting to scientific racism. Jonathan Marks, who is visiting at Berkeley this year, kindly shared his data and called my attention to the contribution of Carleton Coon to scientific racism, especially referring to Coon’s Origin of Races (1962). Remember that in the early 1960s, anthropology was pertinent to the debates on integration and civil rights. In Coon’s work (see Marks 1995), the world was divided into five subspecies or races that had evolved into Homo sapiens at different times. The work could be read (and was) as to indicate that the economic and political dominance of western Europeans and their descendants in the present was simply a consequence of their longevity as members of the species. It could also follow that the place of dark-skinned peoples became a biological expansion for their present position. Coon’s position was used by segregationists, though Coon argued that he was simply observing the facts of nature as objectively as possible. Marks (personal communication) also called my attention to an excerpt from a 1962 letter that Coon wrote to Hany Tumey-High, a member of the sociology and anthropology department at the University of South Carolina: “As I have suggested to others, it seems to me that somebody should do [two] things: (1) investigate the communist influence on American anthropology via Bella Dodd, Boas, and the Boasians.

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Bella Dodd has already testified to this, it is in the congressional record, I believe. I read it in the NY Times some years ago. It is strange that no one has used this material. (2) find out why Ashley Montagu changed his father’s name retroactively in Who’s Who and whether or not he has ever carried a card.” According to Marks, Coon fed the same accusations to his cousin, Carleton Putnam, who used them in his books Race and Reason (1961) and Race and Reality (1967). I quote from his chapter 2 of Race and Reality to give the flavor of how race and red scares were mixed: “Without question I could state at the outset that modern anthropology as taught in Anglo-American schools and colleges is the result of a political ideology, not the source of it. The people who developed it, and their disciples who disseminated it, were almost all partisan and passionate crusaders for socialism.” Putnam claimed that anthropologists most certainly wanted all humanity to be innately equal, and they wanted to discover that the sole reason why inequalities existed was because of variable environments. Thus the responsibility for poverty and failure could be placed chiefly on society, not on the individual, and the rebuilding of the social order on socialist lines could be justified. The rest of the chapter is an attack on “the Boasians,” linking their work with communist sympathies. Such sentiments as Putnam expressed are still alive and well in the late 1990s, indicating that the end of the Cold War is not the end of scientific racism. As Marks notes in his manuscript review of the Mini-Symposium of Racial Anthropology: “A glance at the professional or popular literature shows readily that many issues we thought are old, are in fact new. … they bear on the status of physical anthropology as a possibly more-thanjust-marginal intellectual endeavor.” He continues, “At one extreme we encounter the populism of the para-scientific best-seller, The Bell Curve. … At the other extreme we encounter the elitism of the hyper-scientific Human Genome Diversity Project.” In anthropology, discussions of race became abstracted. Thus today it appears that Gabriel Lasker is right in suggesting that physical anthropology is less controversial. Certainly one could not count more than one or two physical anthropologists who responded publicly to the Bell Curve flap.

Legacies of Differential Impacts Future researchers will decide whether indeed the notion of differential impacts of the Cold War further divided our discipline. We all benefitted

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from increased funding, and although patterns varied within the discipline, funding increments generally led to specialization, often at the cost of the strategic, generalist heart of the discipline. Scientist/humanist endeavors caused publicly debated divisions in sociocultural and in physical/biological anthropology. I am unaware of similar experiences in archaeology. In this period, archaeological debates appear to erupt as a result of internal disagreements (at least until post– Cold War NAGPRA [Native American Graves Protection and Repatriation Act] came along). In addition, feminist interests led to the demise of Man the Hunter, ironically a project with humanistic purpose. But for all of us, public debates led more to avoidance than to public clarification, and differences led us to increasingly abstract concerns and away from the pressing public issues of our time, which is the real crisis in the academy today. NOTE Originally published as: Laura Nader. “Postscripts on the Phantom Factor – More Ethnography of Anthropology” in a collection of her own essays. The work was first published in General Anthropology: Bulletin of the General Anthropology Division, Vol 4, No. 1, (Fall, 1997) pages 3–8.

REFERENCES Baker, T. S., and P. B. Eveleth. 1982. “The Effects of Funding Patterns on the Development of Physical Anthropology.” In A History of American Physical Anthropology 1930–1980, ed. F. Spencer. New York: Academic Press. Bennett, W. C. 1947. The Ethnogeographic Board. Washington D.C.: Smithsonian. Bohannan, P., and G. Dalton. 1962. Markets in Africa. Evanston: Northwestern University Press. Bourgois, P. 1990. “Confronting Anthropological Ethics: Ethnographic Lessons from Central America.” Journal of Peace Research 27 (1): 43–54. Chomsky, N., ed. 1997. The Cold War and the University: Toward an Intellectual History of the Postwar Years. New York: The New Press. Coon, C. 1962. The Origin of Races. New York: Alfred M. Knopf. ———. 1980. A North Africa Story: The Anthropologist as OSS Agent, 1941–43. Ipswich, MA: Gambit. Haraway, D. 1988. “Remodeling the Human Way of Life.” In Bones, Bodies, Behavior: Essays on Biological Anthropology, ed. G. W. Stocking, Jr. Madison: University of Wisconsin Press. Marks, J. 1995. Human Biodiversity: Genes, Race, and History (manuscript:.“Human Biodiversity as a Central Theme of Biological Anthropology: Then and Now.” New York: Aldine de Gruyter.

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Masco, J. 1995. “Nuclear Reservations: Plutonium and ‘National Security’ in Post–Cold War New Mexico.” Paper presented at the American Anthropology Association Meeting, Washington, DC, 15–19 November. Nader, L. 1989. “Post-Interpretive Anthropology.” Anthropological Quarterly 61 (4): 149–59. ———. 1997. “The Phantom Factor: Impact of the Cold War on Anthropology.” In The Cold War and the University: Toward an Intellectual History of the Post War Years, ed. N. Chomsky. New York: The New Press. Price, D. 1997. “The Military Roots of Applied Anthropology in America: Gregory Bateson and the OSS.” Paper presented at the meeting of the Society for Applied Anthropology, Seattle, WA, 8 March. Putnam, C. 1961. Race and Reason: A Yankee View. Washington, DC: Public Affairs Press. ———. 1967. Race and Reality. Washington, DC: Public Affairs Press. Spencer, F., ed. 1982. A History of American Physical Anthropology: 1930–1980. New York: Academic Press. Vidich, Arthur J. 1952. The Political Impact of Colonial Administration. Ph.D. dissertation, Harvard University, Cambridge, MA. Yellen, J. E., and S. Zeleznick. 1986. “National Science Foundation Support of Physical Anthropology Research.” American Journal of Physical Anthropology 69: 517–26. Washburn, S. 1963. “The Study of Race.” American Anthropologist 65: 521–31.

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E c ha p te r 1 5

Controlling Processes Tracing the Dynamic Components of Power

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racing the dynamic components of power in a world where people must conduct their daily lives within larger systems presents the formidable task of representing the complexities of personal experience without losing sight of connections. World conditions have quickened anthropological interest in understanding particular peoples at junctures of local and global history in order to locate populations in larger currents or to trace larger currents in local places. Ethnohistorical study of connections usually requires the examination of unequal relations, and this in turn necessitates the identification of controlling processes—the mechanisms by which ideas take hold and become institutional in relation to power.1 The various research strategies involve combinations of ethnographic, historical, and critical approaches. Ethnography gets to the heart of control and why it is so difficult to perceive and to study; history connects us to the processes that interact with experience; and the reflexive approach leads us to analytical tools that may themselves be hegemonic or ideologically tainted—for example, ideas about control, culture, and the anthropologist on home ground. Sidney Mintz (1985), in his classic work on sugar and power, was keenly aware of implicit power and the way in which “the controllers of society” use it to constrain the free choice of consumers. The creation of new consumption needs is part of the staging of demands for industrial products and services. Mintz identified the controllers as planters, bankers, slavers, bureaucrats, shippers, and others. For Michel Foucault (1967, p. 921), in contrast, power was “not a group of institutions and mechanisms that ensure the subservience of the citizens” but a force that permeated all realms of social life, with no real center and no one employing power tactics. Drawing on long-term fieldwork as well as archival

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research, Mintz calls attention to the internalization of codes of behavior by means of which institutional structures transform social relations and consumption patterns.2 His work indicates that, to trace the dynamics, power is acquired, used, maintained, or lost. These examples employ a contextualized description of processes and dynamics to trace the flow of power and so reveal something about the manner in which cultural ideas—ideas about what it is to be civilized, about standardized bodies, and about the place and meaning of science—are transformed.3 In that sense, this paper is about a methodology for studying power. The term “controlling processes” refers to the transformative nature of central ideas such as coercive harmony that emanate from institutions operating as dynamic components of power. Although the study of controlling processes looks at how central dogmas are made and how they work in multiple sites (often arrayed vertically), it also focuses our attention on microprocesses; that is, it is the study of how individuals and groups are influenced and persuaded to participate in their own domination or, alternatively, to resist it, sometimes disrupting domination or putting the system in reverse (Nader 1994, l996a). Because power moves, it is unstable, and sometimes people achieve power rather than being deprived of it. Cumulative tinkering can be a two-way process (Scott 1990) or double-edged. My task here is twofold. First, I present ethnographic accounts to show how control is redistributed by professions—in law by coercive harmony, in medicine by an ideology of choice, in museology by demystification.4 These three ethnographic examples show how controlling processes are manufactured, how they work to shift standards of taste or value, and how they travel through a multiplicity of discourses, sites, and practices. The accounts illustrate what has been normalized, unearthing invisible structures and recognizing frequent departures from reality, to document not only how cultures are invented but how invented cultures work. The study of controlling processes is at some level a response to Mintz’s call for an “anthropology of everyday life,” a response that brings political and economic issues more prominently into present-day anthropology, whose methodology is rooted in fieldwork. This call for an “anthropology of everyday life” makes necessary my second task—to examine why it is difficult for U.S. anthropologists to examine controlling processes in the United States. As Mintz (1996) reminds us, anthropologists (just like other citizens) are conditioned by their society. This is indicated in the following three examples, which take us through institutions as varied as Christian missions, cosmetics corporations, the military-industrial complex, and the bar for ends as varied as pacification, maximization of profits, and the pursuit of symbolic capital.

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How Power Works Standardizing Emotion: Coercive Harmony Wolf (1982) and Mintz (1985) have traced commodities through developing world systems to construct dynamic examples of European expansion, and their work has motivated some of us to trace the movement of ideas. I began to follow what I called the harmony law model, which encapsulates coercive compromise and consensus as a form of behavior modification (Nader 1990). Over a period of forty years working in a number of different sites, I came to appreciate why anthropologists underestimate the political and economic use of legal ideologies in the construction or deconstruction of culture writ large. As a result of a finegrained analysis of the harmony law model used in Zapotec courts and an awareness of similar arrangements in international negotiation settings, I began to understand that the coercive power of legal ideologies had been missed by anthropologists caught up in a romantic notion of culture. Research among the mountain Zapotec of Oaxaca, Mexico, from 1957 to 1969 first led me to distinguish harmony from harmony ideology and then to interpret the use of the harmony law model as a tool of pacification at first contact with Europe. My subsequent fieldwork, not residentially limited and roughly covering the years 1970 to the present, revealed an explosion of alternative dispute resolution in the United States that I also interpreted as pacification by means of harmony ideology and as essentially a response to the 1960s legal-rights and access-to-justice movements (Nader 1989). When I shifted my attention to library research on international river disputes (Nader 1995) I found these same alternative dispute resolution techniques being employed. In many settings, social scientists sought to explain conflict while at the same time taking coercive harmony for granted.5 Although the organization of Zapotec villages is a legacy of the Spanish crown, villages today remain autonomous to the extent to which they manage to keep peace among themselves and exclude outsiders. Zapotec autonomy is enhanced in their courts, where images of the external world are built, self-government is articulated, and ideologies are formed. The harmony law model was likely introduced by the crown and its religious missions. The Zapotec claim as their own the Spanish proverb “A bad agreement is better than a good fight.” As I probed, it seemed to me more and more likely that the indigenes, having been thus introduced to the harmony law model, began using it as a tool for restricting the encroachment of external, superordinate power (much as did New England villages of the eighteenth century) by encouraging harmonious rather

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than contentious behavior. The Zapotec turned a hegemonic tool into a counterhegemonic technique of control to keep the state out. When theorists speak of cultural control as hegemonic, they are referring not to all culture but to the part that is constructed at one point and spreads, much as colonies of people move to or settle in distant lands. As I unpacked theories of control, I turned my attention to classic ethnographies on law in former British colonies in Africa and then to ethnographies on the Pacific regions of Polynesia and Micronesia, searching for connections between Christian missionizing and law. The preliminary review was tantalizing. Why was it that anthropologists commonly reported conciliation among indigenous peoples? The legal historian Martin Chanock (1985), whose work covers the origin, use, and modern consequences of harmony ideology, revealed early connections between local law and Christian mission emphasizing conciliation and compromise through the operation of principles of Euro-Christian harmony ideology.6 In 1976, I attended the Pound Revisited Conference in St. Paul, Minnesota,7 and began to study how harmony legal ideologies are constructed in modern nation-states of the Western democratic sort, penetrate institutions of society (schools, hospitals, workplaces), and radiate beyond national borders. By sheer happenstance, as I was working on these materials I began to notice, along with other observers of the U.S. political scene, that Americans had become subdued and apathetic (Nader 1989). The 1960s had been a time when many social groups in the United States felt encouraged to come forward with their agendas: civil rights, environmental rights, consumer rights, women’s rights, Native American rights, and so on. It was a confrontive period marked by sharp critiques of law and lawyers in relation to rights, remedies, and the workings of the judicial system, and pushed by concerns with rights and justice. Yet in about twenty-five years the country had moved from central concerns with justice to concerns with efficiency, order, and harmony, from public concern with the ethic of right and wrong to an ethic of treatment (Claeson 1994), from courts as a dominant symbol for law use to alternative dispute resolution. How had this shift happened? Although alternative dispute resolution encompasses programs that are called “informal justice”—that is, justice that focuses on mandatory mediation—this is not the same thing as earlier negotiation and mediation. Mandatory mediation-arbitration (in itself a contradiction in terms) replaces contention with “peace” and win-win solutions. The language of alternative dispute resolution is heavily psychological rather than legal, and it has attracted strange bedfellows—right-wing politicians con-

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cerned with the prospect of the success of the rights agendas, left-wing activists concerned with improving the judicial process, religious communities, psychotherapy groups, businesses tired of paying enormous sums in lawyers’ fees, and administrators wishing to facilitate bureaucratic procedures. Dogmas of harmony and consensus appeal to a wide spectrum of political positions from right to left and, because they have deep cultural roots in American society, leave room for instrumental manipulations and more. Warren Burger, chief justice of the U.S. Supreme Court, played a pivotal role in the alternative dispute resolution movement from his appointment in 1969 until his retirement in 1986. Burger adumbrated a manner of thinking about social relations, structural problems of inequality, and cultural solutions to these problems that foreshadowed a cultural shift with ramifications far beyond the law. The movement was against the contentious and against concerns with root causes and toward control over the disenfranchised. For the most part, the elements of such control were invisible, but they were pervasive. The discourse of alternative dispute resolution was characterized by the use of a restricted language code with formulaics following the pattern of assertive rhetoric: broad generalizations, repetition, invocation of authority and danger, presentation of values as fact, and almost no hard data. For the most part, the bench and the corporate bar swallowed the chief justice’s exhortations—an interesting story in itself, since such acceptance would seem to run counter to lawyer self-interest (Nader 1993). Duncan Kennedy (1982) was right: legal training for hierarchy is preparation for believing the chief justice.8 The point of calling attention to the use of the harmony law model is not to valorize an adversarial model but to attempt to understand how and why legal ideologies shift from tolerance for controversy to the pursuit of harmony over time and with what consequences (Auerbach 1983). Certainly the history of global replacement of adversarial models by harmony models does not indicate that harmony ideology is benign. On the contrary, during the past three decades harmony ideology has resulted in an invisible redistribution of power. The conditions under which preferences in dispute management are historically “shifting commitments” usually involve power in motion. Burger’s legacy is evident everywhere today. A major purpose of environmental conferences, for example, is to see whether the emphasis can be shifted from a win-lose situation to a balance-of-interest approach. American Indians on reservations are being persuaded by negotiators from Washington to take nuclear waste as a win-win solution—climbing out of their misery while contributing to their country (Ou 1996). Timber activists are pressured with consensus meetings. Unions are deluged with

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quality-control plans whereby workers and management can cooperate in harmony (Gonzalez 1996). Family problems are mediated, and, ironically, in many states such mediation is mandatory (Grillo 1991).9 Ghetto school “troublemakers” and leaders are taught how to mediate disputes rather than search for justice. In Washington, D.C., there is now a government office of consensus conference planning, and we have elected presidents whose preference for consensus has been widely noted. Carol Greenhouse’s (1986) work has called attention to the Southern roots of Presidents Carter and Clinton and the latter’s position on consensus; her study of a Southern Baptist community in Georgia reveals the cultural roots of an alternative dispute-resolution explosion in which the contemporary equation of Euro-American Christianity with harmony instills law avoidance, law aversion, and the value of consensus—“a strategy that transformed conflict.” Jerold Auerbach (1983) had already pointed to a recurrent dialectic in the United States between harmony and judicial models of law. Thus, it appears that in the effort to quell the rights movements of the 1960s and to cool Vietnam War protests, harmony became a virtue.10 Burger argued that to be more “civilized” Americans had to abandon their reliance on the adversarial model. It was by means of such rhetoric that the present-day “tort-reform” movement was born. Though the general public was largely unaware of it, the plan attracted enough attention to shift public emphasis and empathy away from courts and injured plaintiffs. A burgeoning dispute-resolution industry institutionalized the shift from “the acrimonious” to “the harmonious” through an empirically ungrounded discourse about the United States as “overlitigious” (Nader 1994). The powerful tend to become advantaged by alternative dispute resolution, and coercive harmony can be repressive. There were critics who challenged the assumptions about a litigation explosion, and studies revealed alternative dispute resolution’s practice of controlling the definition of the problem and the form of its expression, including the prohibition of anger. In spite of empirical challenges to assumptions and assertions, alternative dispute resolution continued to expand into multiple facets of American life and in a short time became internationalized. What happens when a law reform movement seemingly unfractured by power differences goes international (Nader 1995)? Many textbook descriptions of dispute resolution use a standard sequential order of legal evolution that espouses a telos: hierarchically lower societies supposedly evolve from self-help and negotiation to mediation, arbitration, and finally adjudication (Hoebel 1954, Schwartz and Miller 1964). Many writings on legal evolution have considered the simple presence of courts a sign of societal complexity, evolution, and development;

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during the colonial era the development of courts was considered part of the “civilizing mission.” The International Court of Justice was promoted as the apex of forums for settlement of international disputes by means of adjudication and arbitration. All these positions were ideologically consistent with the works of evolutionary social theorists. Yet by the 1980s and 1990s, just as alternative dispute resolution in the United States was shifting the rhetoric from justice to harmony, so at the international level the notion of “mature” negotiation began to replace the World Court as the standard of civilized behavior. Why this valorizing of negotiation? An international legal scholar (Gong 1984, p. 63) put his finger on the key— elasticity: “The less ‘civilized’ were doomed to work toward an equality which an elastic standard of ‘civilization’ put forever beyond their reach.” Edward Said (1978) had noticed this earlier when he observed that the valorizing of one cultural form over another is frequently linked to imbalances of power. Now that the “primitives” have courts, we move to alternative dispute resolution, a culturally encapsulated form of international negotiation that has emerged in the United States from the disciplines of law, economics, social psychology, political science, and psychotherapy. What was different about the new international negotiators was not their practice of mediation or negotiation but their distaste for confrontation, the adversary process, justice acquired by win-lose methods, and equality before the law. They were also linked by an indifference to the international court, which since the emergence of new nations (many of them “Third World”) was being used to represent new interests. For example, in 1984 Nicaragua filed suit against the United States, which withdrew from the case and shortly thereafter (along with the USSR) withdrew from the agreement to comply with the decisions of the court. Controlling processes are double-edged. Water resource disputes illustrate the shift of dispute resolution away from adjudication and arbitration toward negotiation. In instances of international river disputes, such as those over the Danube, the Colorado, the Jordan, the Duoro, and the Ganges, mention of the International Court of Justice is replaced by phrases such as “mutual learning,” “information sharing,” “harmonizing,” and “cooperation.” Zero-sum settlements become “hostile,” and information, analysis, and solution are viewed as getting in the way of “constructive dialogue.” Under such conditions, mind games become a central component of the negotiation process.11 Toxic poisoning is referred to as a “perception of toxic poisoning,” and the question becomes how cultural behavior can be used or neutralized. The international “privatization” of justice through alternative dispute resolution centers in the United States is striking, as is the contempt for the judicial process.

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Many writers on international negotiation imply the existence of a “universal diplomatic culture” of negotiators. Sometimes justification for such a view is attributed to anthropological research on negotiation, notably the work of Philip Gulliver (1979). However, what is claimed to be universal here is instead hegemonic, developed in the United States in the 1970s and exported worldwide by an expanding alternative dispute resolution industry; it is a coercive harmony whose primary function is producing order of a repressive sort. In the international river disputes, it is the stronger parties that prefer negotiation. Harmony legal models or adversarial models may originate locally and spread or be imposed for purposes of control or resistance to control, resulting in the redistribution of power. Anthropologists know, of course, that dispute resolution ideologies have long been used as a mechanism for the transmission of hegemonic ideas, and indeed we no longer speak of culture as referring simply to shared traditions passed from one generation to another. The study of structures and activities that cross boundaries, including the boundaries of what has long been shared culture, illuminates places where power may be reconfigured and societies transformed. The question of choice is just such a place.

Standardizing the Body: The Question of Choice The question of choice is central to the story of how medicine and business generate controlling processes in the shaping of women’s bodies. Foucault (1967) demonstrates how changes in the concept of madness led to changes in diagnosis and treatment of the insane and of social attitudes toward them. He describes how changing perceptions of madness in parts of Western Europe from the Middle Ages to the end of the nineteenth century led to the separation of “mad” persons from the rest of society, their classification as deviants, and finally their subjection to social control. He focuses on the cultural controls that led to the social controls; ideas about madness led to asylums for the mad. A similar incremental process is central to discussions of the commodification of a woman’s body (see, e.g., Lock 1993). Images of the body appear natural within their specific cultural milieus. For example, feminist researchers have analyzed the practice of breast implantation in the United States from the vantage point of the cultural milieu, and in the Sudan (Lightfoot-Klein 1989) female circumcision and infibulation serve to accentuate a feminine appearance. Thus, Sudanese and other African women, American women, and others experience body mutilation as part of engendering rites. However, many writers differentiate infibulation from breast implantation by arguing that Ameri-

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can women choose to have breast implants whereas in Africa women are presumably subject to indoctrination (and besides, young girls are too young to choose). One of the most heated debates arising from the public health concern over breast implants is whether the recipients are freely situated—that is, whether their decision is voluntary or whether control is disguised as free will. An informed response to the free-choice argument requires knowing how the beauty-industrial complex works. It requires sensitive fieldwork in multiple sites and an understanding of emergent idea systems in incremental change. Linda Coco (1994) builds upon the insights revealed by Howard Zion’s (1984) The Twentieth Century: A People’s History. Zinn (1984, p. 204) cites a 1930s magazine article that begins with the statement, “The average American woman has sixteen square feet of skin.” This is followed by an itemized list of the annual beauty needs of every woman. Sixty years later the beauty-industrial complex is a multibilliondollar industry that segments the female body and manufactures commodities of and for the body. As Coco shows, some women get caught in the official beauty ideology, and in the case of silicone-gel breast implants some hundreds of thousands of women have been ensnared. But who gets caught and when is important to an understanding of the ecology of power. The average age of a woman having breast implantation is thirty-six years, and she has an average of two children. She is the beauty industry’s insecure consumer recast as a patient (Claeson 1994). She is somehow deviant; her social illness is deformity or hypertrophy (small breasts). Coco (1994, p. 111) quotes a past president of the American Society of Plastic and Reconstructive Surgery (ASPRS): “There is substantial and enlarging medical knowledge to the effect that these deformities [small breasts] are really a disease which result in the patient’s feelings of inadequacies, lack of self-confidence, distortion of body image, and a total lack of well-being due to a lack of self-perceived femininity. … Enlargement … is therefore … necessary to ensure the quality of life for the [female] patient.” In other words, cosmetic surgery is necessary to the patient’s psychological health. The plastic surgeon regards the construction of the official breast as art, the aim being to reform the female body according to the ideals of classic Western art. One surgeon pioneering procedures for correcting deformity took as his ideal female figure that of ancient Greek statues, which he carefully measured, noticing the exact size and shape of the breasts, their vertical location between the third and seventh ribs, the horizontal between the line of the sternal border and the anterior axillary line, and so forth. In Coco’s analysis, the exercise of the plastic surgeon’s

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techno-art recreates a particular static, official breast shape and applies this creation ostensibly to relieve women’s mental suffering. The surgeon becomes a psychological healer as well as an artist. Along with art and psychology, there is, of course, the business of organized plastic surgery, which responds to the demands and opportunities of market economics. By the late 1970s and early 1980s there was a glut of plastic surgeons. The ASPRS began to operate like a commercial enterprise instead of a medical society, saturating the media with ads and even providing low-cost financing. The discourse became a sales pitch. Women “seek” breast implants to keep their husbands or their jobs, to attract men, or to become socially acceptable. Coco calls this “patriarchal capitalism” and questions whether this is free choice or “mind colonization.” Understanding “choice” led Coco to an examination of the power both in the doctor-patient relationship and in the control of information. By various means, certain women—the insecure consumers—are led to trust and believe in modern medical technology. What is most important in being “caught” is their internalization of the social message. Coco’s conclusion that American women are subtly indoctrinated to recognize and desire a certain kind of beauty presents an interesting possibility. Women “were told by the media, plastic surgeons, women’s magazines, other women, and the business world that they could enhance their lives by enhancing their bust lines. Thus,  the social imperative for appearance was personalized, psychologized, and normalized” (Coco 1994, p. 120). Social surveys indicate that, to the extent that women internalize the social imperative, they feel they are making the decision on their own. Not surprisingly, women whose surgery resulted in medical complications often came to recognize the external processes of coercive persuasion that had led them to seek implants. In some ways, they resembled former cult members who had been deprogrammed: their disillusionment caused them to question the system that had encouraged them to make the decision in the first place (Singer with Lalich 1995). The result was a gradual building of protest against the industry, expressed in networks, newsletters, support groups, workshops, and seminars. As have some former cult members, women have brought suit, testified before lawmakers, and challenged in other ways some of the largest corporations and insurance companies in the land.12 The choice of implants, they learn, is part of a matrix of controlling processes in which women are subjects. Given the right circumstances, it could happen to anyone. In the Sudan (Lightfoot-Klein 1989), the young girl is told that circumcision and infibulation are done for her and not to her. In the United States, the mutilation of natural breasts is also done for the re-creation of femininity. Although

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power is exercised differently in these two cases, Coco notes the similarity: “The operation on the female breast in America holds much of the same social symbolism and expression of cultural mandate as does infibulation in Sudan. Thus, the question of why women choose breast augmentation becomes moot” (1994, p. 125). Breast implantation is now spreading elsewhere, most notably to China. Will it become a functional equivalent to foot-binding in China as part of the competition between patriarchies East and West? Whatever the answer, many social thinkers agree that people are always more vulnerable to intense persuasion during periods of historical dislocation—a break with structures and symbols familiar to the life cycle—in which the media can bring us images and ideas originating in past, contemporary, or even imaginary worlds. Feminist researchers have sought to crack controlling paradigms such as those that define women’s capacities and those that construct a standardized body shape and determine what is beautiful in women. Our Bodies, Ourselves (Boston Women’s Health Book Collective 1971) introduced women to their own bodies as a site for the exercise of power. Works such as Face Value: The Politics of Beauty (Lakoff and Scherr 1984) and The Beauty Myth: How Images of Beauty Are Used Against Women (Wolf 1991) are attempts to free the mind from the beauty constructions of cosmetic industries and fashion magazines. Others have written about how the one model of Western beauty is affecting members of ethnic groups who aspire to look the way advertisements say they should.13 As in the example of Sweetness and Power, choice is an illusion, since the restructuring of taste is inextricably linked to shifts in the organization of consumption.

Who are the Controllers? The Science-in-Society Debate The final example of controlling configurations involves a recent controversy at the Smithsonian Institution in Washington, D.C., over the “Science in American Life” exhibit at the National Museum of American History. The full story of this controversy involves the history of what one can call the new museology, a movement in which a critical anthropology, along with other reflexive disciplines, plays a central role. Nelson Graburn (1991) has identified three historic periods in the history of museum exhibits, each reflecting a particular ideology: display of power and status, education of the masses, and empowerment through interpretation. The debate on the function of museums from the native’s point of view, focusing on the dynamic relation between the museum and Native Americans, was among the urgent political and epistemological

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issues of representation and repatriation that reinvigorated anthropological work on museums in the 1970s. Michael Ames (1986) applied Ivan Illich’s (1971) idea of deschooling to museums of the neocolonial type as part of a reflexive, self-critical anthropology of museums. During the late 1970s and 1980s, museum studies began to be cross-disciplinary, and there was a heightened awareness of what museums actually do in relation to some of the ideological zeitgeists that Graburn enumerated. Interdisciplinary concerns pointed to the manner in which museums control and subordinate the past (MacCannell 1976) in an effort to portray the “modernization” of America. Museums were recognized as status symbols (Kelly 1987), and criticism of them included an examination of the gendered, racialized construction of natural history exhibits (Haraway 1984) as well as the connections between museums and imperialism attached to notions of “the white man’s burden” (Haacke 1986). All of the above-mentioned research points to the recognition that museums do not exist in a vacuum. It indicates a critical rethinking of the functions of museums and their relations to movements such as colonialism or nationalism and ideologies such as Marxism and capitalism. There is a surprising shortage of ethnographic works analyzing specific controversial exhibits. Two exceptions that come to mind are the Glenbow Museum controversy in Canada (Halpin 1978) and George Marcus’s 1990 “The Production of European High Culture in Los Angeles.” The critical ethnographic examination of the Smithsonian’s “Science in American Life” exhibit by a young anthropologist interested in the contemporary science/anti-antiscience debates (Vackimes 1996) is evidence of what happens when stakeholding becomes incendiary. Writers locked in these debates often depict so-called antiscience people as “savages,” ignorant lay people, or scholars outside the boundaries of a narrowly defined “science.” This makes the study of “us” (interested lay people) and “them” (the scientists) imperative, as lay persons become the “natives” struggling for power—a situation, by the way, not so different from the case of the Canadian Cree mentioned in connection with the Glenbow Museum and its sponsors. The Smithsonian controversy contains all the significant political and theoretical issues with which contemporary anthropology has been concerned: displays of power; representation; history and the cultural wars over history; symbolic power and the power of material objects; education; public participation; culture and multiculturalism; magic, science, and religion; and hegemony. Anthropologists would not have attempted such an analysis a century ago because as a discipline we had not yet achieved the detachment, the experience, and the critical maturity necessary to do so. We first needed to experience colonialism and nationalism, and we needed to focus on

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the idea of the “Other” in order to recognize colonized roles in our own society and ideological components in the basic operating concepts of our discipline. The “Science in American Life” exhibit was, as its curator, Arthur Molella (1994), pointed out, about an extraordinarily complex and evolving interrelationship between science and society. A historian of science and a member of the exhibit advisory committee noted that the exhibit “neither attacks nor celebrates science and scientists, but provides museum visitors with an exciting and informative account of science as a human and social enterprise reflecting the society in which it is nurtured and having important social, economic, and political consequences. Isn’t that what ‘scientific literacy’ should be about?” (Weiner 1994). The task of the anthropologist was to examine and analyze the cultural battles over what the exhibit was really concerned with. Science exhibits often aim at producing awe at the wonder or strangeness of nature, displaying man’s conquest over natural forces, or celebrating great scientists and their discoveries and inventions. As Vackimes points out, “Science in American Life” did none of these things. Instead of illustrating “scientific progress,” the twenty-two case studies in the exhibit focused on the impact of science and urged the public to think about the meaning of the development of the contraceptive pill, the atomic bomb, food additives, scientific education, and the advent of coal tar products and the creation of synthetic fabrics, paints, aspirin, and pesticides. Obscure inventors, vaccines and DNA, medical innovations, dyes for blue jeans, radio circuits, and hard water—these were the curiosities in this museum exhibit. Perhaps the material object that most clearly symbolized the different interests of the lay public and some scientists was the relic of a family fallout shelter of the post–World War II years. At first the shelter had seemed to be a sensible technological solution as effective protection from the destructive potential of the atomic bomb, but after the development of the hydrogen bomb it had come to look ineffective. The worry among some scientists on the museum’s advisory board was that the shelter would be perceived as a symbol of scientific evil (Molella and Stephens 1995, p. 9). The exhibit stimulated as outraged a reaction among some members of the scientific community as any representation (or misrepresentation) of the cultures of native peoples. There were implicit and explicit threats to jobs, calls for revisions and reparations, accusations of the demonizing of science.14 The outraged scientists wanted a script that portrayed the glories of American science and technology, one that celebrated Nobel Laureates. A contextualized scientific representation was considered a belligerent act worthy of characterization as antiscientific. The exhibit, in

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the spirit of the new museology, elicited a public analysis of the meaning of science and progress in American life, which in turn drew criticism to the Smithsonian for its alleged attack on the sacred scientific establishment. The secretary of the Smithsonian argued for evenhanded exhibits. The “Science in American Life” exhibit is currently being dismantled and reformed for the major benefactor, the American Chemical Society. The “higher superstition” that Gross and Levitt ( 1994) attribute to antiscientific thinking may belong to us all.15 Anthropologists understand the social organization of groups and know that practitioners of Big Science are separated spatially from lay people. They also understand that scientists themselves are differentiated. Our science museums have been the special repositories for the mystery, majesty, and fascination of science, as Vackimes points out. But the Smithsonian exhibit was housed in the National Museum of American History, where the curators apparently penetrated the previously impenetrable disguise of modern science. As a result of the juxtaposition of meanings, the ethnographer and the curators were able to comprehend the political and sacred workings of “the scientific mind.”

The Power of Concepts From Social Control to Cultural Control To place controlling processes research in the context of American anthropology, it is important to note the changing place of “social control” relative to “cultural control” in the U.S. social science literature. During the past century, notions of control that were themselves hegemonic have given way to an ever more critical approach to the use of disciplinary concepts. Early on, social control theorists examined power within the context of an ideological worldview in which harmony and order were assumed to be positively valued. Although the notion of culture in its romantic version also assumed a consensual basis that was hegemonic, anthropologists have increasingly backed away from this notion, as well as from related ideas such as social control. Edward Alsworth Ross (1901) first advanced the concept of social control in the wake of labor unrest in the post–Civil War period. With the abolition of slavery came a reorganization of slavery-based relationships. During that period of rapid industrialization, industrial jobs were replacing those in farming and wage work was replacing self-employment. It was a period of high immigration and of populist political movement, a time when the crisis of control was a central theme of industrial thought. Ross’s work on the human practices and arrangements that contribute to

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social order and influence people to conform centered on the hegemonic thesis that social order exists because of society’s conscious control of the individual. It took little account of the destitute and the thoughtful, for whom consensual social control was more likely an illusion that served special interests. Theorizers of controlling processes are now at pains to differentiate between control that is consensual and the notion that consensus is control. In the early twentieth century, especially during the period following World War I, labor struggles erupted from Seattle to Boston. The response was brutal: there were firings, repression, retaliatory raids, and massive deportation of immigrant workers and radicals. Such actions were the results of a broad attempt to create a stable workforce. As historians of the period observe, industry’s need for a certain kind of order came to be equated with the needs of the society. Yet the contradictions between repressive police tactics and a democratic government also needed to be addressed. It was in this context that American industry began to produce an apparatus that, though aimed at quieting worker unrest, allows us a glimpse of the social textures of industrialization (Noble 1977). The move was in the direction of “human management,” and it represented a change in business’s method of social control. “Handling the help” was central to business survival, and the pursuit of peaceful social relations was becoming an important part of modern management. Psychology became the darling of industry in the shift from overt coercion to implicit persuasion. The development of human management techniques moved away from a conception of workers in their productive capacity toward the organization of labor outside the factory. Business worked to invent a culture that fit the needs of a new industrial society; the industrial process stretched that culture into the communities and structures in which workers lived, thereby creating a conception of worker that was as different from the traditional one as Brave New World is from 1984. The new managers were creating a modern architecture of daily life in which advertising was dubbed “a civilizing influence.” The goal was the prevention of resistance to industrial culture (Nash 1989; Wallace 1978). The distinction between social and cultural control allows for the distinction between control over groups or relationships and control of the mind, both part of any controlling process. Increasingly, control moved from a social to a cultural mode; social control or overt coercion is culturally less acceptable in a democratic society, and in the late twentieth century cultural control is more effective—a notion that European social thinkers were quicker to grasp than their U.S. counterparts (Auge 1982). Some have argued that the evolution from overt control to subtle cul-

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tural control is progress, indicating that the world is increasingly less governed by violence; yet we have in internalized violence the cognitive dissonance that has often led to a good deal of violence.16 Advertising, worker safety and recreation programs, welfare programs, and language and civics classes were control mechanisms that created new traditions for the consumer class of a new industrial order while at the same time training consumers in seductive, subliminal appeals mobilizing the instinct, civilizing the self, and commercializing expression (Ewen 1976).17 Scholars were constructing and debating cultural control and conceptions of culture, and anthropologists were in the middle of such debates. Ruth Benedict (1934) was writing about coherence in culture, Edward Sapir (1924) about “culture, genuine and spurious,” and Franz Boas about the shackles of tradition in the Euro-American transition to modernity. Although anthropologists have written about language, ritual, symbols, and ideology in the light of cultural control, the term “cultural control” itself owes more to the literature on ideology dealing with, for example, science, sexuality, religion, business, politics, and professional domains. Control by means of culture is often implicit and not dramatic and is related to the creation of social categories and expectations and to ideological construction. Sutton et al. (1956) wrote about this, and so did Geertz (1973, pp. 193–233). Ideologies may be said to exist in all societies, although some argue that they appeared only with the French Revolution (Auge 1982, p. 5). The same French scholars consider civilizational societies of the Western sort to be at the high end of the ideological spectrum and classless societies at “the innocent end” (p. 6). In this usage, ideology is characteristic of class difference.18 But systems of ideas, beliefs, and values expressed in literature, professional training, advertising, ritual, and various media, and found in various classes, are also hegemonic, though naturalized and assumed. Systems of this sort, which spring from central sources, are extremely powerful tools of influence. The study of hegemony portrays the exercise of ideology through class penetration rather than through class domination. If culture refers to shared symbolic meaning from which hegemonic forms are cast, ideologies may be seen as more localized and tightly integrated worldviews, and the two concepts are interdependent. Raymond Williams’s (1977) definition of hegemony (in contrast to Gramsci’s view of it as a totalized state) is something like “controlling processes” (Kurtz 1996).19 Hegemonic control in the form of mind colonization takes on great importance in the 1990s in relation to an understanding of what Christopher Lasch calls “the social transformation implicit in technological change, the transformation of American culture by advertising, the mutual dependence of industry and education”

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(quoted in Noble 1977, p. xiii)—in sum, the controlling ideologies of an industrialized state, which in only a few decades became hegemonic. Anthropological research on domination and resistance has shown the power of cultural control. Cultural control when it is hegemonic is impersonal, embedded, and often invisible, and even those who in fact exercise it may not understand its extent, thinking of it as only marketing. Yet, certainly since Aldous Huxley’s Brave New World (1932), those who study video games, sexual preoccupations, standardized testing, television programming, and advertising have been aware of the presence of such forces, which channel our time, our behavior, our values, and our notions of what it is to be old, beautiful, sexy, or clever. These forces are often nonideological or anti-ideological, although they are defended in terms of ideological constructs such as free-market competition, free and open science, meritocracy, or self-realization. Most critical scholars today back away from ideological definitions of their basic operating concepts. Legal scholars noted early that changing the questions asked in criminology altered paradigmatic categories from social control to cultural control (Chambliss 1982). The traditional question of criminologists—why it is that some people commit crimes while others do not—was no longer pertinent in the face of civil rights demonstrations, antiwar protests, the middle-class use of marijuana and cocaine, and blatant criminality and tax or regulatory evasion by giant corporations and political leaders. The question instead became why law defines some acts as criminal and not others. And attention then focused on how law as ideology works as a vehicle for consolidating or maintaining power relations and, by means of hegemony, achieving widespread consent. Anthropologists often discuss control in terms of conformity. Bronislaw Malinowski ([1926] 1932), in his work on the Trobriand Islanders, developed the notion of reciprocity as the guiding principle in maintaining conforming behavior. Edmund Leach (1977) discussed conformity in relation to domination; earlier, Dorothy Lee (1959) contrasted cultures that celebrate freedom without using the word with U.S. culture, which has the word but is characterized by much conformist behavior. Elizabeth Colson (1974), questioning the transition between internal and external controls, argued that centralized authorities are both limiting and liberating. I am more particularly concerned with the control that emanates from diffused power entering the minds of participants across temporal and spatial boundaries. This is not a new phenomenon: religious conversions, the divine right of kings in Europe, the mandate of heaven in China are all part of world history. What is new is multiplicity and delivery systems, for example, to young children by marketing, virtual reality,

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and television, and the time lag of awareness that may result. Controlling processes travel as people and institutions travel, and each person, each group, each object, each institution contributes to diffusion and transculturation (Wolf 1982). In modern ideologies, science, technology, and the idea of progress are prominent symbols in relation to control. Anthropologists sometimes use labels such as “traditional” and “modern” to challenge the notion of progress as the rationale for European global expansion. Yet the idea of progress is still used as justification, for example, for conquest, education, genocide, slave labor, proselytizing, exploitation of natural resources, and gambling on American Indian reservations, and in promulgating legal policies, beauty standards, and hierarchy in science. The European notion of progress was implanted in the Third World (and in the Fourth World, often by Third Worlders) as a goal amounting to modernization. As Norbert Elias (1978) reminds us, “the civilizing process” does not discriminate. In the United States, democratic process is necessarily in conflict with the way in which economic and symbolic power works. When the use of social control becomes less culturally acceptable, especially for the middle class, the use of cultural control becomes more central to the whole mechanics of power, and with it the cognitive dissonance associated with living in a world that does not work in the idealized way.

Cultural Debates Understanding debates about culture includes viewing culture as a historically based idea, some say a romantic Germanic idea—essentially hegemonic social criticism directed against the disintegrating effects of industrialization (Borofsky 1994, pp. 243–309). Idealized nineteenthcentury culture assumes a consensual basis at a period when cultural nationalisms were rooted in ethnic and folk traditions during the rise of nation-states in Europe. Along with industrialization, these traditions helped shape the culture concepts used today (Keesing 1976, p. 307). However, contemporary uses of culture by powerful political entities (Farmer n.d.) are not easily explained as romanticism or social criticism. Power-holders may manipulate culture to control others much as cult leaders do their followers. A prime example of the use of cultural arguments by the fundamentalists of the political right works to articulate a politics of exclusion (Stolke 1995) based on an alleged propensity in human nature to reject strangers. Anthropological concepts are, of course, influenced by their times. In the period before the awakening of anthropologists to analyses of cultural

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hegemonies, anthropologists were commonly preoccupied with purity. As Mintz (1970, p. 14) reminded us, “Old Coca-Cola signs, a cuisine littered with canned corned beef and imported Spanish olives … all observed within the reach of radio and television … these are not the things anthropological dreams are made of.” As a form of advocacy, anthropologists were also preoccupied with studying culture and society as “standardized behaviour,” not random and unorganized “savagery” (Siegfried Nadel, quoted in Moore 1994, p. 363). Dell Hymes (1972) reminded us that there was strong resistance to publishing studies of acculturation in the official journal in the 1930s on the ground that they were “not anthropology”; some anthropologists even stopped studying Indians in the 1930s because they had become “just like any other minority group” and, therefore, presumably had lost their culture. Similar observations about what anthropologists did and did not study in Africa were made by Siegfried Nadel (1947) in his work on the Nuba and by Isaac Schapera (1938) in his work among the Tswana. Culture in their time was “common identity,” which unfortunately often excluded the culture and influence of colonizers. Even by 1974, the call to “study up” was thought to be “a kind of muckraking anthropology” (Kaplan 1974). The study of the cultures of power, as in Richard N. Adams’s study of Guatemala (1970), was not mainstream. Not surprisingly, as the search for an anthropology concerned with the widest issues of modern life accelerated, the magnifying glass landed on the culture concept. In Reinventing Anthropology, Hymes (1972) reminded us that by separating the notion of culture from the notion of shared heritage Sapir had made room for the study of, for example, “traveling ideologies.” Culture was more than shared heritage. Leading anthropologists began to situate local peoples in larger currents of world history, recognizing that culture cannot be theorized in isolation from the social conditions in which it arises. The work in this vein of Gaventa (1980), Mintz (1985), Nash (1979), Willis (1975), and Wolf (1982), is significant, as is that of their critics and admirers (Asad 1973, 1987; Roseberry 1989; Taussig 1989–90). The notion of hegemony as flexibly expressed by Antonio Gramsci (1971) implies that some systems of thought develop over time and reflect the interests of certain classes or groups in the society who manage to universalize their beliefs and values. Dogmas reinforce controls as they are produced and reproduced by intellectual elites—academics, writers, representatives of the mass media, and so on. Without getting into the difficulties of interpreting Gramsci, along with the idea of discourse, the notion of hegemony is a useful tool for working one’s way through culture

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debates. A key factor in constructing dogmas is the restriction of discourse on alternative conceptions of reality, accomplished through what Foucault (1980) terms the construction of “true discourses.” Since there are many ways of conceptualizing reality, what becomes accepted as truth depends on the intimate association of power and knowledge. Like Gramsci’s notion of hegemony, Foucault’s notion of true discourses emphasizes the manner in which individuals internalize power and control. What we see depends on what we know. What we know depends in part on how knowledge or knowing is produced and by whom and when and how it is filtered by experience. Ethnography gains in significance when placed in larger global and historic frameworks, in complex macroprocesses, because combining understanding at the level of experience with the abstractions of impersonal processes is bound to reveal hitherto invisible processes and contingencies. The contemporary appeal of Foucault has, however, drawn us away from Mintz’s concern with normative exercises of power. In the United States, culture may appear natural and inevitable because it is deliberately made to appear so by the manipulation of cultural images that articulate what people should be, should think, should buy (not that they always do). A strong belief in free will often impedes understanding of how lives are changed by cultural practices that are external to the individual and intended to modify individual behavior—for example, through political propaganda or economic marketing. Anthropologists witness and experience the construction of culture for financial gain. We are a marketing society. Yet for the most part our professional stance has been somewhat analogous to that of the anthropologists of the colonial period, who were criticized for writing about “pure native” culture before it disappeared while all around them native cultures were changing. When we close our eyes and minds to the possibilities of ethnographic research in taking a vertical slice of contemporary colonizers and colonized, we still practice anthropology in much the same way. In spite of recent gains,20 we still ignore the ramifications of the commercial world and the multinationals—as if they were not changing every one of us, whether consciously resistant or not. More and more, modern technologies, population movements, and changing social organizations make us captives of our cultures (Henry 1963).

On Home Ground “Crappy corporate culture,” the cabby said as we passed Union Square’s Nike and Disneyland sites. “Where’d you get your education?” I returned.

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“Same place you did, lady. Look around—it’s everywhere.” “Hmm,” I thought, “The French call it American culture.” When we work in our own society as “native anthropologists,” the implicit view of cultures as systems of shared values or meanings limits our ability to see the historical shape of the cultural or to recognize the deliberate invention of tradition (Hobsbawm and Ranger 1983). Although we consciously construct concepts to challenge ideological hegemony, the continuing shortage of ethnographic analyses of cultural hegemonies at home signals the persistence of this naïve view.21 The dilemmas of the anthropologist working at home are recognized by the biographer of the nineteenth-century Smithsonian ethnographer James Mooney (Moses 1984).22 In attempting to explain to white American intellectuals, missionaries, government agents, and the reading public why Native Americans practiced the Ghost Dance and why there was a Sioux outbreak of violence in 1890 (Mooney 1896), Mooney violated two unwritten rules that still restrict possibilities for native anthropologists in the United States. First, he offered an explanation that went to root causes, attributing the American Indian “problem” to the destabilizing effect of white society. By not limiting the social field to Sioux “culture,” he made a connection.23 Second, he compared Native American and European religious revitalization as if they were equivalent, thereby questioning the positional superiority of white culture. His work offended the sensibilities of the powerful, including anthropologists, and eventually he was denied access by government officials to Indian reservations. The story of James Mooney foreshadowed activity during two world wars and the Cold War, when hysterias about red, pink, and socialist politics became commonplace and encouraged self-censorship. The general avoidance of issues of power generated a failure of ethnography.24 This failure in itself gives special value to contemporary works that make connections between experience and macroprocesses. The point here is that while culture-theory critics usually deal with our description of the socalled Other, similar arguments apply to native anthropologists working on home ground. Henry (1963), Lee (1959), and Hymes (1972) must have discovered when they read reviews of their works that there was widespread discomfort among anthropologists about describing our culture “as it is,” especially when tacit assumptions regarding state or corporate power were examined. This discomfort can be addressed only through awareness of controlling processes inside and outside of academia (Furner 1975; Nader 1997) aimed at producing conformity and selective blindness. Selective blindness—depending on our conceptual categories rather than on

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ethnographic realities—kept us, for example, from predicting the revolution in highland Peru (Starn 1994).

A Concluding Comment Malinowski ([1926] 1932) recognized that controls operate most effectively through symbols that society places beyond the jurisdiction of its formal and social control system. Mintz illustrated how ideas linked to the disparities of power grow and are nurtured through interlocking institutions. Cultural control is often the result of incremental, not abrupt, change, and when it is achieved incrementally it is powerful indeed because it slides in rather unnoticed and comes to be considered natural. The controlling processes I have described here have gradually come to seem natural: in the first example, “harmony” became desirable as the natural order of things; the existence of “choice” was assumed in the second and strengthened by the belief in individualism; and in the last, “science” was envisioned as separate from society. Two of the many events described in the examples were counterhegemonic. The Zapotec adopted coercive harmony in their construction of barriers against colonial domination and for autonomy. Museum curators adopted a new museology as a tool of empowerment. Individuals may move in and out of various controlling processes, be caught by them, and remake them as did the women who had breast implants. The same controls may be effective across class lines, as in the events leading to the spread of harmony ideologies from the ghettos to the workplace to environmental activism. Implicit persuasion is easier to manage than overt coercion. A catholic view of culture, one that recognizes that the world is always only partly integrated or coherent or in effect only partly shared, changes the questions we ask and the perceptions we mold. If there is general value to be derived from this line of research, it is not only in the documentation of how controlling processes work to change behavior without force and violence or the unmasking of power but also in the recognition of how quickly they can do so. Considering counterhegemonies implies possibilities for general cultural deprogrammings, including a questioning of basic assumptions that may be impediments to anthropologists working on home ground. The relationship between colonizers and colonized studied by anthropologists in some ways parallels the interaction between industrialists and their target populations (Mintz 1996). Power is implicated in both settings, and so is resistance. The colonizing of minds and bodies does not differentiate between subjects, and yet—why is still

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unexplained—we know even less of industrial subjects than we do of colonized ones.

Comments Alicia Barabas Instituto Nacional de Antropologia e Historia, Oaxaca, Mexico

Nader’s analysis of controlling processes is the product of profound reflection over four decades in various social and cultural contexts. Therefore, the theoretical methodological proposal that she offers here manages to articulate theoretical concepts with suggestive insights on the process of control operating in various aspects of everyday life. In a concise exposition she weaves together ideology, hegemony, social control, and cultural control in order to reveal the visible and hidden facets of power encrusted and reproduced in social institutions and in “common sense” constructed as a cultural system (Geertz 1994). Nader shows the dynamic nature of central ideas such as harmony, civilization, choice, beauty, and science from the analytical focus of control as a strategy for constructing power. She uses three ethnographic examples drawn from the North American sociocultural universe to demonstrate how and why power is constructed and used, how central dogmas are configured, and how individuals and groups are influenced and subtly persuaded to accept them as natural and value them positively. The distinction between social and cultural control proves central to the analysis of controlling processes, the former establishing control over groups or relations and the latter seeking control over ideas. Nader locates the beginnings of this process of differentiation in the emergence of industrial capitalism, whose need for peaceful labor and social relations led to the elevation of order and harmony to the status of positive universal values and replaced open coercion with control by persuasion. Control has increasingly shifted from social or coercive to cultural or persuasive, since the latter has proved culturally more acceptable in the modern world and also more effective. Violence is considered “uncivilized” except when it is exercised in the name of civilization. What Nader does not expressly say is that the idea of harmony that in the United States has been understood as virtue and civilization—as opposed to conflict or violence, understood as vice and barbarism—or as the natural order of things and a sign of progress, is part of an ideological paradigm of cultural superiority. Just like the universalized stereotype of beauty, which leads to a broad spectrum of values and attitudes ranging from “voluntary” mutilation to racism, the “convictions” of a hegemonic

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paradigm, once reified, internalized, positively valued, and socially reproduced, allow the classification of the social behaviors and phenotypes of other cultures or subcultures according to criteria ethnocentrically defined from a supposed maximum level of “civilization.” Since there are many ways of conceptualizing reality, Nader argues, what is accepted as truth depends on the intimate association between power and knowledge. Therefore, it might be added, the hegemonic paradigm is capable not only of cataloging but, through the processes of cultural control, of expanding beyond national boundaries, being introduced to the different social groups in question, and persuading them of its veracity and superiority—recreating in other cultures standardized values and tastes arising in the dominant societies. It could be argued that this is a consequence of globalization, understood as the intensification and extension of social relations to a world scale, which generates shared meanings and values (Giddens 1991, p. 69). However, we cannot avoid noticing that the general acceptance of this model of reality, which creates in the consumers of hegemonic culture the false impression of consent or choice, contributes to stigmatization, self-deprecation, and the maintenance of hegemonic power and the status quo in social groups in opposition. Based on the idea of civilization and progress, persuasive cultural control—at times subliminal—is also coercive. It generates colonized and selectively blind mentalities at the same time that it justifies as civilizing the processes of social control (conquest, genocide, proselytization, exploitation of resources) in “less civilized and progressive” regions. Finally, an aspect of Nader’s work that interests me because it is evidence of acute self-knowledge is the question why social scientists, especially in hegemonic countries, have such difficulty examining the controlling processes operating within their own societies. I do not expect to provide an unequivocal answer to this question, but I suspect that the discomfort and even disgust that arise in scientific communities when the thorny issues of social and cultural control are raised comes from a reluctance to see themselves as objects of control exercised by the ideological apparatuses of the state (Gramsci 1950) and ultimately as reproducers of hegemony.

Miguel Alberto Bartolomé Instituto Nacional de Antropologia e Historia, Oaxaca, Mexico

Nader’s essay is one of the rare contemporary instances of a theoretical formulation grounded in the anthropological tradition; this would in itself be sufficient reason to congratulate ourselves on its appearance in an era in which our discipline seems too ready to forget its historical trajectory.

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At the same time it is a work that explores and analyzes the presence of cultural mechanisms that have often gone unnoticed by social analysts. We have here, then, an essay proposing a theoretical formulation that is intended to be a useful analytical tool, and I propose to comment on it on both these levels. I would first point out, however, in keeping with certain recent (and not so recent) concerns of the academic community, that the anthropologist is not just an author but also an interested reader; therefore my reading of the essay is not the only one possible, and in it will be apparent my interest in linking it to the analysis of the ethnic question in Latin America, a theme to which I have devoted my professional career. The study of the processes of cultural control and their dramatic linkage to power is a venerable concern in anthropology, expressed in the early preoccupation of Malinowski with symbols situated outside formal systems of control. The coercive capacity of these symbols lies not in their institutional character but in their deep internalization by members of a society. They form part of what Berger and Luckmann (1968) have called “the constituted real”—part of the structure of plausibility of a nomos, a culturally constructed order of meaning but presenting itself as self-evident and consistent with the normative order the particular society that generates it. In this sense it would not be inappropriate to recall Durkheim’s concept of “mechanical solidarity,” conceived as a shared state of consciousness. The idea of this kind of solidarity might help us to understand the mechanisms of symbolic power—the capacity of cultural symbols to become embodied in the structures of societies and to orient their collective behaviors. Within this perspective, the ethnographic examples offered here, especially that of aesthetic medicine and the notion of physical beauty, are clear. Even the essay under discussion may not, however, be free of the mechanisms inherent in the controlling processes it analyzes and the “coercive harmony” that they generate. Nader is a distinguished representative of U.S. anthropology, an academic tradition with a certain tendency to feed on itself and consciously or unconsciously to exclude the traditions of other countries, especially those that have been considered more as objects than as subjects of professional practice. Thus the coherence and historical legitimacy of this anthropology are based on an appeal to its own trajectory and exponents. In this sense it is configured as a discourse of academic power whose community of protagonists is also involved in coercion aimed at a certain collective harmony based on participation in a unitary discourse. I base these observations on the absence in this essay of references to works by Latin American authors that might have contributed to the variety and richness of its analysis, such as the theory of cultural control proposed by the Mexican Guillermo Bonfil

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Batalla (1986), the formulations on cultural production and consumption advanced by the Argentine Néstor Garcia Canclini (1990), and the notes of such Brazilian colleagues as Roberto Cardoso de Oliveira (1976) on interethnic ideological configurations, Renato Ortiz (1980) on popular cultures, and Gilberto Velho (1987) on complex societies. All these works contain important reflections on hegemonic ideological configurations and the cultural control mechanisms that they entail. It is worth mentioning that despite the citation of Gramsci there is no reference to such neo-Gramscian Italian anthropologists as L. M. Lombardi Satriani (1973, 1974), whose work can be considered a classic study of the processes of articulation between dominant and subaltern cultures that further illuminates the power relations involved in controlling processes. Finally, it may be pointed out that Nader’s conceptual construction is valid for the analysis of contemporary ethnic processes. One of the characteristics of present-day neocolonial contexts in Latin America arises from the configuration of “coercive harmonies” whose expressions assume the legitimacy of situations of political and cultural domination and subordination. The internalization of this constituted reality by many indigenous peoples has led them to the cultural suicide that we call ethnocide. The processes of control developed by the multiethnic Latin America states, on the assumption that they are uninational formations, have sought to instrumentalize political power in order to repress cultural diversity. With the emergence of demands on the part of indigenous peoples, this situation is changing. Thus it is apparent that the consensus generated by the manipulation of power is susceptible to transformation based on ideological redefinition and the consequent political practice.

John H. Bodley Department of Anthropology, Washington State University, Pullman, WA, U.S.A.

Nader has done a superb job of showing how ethnographic research can reveal some of the ways in which unchallenged hegemonic cultural forms support the wealth and power of economic elites. She addresses the important and challenging question of why people so frequently seem to endorse and participate in cultural patterns that from a different perspective might be counter to their own long-term interest. Surely there are controlling processes at work that convince us that the cultural transformations we experience are inevitable and involve impersonal forces beyond our control. Or is the system really working for everyone’s benefit and in a way that is likely to continue forever?

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Nader’s example of the rising importance of dispute resolution through mediation aimed at harmony and consensus rather than conflict and justice is a critical reminder of how subtle and persuasive controlling processes can be in a global commercial culture, even as they favor the interests of those in power. I accept her argument that similar harmony approaches were undoubtedly fostered by missionaries and civil authorities who sought to control indigenous groups on the colonial frontiers. Certainly, as she points out with her Zapotec example, contemporary indigenous groups can use harmony and consensus to fend off state power. However, I suspect that harmony and consensus were already intrinsic features of daily life in autonomous small-scale cultures where they served internal ends. While Nader’s perspective has major implications for our understanding of power in global-scale cultures, it also applies to our general understanding of autonomous small-scale cultures and ancient civilizations. For example, as Nader points out, anthropologists may have overemphasized the idea that tribal cultures were harmonious systems of belief and practice to which everyone happily consented. Certainly in any culture “power holders may manipulate culture to control others.” However, there was necessarily much less total social power in small-scale cultures and power was more widely distributed than in either ancient political economies or global-scale commercial cultures. Hegemonic power of the Gramsci type could not exist in the absence of economic elites or an upper class. Furthermore, where tribal societies were organized as direct democracies, consensus was less likely to be coercive because all concerned individuals or groups could mediate on relatively equal terms. This could work as long as everyone knew who was most powerful and as long as support or consent could be freely given or withheld. Even though hegemonic power in the global culture is by definition seldom resisted because consent is unconsciously internalized in the minds of those who are being controlled, there are real human agents directing this power and benefiting from its application. A crucial feature of hegemonic power in global-scale commercial cultures is that human agency is virtually invisible. There are powerful economic elites who ultimately direct the global culture’s controlling processes, but they are largely anonymous and their power is difficult to avoid. With a few notable exceptions, the world’s largest individual stockholders, the most powerful CEOs, the most influential corporate directors are not household names. Few people could even name the five largest multinational corporations. I agree completely with Nader that anthropologists need to study the world of commercial business. It is the source of the most transforming power in the form of finance capital. We also need to look behind the

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often invisible controlling processes and identify the principal corporate owners and directors who are the primary beneficiaries of power. Like Mooney, we need to go to “root causes” and risk offending those who occupy the positions of greatest commercial power. Perhaps the central hegemonic myth of the global culture is our belief in “the economy” imagined as an impersonal, irresistible force and the parallel belief that a perpetually growing economy, as measured by gross domestic product, will benefit everyone. In this regard it is not surprising that the economist Lester C. Thurow (1996) recently used the geological principles of plate tectonics to explain how economic forces shape the world. What could be less subject to human control? Are we therefore to think that sweeping cultural transformations in today’s world, such as shifting investment to the lowest paid workers, are like volcanoes and earthquakes? However, I conducted a careful sort of Securities and Exchange Commission filings and found that in 1994, instead of plate tectonics, just ten individuals helped direct thirty-seven American companies whose combined assets of $2 trillion represented nearly 10 percent of all corporate assets in U.S. for-profit businesses. As long as everyone believes that the economy is beyond human control and can grow forever, the elite will be able to resist more equitable redistributive change.

Guita Grin Debert Alameda Casa Branca, São Paulo, Brazil

When anthropologists studying their own societies still believed that power had a specific center, notions such as ideology, cultural production, alienation, and false consciousness retained precise meanings, and the anthropologist’s task was clear. We gave priority to the study of underprivileged groups, and at the heart of our minute descriptions of these groups’ practices was an effort to lay bare forms of alienation. As leftist political parties and other more or less organized forms of making revolutions lost their credibility, we also came to realize that power was not a group of institutions that enforced the subservience of citizens but rather a force permeating all realms of social life with no real center and no one to invent power tactics. Our ethnographies began to be oriented by a series of new notions seeking to revise the concept of alienation. Though we continued to focus on underprivileged groups, at the heart of our minute descriptions of the same manifestations as before was the attempt to show that these manifestations were permeated by forms that challenged domination. Drawing inspiration from Gramsci, we focused on the resistance strategies that organized social practices among the popular sectors. Thus we produced a new kind of romantic view of popular culture

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in which power, counterhegemony, and resistance are central analytical categories. However, insofar as these categories are used pervasively to approach all domains of social life in the same way, they run the risk of becoming empty concepts. Nader’s text is welcome in that it proposes a method for approaching the study of power. Her distinction between social control and cultural control is already broadly accepted when it comes to discussing hegemony. Nevertheless, the way she works with controlling processes and especially her ethnographic examples lead us to the analysis of the specific forms that power takes on and point out the traps it sets for practices intent upon contesting it. In discussing different types of controlling processes, Nader revives Mintz’s legacy and reintroduces the perspective gained from “studying up,” showing the suitability of anthropology for the study of a society in which freedom of choice constitutes a supreme value and, at the same time, harmony rather than justice is desirable—in short, a society that has an aversion to formal mechanisms for institutionalizing conflict. I shall discuss her three ethnographic examples in order to call attention to contributions of her article to culture-and-politics studies here in the other hemisphere of America (where her writings are required reading), but I also intend to point out the directions in which her argument has been carried. The idea that alternative dispute resolution, created to enhance access to justice, ironically leads to coercive consensus has redirected our attention to the ongoing liberal-communitarian debate, which provides an orientation for current reflections on justice and rights in contemporary Western societies. It is especially important to recognize that, while defending an increasingly dense conceptualization of democracy and justice, the so-called political minorities, imbued with communitarianism, paradoxically tend to value coercive harmony and restrict the possibility of a critical stance, confrontation, and choice in relations between communities and especially within communities themselves. Shedding light on the coercive elements of communitarian ideologies is especially important in the North American context, where the currently prevailing ideals of justice and democracy find a society in which minorities, proud of their own particularities, live together somewhat harmoniously. In Brazil and in Western European countries, obviously for different reasons, the issues of poverty and discrimination—both racial and sexual—pose a different set of problems. The prevailing Brazilian discourse on integration and assimilation has produced the image of a just and democratic society, rendering any differences except those based on economic inequality irrelevant. In the Brazilian context, where

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American political values tend to emerge as counterhegemonic alternatives, it becomes very important to relativize communitarian ideals, with special regard for the dangers of coercive consensus. To deal with the body and with new body technologies is to challenge the liberal side of this debate. When ascribed body qualities are regarded as pure plasticity, Nader invites anthropologists to go beyond the study of representations of the body or of the body as a passive receptacle of power and to take on the study of the embodiment processes that characterize contemporary practices. However, it is not enough to say that we need to relativize the idea of free choice by pointing out the boundaries involved in the choices we believe we are making freely. We must take into account the dilemmas facing a society that condemns us to a life of choices that we cannot run away from. The body’s qualities are no longer perceived as natural and unchangeable, and individuals are persuaded to assume responsibility for their own appearance, health, and wellbeing through disciplined body work and the use of new technology. The idea that illnesses are self-inflicted, resulting from abuses such as drinking, smoking, and lack of exercise, leads us to be constantly vigilant of our bodies. Illnesses, wrinkles, and sagging flesh are transformed into signs of moral laxity to be resisted by energetic body maintenance with the help of the cosmetic fitness and health industries, whose main argument is that deterioration and decline are the results of the individual’s bodily neglect. It therefore becomes imperative for us to question how prevailing self-preservationist conceptions of the body combine with the liberal freedom-of-choice model, redefining public policy, intensifying social hierarchies, and making individuals responsible for their own misery and suffering. In discussing science, then, it is not sufficient simply to assert that scientists do not possess their alleged scientific neutrality or that anthropologists are prisoners of their own societies’ ideological constraints; one must also analyze how the meanings that scientists produce affect and redirect in different ways our own day-to-day existence as well as that of the groups that anthropologists traditionally have studied. The potential of anthropological research has barely been tapped in its analysis of conflict and disputes between dominant groups seeking to monopolize and stabilize hierarchies or in its description of the ways in which the powerful organize their world of meanings and of the world in which these meanings gain significance. It becomes imperative to politicize the discussion in domains that, because they are not configured politically, offer certain agents the opportunity to exercise a sort of metapolitical mandate. These agents, under the guise of scientific neutrality or freedom of choice, vehemently react to any attempt to politicize their spheres of action. In

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placing culture at the center of the study of power and in demonstrating the precariousness of anthropologists’ knowledge about their own society, Nader expands our horizons towards a new program of empirical research. Examining the ways in which justice, the body, and science are currently undergoing reconfiguration represents a propitious start.

Susan Drucker Brown Department of Social Anthropology, University of Cambridge, Cambridge, U.K.

This is an ambitious attempt to deal with an extremely slippery concept but one that all social scientists use implicitly, though they may avoid the word. “Power” is what Nader wants to understand. She conceives it as a force that is invisible rather than embodied in specific figures of authority or particular sanctions, an object achieved in “unequal relationships” by processes of “incremental control.” She illustrates her approach with three kinds of events: (1) a shift in the processes for dealing with disputes from law court to negotiated settlement, (2) the performance of cosmetic surgery on women, and (3) museum presentation of “science” to the lay public. My first reaction is one of sympathy with the political position that informs her analysis. Then I ask myself how the three kinds of events are to be compared. These manifestations of inequality are variable even within categories. Cases of dispute settlement range from domestic conflict to international confrontations over water rights. Nader has shown in the Zapotec highlands of Mexico that negotiated forms of dispute settlement—“harmony ideology”—may enable local communities to preserve their autonomy and resist intervention by central government, but in her analysis of the “global shift” away from litigation (in which justice should be seen to be done) to negotiation (in which the powerful can invisibly pressure the weak), she seems to assume that “harmony ideology” always favors the imposition of the strong. One could argue that much litigation in courts is equally biased and disadvantageous to the weak. In a similarly panoramic view, the women who surgically modify their body shapes are seen as the victims of a “body beautiful” myth peddled in the U.S.A. by a combination of advertising for the multimillion-dollar beauty industry and a greedy medical establishment. Without denying the strength of these predatory groups, is it possible that the motivation of some women and the uses made of the industry might serve other kinds of empowerment? In the final set of examples, a museum concerned to illustrate both positive and negative aspects of scientific activity runs into deep trouble with a large corporation that funded its exhibition and provokes indignation from those who wish to present a purely positive

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view of science. Other museums run into trouble with other custodians of esoteric knowledge/artifacts. The line between powerful and powerless seems most blurred in this set of examples. The political clout of popular community activists, pressure exerted by a multinational corporation, and the opinion of some scientists seem only to be sociologically analogous in that they all can cause problems for the museum curator—which tells us more about the vulnerability of curators than about the power exercised by their critics. What is most attractive about Nader’s analysis is that she is dealing with serious political issues in the world we inhabit and encouraging anthropologists to make relevant statements about those issues. I am not convinced that a wide-ranging definition of “power” is helpful. The presentation of more data in any one of the categories she has chosen to exemplify her argument and a detailed demonstration of how the processes of “incremental control” work in specific cases would make the analysis more persuasive and useful. But whatever flaws there may be in her argument, Nader is to be congratulated for confronting a major theoretical problem and reminding us that what is happening in our own political system should also be grist to our mill.

Hugh Gusterson Anthropology Program, Massachusetts Institute of Technology, Cambridge, MA, U.S.A.

In 1972 Nader made a celebrated appeal to anthropologists to analyze the workings of power in their own society by “studying up.” In the present article, situating her approach to an anthropology of power within a broader genealogy of anthropology, she expands the force of her original appeal by showing its continuing relevance and by elaborating on its theoretical underpinnings. Briefly, those theoretical underpinnings consist of a broadly Gramscian form of Marxist analysis inflected by Foucault’s writings on power. Nader borrows from Marx a technique of analysis that emphasizes the illusory nature of certain choices (here, the choice to have breast augmentation or settle for dispute resolution; in Marx, the choice to sell one’s labor) when these choices, though presented as free, are constrained and coerced. From the Gramscian tradition she borrows a focus on hegemony—decentered and uneven processes of ideological domination that naturalize the workings of power. Nader blends this Marxist perspective with a Foucauldian impulse to critique the authority of experts, to challenge liberal narratives of progress, and to emphasize the multiple sites through which power circulates and from which it originates.

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In this comment, writing as an anthropologist of science, I will discuss Nader’s treatment of breast augmentation and the Smithsonian exhibit— her second and third case studies. I believe it is no coincidence that two of the three case studies in this article concern scientists, while Nader’s 1972 article on studying up made little reference to science as a site of power. As the “culture wars” give way to the “science wars” (Ross 1996), the world-transforming power of capitalism increasingly depends on the leveraging of science and technology: the power of technoscience misused to harm the environment irrevocably or end human life is clear; new medical and computing technologies are integrated into the routine daily practices of the self, and news stories that begin “Scientists say …” are part of the white noise of public discourse. In other words, science is an integral part of our society’s hegemonic project. Its technological innovations mediate our social subordination, its frontiers shape our desires and fantasies, and its practitioners have inherited the old power of the church to decode our sufferings and to tell us authoritatively what is and shall be. As the ideology that claims not to be one, science as a social project derives part of its power from its ability to claim objectivity and impartiality. Nader counters these claims by showing the ways in which science is a cultural project allied to particular interests and ideologies in society, but she does this in a Gramscian rather than postmodernist vein—that is, without getting mired in the constructivist debates about scientific knowledge that have recently produced such a backlash (Gross and Levitt 1994; Sokal 1996). In her discussion of breast augmentation, she shows how expert medical discourses work in alliance with “the beauty-industrial complex” and patriarchal fantasies of the womanly body to reshape the subjectivity of women and to redefine health and normality in ways that may have irreparably damaged the bodies of thousands of women. In her discussion of the “Science in American Life” exhibit at the Smithsonian, she uses the controversy produced by this unconventional exhibit to highlight our museums’ usual construction of scientists as unproblematic authority figures whose achievements constitute the dotted lines of progress narratives. Her analysis, using anthropology’s comparative method, works throughout to reframe the familiar so that we see it anew. Breast augmentation looks different once resituated as a neighbor to female circumcision, and the rhetoric of traditional science museums seems less friendly once one recognizes its affinity with older hierarchical representations of the savage other. Nader’s article does suggest two questions. First, what other issues might profit from a similar analysis? Controlling processes that draw on the authority of science can be found among cigarette companies, the alternative healing industry, corporate polluters, and pharmaceutical com-

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panies, to name a few. For example, in an era when U.S. pharmaceutical executives are saying that one-third of the world’s population may be taking psychiatric medication within two decades (Harper’s Index 1997), current attempts to redefine previously normal moods and behaviors as disorders cry out for anthropological analysis. Second, although Nader tells us that “sometimes people achieve power, rather than being made increasingly powerless,” she does not systematically theorize how this happens. In the final analysis, in addition to understanding how controlling processes work, we need to know how to subvert and unravel them.

Ellen Hertz Institut d’anthropologie et de sociologie, University of Lausanne, Switzerland

“It is in the United States,” observes French anthropologist Denys Cuche (1996, p. 39), “that the concept of culture was to receive its warmest welcome, and in North American anthropology its most remarkable theoretical development. In this particular scientific context, research on the question of culture and cultures has developed in a genuinely cumulative and uninterrupted fashion.” In commenting on Nader’s study of “controlling processes,” it is helpful to begin by situating her within this particular scientific context; indeed, were it her style, Nader could make a strong claim for membership in cultural anthropology’s most aristocratic lineage, descending as she does in a direct line from Boas through Benedict, Sapir, and Mead to Kluckhohn. Reading Nader’s place in the American anthropological tradition is instructive both for the light it sheds on the history of the discipline and for the hints it provides as to the discipline’s links with the competing multidiscipline of cultural studies. From its beginnings, the study of culture in American anthropology has had a critical edge, although, as Marcus and Fischer (1986) demonstrate, the form and force of this criticism have varied enormously. Boas self-consciously opposed the term “culture” to the misplaced concept of “race” found in contemporary explanations of difference. Mead focused on the concept of culture to illustrate the formative effects of group values on individual personality but always with an eye to the role of cultural dissent within American society. Geertz (1973, p. 145) engages in a kind of cultural criticism when he uses cultural others to hint at alternative ways of conceiving reality. However, it is when the notion of culture is examined culturally—when anthropologists begin to look for what is hidden by the concept of culture as well as what it illuminates (Hymes 1969)—that the critical promise of

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cultural anthropology comes of age. Nader’s analysis of “cultural control” should be seen as part and parcel of this progressive refinement of critical anthropology’s analytic toolkit. However, this development is not a mere outgrowth of “the discipline.” In contemporary American academia, Nader’s critical cultural anthropology intersects and overlaps with that less venerable (but eminently venerablizable) “body” of thought called cultural studies. Cultural studies share Nader’s emphasis on the ideological functions of culture and, more important, her insistence that these functions be viewed dynamically: hegemony can be harnessed to counterhegemonic ends just as counterhegemonic currents can be shunted back into the hegemonic mainstream. Cultural studies in their more recent guise also share Nader’s interest in what Sapir labeled “traveling ideologies,” systems of thought and values that cross and challenge national boundaries in the form of material objects, technologies, institutions, and cultural productions. An important question, then (one that I can only ask, not answer here), is what motivates and sustains this confluence of interests and emphases. I am certainly not the first to notice that the sudden concentration on “culture” in the academy has itself many of the markings of a controlling process. We should ask what each stream of thought tells us about the other and what both are “doing” on and/or to the American academic scene. In this interrogation, we will find, I think, that Nader’s grounded analyses frequently send us in more fruitful directions than the various approaches found in cultural studies. The examples of controlling processes that Nader examines in her article alert us to certain defining moments in the process of cultural control: (1) sudden and undiscussed changes in discourse paradigms, (2) the recombination of allies and enemies along new battle lines, with consequently strange bedfellowships, and, perhaps most characteristic, (3) the stigmatization and radical exclusion of one position in what should rightly he considered a debate. While each of these elements can be detected in the odor of blitzkrieg that surrounds the arrival of cultural studies in the United States, I will discuss only the last of them here, for it is the most paradoxical. At first sight, nothing could be more foreign to cultural studies as a movement than the radical exclusion of anything whatsoever. But that is precisely the point. Within the cultural studies movement, “multiple perspectives” is a principle, a starting point, not an observation or a conclusion. And the one “perspective” it must exclude is that according to which we can determine once and for all what a given cultural phenomenon is really all about. (By way of contrast, in her analysis of “harmony ideology” Nader presumes that it is possible to distinguish harmony “genuine and spurious.”) But—and this is paradox number two—the radical stig-

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matization of “univocality” in cultural studies, far from encouraging a variety of “voices,” appears in fact to stifle debate, for if one is not amidst the circles of the initiated it is frequently impossible to know what to debate against. For reasons that were originally commendable (a principled concern about cultural domination), practitioners of cultural studies uphold a series of rules governing how, in Nader’s terms, “the thoughtful” are allowed to speak for “the destitute.” Nader does not imagine that she is speaking for others, dominant or dominated; rather, she sees herself as drawing conclusions from observations and critical reflection. Conclusions ventured are conclusions with which others remain free to disagree. Thus—paradox number three—Nader’s empiricism more adequately allows for the possibility that “the destitute” and “the thoughtful” might, on some occasions, actually be the same people and that they can speak for themselves.

Margaret Lock Department of Social Studies of Medicine, McGill University, Montreal, Quebec, Canada

Writing in the 1980s, the literary critic Terry Eagleton insisted that we are “in the process of wakening from the nightmare of modernity, with its manipulative reason and fetish of the totality.” In making this claim he joined forces with those who argued that grandiose metanarratives had to be jettisoned together with beliefs in progress and absolute truths. In their place would be the “laid-back pluralism of the postmodern” and a denunciation of the “nostalgic urge” (1987). A decade later, Nader’s thoughtful paper, designed to provide a methodology for the study of power, shows us clearly that, far from being laid-back, our era is one in which the forces of the modern persist unabated; the urge for control, whether it be for economic or symbolic gain, is clearly evident across the domains of law, science, and body politics. Nader seeks to expose certain of the controlling processes present in the United States today—less visible than formerly, no doubt, but nevertheless powerfully present to the discerning eye as naturalized forces continually at work. Explicitly following Mintz’s lead, Nader argues for an anthropology of everyday life, one that reveals potential sites of dispute in which competing values are mobilized as power ploys. More striking, however, is the damping down of possible dissonance through the hegemonic power of scientific and legal institutions and discourse and an associated ethics of practice dominated, in the case of body politics, by an ethos of rational choice and, in law, by a form of dispute resolution that Nader characterizes as coercive harmony.

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Paradoxically, anthropology in its study of the Other has a history of parochialism. Extensive research from the 1960s on in connection with Japan, often characterized as the first country beyond the Euro/American axis to “modernize,” showed indisputably that convergence theories of modernization were inappropriate (Austin 1976). Nevertheless, this research, soon vastly augmented by accounts from other arenas in the “developing” world, did little to decenter a belief in the “West” as dispensing modernity to the non-Western world. The Comaroffs (1993) have noted that one virtue of a recent preoccupation with “postmodernity” has been that it has forced us to recognize the ideological and profoundly historical aspects of modernity. Increasingly there is a recognition of the many modernities, all active participants in the global economy; the dichotomous opposition of tradition/modernity with its associated nostalgia is now firmly pried open. It is in this climate that Nader, among a growing number of anthropologists, has turned to the cultural hegemonies at work in the United States and other “developed” sites. The West is finally exoticized, just a little. One of the pervasive myths of our times is, of course, that science is epistemologically free—that its truth claims transcend human agency and therefore by definition issues of power are not involved in the production of scientific knowledge or in its practice. Current vituperative debates epitomized by a recent exchange in the New York Review of Books about the “hoax” that Alan Sokal perpetrated by having a sham scientific article reviewed and published in Social Text (see Weinberg 1996) reveal major fissures in our beliefs about science. It does not take a cultural analysis to demonstrate that science and its associated technologies are integral to the perpetuation of global inequalities or that, for example, pharmaceutical companies directly inflict misery on many peoples of the world through greed and deception (a combination of bad science and false advertising). But a cultural analysis, as opposed to a discourse analysis, as Nader points out, permits us to unmask “non-agentive” forms of power (Comaroff and Comaroff 1991). Yanagisako and Delaney (1995) encourage us to look at the intersections of discourses as they are acted out in daily life, to work across domains, but without assuming a coherence to culture. It is then possible to comprehend, for example, if indeed the widely touted values of health as virtue, bodily control, informed choice, and autonomous decision making, to name a few, all currently fostered in both political and biomedical discourse, are indeed as hegemonic as we believe them to be. An anthropology of body politics suggests otherwise and reveals that women’s responses to a whole range of biomedical technologies are motivated primarily by a pragmatism in which they seek to fulfill desired reproductive and health-related objectives (Lock and

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Kaufert 1997). Behavior appears to be remarkably unhampered by values embedded in medical discourse, and medical technologies are often made use of merely to facilitate culturally motivated goals. That which is naturalized, the taken-for-granted, must be exposed before the dialectics of domination and resistance come into play, but neither theories of unwitting compliance nor theories of mindful resistance to dominant ideologies provide much explanatory power. Anthropologists must insist on complexity, thus challenging the hegemony of simplification, a powerful form of incremental control at work in society today.

June Nash Department of Anthropology, City College, New York, U.S.A.

The analysis of power and how it operates in society, central to the critique of anthropology in the 1970s and 1980s, was derailed with the turn to issues of individual empowerment as the involution of anthropology progressed into the 1990s. Armed with advances by Sidney Mintz in the analysis of material culture and its manipulation, and by Foucault in selected aspects of discourse analysis, Nader has revitalized the issues of power. Her approach to analyzing cultural conditioning by controlling agencies adds depth and range to the cross-cultural study of power relations. In contrast to the social control model that dominated discussions of power in earlier decades, she addresses the issue of how versions of truth become accepted in culture and how these serve particular interests. Juxtaposing three disparate types of control—the harmony model in law courts, the “free-choice” model in consumption circles, and the idealized version of science in museology—she questions processes that are usually assumed in the master narratives of structuralism yet are the very stuff of hegemonic accord. Class conflict is part of the picture, neither dominating nor yielding to the discourse of cultural control. No anthropologist is more adept than Nader in locating the controlling process by which power is translated into behavioral norms. Her life work has been dedicated to showing how these institutionalized norms reinforce power structures as people engage in or resist their own domination. From law courts to government bureaucracies to consumer complaint departments she has explored the frustrations of plaintiffs, defendants, clients, and consumers as they wend their way in the mazeways of their own culture in search of justice. In “Controlling Processes,” Nader grounds her analysis of power in three settings: law, medicine, and museology, in which vulnerable populations encounter ideas, institutions, and agencies that become informalized in their behavioral repertoire. In each setting the “hidden persuaders”

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(to use a cliché first decoded in advertising media)—of coercive harmony in law, of choice in medicine, and of mystification in science—work indirectly to achieve ends that are not always imagined by the actors. The most convincing model of coercion comes from Nader’s longstanding interest in legal processes. Moving from Zapotec law courts, where she envisions colonial missionary programs emphasizing conciliation and compromise, to alternative dispute resolution, she shows how the 1960s critique of social injustice was defused with concerns of order, and the courts, under the guidance of Chief Justice of the U.S. Supreme Court Warren Burger, moved toward control of the disenfranchised. She follows this theme of controlling processes in the Indian reservations’ acceptance of nuclear waste, the quality-control plants in which workers and managers cooperate in harmony, and finally international dispute settlement. Her approach enables one to penetrate the screens that mystify power relations in the field. I have seen one aspect of harmony work at the Pittsfield General Electric Plant, where I did fieldwork in the 1980s. The growing dissatisfaction with the organization of work in missile and “defense” production and the anxiety created by massive layoffs in “peacetime” power-transformer production were diffused by quality-control circles that sabotaged the grievance machinery put in place by the unions, substituting a managerial agenda for the workers’ definition of what a grievance was. Nader’s linkage of the cultural aspects of control with the power structure is a critical methodology for analyzing the apparent compliance of workers in what President Eisenhower called the “military-industrial complex.” Nader calls upon ethnographers to define more clearly who benefits from harmonizing disputes. How do culturally accepted norms modify behavior apparently structured on class premises? Our fieldwork experiences indicate the subtlety of these constraints in ways that have not easily fit into the master paradigms. I recall a work stoppage on Mother’s Day in the Bolivian tin-mining community of Oruro when an irate and troubled workforce had cornered the management in a demand for improved technology to enhance production (a strange reversal of worker/ managerial responsibilities in itself). The anger of the workers was mollified by a joke interposed in the heated discourse by an adroit manager. Diverting the call for upgrading production that was the thrust of the workers’ grievance, he said, “Let’s talk about conditions of work: we have just inaugurated a new wing to the hospital and added an obstetrician to the staff—you know, he’s the man who makes a living sticking his hand up women’s vaginas.” When the workers laughed at this male hegemonic ploy, I knew the strike was lost.

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Complexity is indeed the leitmotif of an analysis of the relationship between power and cultural control. Shifting to the apparently trivial domain of how power operates in the body-enhancement syndrome, Nader shows how feminine “choices” contrive to entrap women in a manufactured consensus of beauty. Here the question of whose power is enhanced is more salient than in the case of legal structures and the ideology of harmony. Nader tells us that the same cultural control system may offer harmony across class lines. Is it female subordination when we confront a beauty industry in which female as well as male corporate executives profit? Are upper-class women even more victimized by the lure of liposuction and face-lifts than lower-class ones simply because of their greater disposable income? Or is there a glass ceiling beyond which extremely wealthy women do not have to conform to canons of beauty put in place for the strivers? Clearly class differences in definitions of female beauty and consumers cannot easily be decoded from advertisements for medical procedures. Inherited wealth may relieve even women of the need and desire to be sexually attractive. The normative approach taken by Nader to this phenomenon falters in coming to grips with the cultural-to-structural leap she handles so spiritedly in her analysis of the harmony model in law, but it clears the path for further breakthroughs as we gain more insight into these contested arenas of culturally defined behaviors. The link between power and culture is even more diffuse in the case of the new museology and science. Fifty years ago museums served a power structure in their idealization of science and scientists as heroes. The iconography of Teddy Roosevelt astride a horse in front of the Museum of Natural History with barefoot “natives” trailing in his wake left nothing to be guessed about the natural scientist and his subjects. So too does the statue of indigenous savages at the custom house that is now the site for the National Museum of the American Indian. Yet today, as Nader shows, the directors of museums are engaged in a self-critique, and they have gained the academic backing to confront the scientific elites in their very citadel, the Smithsonian Institution’s National Museum of American History. In detailing the move from social control to cultural control, Nader enhances our awareness of the multiple dimensions of control as consensual and consensus as control. Drawing from both Gramsci and Foucault to develop the shift from control over groups or relationships to control over mind, she shows the strengths and gaps in each. While Gramsci provides a sense of how certain classes may manage to universalize their beliefs and values, Foucault describes the many devious paths by which they become accepted as truth. The article is, indeed, a coup that enables

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us to count the advances of ethnographic theory and method. Just as some structuralists neglected the strictures of cultural control, those who like to situate themselves in the never-never land of cultural abstractions have neglected the channeling conditions provided by socially constituted structures of control. Hewing to the historical materialism of Sidney Mintz, Eric Wolf, and those who set the pace for reediting anthropology in the 1970s, Nader has charted a new course that brings the anthropology of everyday life back into the center of a stage that has been bereft of people, things, and the stuff of culture.

Rik Pinxton Department of Comparative Science of Cultures, University of Ghent, Ghent, Belgium

Nader has managed to sketch a shift in the power balance within Western societies: we are “enculturated” to become more and more controlled. The analysis is inspiring and persuasive. I propose two further elaborations: 1. I can go along with the interpretation of the Carter and Clinton policies as expressions of Southern Baptist harmony ideology, but I take issue with the equation of this ideology with Christian influence as such (see Greenhouse). Christianity, like Islam, has many faces and has called for “holy war” as much as for a “love thy neighbor” attitude. The present pope and U.S. presidents like Reagan or Bush cannot be called harmony ideologists in this sense, yet all are Christians. What we need here, I suspect, is more contextualized analysis, explaining the possible impact of, for example, Carter and Clinton in the context of the particular American tradition of having a complete overhaul of public administration when a different political party comes to power. The continental European situation is a relevant case for comparison: a strong and tenured administration remains in place government after government, since it stands for “the state” whoever the rulers. This factor alone forces every government to pursue consensus rather than confrontation. On top of this, except during the fascist period in Germany and Italy, every continental European government in this century has been a coalition of several parties. This has forced any party with government ambitions to practice consensus rhetoric and develop a harmony model, since everyone will be everyone else’s coalition partner over the years. Those who do not pursue harmony in one way or another deny themselves the possibility of assuming power. One consequence is that a very solid social security and health insurance system was developed after World War II (with an

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average of 6 percent poor in Western Europe today). Even the European Union, which is still basically a free-market union, does not question this redistributional system controlled by states. It is only with the reemergence of a “wild” or deregulated capitalism in the most recent decade that the social and political harmony project is coming under attack in Europe. American, Japanese, and European insurance lobbies seem to be going in for the kill, but the political world seems to be countering this move. My point is that the political institutions (two-party system or not, political administration or not, etc.) on the two sides of the Atlantic (except the U.K.) give the notions of consensus and harmony significantly different content. This grants Nader’s point but qualifies it. 2. The examples Nader uses are very telling. The use of “culture” as a device to institute control is well documented, but I want to add one point that is heavily debated in political and social science circles in Europe and the United States. In extreme rightist circles in Europe, the notion of “race” is being dropped in favor of that of cultural identity. In practice, race is replaced by culture, yielding a radical rejection of multiculturalism (by most center-right parties as well) as intrinsically impossible, threatening to pollute the identity of all involved. Moreover, it is argued, immigrants will only be able to live happily in their own cultural context, meaning the country they came from. The idea and practice of “ethnic cleansing” by various groups in warring former Yugoslavia was welcomed by rightists and officially recognized by the international negotiators (in conflict, I should add, with the UN Charter). My point here is a critical one: What happens in this type of discourse and practice is a double shift that should be of concern to anthropologists. In the first place, political discussions are readily “culturalized,” as Nader points out, but in addition the range of the “cultural” seems to expand to the point that it becomes a politically useless catchall. At the same time, however, an essentialist interpretation of culture is smuggled in, replacing race and reinforcing the old notion of “common identity”: culture is seen as an essence, a well-defined, unalterable rock-bottom of identity. Of course, essences cannot be negotiated and can only be betrayed in making peace with the “enemy.” Political scientists (such as Kriesberg, with his conflict escalation studies) and anthropologists know how identity grows, decays, and changes all the time. Anthropologists should take up the challenge and show how indeed dynamics is of the essence and how context, narratives, and individual-group relations continually constitute identities. I do not say that Nader denies the dynamics (to the contrary), but I think that an explicit anti-essentialist perspective is needed.

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Reply Laura Nader Berkeley, CA, U.S.A.

As many of the comments indicate and some specifically point out, there is a burgeoning public literature on state and corporate control in which recognition of control as a naturalizing process is salient. Less frequent are writings by First World anthropologists about the First World. In this situation, public intellectuals can contribute to the anthropological literature on the conformity and subordination of First World citizens, something that Third World peoples cannot often imagine. In “The Cold War and the University,” Noam Chomsky (1997, p. 176) speaks of the “near uniformity of subordination to domestic power in the U.S. prior to the 1960s” and of “the inability of American intellectuals, including most of the dissidents on the Left, to break out of the constraints of the propaganda system.” He continues (p. 186), “To this day we cannot face the elementary fact that the United States attacked Vietnam”—for Chomsky a most amazing propaganda achievement. The achievement is classic manipulation: “The U.S. … managed to transfer the blame to the Vietnamese … [and] the reversal passes smoothly, virtually without comment, probably even without awareness.” Chomsky explains this as the natural feature of a business-run society, a society based on forms of manipulation and deceit such as those found in marketing and advertising. Rik Pinxten (1993, p. 101) writes in a similar vein about the Gulf War and the ensuing censorship that was “silently tolerated.” Comparisons with other countries make his points even clearer. The Russians knew that they had invaded Afghanistan and Russia was not the injured party. The Canadian prize-winning essayist and novelist John Ralston Saul pursues a parallel course in The Unconscious Civilization (1997). He argues that the twentieth century, like no other, has been an age of ideologies to which citizens of the Western world have succumbed willingly. Among the forms of tyranny he mentions are fascism, Marxism, corporatism, bloated management, and obsession with technology. Saul comes closer when he includes tyrannies such as free-market capitalism, the social sciences, neoconservatism, and psychotherapy, which he argues are all based on “certainties” as rigid and narrow as those doggedly held by the Jacobins, Bolsheviks, and Fascists. These authors, as well as the commentators on my paper, are also reaching for an understanding of the means by which ideologies, as distinct from other forms of culture, create patterns of subordination and conformity. The commentators also point to the problems in studying such phenomena.

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For example, Barabas asks why social scientists have such difficulty examining the controlling processes operating within their own society. Is it a reluctance to see themselves as objects of control and reproducers of hegemony? She argues that the paradigm of cultural superiority (what Edward Said [1978] earlier called positional superiority) blinds mentalities while justifying as civilizing the processes of control. Debert questions the suitability of anthropology for the study of a society in which freedom of choice is so highly valued that it is difficult to politicize the discussion in domains that are not configured politically. Hertz zeroes in on a key difficulty for the anthropologist, the contemporary stigmatization of univocality that makes one unable to take a position. There is challenge, she says, “when the notion of culture is examined culturally— when anthropologists begin to look for what is hidden by the concept of culture as well as what it illuminates.” Only by so doing can we unmask the nonagentive forms of power that Lock assigns to the belief that the West is dispensing modernity to the non-Western world. In spite of the recognition of many modernities, powerful organizations like the World Bank or the International Monetary Fund (IMF) operate with only one, as in the colonial period, with the West still dispensing civilization. Yet other kinds of difficulties are articulated by Drucker-Brown, whose position is similar to the notion that respect for work within residential boundaries necessarily makes the work better. Although Drucker-Brown remains unconvinced that a wide-ranging definition of “power” is helpful, Debert reminds us why it is. Excellent ethnographic work in anthropology made us realize that power did not have a specific center in a group of institutions that enforced citizen subordination—that it was also a fluid force permeating all aspects of social life. We have learned to look at ideology and cultural production empirically. And, as Bodley reiterates, we had to look at hegemonic power in global-scale commercial cultures, where human agency is virtually invisible. Control indeed has multiple dimensions and different forms—centralized, implicit, direct democracy, and the dimensions found within social groups—but we have moved from a model of static social control to a model that recognizes the fluidity of an entrepreneurial kind of power, “street smarts.” The beauty of this kind of work is that it generates new perspectives on questions that anthropologists have long struggled with. Bartolomé wants to know what the underlying processes are that produce ethnocide. Bodley’s concern is with “inevitability,” a concept that dovetails with Bartolomé’s recognition of the inevitability syndrome as a means by which cultural transformations are sold. The inevitability syndrome is linked with the hegemonic myth of global culture whereby “the economy” is imagined as impersonal. Debert alludes to the relation between a life of

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choice and a body no longer perceived as natural and unchangeable, an ideology of choice and the idea that victims are responsible for their own suffering—an idea related to what Chomsky refers to as “the reversal.” Hertz recognizes the stifling of debate by the opposition of multivocality and univocality in cultural studies and elsewhere, while Lock recognizes the key to propaganda—simplification, in an age of bureaucratic entanglements. Pinxten notes how multiculturalism is being replaced by cultural identity, a destabilization of the social and political harmony project. All of these ideas are important. But June Nash’s example of the Bolivian tin managers’ joke that shifted the workers from the management paradigm to the male/female paradigm indicates the effectiveness of controlling processes and the fragility of the human mind. Gusterson is quite right that in my earlier paper on “studying up” I did not yet recognize science as integral to hegemonic goals. Why, I do not exactly know, except that I believed that science and technology had no ideology. What disabused me of this notion was more than a decade of research on energy science and technology, in which scientists themselves taught me how to distinguish science from something else, such as science as religion. Not all could make such distinctions, but those who could were eloquent, especially in the dozens of letters they wrote me after the publication of “Barriers to Thinking New about Energy” (Nader 1981). I was analyzing controlling processes in the energy field: conservation is feminine, nuclear is macho, solar is not intellectually challenging, and other notions of the “inevitability” of the growth syndrome. Interestingly, my support structure did not emanate from contemporary sociocultural anthropology but from figures like A. L. Kroeber, who analyzed progress as an idea akin to religion, and R. Heizer, an archaeological anthropologist who dealt with the significance of technology and knowledge in general over thousand-year time spans. Some years ago, after a provocative talk of the human dimensions of breeder reactor technology, a distinguished Brazilian nuclear physicist came up to the podium and said to me, “Yesterday I was lonely. Today I am not lonely.” I must confess that that is the way I feel after reading these comments. Nash perceives the problem—there has been a derailing and an involution in anthropology. Why is something I have been trying to figure out (Nader 1997), but I still do not completely understand how we came to move away from our empirical strength just when we needed a critical methodology to link cultural control with centers of power accumulation. Just as many, politicized by the Cold War and a glimmer of what colonialism was about, were beginning to examine the processes by which power is translated into behavioral norms, just as indirect control over groups and relationships by control of the mind was gather-

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ing momentum, came this fogging process, this delight in the abstract. I sometimes refer to the cultural critique movement as epistemological radicalism. I was inspired by the confusion of my students, oscillating between paranoia and “trustanoia”—between thinking that someone is out to get us when no one is and thinking that someone is taking care of us when no one is. Somewhere in between lay some kind of empirical reality that called for the ethnographic study of controlling processes. Although I cannot do justice to all the stimulus in the comments, I would like to respond to the interest in the interaction between harmony, choice, and science. As Bodley reminds us, belief in the economy as an impersonal, irresistible force that will benefit all is a powerful cover for the specific observations indicating that a few actors are driving the machine. The idea of rational economic actors’ maximizing their utility by free choice among alternatives forms the core of a premise that all private choices are free of coercion. In the Chicago School version of law and economics, only the state is coercive, not the market—a belief that contributes to the maintenance of hegemonic power not only in the general population but also among anthropologists. Further, the Chicago School’s version of law and economics declares that courts imposing liability awards interfere with free choice, and so they move to delegalize. Earlier conservative legal theorists argued that the common law is a counterpart to the market and its rules should follow market rules. Hence the common law in this earlier view is superior to regulation. My point is that instrumental theorists feel free to choose between courts, regulation, and alternative informal systems depending on what they are trying to achieve. It is a dynamic “street smarts” that we are grasping. The idea of harmony in the contemporary United States today is publicly aligned with peace. In this model there is no U.S. conception of an alternative to harmony that is not divisive. Democracy becomes harmony while debate is contentious, even antidemocratic. This is what Lock refers to as a dampening down of possible dissonance and what I have called a flattening process. Again, because lines of power are blurred, context and complexity are critical components. The dynamics help us to understand when consensus is useful, when confrontation is of the essence as with the “wild” capitalism moving in Pinxten’s Europe, and for whom. If fluidity is of utmost importance, so too is Debert’s notion of subject matter that is not configured politically. She speaks of communitarian ideals that travel across borders as if they were not political. In an article in Mother Jones (D’Antonio 1994), the discussants on “I or We” rarely questioned the processes of the master narratives. Only Chomsky got to the control point: “Community … [was] designed in the 1930s by the corporations, when they became terrified by the collapse of their society

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brought on by the Wagner Act and the labor movement. They developed new techniques to control the population and inculcate the concept of living together in harmony—all Americans. … And Them—the outsiders trying to disrupt.” So the fine analysis that Drucker-Brown calls for would indeed require that we identify different kinds of harmony, distinguishing what I have called organic harmony (barn-raising and all that) from the selling of a political idea—communitarianism—favoring the traditional family, moral instruction in school, and crime-control policies that would limit some of our rights. As critics have pointed out, Americans felt a strong sense of community when they put American-Japanese in concentration camps in the 1940s. Of course, such ideologies are double-edged and have multiple uses, which is my point as well as Pinxten’s in his sharply underlined example of the two faces of Christianity—love thy neighbor and holy war. In the breast-implant case the double edge is complex. There are those who argue that for some women breast implants are empowering, their pragmatic response to everyday life. Indeed these women are empowered, as the saying goes, to roam in a four-cornered cage of someone else’s design. Should they have that choice? The answer to that question would embroil us in issues of informed consent, truth in advertising, truth in science. But the issue for ethnographers is description of the processes by which, as Nash notes, power is translated into behavioral norms stigmatizing people, making them responsible for their cosmetic bodies or their emotions—which become sites of moral laxity or vigilance. The potential for anthropological research has barely been tapped, because the transforming powers of commerce or unregulated capitalism are too infrequently configured politically. Finally, several of the comments speak about the future, about the potential of politically configuring the mundane or “normal,” of an anthropology of everyday life that is not “bereft of people, things, and the stuff of culture” (Nash). Yet, it is Gusterson’s two closing questions that stop me in my tracks. They are specific: Which other issues might profit from a similar analysis? And how do we theorize how people achieve power from powerless positions? The example he cites in relation to the first question—that of pharmaceutical executives predicting that one-third of the world’s population may be taking psychiatric medication within two decades—is arresting. The final colonization is the colonization of the mind, and I would give this area top priority as a research question for anthropologists because cultural control plays such a central role in this movement. The redefinition of previously “normal” moods and behavior as disorders is an area that some of the commentators have researched, and although increasingly of interest it does not yet constitute a research focus in anthropology such as, for example, gender studies. Think of it:

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this is the biological era, and some anthropology departments are phasing out biology and/or research questions relating to biology. Here is where we need to analyze the premises—the culture, if you will—of anthropology as we proceed and in order to proceed. Another area that cries out for anthropological analysis is the “many modernities” that Lock speaks about. The U.S. military was able to decimate an Iraqi population in the name of the backwardness of that population, with special reference to the Arab treatment of Arab women— a view that gave us the moral right to bomb innocent women and children in Baghdad. In congressional hearings I heard the same argument recently vis-à-vis China—“They treat their women like chattels.” The other modernities can often see through these First World tactics better than citizens of the First World who believe. Also, they belong to civilizations older than ours that are still intact, while Westerners commonly deny that there are civilizations in the plural, each contemporary with the others. Gusterson’s second question about theorizing people achieving power is one we worked on in Energy Choices in a Democratic Society (Nader 1980b). Since we were writing scenarios for the year 2010, we searched for structural means of empowerment such as increasing self-employment levels to diversify the economic base. We also tried to increase options by decoupling tightly coupled beliefs; here we were getting into questions of mind colonization. Decoupling beliefs such as “less energy means less technology” or “big is necessarily better” or “small is necessarily beautiful” touches how people think. One future, for example, was a high technology/low-energy one—an impossibility for many participants. We also used scientific standards of evidence to indicate the role of superstition in high-technology thinking, which served to empower the marginalized scientists. In pedagogical terms, knowledge was power. It required lack of conformity, because those who conformed lost a certain kind of power. The course I teach on controlling processes liberates some; for example, one student said, “At least I know what I’m up against.” She had learned how to put the system in reverse. From this angle, how the powerless become empowered is not so different from how the powerful got their power. What is different is the leveraging potential, something that is included in the social-movement literature. For me, anthropology is the freest of scientific endeavors because it potentially does not stop at boundaries that interfere with the capacity of the mind for self-reflection. Ethnography, with all its flaws, has been an influential force, and making connections is still an important part of what anthropology is about. Making connections is also an increasingly endangered talent as people are moved to know more and more about

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less and less, thereby creating a parochial anthropology, another contradiction in terms.

NOTES This paper was delivered as the 1995 Sidney W. Mintz Lecture to the Department of Anthropology of Johns Hopkins University on 20 November 1995. I acknowledge with gratitude the contributions of the many colleagues and students who have over the years discussed the ideas in this paper and forged ahead in their own studies of control. In particular, I thank S. Ervin-Tripp, R. Gonzalez, E. Hertz, R. Kliger, J. Martin, J. Ou, and R. Stryker for their contributions in the preparation of this paper. This chapter was also published as: Laura Nader, “Controlling Processes - Tracing the Dynamic Components of Power,” from Sidney W. Mintz Lecture for 1995, Current Anthropology 38:5 (Dec. 1997), pp. 711-737. © 1997 by The Wenner-Gren Foundation for Anthropological Research.   1. Eric Wolf’s (1982) book Europe and the People Without History most significantly shaped my understanding of the need to erase the boundaries between Western and non-Western history, to make connections that had for too long been absent from earlier efforts to understand diffusion or massive areal conquests. Although Wolf’s book inspired me to document and explain the spread of dominant legal models, Sidney Mintz’s (1985) Sweetness and Power, which followed shortly after, coincided with my work on the anthropology of life in the United States seen through the prism of controlling processes and helped ground that work.   2. Mintz was also aware of acts of resistance. For example, his Worker in the Cane (1960) is the biography of a Puerto Rican with deep involvements in union and political affairs, a worker interested in justice who by virtue of his acts was “swept out of average anonymity” (Salz 1961, pp. 106–7); his actions placed him “among the doers and shakers rather than among the done-to and shaken average men,” a man “who acts within the limited scope at his disposal and enlarges it, and who is acted upon by the set patterns and circumstances of his existence.”   3. The Controlling Process Project has been in progress at the University of California, Berkeley, since the early 1980s. A portion of this work has been published in two issues of the Kroeber Anthropological Papers as Essays on Controlling Processes (Nader 1994, 1996a). Two of the works mentioned here, by Linda Coco and Sophia Vackimes, were based on undergraduate theses. They are in the case of Coco a result of three years of fieldwork and writing and in the case of Vackimes of a year of field and documentary research. Both theses are on file in the university’s George and Mary Foster Anthropology Library. The longest project on controlling processes is discussed in the first example dealing with harmony ideology, a project that had its inception in 1957.

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  4. Two books have been critical to my thinking on the role of professions in fashioning controlling processes. Mary Furner’s (1975) Advocacy and Objectivity: A Crisis in the Professionalization of American Social Science, 1865–1905 focuses on economics in the 1880s, when professionals were struggling with social questions associated with industrialization. Academic freedom cases of the 1880s and 1890s exposed the means of establishing internal discipline and acceptable behavior. Corrine Lathrop Gilb’s (1966) Hidden Hierarchies: The Professions and Government is the first history of the private government of American professions, including medicine, dentistry, nursing, law, education, architecture, the various sciences, and engineering. Gilb compares the American professions to medieval guilds and examines the ways in which they control and discipline their members.  5. Interestingly, as with Llewellyn and Hoebel’s (1941) The Cheyenne Way, based on work in the 1930s, rationalization for how well harmony law models work was sought in the anthropological literature (Gibbs 1963; Nader 1969). In The Cheyenne Way, the possibilities for refuting Harvard Law School’s legal formalism under the leadership of Langdell were enhanced for Llewellyn, a legal realist, by studying a culture that had no written law; experience perforce became central.   6. For my purposes, Chanock’s (1985) synthesis of the data on the missionary presence in what are today Zambia and Malawi from the 1830s onward is revealing of the early connection between local law and Christian missions and goes far beyond anything anthropologists had written about by the mid-1980s. Chanock points to the contradiction between African ideology and practice in the pre- and postcolonial periods. He uses the term “missionary justice” to call attention to the missionary influence in the construction of African “customary” law as encountered by anthropologists in the century following.   7. The Pound Revisited Conference was held in the same place where Roscoe Pound in 1906 delivered his memorable talk to the American Bar Association, “The Causes of Popular Dissatisfaction with the Administration of Justice.” The conference was to be a symbolic vehicle for a serious and comprehensive examination of procedural legal reform to be accomplished by the year 2000. “Cumulative tinkering” was thought to be a useful strategy, and alternative forms of dispute resolution were suggested to which court business might be diverted. The discourse at this conference extolled the virtues of harmony and efficiency. New tribunals would, it was argued, be needed to divert cases generated by the regulated welfare state and the 1960s rights movements. It was the start of the conservative legal revolution of which, at the invitation of Chief Justice Warren Burger, I was a privileged participant observer. Since that time I have pondered the implications of a rhetoric of consensus, homogeneity, and agreement and the contradictions it poses for a society that espouses the idea of the rule of law as a cornerstone of democratic order.   8. After an invited lecture at Ohio State Law School, a law professor challenged my position by asserting that Justice Sandra Day O’Connor had stood in the same place three months earlier saying that people like alternative dispute EBSCOhost - printed on 2/19/2021 12:59 AM via MCGILL UNIV. All use subject to https://www.ebsco.com/terms-of-use

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resolution. I asked him what her evidence was. His answer: “She doesn’t need evidence; she’s a justice of the U.S. Supreme Court.” In 1991, the late Trina Grillo, both law professor and mediator, wrote the first scathing critique of mediation in action. Her work is about how mediation operates as control—control in defining “the problem” and control of speech and expression—and concludes that mediation is hardly a panacea alternative to an adversarial system. Grillo’s cultural analysis is pointed in her assessment of formal equality as a destroyer of social context, in her discussion of how by limiting the discussion of fault and the past rights are destroyed, and in her framing of the problems as equal control with unequal responsibility. Important also are her keen observations on the suppression of anger, especially the prohibition of female anger. In addition, she argues that the choice of process is sabotaged by forced engagement. Her article is a profound argument against mandatory mediation and in favor of truth in advertising. Mandatory mediation is confidential and private, not public. Cases are not usually recorded, and, as far as I know, there is little regulation and next to no accountability—something like the situation in psychotherapy, for example. When Grillo’s article appeared, pressures to have her removed from her position and public vilification by professional mediators encouraged me to interview her about the stakeholders she had offended. It is difficult to talk about conflict or its opposite without strong moral overtones. We need to distinguish between the ideology of one or the other and the behaviors and social consequences associated with them. Thus with mediation the rhetoric is harmonious; the process may be contentious, the social consequences pacifying and restrictive. The current controversy is not so much over harmony and conflict as over a shift in the proper domains of the two and the privatization of emotions and injustice. The larger question, as one of my former students put it, is why in Euro-American cultures it has consistently been believed that communitas, political peace, and harmony are the “natural” order. See Linnerooth’s 1990 article on negotiating settlements in the Danube river basin, in which she speaks about win-win bargaining to be accomplished by those who share “a certain professional rationality.” The Negotiation Journal is replete with examples of this new psychological negotiation culture. In a book just published, Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case, Marcia Angell (1996) looks at the battle over breast implants and concludes that society is to blame for not accepting scientific medicine’s collective judgments and mode of reasoning. Dr. Angell has been an expert witness for breast implant manufacturers and casts her argument in the anti-antiscience mode. In a term paper titled “Silicone: An Inert Substance?” Sara Fisch asks why the focus on silicone has remained on breast implants when implants account for approximately 1 percent of company revenues. The bulk of silicone sales are in the aerospace, auto,

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cosmetic, and food industries. According to Fisch, it is in the corporate interest that silicone be a woman’s issue to divert public scrutiny from silicone itself. The movements against standardizing beauty were preceded by movements in the United States against standardized scholastic testing that developed here, the home of the largest and most powerful testing companies. The testbias analyses and truth-in-testing legislation spread from New York across the country in an attempt to break the tests by training students to improve testing scores; the tests have been advertised as testing innate abilities (see Nairn 1980). In a personal communication, the secretary of the Smithsonian, L. Michael Heyman, noted that his criticism of Molella’s exhibit has to do with “more sensitively balancing positive and negative effects [of science].” He thinks of Molella’s exhibit as evaluating American science when what the curator was attempting was an exhibit on science in American life. In a speech before the American Association of Museums (Minneapolis, 4 May 1996), Heyman made the case for more balanced exhibits by contrasting the role of the curator with that of the academic. He argued that in universities no one is responsible for the opinions expressed by its faculty; their work is attributed. Curators, in contrast, present their viewpoints anonymously, and he quoted a colleague as opining that such anonymity is potentially “authoritarian.” Heyman concluded, “Presenting at least two sides of an important issue and letting the visitors know exactly what is evidence and what is interpretation can only enhance broader public understanding.” He did not mention satisfying the American Chemical Society, nor did he understand that interpretation is not the same as evaluation. The recent publication Naked Science (Nader 1996b) responds to Gross and Levitt’s provincialisms and contains essays on science practices (rather than idealization) in physics, immunology, mathematics, biotechnology, and other fields. See also the burgeoning literature on the anthropology of science to which leading anthropologists such as Sharon Traweek, Hugh Gusterson, Emily Manin, and Paul Rabinow have contributed. Ellen Hertz (personal communication) suggests that “truth” no longer has the inflammatory/empowering effects that it used to (contrast Watergate with Irangate). Something has happened that further disconnects the academy (where much research on power takes place) from society (where many are increasingly apathetic). A good example is in the area of feminism: power is central to feminist research, but outside the academy feminism is virtually dead. Robert H. Wiebe’s work on the search for order from the 1880s to the 1920s explains the rising importance of power values as justifying control over other people’s behavior. See also Wiebe’s (1975) The Segmented Society: An Introduction to the Meaning of America.

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18. According to Comaroff and Comaroff (1991, p. 23), hegemony should be distinguished from culture and ideology, in contrast to Gramsci’s view of it as “ideology in its highest sense.” 19. Gramsci referred to hegemony in two instances: hegemony as organized by intellectuals, the “dominant group’s ‘deputies’” (Gramsci 1971, p. 12), and the “conquest of hegemony by a subaltern class” (Sassoon 1981, p. 129), what some call “counterhegemony.” Moreover, although hegemony may imply the control of the masses by dominant classes, the nature of the acquiescence is open to interpretive flexibility—that is, the efficacy of hegemonic structures of thought—as in the basic structural formulation of hegemony as the domination of one group over others. The former is a point that the political scientist James Scott (1990) elaborates in Domination and the Arts of Resistance, showing the importance of distinguishing the exact degree of hegemonic domination in order to provide for the dynamics of resistance and consent. Hegemonic ideas can therefore be considered to be in flux, constructed and reconstructed by various actors and institutions of diverse social, cultural, and political contexts. Provided that this dynamic aspect is acknowledged, hegemony can be a useful conceptual tool in describing the sociocultural aspects of controlling processes. 20. For example, William M. O’Barr (1994) has pioneered in this direction. In Culture and the Ad: Exploring Otherness in the World of Advertising, he presents a model for understanding advertisements that is meant to be useful to those who oppose professional advertising. See also O’Barr and Conley (1992). For an excellent use of vertical-slice analysis, see Tauxe (1993). 21. Moffatt (1992, p. 205) notes that “anthropologists have done more research in the United States in the last dozen years than in the entire history of the discipline.” However, the number of professional anthropologists studying up in the United States using a vertical-slice perspective is still minuscule in Moffatt’s bibliography. In some ways, the possibilities for studying American cultural hegemonies looked more promising in 1983, when Spindler and Spindler spoke about studying up as a moral imperative. The Spindlers mentioned as an example Messerschmidt’s (1981) edited volume Anthropologists at Home in North America. 22. See M. Nazif Shahrani (1994) for a discussion of the predicaments of a native Afghan who is both honored and marginalized as an anthropologist, a Muslim, and an Afghan in two antagonistic cultural traditions. 23. The historian Hugh Macmillan (1995) reminds us that, over fifty years ago, Max Gluckman made the same kind of connection in his definition of the social field in the southern part of Africa. He sought to explain the paradox of “cleavage, opposition and relative stability” by drawing upon a number of sources: “the Marxist theory of contradiction, the Freudian notion of ambivalence, Gregory Bateson’s idea of ‘schismogenesis,’ the work of Edward Evans-Pritchard on ‘situational selection,’ and of Meyer Fortes on ‘fission and fusion” (Macmillan 1995, p. 52).

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24. Hugh Gusterson (1993) eloquently addresses this question in his discussion of ethnographic writing on militarism or any contested terrain that strains the conventional pursuit of objectivity while also exempting elites from scrutiny and facilitating control of oppositional groups.

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Others: Perspectives on Ethnographic Careers, ed. D. Fowler and D. L. Hardesty. Washington, DC: Smithsonian Institution Press. Singer, Margaret Thaler, and Janja Lalich. 1995. Cults in Our Midst. San Francisco: Jossey-Bass. Spindler, George, and Louise Spindler. 1983. “Anthropologists View American Culture.” Annual Review of Anthropology 12: 49–78. Starn, Orin. 1994. “Rethinking the Politics of Anthropology.” Current Anthropology 35 (1): 13–38. Stolcte, Verena. 1995. “Talking Culture: New Boundaries, New Rhetorics of Exclusion in Europe.” Current Anthropology 36 (1): 1–24. Sutton, Francis Xavier, S. E. Harris, C. Kaisen, and J. Tobin. 1956. The American Business Creed. New York: Schocken Books. Taussig, Michael. 1989–1990. “History as Commodity in Some Recent American (Anthropological) Literature.” Critique of Anthropology 9 (1): 7–23. Vackimes, Sophia. 1996. “Science and Anti-Science at the Smithsonian Institution.” In Essays on Controlling Processes, ed. Laura Nader. Special issue, Kroeber Anthropological Society Papers 80: 87–105. Weiner, Charles. 1994. “Smithsonian Science Exhibit.” Science 266 (7 October): 13. Wiebe, Robert H. 1975. The Segmented Society: An Introduction to the Meaning of America. New York: Oxford University Press. Willis, Paul E. 1975. How Working Class Kids Get Working Class Jobs. Birmingham: Centre for Contemporary Cultural Studies, University of Birmingham. Wolf, Eric Robert. 1982. Europe and the People without History. Berkeley: University of California Press. Wolf, Naomi. 1991. The Beauty Myth: How Images of Beauty Are Used against Women. New York: William Morrow. Zinn, Howard. 1984. The Twentieth Century: A People’s History. New York: Harper and Row.

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E c ha p te r 1 6

Pushing the Limits Eclecticism on Purpose

J

ust as we now have multisited field locations, so too it seems we have multiple paradigms. Evolution, history, structure and function, positivist, diffusionist, hegemonic, political economy, social relations, interpretations, and postmodern “gazes” are all there in the anthropology of law. And the following notes suggest they should be since our subject matter is a moving screen on which we are also located. As my own work has evolved, it seems there are incremental effects rather than paradigm shifts. For example, in my early work on the Mexican Zapotec I started out by focusing on court cases, but very soon moved to extended cases that took me into the community and beyond. I generated hypotheses and examined variables and sought as large a continuous sample of court cases possible. An examination of extended cases led to comparison of remedy agents and authority patterns. I made a film—To Make the Balance (1965). Soon I was examining two contiguous villages (Nader 1966), then a comparison of two ethnically different Mexican villages, one in Oaxaca, the other in Chiapas (Nader and Metzger 1965). I then compared the Zapotec case with the Shia Moslem of southern Lebanon, a people separated by some hundreds of miles, still holding conditions constant in the controlled comparison mode (Nader 1965). This model of work within the social relational/social organizational mode led to the development of the Berkeley Village Law Project, a project that sent students to over fifteen sites worldwide to examine questions similar to those I had pursued in my primary Mexico site— looking for structures of horizontal dynamics, documenting the practice and range of variation in choice of remedy agents, trying to understand who uses “the law” and for what. The Berkeley Village Law Project resulted in The Disputing Process: Law in Ten Societies (1978), and included

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work from New Guinea, Zambia, Ghana, Lebanon, Ecuador, the United States, Scandinavia, Germany, Sardinia, Mexico, Turkey, and Australia. While the Berkeley Village Law Project was ongoing, my Zapotec monograph was put on hold while I launched another project—a U.S. nationwide study of how Americans complain about products and services. The centerpiece here was not a formal organization like a court; rather, the actor/complainant was the starting point. With a group of about a dozen students, mainly undergraduates, we scanned the country, looking at places to which Americans take their complaints when they feel they have no access to law: unions, the Better Business Bureau, small claims courts, hot lines, Congressional offices, the ghetto store that cashes welfare checks, consumer advocates, and consumer organizations. The story of each complaint was often embodied in a letter at the start. This complaint study was still cast in the mode of The Disputing Process but with two exceptions: history began to enter the picture, and so again did film. Public Broadcasting (PBS) produced a film about the subject of Little Injustices (1981), a film that included the Zapotec and American work, one preindustrial, the other industrial, and the ethnographic work was published in the book No Access to Law: Alternatives to the American Judicial System (1980). I began to develop a user theory of law (1984). It was at this point that my working framework began to change dramatically. While No Access to Law was still work in process, I was invited to participate in the Pound Conference by the then Chief Justice of the U.S. Supreme Court Warren Burger. At that 1976 conference in St. Paul, Minnesota, I witnessed the public launching of the alternative dispute resolution (ADR) movement, which the Chief Justice predicted would revolutionize the American legal system by the year 2000. (He was right, except it took less time than he predicted.) ADR was in essence an antilaw movement, an anti-1960s rights movement. They called the environmental, consumer, women, and minority cases “garbage cases.” ADR procedure was to follow consensual, harmonious styles. It was obvious that Little Injustices were not little at all, and that I was witnessing the beginning of an attempt, through instrumental “tinkering,” to change access directions of American law. New players were using the courts, and the backlash had begun, particularly in relation to the law of torts. For this I needed a political economy paradigm, one in which power and power plays were large-scale endeavors. All the U.S. state supreme court justices were at the Pound Conference, along with justices from the Supreme Court of the land. The Harvard lawyers were speaking about multidoor courtrooms, something I had already found among the Zapotec. It was an exhilarating event in which I was to publicly exchange arguments

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with the chief justice and the U.S. attorney general over issues of public concern—democratic use of the American legal system. I had not yet completed my Zapotec monograph, but light bulbs began to flicker. I needed not only a comparative functionalist model, but a historical frame and a diffusionist one as well. I began to see that what was going on in the Zapotec court must have been a result of conquest or adaptation to conquest. This required examining the historical record— in Spain, in Mexico, and wherever European colonialists had gone in the company of missionaries. I identified something I called the harmony legal model, then harmony ideology, then coercive harmony—a form of pacification (Nader 1990). Coercive harmony and the harmony law model may be contrasted with the adversarial model, and can be used as pacification. That’s what was being constructed at the Pound Conference! It was part and parcel of European colonization. In this work on harmony I am now operating in the realm of hegemonic cultural models—styles or ideas that can be found widely distributed outside the courts or in them. ADR was such an example and, just as with colonialists or imperialists, was constructed for purposes of pacification, or some might call it “peacemaking.” I watched the ADR model get institutionalized as the chief justice covered the country with his “There has to be a better way” speeches. I analyzed his discourse (Nader 1989). Linguistic analysis entered in. I followed the diffusion of ADR, a hegemony, just like the colonialist harmony law model. The diffusion of ADR nationally penetrated schools, corporations, medical institutions, factories, law firms, etc. People’s legal rights were at stake. When people did not respond to ADR, it was made mandatory—as in family cases—mandatory mediation, a contradiction in terms (Nader 1992), or in employment sites, or in hospitals. ADR was an idea; it was hegemonic; it could travel rather cheaply. This work on ADR was the beginning of a theory of harmony to complement the body of conflict theory that Dahrendorf (1968) had launched earlier. ADR went international and so did I. My first project dealt with international river disputes (Nader 1994). Again history was required—of the world court, of international relations between Spain and Portugal, within the ten Danube River countries, between Bangladesh and India, the United States and Mexico, and for the Jordan River between Israel and several Middle Eastern countries. Older international lawyers did not know what hit them as the International Court of Justice went into disuse while professional nongovernmental international negotiators appeared on the scene speaking psychologese, not legalese. We can now witness at the ITO/GATT (International Trade Organization / General Agreement on Tariffs and Trade) offices in Switzerland the setting of a common stan-

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dard for what constitutes international negotiation and mediation (sometimes used interchangeably) to merge into one French, German, English, and Chinese mediation/negotiation. By now harmony is once again a good that is naturalized, and all ideas related to the Dahrendorf (1968) thrust on conflict theory have been forgotten. At a Johns Hopkins conference on peacemaking in Africa at which the U.S. military, along with African nationalists and ADR experts, were conspicuous by their presence, conflict and confrontation was bad; harmony was good. When Sierra Leone was in bloody civil disarray, the capital was littered with ADR experts. Our conference paper, “Current Illusions and Delusions about Conflict Resolution” (Nader and Grande) was accepted for publication in the volume, but two years later it was pulled. Critical thinking has no place in hegemonic volumes. Much the same is happening in other sites back home. In the U.S., the contestation of Indian identity and sovereignty illuminates the uses of idealizations of Indian culture as harmonious and nonadversarial, making tribal sovereignty a mirage without strict legal guarantees (Nader and Ou 1998). In the 1970s, alternative dispute resolution entered the reservations and the different uses of idealizations of the American Indian took center stage in the struggle over nuclear waste storage on Indian lands. The work is now multisited as with the phenomenon of coercive harmony. Governor Brown (now mayor of Oakland, California) noted recently when a fight breaks out in an Oakland high school, squads of conflict resolvers and anger managers break out upon the scene. And just as at the conference on peacemaking in Africa, where no one mentions arms dealing, multinationals, colonial legacies, or mercenary armies, so too in Oakland anger managers do not mention inequalities or hunger. Power differentials are not part of the ADR agenda. The role of psychological persuasion in all this is not completely clear to me, but what is clear is that victims may be more interested in coercive harmony than anthropologists. My audience includes environmental activists, union leaders, Native American activists, and just plain folks who feel censored for being “contentious” (Nader 1992). More recently I participated in a 1997 American Anthropology Association symposium on indigenous peoples’ claims for intellectual property rights using a legal idiom, the other side of harmony models. We are now into new configurations of indigenous self-consciousness that includes indigenes mobilizing the anthropologist’s ethnographic talents. Many anthropologists participating in the symposium were not anthropologists of law. They were introduced to issues of intellectual and genetic property rights by the people they went to study. It is no longer us and our informants. “Our people” are overrun by prospectors of various sorts, and we

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have had to meet the limits of naïveté. Whether we are anthropologists of law or not, we have to deal with the complexities of law. Just to be an anthropologist today means we need to understand modern biology as well as our usual fare of social organization and culture. We have had to become worldly again as were the anthropologists of the nineteenth century. One can see this broadening on every page of Tom Greave’s (1994) Intellectual Property for Indigenous Peoples: A Sourcebook. The list of contributors, apart from anthropologists, includes general counsels, botanical specialists, ethicists, specialists in knowledge production, conservation, traditional medicine, forestry, and native peoples. These are old and new topics in anthropology: the anthropology of ownership, of nature, of commercialism. We all live in a period in which everything is for sale. Who can say for sure that they own their own bodies these days? The differences between “them” and “us” are being erased. The legal questions are, however, now raised in a new environment of legal imperialism—the Americanization of the laws of other peoples and nations. In the intellectual property rights area, we are dealing with a Western law with copyrighting, patents, trademarks, and trade secrets. But local systems of law are a challenge to copyrighting, as for example on issues of ownership in the service of the group, not the individual, with permanent, not temporary, rights. These are current interests for anthropologists of law: appropriation (as in cultural and biological theft), the emergence of new configurations of indigenous self-consciousness, and movements for autonomy and self-determination. As to the question of whether we are witnessing paradigm shifts in the anthropology of law, I will leave that to the reader to judge.

NOTE This chapter was originally published as: Laura Nader, “Pushing the Limits— Eclecticism on Purpose,” pp. 106-109 from Political and Legal Anthropology Review 22: 1 (May 1999).

REFERENCES Dahrendorf, R. 1968. Essays in the Theory of Society. Stanford: Stanford University Press. Greaves, T., ed. 1994. Intellectual Property Rights for Indigenous Peoples: A Sourcebook. Oklahoma City: Society for Applied Anthropology. Nader, L. 1965. To Make the Balance. Distributed by University of California Extension. Film.

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———. 1966. “Variations in Zapotec Legal Procedure.” In Homenaje al Ingeniero Roberto Weitlaner, 375–83. Mexico. ———. 1981. Little Injustices: Laura Nader Looks at the Law. PBS Odyssey Series. Film. ———. 1984. “A User Theory of Law.” Southwestern Law Review 38 (4): 951–63. ———. 1990. Harmony Ideology: Justice and Control in a Mountain Zapotec Village. Stanford: Stanford University Press. ———. 1992. “From Legal Process to Mind Processing.” Family and Conciliation Courts Review 30 (4): 468–73. ———, ed. 1980. No Access to Law: Alternatives to the American Judicial System. New York: Academic Press. Nader, L., and Jay Ou. 1998. “Idealization and Power: Legality and Tradition in Native American Law.” In New Directions in Native American Law. Oklahoma City University Law Review 23 (1): 13–42.

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E c ha p te r 1 7

In a Woman’s Looking Glass Normative Blindness and Unresolved Human Rights Issues

Introduction The United Nations 1948 Declaration of Human Rights was a marker in the history of the human community. So too was the United Nations’ increasing attention to women’s human rights issues since 1948. In reviewing the situation for human rights and for women’s human rights in particular, however, this is more a time for reflection than celebration. As we know from the media, personal contact, and our own analysis of what is happening worldwide, we need more human rights activists today than ever—activists that are part of a world citizenry, people who are alert to the speed of technological impact, the centralization of power, and its impersonal aspects as reflected in warring at a distance. My paper will cover several topics. First, I review the constraints governing the original declaration in order to recognize the major conceptual progress made since the 1940s. Second, I comment on the unresolved issues of the declaration, issues that when spearheaded made way to more inclusive frameworks for human rights work, including views from the margins—the third and fourth world, the world of women. And finally, I call attention to a recognition of the human rights abuses resulting from wildly out-of-control commercialism. Throughout my paper I use a comparative outlook, one that requires us to look in the mirror from the start, to be self-conscious of the role of Euro-American human rights activists. It has been remarked that a leap forward is needed by human rights activists at the turn of the century. For such a leap forward to happen, specific human rights violations need to be grounded in a broadly gauged philosophy about human suffering, one that cuts across positions that are at cross-purposes.

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Early Constraints The importance of the UN Declaration was the attempt itself. Imagine the post–World War II scene. Delegates from Western, Communist, and Third World nations were discussing in philosophical terms the content of the future declaration of human rights, each from their particular points of view—the Chinese representatives insisting that Confucian philosophy be incorporated into the declaration, the Catholics the teachings of St. Thomas Aquinas, the liberals advocating the views of John Locke and Thomas Jefferson, and the Communists those of Karl Marx. It was a daunting task, to find agreement among such diverse parties as to what constituted human rights. But they took a first step, at least. As most human rights activists know, Eleanor Roosevelt was chairman of the UN Human Rights Commission. Roosevelt was ever persistent in reminding her collaborators that they were charged with writing a declaration acceptable to all religions, ideologies, and cultures. Yet, as we know, even with all her efforts there were enormous disagreements as well as gaps. There were no representatives from the indigenous peoples of the world, from the so-called Third World, from the peoples of Islam, and little input from women in spite of Mrs. Roosevelt’s presence. Mrs. Roosevelt was a practical woman, and as such she dealt with what was in front of her—Eastern countries who wanted to confine the charter to social and economic rights on the one hand versus western declarations of the liberties listed in the American Bill of Rights and the French Declaration of Human Rights on the other. In the end, the group found compromise by including socialist-inspired articles that guaranteed full employment, adequate housing, decent health care, and cradle-to-grave social security. Mrs. Roosevelt should also be credited in not compromising fundamental rights merely for the sake of reaching unanimity. In her own words: “We hope its proclamation by the General Assembly will be an event comparable to the proclamation of the Declaration of the Rights of Man by the French people in 1789, the adoption of the Bill of Rights by the people of the United States, and the adoption of comparable declarations at different times in other countries” (Bergen 1981, p. 73). The early years at the United Nations were heady. Years later, in nominating Mrs. Roosevelt for the Nobel Prize, which she was not awarded, Jean Monnet, father of the Common Market, eulogized her (in Lash 1972, p. 337): “Fundamentally, I think her great contribution was her persistence in carrying into practice her deep belief in liberty and equality … to her, the world was truly one world, all its inhabitants.” As Mrs. Roosevelt herself put it: “Where after all, do universal human rights begin? In small places, close

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to home—so close and so small that they cannot be seen on any map of the world. Yet, they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farms or factories where he works. Such are the places where every man, woman or child seeks equal justice, equal opportunities, equal dignity, without discrimination. Unless these rights have meaning there, they have little meaning anywhere” (in Romany 1994). Eleanor Roosevelt and the New Deal women belonged to their era. They were and remained throughout reformers first, women who viewed their positions as possible role models for other capable, educated women to emulate, but they were social welfare workers first and foremost: they knew what was best for others (Berger 1981; Hoff-Wilson and Lightman 1984). As others have noted, in their advocacy for women, the accomplishments proved transitory: the meager gains of political women stemmed from their structural position, one rooted in cultural ideology and social institutions, and analysis of these factors and an agenda for their change was beyond the reach of those who focused narrowly on political participation and individual aspirations and rights, rather than on root causes.

Unresolved Issues The complex unresolved issues of Mrs. Roosevelt’s period are still our issues today when debates are formulated as binary: should we focus on individual rights to the exclusion of collective rights? Should we be concerned with public issues to the exclusion of private issues? In addition, the balance between national sovereignty and international human rights presents further problems, and finally the issue of human rights as part of a Western and mainly American hegemonic movement is an issue increasingly taking front stage (Renteln 1990). After all, the Commission on Human Rights and the UN as a whole were predominantly Western. Indeed, the movement to create a new international apparatus for the promotion of human rights was led largely by Americans. The United States Department of State orchestrated the early drafts, the crucial meetings took place in the U.S., and even the goal itself—drafting an International Bill of Rights—had an undeniable American flavor. “Everyone has a right to life, liberty, security of person, freedom of thought, conscience and religion, freedom of movement … no one shall be held in slavery, subjected to torture, subjected to arbitrary arrest, detention or exile.” And all but two drafts were written in English. It is imperative that we understand something about the history of the drafting in order to understand the challenges that still face us. Let me take these issues one at a time.

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The focus on individual rights versus collective rights was critical for indigenous peoples. It meant that indigenous people would be poorly served by the UN Declaration. Many Native Americans believe that the group rights of Indian peoples are the most important and most endangered of all Native American Indian rights. The right to self-government, the right to maintain communal ownership of land and resources, the right to preserve their cultures and languages, and their religion— all argue for a protected group human right. Indian groups need their own lands and water for group survival, and the taking or denying of such lands or water is a policy of ethnocide in its effect (Nader and Ou 1998). Richard Falk (1992), a scholar who has distinguished himself for his lucidity on human rights issues, has argued that the neglect of indigenous peoples might be described as an area of “normative blindness”— a blindness that accompanies a modernization outlook that regards premodern culture as a form of backwardness to be overcome for the sake of indigenous peoples, not from deference to their cultural autonomy but rather from a perspective of orderly and equitable assimilation into the more benevolent space of the modernizing ethos. In the name of development, indigenous people have been and are being destroyed and displaced in many parts of the Third World (Falk 1992, pp. 47–48). Their wealth in plant diversity and intellectual property is being stolen. Exclusion from the rights-forming process is itself a denial of human rights according to Falk, and one can easily see why. Indigenous issues were not part of the 1948 effort. Similarly, a concern with the state to the exclusion of the private domain of intimate interaction excluded many human rights that particularly concerned women: torture, wife-battering, a right to reproductive selves, sexual harassment, life itself. Since 1948, the realization of the public/private dichotomy has stimulated volumes of legal research on the non-state aspects of human rights as it affects millions of women’s lives in their homes and in the workplace. The emphasis on international human rights versus universal human rights has encroached on the touchy issues of national sovereignty and relativism. It is, by the way, in this realm that we have seen the shrillest performances of human rights advocates, often with reform in mind, absent introspection, and armed with huge dollops of self-righteousness— activists who expound at international women’s conferences on human rights, often in the company of nationalists who are similarly reformminded. More on that later. And finally, the issues of western positional superiority that Edward Said (1978) wrote about, the human rights discourse as part of a Western

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discourse or even a Western hegemonic discourse. It is one that anyone sensitive to cross-cultural issues, or any alert member of a so-called Third World country, knows engenders cynicism about the whole notion of human rights. Often such discourse appears in our newspapers and goes unnoticed as anything but a universal or should-be-universal idea of human rights. For example, recently in the New York Times (9 February 1998), there appeared a headline—“A Look at Religion in China by US Clerics, A Key Human Rights Issue: Freedom of Worship in China. The article begins: “A high profile delegation of American religious figures began arriving in Beijing today for a three-week tour of China to examine the state of religious freedom here, one of the most volatile human rights issues in American diplomacy.” And later, “In its quest for dialogue, the group will confront a sharp difference in perspectives about the meaning of religious freedom.” Contemplate the asymmetry  for a moment. Imagine a Chinese delegation to the United States to examine the right of Native Americans to practice religious freedom whether it be the ghost dance, the peyote cult, or vision quests. In spite of the 1978 American Indian Freedom Act, in the 1980s and 1990s, the federal courts have ruled in over ten consecutive cases denying Native Americans religious freedom. (See for example, Lyng vs. Northwest Indian Cemetery Protective Association, in Nader and Ou 1998.) Or, imagine a Chinese delegation that comes to examine political persecution of American minorities. Our country has one of the highest rates (if not the highest) of prison intakes in the world, prisons mainly peopled by American minorities. From the start, human rights has been that which Americans take to others. Boalt Hall Law School at the University of California, Berkeley, has recently opened a human rights clinic, a facility that will provide free legal services and investigations on human rights abuses for both international and national clients. The story on their opening indicates that two of the clinic’s first clients are from African nations, individual refugees seeking political asylum from the U.S. Immigration and Naturalization Service—in itself not a bad service to provide, but when viewed as part of the whole picture contributes to a lopsided picture. In my preparation for this paper I spent weeks reading the human rights literature, of which there is a prodigious amount. Much of it is technical and abstract. A very useful development found in the recent literature, however, is the presence of human rights advocates from other countries, people who have a good deal to teach us about ourselves. For example, an interesting article on structural adjustment programs (Kuenyehia 1994, p. 430) points to the negative consequences of structural adjust-

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ment on the human condition. The author points out there has been, in Ghana, retrogression rather than development in the areas of nutrition, education, employment, and social welfare. Third World advocates argue that rights to food, education, work, and social assistance have been rendered meaningless, due to conditions generally set by the International Monetary Fund, conditions that must be fulfilled by a recipient country prior to receiving financing from the World Bank, or before being considered as internationally credit-worthy. As a result of structural adjustment programs in Ghana and elsewhere, the total burden of women’s work has increased to an inhuman degree. Others (Morsy 1993) have documented experiments with American-originated reproductive technologies such as Norplant as gross violations of human rights. Institutions are canceling each other out. The specific point here is that American human rights advocates are being canceled by their own government. Such problems were not center stage in 1948 principally because the participants were limited; the targets at that time were nation-states, and the globalization processes were limited by comparison. Today, transportation technologies, travel and tourism, media attention, cross-cultural education, and a logarithmic increase in human interaction of all varieties has opened both opportunities and obstacles for human rights. On the plus side, tourists, for example, have played an important regulatory role in the Chiapas uprising in southern Mexico, and tourists from many countries also played an important part in the defense of Tepoztecan villagers from state violence in Morelos, Mexico. The Tepoztlan case was encouraging because in addition to tourists, activists included, among others, local people, Americans picketing U.S. investors, American, Canadian, and European as well as Mexican newspeople, and the use of video technology to record human rights violations on the spot. The prospects for improving human rights are linked to the prospects for cultural reconstruction, which depend upon an open process of communication, free from dogmatic interference. We need a more open human rights philosophy for any leap forward. Since the conception of human rights transcends the citizenship of the individual, the support for human rights can come from anyone—whether or not she is a citizen of the same country as the individual whose rights are threatened—all the more reason to employ practical reason. Humility and passion are important components of any action plan, and, as we can see, the first, second, and third generation of human rights indicate we are making headway conceptually. A Canadian law professor (Hernandez-Truyol 1996) puts the prospect for cultural reconstruction this way: “It is imperative that for any analysis of cultural practices to be valid, it must be conducted from the per-

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spectives of both ‘insiders’ and ‘outsiders.’ For example, industrial state feminists need to think seriously about how certain practices could be explained to others. Consider, for example, the glass ceiling phenomenon, the feminization of poverty, the denial to mothers of welfare benefits if they have more children than a state thinks they should, while fathers are not part of the ‘welfare reform’ equation.” She continues by underlying the recognition that “in no society today do women enjoy the same opportunities as men … and the observation that sex inequality is a global reality … prevents those in the US, from considering gender problems and concerns as existing only in “other place” such as Third World states, or states with non-western based traditions.” The point is we all live in glass houses. We speak of Saddam Hussein’s use of biological warfare. The most recent Nation magazine references work documenting the use of biological and chemical weaponry by the U.S. on Cuba (Nation, 9 March 1998, p. 9).

A Human Rights Effort I would like now to move the focus on unresolved issues to the Middle East, where human rights violations by both insiders and outsiders have been rampant. Anyone with a fine-tuned sense of injustice would have been affected by Israel’s last foray into Lebanon, or by the 1991 Gulf War and the bombing of Baghdad, both of which included random civilian bombing. In particular, watching the Gulf War on television was a surrealistic experience that left a mark on many of us. At the time I thought that if there were more symmetry, more mutual respect, such a bombing might not have happened. It was the beginning of a human rights effort. A friend and I came together with a third and a fourth to organize the International Council for Women in the Arts. ICWA’s first challenge was to fund Arab women artists, plan an exhibit, and locate the opening in Washington, D.C., where it would be visible to American policy makers. No small task. Our motive was to humanize the demonized and dehumanized Middle East situation, to open channels for communication. ICWA was an organization that arose from the ashes of the Gulf War. The attendance at the opening exhibit attracted more people than at any other exhibit hitherto at the National Museum of Women in the Arts in Washington. I have written about this effort elsewhere; here I wish only to mention some of these Arab women artists, who in their own words and in their artwork illustrate the expression of their artwork in relation to human rights writ large—armed conflict, occupation, a destroyed environment (Nashishibi, Nader, and Adnan 1994). Their stories were punc-

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tuated by their reactions to war, pollution, emigration, family life cycle, and other events. Their work revealed a political art actively resisting domination and creating new culture. The Arab East has been a battleground in the nineteenth and twentieth centuries. Over the past two centuries, Arabs have been subjugated by foreign rule, a state of affairs not lost on these artists. Violence and tragedy, destruction and death are common catalysts. A few examples: Saloua Raouda Choucair—one of the first abstract artists in Lebanon and one of the best sculptors in the Arab world—recalls that her early commitment to art began as a challenge to her philosophy professor at the American University of Beirut, Charles Malik (one of the Eurocentric crafters of the Universal Declaration of Human Rights) who stated that “Arabic art is a decorative art of a lower degree, far from being pure art, because the Arabs were not inspired by the nude.” A student of mathematics and physics, Choucair began to explore the geometry, form, and color of Islamic art. Injii Efflatoun, an Egyptian artist, was part of the turmoil that embraced the region following World War II, a turmoil that made women artists more overtly political. Her agenda was a Marxist one—to restructure the relationship between landowners and peasants. She spent four years imprisoned because of her political beliefs, an experience that provided the foundation for a number of her paintings. The conflict over Palestine, which had led to five wars between Israel and Arab countries since 1948, added another dimension for human rights struggles.1 Monta Hatoum, a Palestinian artist from a refugee camp in Lebanon, was drawn into performance art. Her art involves the political use of binary opposites, contrasting order and chaos, oppression and resistance, always revealing the two sides of the same reality: victor/ victim, strength/weakness, uniformed/naked. The dialogue of occupation is represented by Houria Niati of Algeria. Niati remembers being taken to prison by the French authorities for writing anticolonial slogans on walls at the age of twelve. Years later Niati started her series “No to torture,” saying that “Women in Algeria were fighting and dying. They were tortured.” Western notions of the Oriental imagined a fantasy world of women. Delacroix’s Arab women were half naked. Niati’s women of Algeria do not replicate the splendor of Delacroix; rather, they unmask the power dynamics inherent in Delacroix’s picture. Niati speaks no to torture everywhere. The dialogue of colonialism and occupation in Palestine inspired Lila Al-Shawa of Gaza to record the harsh realities of Israeli occupation. She photographed graffiti on the walls of Gaza before it was covered up by the

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Israeli occupation army. She photographed the map of Palestine that had been drawn on the sides of the cement-filled barricades that surround the streets of Gaza to prevent stone-throwing children from escaping. In speaking about her work and commenting on the silences of the “civilized,” Al-Shawa says, “I recorded a method of communication and punishments which have been sanctified by the ‘civilized world.’” Perhaps the most poignant quote comes from Leila Kawash, an Iraqi artist, who speaks about how her art was affected by the Gulf War: “During the war with Iraq … when Americans hit on this shelter (with) a lot of children, and they all ran out and one of them called out ‘Allah el Akbar’ (God is Great). And I was painting this painting and when I went back to it, these words, it was like he gathered all the strength … it was like he was combating the whole war with two words. I spray painted these words and it obliterated all the gold that I was putting on before.” Kawash lost her sister, also an artist, as a result of pinpoint bombing early in the first Clinton administration. Feelings of betrayal were articulated by the women artists and summarized by the artist from Gaza who speaks of the terrible feelings Arabs have about the West, “a power that is trying to destroy you without ever trying to understand what you are about … that you’re a very old culture—that you’re a people from a great civilization, that your roots go back thousands of years. As one commentator said about the work of Arab artists, “Their work appears less a search for identity than the expression of pain.” They are about the kind of pain that human rights activists might understand. Yet the concerns, the human rights concerns of Arab women artists, are not the concerns of vocal human rights activists who have for the most part eschewed discussions of violations of human rights from external sources to focus on such subjects as female circumcision to the exclusion of human rights concerns with the thousands of women and children who died in the bombings of Baghdad, or human rights concerns with the children of stones, whose human rights are regulated in Palestine/Israel. As the artists point out, there have been deafening silences from the “civilized” world. Many of us are a part of the hegemonic silence on the politically incorrect human rights issues. Remember that the objection to the notion of human rights in many countries is its Western origin. And with good reason. Privileging Western concerns with human rights is ethnocentric, and such concerns should not be attended to exclusive of broader-definition human rights concerns. The reason they are has to do with positional superiority. They have female circumcision, which is barbaric. We don’t, maybe.

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Health and Human Rights A recent report on “Public Health and the Persian Gulf War” (Hoskins 1997) reports on the consequences of random civilian bombing. More than five years after the end of the Persian Gulf War, Iraqi civilians subsist in a state of extreme hardship, in which health care, nutrition, education, water, sanitation, and other services are minimal. As many as five hundred thousand children are believed to have died since the war, largely due to malnutrition and resurgence of diarrheal and vaccine-preventable diseases. Health services are barely functioning due to shortages of supplies and equipment. Iraq before the Gulf War was a high middle-income country with a modern social infrastructure. The breakdown of health, water and sanitation, and other essential social services that followed the Gulf War led to a dramatic increase in infectious diseases like cholera and typhoid and diseases related to malnutrition. The impact on maternal and perinatal mortality has been considerable. Iraqi women have been loaded with considerable burden as a result of the Persian Gulf War. Indeed, more than 10 percent of married Iraqi women are widows. International study teams have documented widespread depression, anxiety, headache and insomnia, weight loss, menstrual irregularity, difficulty breastfeeding, and other illnesses. Human populations were also put at risk when their source of water was directly affected, and the environmental problems that resulted in toxic contamination of various sorts played further havoc. Actually, the people who have led the way out of this morass are active in the current health and human rights movement (Heggenhougen 1997). Health professionals find that the human rights framework is a more useful approach to modern public health challenges than any framework in the biomedical tradition. Public health professionals increasingly realize that they must deal directly with the underlying socioeconomic concepts that determine who lives and who dies, when, and of what. Because of the realized importance of societal issues at the Harvard School of Public Health, the graduates receive along with their diploma a copy of the Universal Declaration of Human Rights, with special attention to article 25 on human rights and health. Public health workers do not have to decide which is worse—the Taliban takeover in Afghanistan (Faiz 1997) or the Gulf War initiative or East Timor Indonesian policies. All of these happenings are bad for peoples’ health. Furthermore, we can all agree with Jonathan Mann and others (Mann 1996; Rodriguez-Trias 1992) that “a male-dominated society is a threat to public health.” Assaults by husbands, ex-husbands, and lovers cause more injuries to women than

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motor vehicle accidents, rape, and muggings combined. The overall model for thinking holistically about the health and human rights movement may be illustrated by returning to the issue of circumcision and/or cliterodectomy. Over the years I have formed an antipathy towards public lectures and discussions on cliterodectomy or female circumcision in Africa. Often, too often, the accusatory, holier-than-thou confrontations result in rigid resolve on both sides. They always remind me of sati in India, which when condemned and outlawed by the British only increased. I always thought that there was something wrong with the dialogue over sexual mutilation, that it was too ethnocentric, too lacking in introspection. A few weeks ago my librarian handed me a newly published book titled Sexual Mutilations: A Human Tragedy (Denniston and Milos 1997). Sexual Mutilation does what should have been done years ago. The work was the result of the Fourth International Symposium on Sexual Mutilations in Lausanne, Switzerland (the first having been held in 1989 in California). Permit me to quote from the preface so that you can sense the tenor of the approach: Sexual mutilation is a global problem that affects 15.3 million children and young adults annually. In terms of gender, 13.3 million boys and 2 million girls are involuntarily subjected to sexual mutilation every year. … The violation occurs with the first cut into another person’s body. … While such terms as “circumcision” and “genital cutting” are less threatening to our sensitivities, they ultimately do a disservice by masking the fact of what is actually being done to babies and children. … According to the belief systems of those cultures that practice the sexual mutilation of children, the sexual organs do not belong to the person to whom they are attached: instead, they are regarded as community property, under the immediate control of physicians, witchdoctors, religious figures, tribal elders, relatives or their agents. … The number of children who die as a direct result of traditional sexual mutilations is high. The number of children who almost die is higher. … In the United States, it is estimated that 229 babies die each year as a result of the complications of the sexual mutilation of routine foreskin amputation. Additionally, 1 in 500 suffer serious complications requiring emergency medical attention. … Traditional sexual mutilations occur primarily in … Saharasia [Africa and Saudi Arabia] … and Melanesia … in the Pacific.”

Furthermore, the preface continues: “the almost spontaneous genesis of sexual mutilation in historic times in the United States at the hands of

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physicians [provides] insightful clues about the earlier origins of sexual mutilation in prehistory. “ I also begin to notice that recent newspaper reports on sexual mutilation are more evenhanded. Perhaps something is changing. In the New York Times (29 December 1997), Barbara Crossette reported on Egypt’s highest court ruling that practices such as circumcision were not Islamic religious practices, and this was followed a day later by an Associated Press article on Canadian research advocating pain relief for male circumcision (New York Times, 30 December 1997), and also followed by a number of letters to the editor relieved that the medical community is finally admitting that newborns feel pain, asking “So why do many hospitals perpetuate the practice when there is no compelling medical reason to do so?” Another noted: “You wisely reject genital mutilation in Africa, but how could you not mention the nearly 1.6 million infants who become victims of routine circumcision every year in the United States?” (New York Times, 3 January 1998). The Sexual Mutilations book covered the globe and included the United States in their survey. It was not solely the human rights of others; it was also the human rights of Americans. I learned a great deal I did not know or notice prior to reading the book. For example, interviews with people in both Africa and the United States who accept sexual mutilations claim that their respective sexual mutilation practices are minimal, painless, beautifying, medically indicated, hygienic, prophylactic, sexually improving, universal, medicalized, and harmless. Both excised African women and American men are reluctant to believe they have lost anything— regardless of the amount of tissue lost. For human rights activists, circumcision represents a violation of the fundamental human rights to autonomy, security of the person, physical integrity, physical and mental health, and self-determination. Female sexual mutilation is practiced in twenty-two countries. Many of these countries are Arab or Muslim; male sexual mutilation is practiced by one billion Muslims, three hundred million Christians, and sixteen million Jews. But the chapter on the institutionalization of involuntary sexual mutilation in the United States was the most enlightening. As early as 1845, insanity was cured by excision of the external organs of women, with similar practices for men. It became a preferred treatment for masturbation, epilepsy, prevention of syphilis, hernia, bad digestion, inflammation of the bladder, hip joint disease, curvature of the spine, and more (see, e.g., Feibleman and Sheehan 1997). Sexual mutilation was used to cure paralysis in girls. It became moral hygiene. From 1914 on there was a crusade for mass involuntary circumcision, which became a busi-

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ness. Justifications continued to elaborate—a cure for frigidity, for urinary tract infection, prevention of AIDS, cervical cancer of the female, penile cancer—and discarded foreskins are sold to bio-research labs and transnational corporations. The point of the historical treatise was to indicate that when masturbation was the hysteria, then epilepsy, then sexually transmitted disease, then cancer, then HIV—in the name of science, sexual surgery continued. What the contemporary situation is we cannot grasp. In casual conversation, an administrator of the University of California, Berkeley, informed me that she had had sexual surgery at seventeen because her doctor recommended it would make her more sexually attractive to her husband. The same doctor had her bind her breasts rather than nurse her babies for the same reason (see also Scheper-Hughes 1991). At the moment, it’s the doctors and the nurses who are opposing circumcision as an iatrogenic epidemic—an epidemic caused by doctors, sustained by the invention and proliferation of alleged medical reasons— and as each medical reason is scientifically disproven, new reasons for circumcision are quickly invented. Gender cannot be considered in isolation, and it cannot be essentialized. The approach needs to be multidimensional so that it can be humane. The Ashley Montagu Resolution to End the Genital Mutilation of Children Worldwide is a petition to the World Court, The Hague. What is indicated by the abovementioned sexual surgery example is a model for bridging the gap between them and us, between the ideal and the real, a way to reduce positional superiorities, a way by which human rights activists neither need to use culture as a shield to protect practices that violate women’s human rights, nor do they need to use human rights as a weapon of moral imperialism to oppress other communities and ways of life. During the Persian Gulf War, I actually heard people say “Bomb ’em—those people do not know how to treat their women,” or “Look what they did to the Kurds—bomb ’em!”

Human Rights and Commercialism There is one last issue that I would like to mention in regards to women and human rights. Human rights have been conceptualized within the national and international arenas, in both formal and informal contexts. The state has been highlighted from the beginning, so too in the second generation the private domestic and work context. Nowhere have I heard a sustained examination of the role of an expanding and penetrating mercantile system, which itself promotes mutilation justified by “it’s her

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choice.” Choice, as I have written elsewhere, is a complicated concept that needs to be unpacked, and many feminists have worked on exactly that in the area of standardized beauty concepts (Nader 1997). Well over a million women in the United States have had silicone-gel breast implants— 80 percent for purposes of breast enlargement (Coco 1994). How would we explain to a group of African human rights activists, who see such activity as mutilation, why this surgery happens? How would we make people from other cultures understand the connection of a woman’s breast size and her self-confidence, personal wellbeing, and social worth when it appears to the Africans as a form of insidious indoctrination, a patriarchal colonization of the female mind and body, an unnatural phenomenon? As we all know the beauty industry is well organized; there is a good deal of money at stake. Prominent messages in their commercial beauty images are of youth, thinness, large breasts, European facial features, and passivity. Also sold is the promise of self-improvement by mass dissemination of the official beauty images. What one writer called a saturation bombing of women’s psyches leaves little room for the realities of physical existence. In sum, the commercial images of the model female represent the best beauty propaganda that money can buy, encouraging women to meet the requirements through surgery: face-lifts, eye-lid surgery, collagen injections, nose jobs, liposuction, and various forms of breast surgery. The beauty industry’s insecure consumer becomes a patient, a deformed beauty invalid. Her social illness, ugliness, can only be cured with a scalpel. The key role of the plastic surgeon is to diagnose small breasts as diseased (a constructed disease called hypertrophy), and to prescribe treatment or cure—the recreation and construction of the “official breast.” It is not uncommon to find plastic surgeons advertising “body sculpting,” but the focus has been on the women’s breast. Understanding silicone-gel breast implants in the U.S. requires exploring patriarchy, business marketing, and organized plastic surgery. The healthy female breast conceptualized through the rubric of lack results in the creation of the “official breast.” Does this example constitute the violation of women’s human rights? Ask the women who suffered serious medical complications, or ask the African women. In the practice of both circumcision and breast augmentation, mutilation is done for her and not to her, for the re-creation of the female appearance. The operation on the female breast in America holds much of the same social meaning as does sexual mutilation in Africa. In both places the choice to have reconstructive surgery was determined outside the individual, in our country as a result of the commercialization process, whereby woman is mechanized, medicalized, and merchandized.

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If for some people the issue of breast implants is in the grey area in terms of human rights abuses, perhaps the commercialization of life itself might be considered clearly within the realm of human rights. Ask John Moore, the origin of the “Mo” cell line, subject of United States Patent #4,438,032. “How does it feel to be patented? To learn all of a sudden, I was just a piece of material? … It’s so beyond anything you can really conceive of. There were so many issues involved. … There was a sense of betrayal, I mean, they owned a part of me that could never be recovered” (see Burrows 1996). John Moore brought suit in 1984 against his doctor, the regents of the University of California at Los Angeles, and the pharmaceutical companies that licensed the “Mo” cell line. In 1990, the California Supreme Court ruled that John Moore’s doctor has breached his fiduciary duty to John by not revealing a research and financial interest in John’s cells. However, the court also denied John Moore’s claim to ownership of the cells removed from his body, arguing that research on human cells plays a critical role in medical research. And so also goes the story about the U.S. attempt to patent the cell line of a Guaymi Indian woman. Are these human rights issues? Whatever your answer, such cases argue for the inclusion of corporate human rights abuses in the larger equation, in the larger frame of reference. How can we speak about genocide in Africa without speaking about the arms industry? Indeed how can we speak about Iraq without considering the role of the military-industrial complex? The commercialization of life helps to trivialize life. So does the need to test weaponry. We need to take suffering seriously. In Texas, is Governor George Bush’s recent contract for the Sierra Blanca nuclear waste dump, especially targeted for a low-income, predominantly MexicanAmerican community, a human rights issue? It lies sixteen miles from the Rio Grande and above an aquifer (Nation, 9 March 1998, p.19). One of my colleagues at Berkeley says no because the primary purpose is not to destroy Mexican-American lives; that is only a byproduct.

Concluding Remarks A more inclusive notion of human rights serves to reduce hypocrisy by including us as well as them and by bringing us closer to root causes. Americans may not count President Carter as among our most illustrious presidents, but people of other nations do because at the least he gave symbolic importance to human rights in foreign policy. That was only a beginning, because such symbolic capital only works if we are evenhanded. In short, the credibility of a human rights spirit requires that

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we look at ourselves as well as those we seek to help. Credibility also requires a greater awareness of root causes, and that will require us, among other things, to look particularly at industrial sales at home and abroad. Globalization need not have predominantly negative connotations; we know that from historical examinations of earlier pre-European globalization efforts (Abu-Lughod 1989). But a great leap forward in human rights achievement will require person-to-person, group-to-person, or group-to-group work across the globe to be grounded in a knowledge of power distribution and actions resulting from power inequities both at home and abroad.

Acknowledgements An earlier version of this paper was first presented in Houston, Texas, at the Rothko Chapel on 7 March 1998. The author acknowledges with gratitude critical help from many colleagues, including especially Dr. Alison Renteln, whose impressive knowledge of the human rights literatures launched this work; Rania Milleron, for her input on health and human rights issues; and Suzanne Calpestri, for her insightful attention to human rights material relevant to anthropological interests.

NOTES This chapter was originally published as: Laura Nader, “In a Woman’s Looking Glass – Normative Blindness and Unresolved Human Rights Issues,” pp. 61–82. In Horizontes Antropológicos 10 (1999). Special Issue on “Cidadania e Diversidade Cultural”. © 1999 Horizontes Antropológicos, originally published in Portuguese. Reprinted with permission of Horizontes Antropológicos.   1. Now out of date for original publication.

REFERENCES Abu-Lughod, Janet. 1989. Before European Hegemony: The World Systems A.D.1250–1350. New York: Oxford University Press. Berger, Jason. 1981. A New Deal for the World: Eleanor Roosevelt and American Foreign Policy. New York: Social Science Monographs, Columbia University Press. Burrows, Beth. 1996. “Second Thoughts about U.S. Patent #4, 438, 032.” Genewatch 10 (2–3): 4–7.

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Coco, Linda Elizabeth. 1994. “Silicone Breast Implants in America: A Choice of the ‘Official Breast?’” In Essays on Controlling Processes, ed. L. Nader. Special issue, Kroeber Anthropological Papers 77: 103–32. Denniston, George C., and Marilyn Fayne Milos, eds. 1997. Sexual Mutilations: A Human Tragedy. New York: Plenum Press. Faiz, Abbas. 1997. “Health Care under the Taliban.” Lancet 349 (16 April): 1247–48. Falk, Richard. 1992. “Cultural Foundations for the International Protection of Human Rights.” In Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, 44–64. Philadelphia: University of Pennsylvania Press. Feibleman, Peter. 1997. “Natural Causes.” DoubleTake Magazine (winter). Heggenhougen, H. K. 1997. “More than Just Interesting: Anthropology, Health and Human Rights.” Manuscript. Dept. of Social Medicine, Harvard Medical School. Boston, MA. Hernandez-Truyol, Berta E. 1996. “Women’s Rights as Human Rights—Rules, Realities and the Role of Culture: A Formula for Reform.” Brooklyn Journal of International Law 21 (3): 605–77. Hoff-Wilson, Joan, and Marjorie Lightman, eds. 1984. Without Precedent: The Life and Career of Eleanor Roosevelt. Bloomington: Indiana University Press. Hoskins, Eric. 1997. “Public Health and the Persian Gulf War.” In War and Public Health, ed. Barry S. Levy and Victor W. Sidel, 254–77. New York: Oxford University Press. Kuenyehia, Akua. 1994. “The Impact of Structural Adjustment Programs on Women’s International Human Rights: The Example of Ghana.” In Human Rights of Women: National and International Perspectives, ed. Rebecca J. Cook, Rebecca, 422–36. Philadelphia: University of Pennsylvania Press. Lash, Joseph P. 1972. Eleanor: The Years Alone. New York: W. W. Norton & Co. Mann, Jonathan M. 1996. “Health and Human Rights.” BMJ 312: 924–25. Morsy, Soheir A. 1993. “Bodies of Choice: Norplant Experimental Trials on Egyptian Women.” In Norplant: Under Her Skin, eds. B. Mintzes, A. Hardon, and J. Hanhart, 89–114. Amsterdam Eburon. Nader, Laura. 1997. “Controlling Processes: Tracing the Dynamic Components of Power.” Current Anthropology 38 (5): 711–37. Nader, Laura, and C. Jay Ou. “Idealization and Power; Legality and Tradition in Native American Law.” New Directions in Native American Law. Special issue, Oklahoma City University Law Review 23 (82): 13–42. Nashashibi, Salwa, Laura Nader, and Etel Adnan. 1994. “Arab Women Artists.” In Forces of Change: Artists of the Arab World, 1–36. Washington, DC: The National Museum of Women in the Arts. New York Times. 1997–98. “Court Backs Egypt’s Ban on Mutilation,” A3, 29 December 1997. “Freedom from Mutilations,” A16, 30 December 1997. “Doctors Advocate Pain Relief for Circumcision.” CT, 30 December 1997. “Pain and Circumcision,” Letters to the Editor, A28, 3 January 1998.

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Renteln, Alison. 1990. International Human Rights: Universalism versus Relativism. Newbury Park, CA: Sage Publications. Rodriguez-Trias, Helen. 1992. Women’s Health, Women’s Lives, Women’s Rights. American Journal of Public Health 82 (5): 663–64. Romany, Celino. 1994. “State Responsibility Goes Private.” In Human Rights of Women: National and International Perspectives, ed. R. J. Cook, 90. Philadelphia: University of Pennsylvania. Said, Edward W. 1978. Occidentalism. New York: Vintage Books. Scheper-Hughes, Nancy. 1991. “Virgin Territory: The Male Discovery of the Clitoris.” Medical Anthropology Quarterly 5 (1): 25–28. Sheehan, Elizabeth A. 1997 “Victorian Clitoridectomy: Isaac Baker Brown and His Harmless Operative Procedure.” In The Gender/Sexuality Reader: Culture, History, Political Economy, ed. Roger Lancaster and Micaela di Leonardo. New York: Routledge.

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E c ha p te r 1 8

Crime as a Category

It is a crime to kill a neighbor, an act of heroism to kill an enemy, but who is an enemy and who is a neighbor is purely a matter of social definition. —E. R. Leach

Introduction In a succinct article titled “Toward A Radical Criminology,” published in the first edition of The Politics of Law: A Progressive Critique, William Chambliss (1982) juxtaposed the traditional question that criminologists ask, “Why is it that some people commit crime while others do not?,” with the sociology of law question, “Why are some acts defined by law as criminal while others are not?” He explains the reappraisal of the leading question as due to the 1960s civil rights demonstrations, anti-Vietnam war protests, and the media reporting on blatant criminality by political leaders and giant corporations. These, among other happenings, forced a reappraisal of criminology’s focus on the individual and caused what Chambliss called a “paradigm revolution,” encompassing the more broadly liberal understandings of criminal justice of the 1950s and 1960s. In his paper, Chambliss notes that what is criminal changes over time and that the political and economic forces behind the creation of criminal law is revealed in history. He gives some examples: “Vagrancy laws reflected the tensions in precapitalist England among feudal landlords, peasants, and the emergent capitalist class in the cities; … rights of rural village dwellers to hunt, fish, and gather wood were retracted and such activities became acts of criminality punishable by death as a result of the state’s intervention on the side of the landed gentry in opposition to the customs, values, and interests of the majority of the rural population” (Chambliss 1982, p. 233). At the same time, Chambliss is careful to take exception to the conflict theorists who argue that law is simply a result

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of ruling-class activity. As an example he cites factory health and safety legislation that criminalizes an owner’s refusal to comply. Only a few years later, the second edition of The Politics of Law leaves out Chambliss’s dramatic rethinking of criminology and includes a new piece by Elliott Currie called “Crime, Justice, and the Social Environment.” Moving away from the constructivist approach that Chambliss chronicled for criminology, Currie speaks about the emergence of a conservative revolution in criminology, a revolution that defined crime as largely a criminal justice problem. He dates the beginning of this conservative revolution as appearing roughly from the beginning of the 1970s. Crime in the conservative view was caused by insufficient deterrence—that is, insufficient punishment. The major result of this conservative revolution, according to Currie, is the rapid rise of incarceration in the United States (and the privatization of prisons, I might add). Currie begins his 1990 version with the statement, “No one should doubt that violent crime constitutes an American epidemic. Crime … (has) brought tragedy and devastation to American cities, especially to poorer and minority communities” (p. 294). Indeed, the Sentencing Project in Washington, D.C., has taken a look at blacks and crime. Their findings are startling. One in three black men in their twenties are behind bars or elsewhere in the justice system (Gest 1995). By some calculations the United States imprisons black males at four times the rate of South Africa. In his piece for the 1998 version of The Politics of Law, “Crime and Punishment in the United States: Myths, Realities and Possibilities,” Currie’s (1998, p. 381) introductory sentence is even more dramatic: “The United States imprisons its population at a rate from five to fifteen times that of other advanced industrial societies, yet we continue to suffer the worst levels of serious violent crime in the developed world.” He continues: “More people are murdered in the city of Los Angeles with 3.5 million people than in all of England and Wales, with 50 million.” Currie’s critique captures only part of the picture and returns to an earlier position that portrays crime as a social, not a cultural, problem. In this article he is not concerned with crime as a category. Little is said about crime in the corporate arena—the powerful destabilizing forces of rampant corporate crime—or the fact that the same forces behind prison privatization are now influencing criminal justice policy, in one case lobbying that two strikes ought to result in lifetime imprisonment, rather than three, which would further inflate the numbers of people imprisoned.1 In both the 1990 and 1998 versions of Currie’s articles the emphasis is on reducing inequality, lessening poverty, developing family-friendly public policy, and so forth. So much for paradigm revolutions. It appears that we are now back to business as usual.

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In 1990, I wrote an article on “The Origin of Order and the Dynamics of Justice.” In it I noted that throughout American history, corrective justice discourse, which values punishment, has often been found in opposition to distributive justice discourse, in which all individuals get their fair share. Proponents of corrective justice call for more stringent laws, stronger enforcement, and harsher punishments to prevent disruption of the social order, while their opponents champion social justice causes as the preferred means for creating order. Together these two views have dominated popular thought on crime, promoting an oscillation between government programs to cure law and order problems on the one hand and government programs to address questions of social injustice on the other. There has been little room for alternative thinking. In my paper I argued for a conceptual brake that would disturb this oscillation, and maintained that solutions grounded in order without justice, or social justice without profound social transformations, were destined to fail. The paper argued that both of these ways of thinking about social order have proceeded without examining the ways in which the misbehavior of corporations are excluded from discussions of crime, for instance. I argued that both the law and order people and the law and justice people use language that is supportive of the status quo, and that to address issues of “crime” requires returning to first principles, much as Chambliss attempted to do in his 1980 paper. Toward this end, I return in this present work to the anthropological frame that emanates from ethnographic research in numerous world sites over time. The issues that have troubled sociologists and criminologists have also worried anthropologists, though the direction of anthropological thought has been steadier over time. Repeatedly, and no matter where anthropologists have worked in recent times, the question of native categories forces us to address the two powerful categories of Western law— “civil” and “criminal”—that are ipso facto part of our cultural baggage when we go elsewhere to work. The development of these categories in European cultures is related to the rise of the nation-state and the need for the state to justify control and power over its citizens. But when anthropologists work in non-Western contexts, we cannot simply accept the categories civil and criminal as given. In developing nation-states they are clearly cultural constructs, the legacy of a specific Western tradition. In an article on comparative criminal law and enforcement (Nader and Parnell 1983), we concluded our essay of anthropological works with the same point: “The record on world societies has well illustrated that crime is a cultural construct,” and the E. R. Leach (1968, p. 27) quote at the start of this piece indicates widespread anthropological agreement. Although crimes, from the Western perspective, are violations of the law, violations

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of the law from the cross-cultural perspective are not necessarily crimes. The concept of crime, an idea related to Western jurisprudential history, becomes problematic when applied cross-culturally in societies with little or no “government.” Presented with a society lacking in central authority, codes, courts, and constables, Bronislaw Malinowski’s (1926) definition of crime was “the law broken,” while A.R. Radcliffe-Brown (1933), a contemporary of Malinowski who had been influenced by Roscoe Pound’s sociological jurisprudence, did not find terms such as civil law and criminal law useful. For all their differences, both Malinowski and Radcliffe-Brown viewed crimes as acts that cause the entire community to react in anger, engendering a collective feeling of moral indignation. In more recent work, most anthropologists do not define crime or attempt to use the distinctions between crime, tort, derelict, sin, and immorality. That is, they eschew attempts to define crime in a universal manner. Their approach is particularistic, since categories in some societies may bear no resemblance to standard Western ones. On the other hand, it is also true that today all anthropologists work within state societies. Therefore, it is very likely that some behaviors anthropologists study will have been defined in criminal law as acts against the state. At the same time, anthropologists realize that state law and policy may not reflect the categories of thought of a socially differentiated population of citizens. In other words, political encapsulation brings into contact different systems of right and wrong and different ideas about how to treat wrongdoers. In an elegant description of present-day examples in Indonesia and in Papua New Guinea (PNG), David Hyndman (1994) illustrates how a state, faced with a debt crisis, favors investors who plunder natural resources and cast indigenous peoples in the role of subversive criminals. Anthropologists may view such “criminals” in a different light, as people taking up arms to protect their cultural and ancestral homelands, and resist capital development. The Indonesian state and the PNG, in collusion with transnationals, entered New Guinea to mine gold and copper. Hyndman (1994) calls this “economic development by invasion.” The cost of resisting invasion was heavy. Local peoples fought the foreign presence by blockading airstrips and blowing up pipes running from the mines; lives were lost and property was destroyed. Forced resettlement of indigenous populations often followed; local people became trespassers in their own land. Hyndman documents one invasion after another and notes ironically that Third World colonialism has replaced First World colonialism. Those people who resist notions of private property linked to capitalist development are considered criminals. Not so different reasons for resistance are closer to home in the fight for health and safety in the United States.

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A Civil Action: Categorizing Criminogenic Acts Criminogenic: “producing or leading to crime or criminality.”2 Traditional tort cases include confrontations such as assault and battery or multivehicle collisions caused by intentional or negligent actions. Mass tort cases usually include a large number of victims, possibly even millions of claimants, such as in the Agent Orange herbicide case.3 Mass toxic tort law is a relatively recent development in American law and is associated with growth in the industrial production of chemical substances in the last half of the twentieth century (Bloomquist 1996). Asbestos litigations and hormones such as diethylstilbestrol are examples of early toxic tort cases, each of which became celebrated in its own way. More recently, a nine-year legal saga that began in 1982 in Woburn, Massachusetts, has caught the attention of the public. The case focused on the period from 1960 through 1982, when children in Woburn, Massachusetts, exhibited an increase in adverse health effects. Jonathan Harr (1996) is the writer who chronicled the Woburn case in the context of the workings of toxic tort litigation. His book, A Civil Action, is the story of how a group of families in Woburn became aware of a serious public health problem and what they wanted to do about it in relation to law. The story starts with one family whose three-year-old was diagnosed with leukemia and taken to Boston Children’s Hospital, and chronicles how over a short period of time the mother of this child realized that four children from her neighborhood were also diagnosed with leukemia. A newspaper article about the contaminated state of new town wells encouraged the mother and a local clergyman to organize a community meeting, where it was learned that there were at least twelve cases of leukemia in Woburn. Such a clustering of cases was called to the attention of the Center for Disease Control and Prevention. Thus began a search for the cause of the leukemia. The families suspected that the Woburn plants of two corporations, W.R. Grace and Company of New York, and Beatrice Foods Company of Chicago, had contaminated two municipal wells. Five of the families hired a Boston personal injury attorney; and, as the story unfolds, the reader begins to appreciate how difficult it is for plaintiffs to try to recover damages in a toxic tort case brought against corporate interests. The plaintiffs had the burden of proving that the contaminants in the well (specifically trichlocroethylene, or TCE) caused the children’s leukemia, a connection that had not yet been scientifically proven. Harr’s description of this extended case centered on the lead lawyer, who enlisted numbers of experts in cancer epidemiology, hydrogeology, toxicology, geology, neurological studies, and more. The basic scientific research was being carried out while the case was being tried. The story

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highlights issues of class, culture, power disparities, awakened communities, and the place of a lawyer’s perseverance and performance in a case against companies like Grace and Beatrice, both powerful entities eager to limit notions of corporate accountability. What originally looked like a medical problem became a public health problem and then a problem of the law. Complexity also became a problem in this case, as it is in other mass tort trials. The trial was segmented; part of the managerial judge’s movement for economy and time-saving results. The experts refer to the separation of the interwoven issues of a legal case as polyfurcation. Some argue that polyfurcation of trials in complex tort cases could infringe on the Seventh Amendment, a plaintiff’s right to a jury trial: “juries are forced by judicial and legal boundaries to hear only one part of the controversy and their ability to weigh links between the legal elements disappears” (Smith 1998). In the Woburn case, the judge trifurcated the trial such that the link between Grace, Beatrice, and the water, as well as the link between the water and the injuries, were presented separately, making it difficult for the jury to comprehend the story as a whole. The procedural rule permitting separation of issues clearly has impacts in relation to the outcome. In the Woburn case, keeping contextual information from the jury made it difficult for jurors to construct a valid picture of the entire case, a result that some legal experts argue “forces rational decision-making in juries while avoiding sympathetic or prejudicial decision-making” (Smith 1998, p. 34). Sandra Smith (1998, p. 34) quite correctly calls this “paternalistic treatment of jurors [which] leads to increased separation of issues.” Particularly because corporate interests have increased their attacks on the American tort system in the 1990s, Harr’s story has current relevance. Contrary to public assertions about greedy litigants, this case makes one realize how difficult it is for aggrieved parties to win a case, even when litigants incur personal costs that could not have been higher. The costs of proving corporate wrongdoing are enormous. Besides, in this case, the plaintiffs most of all wanted an acknowledgment by the companies of the wrong they had done, and a personal apology to the families by the head CEO of one of the companies. Ultimately, Beatrice won, and W. R. Grace settled for eight million dollars. Each family received initially $375,000 and another $80,000 after five years, from which their expenses and legal fees had to be paid. After the case was settled, the Environmental Protection Agency (EPA) issued a report citing Grace and Beatrice as responsible for contaminating the aquifer that fed the Woburn wells, and later the Woburn well field was slated for cleanup and placed on EPA’s Superfund list. EPA also filed suit against Grace and Beatrice to collect the cost of the cleanup. But the

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bottom line in this case was that families filed a suit, a civil suit, against Grace and Beatrice because their children had been poisoned by the chemicals that had gotten into their water supply. Why was this a civil complaint? It could have been criminal—an offense against the state. But in the Woburn case, the State of Massachusetts did next to nothing beyond closing the wells that were the source of the contaminated water. The EPA charged one of the companies, but the State of Massachusetts prosecuted no one. That the Woburn case could have been criminally tried was proven in two other recent Massachusetts cases (Alexander 1998). In Massachusetts v. Feingold, a metals company and its chief executive officer entered guilty pleas in November 1997 to charges of assault and battery with a dangerous weapon. Consolidated Smelting and Refining Company and its chief executive were indicted in the Massachusetts Superior Court in Worchester County.4 They were charged with the criminal act of exposing company employees to lead dust and other hazardous chemicals. State environmental inspectors found that surfaces inside the company facility were covered with lead dust, and federal inspectors found the concentrations of airborne lead more than two hundred times the United States government limit of permissible exposure. The company and the executive officer pled guilty to, among other charges, violating the state’s Clean Air Act and illegally transporting hazardous waste. This case was the first of its kind in Massachusetts, but it sent the message to workers and employers that the boundaries between the civil and the criminal category were changing, and that pursuing criminal prosecutions against corporations could reduce the likelihood of workplace deaths. The stigma that accompanies a criminal prosecution is a more powerful deterrent than a monetary judgment, which may be deducted from taxable income. In a second case, Massachusetts v. Hersh, yet another metals company charged with assault and battery was accused of exposing workers to waste oil and three chemical solvents, two of which had been cited previously in the Woburn case. In this case, both the company and the executive officer pled guilty to disposing hazardous waste in a manner that could endanger human health. Ultimately, the executive officer was sentenced to one year of probation and ordered to perform community service. There have been a dozen or so such cases from Massachusetts and elsewhere (Mokhiber 1996). In “Operation Ill-Wind,” forty-six executives and thirteen major defense corporations were convicted of defense procurement fraud. In addition, during the latter half of the 1990s, major firms such as Exxon, International Paper, Texaco, Nabisco, Weyerhaeuser, and Ralston-Purina have all been convicted of environmental crimes. Most recently, investigation of the tobacco and gun industries

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has illustrated how law can help expose the roles of corporate negligence and profit seeking in the creation of public health hazards. The Corporate Crime Reporter 5 reports a string of corporations and executives that have been prosecuted for workplace deaths in recent years. The examples start in 1977 with the case of a Massachusetts fireworks company convicted of killing three workers after an explosion in an overloaded warehouse, and includes the case of Morton International and two of its supervisors who were to stand trial on charges of manslaughter in connection with the 1994 death of a worker who fell through a sixty-ton pile of salt and was buried alive. An earlier example from 1992 involves the owner of a North Carolina chicken-processing facility who pled guilty to charges of involuntary manslaughter and was sentenced to twenty years in prison for locking the escape exits from a chicken house that caught fire, resulting in the deaths of twenty-five people. Susan Alexander (1998), a Chicago lawyer, compares these cases to the Woburn case and asks why the difference in what she sees as a quantum leap in the frequency of state and federal criminal cases against polluters, particularly in relation to hazardous workplaces. She cites the accumulation of new state and federal legislation regulating hazardous materials that began in the 1970s. She also notes that prosecutors, in addition to charging polluters with violations of environmental laws, are increasingly charging corporate defendants with assault and battery with a dangerous weapon. Alexander points out that such offenses have their origin in the common law, but persists: “Why didn’t prosecutors file charges like this decades ago?” In response she cites complaints by workers, who are often the first to complain about hazards at the workplace. Alexander reports a study, funded by the Heinz Foundation, of a hundred women workers in which one in four reported feeling that her health was endangered at work, while 28 percent were concerned about hazardous materials. She is correct in noting that legislation protecting whistle-blowers has probably encouraged workers to voice their complaints. The media has focused attention on hazardous pollution, and the public is increasingly outraged by corporate wrongdoing in relation to contamination of the air and water. What Alexander speaks about may be a quantum leap in the United States, but in societies where communities are in closer touch with issues of survival, the notion that people who endanger the public health of communities should be held responsible is much more widespread. In such places, the idea of public accountability is equally strong. Thus assertions that the pendulum has swung too far in the direction of protecting the environment appears ludicrous in comparative perspective. One example follows.

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Small Democracies El respeto al derecho ajeno es la paz.6 It has always interested me to read northern discourses about the need to export democracy to the rural areas of Latin America, because small faceto-face communities, especially indigenous communities, often practice a good deal of democracy. In my study of local government and the practice of law among the mountain Zapotec (Nader 1990) I chronicled many of these village democratic practices. Early in my fieldwork I remember being curious about what these mountain Zapotec thought was a serious legal case as compared to something less serious. For example, it struck me as counterintuitive that theft should be considered as serious as killing someone. Yet for the Zapotec it was, particularly if the thief was stealing food harvest. At the time my investigation proceeded along two lines—the collection and comparison of cases and what was done about them, and interviews with the judges or decision makers. It might be useful for me to reiterate some of what was revealed by these modes of exploration. The first interview that I conducted with an experienced presidente proceeded in the usual question and answer form. “Can you tell me of a serious case you had?” The presidente then began to tell me about the man who robbed a water drum (Nader 1990, p. 99). When the man was formally accused of stealing a water drum, he denied the charge. When confronted with the evidence, however, he had to pay a stiff fine, and soon thereafter he left the village and moved to the state capital. The man accused of theft was a well-to-do fellow who did not need to steal for money, as the presidente said. He stole, the people thought, for ambition; and, after being jailed for one night and after paying his fine, he could not face his neighbors, and so he left. When I asked if there were other serious cases besides theft, the presidente told about the altercation he had with the village police who wanted him to levy heavy fines against those committing crimes in the streets. As the presidente said, “I saw that the offenses were not very serious, so I paid little attention to them (the police). I fined the defendants according to what they had done.” And what had they done I asked? “They had fought, yelled, drank beer … or did nothing more than make noise.” The police wanted the presidente to put them in jail and fine them heavily, but the presidente refused. The next day the police took the case to the higher-level state district court; their complaint was against the presidente and asked the judge to give them guarantees. It was a dispute over who had authority—the police or the presidente. The presidente explained, “They wanted me to jail these men because they were drinking

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beer. They wanted me to follow them, to show me, but I did not want to do so. … They became angry” (Nader 1990, p. 101). Finally, following up on the question about why theft was so serious, I asked: “Is it more serious than killing?” His response: “About the same, because if you would steal millions of pesos, it is like killing these people. You leave them without clothes” (Nader 1990, p. 104). In one of the first pieces I published on the Zapotec (Nader 1964), I used the range of sanctions as an index of seriousness of the charge. Low-ranking sanctions were applied to offenses such as street fighting, drunkenness, disturbing the peace, nuisance to the court, failure to comply with municipal obligations, and other such matters. More serious sanctions were meted out to those accused of abandonment, abduction, assault and battery, attempted murder, slander, theft, boundary trespass. One might also include among the more serious complaints abuse of authority, contamination of drinking water, and problems over public use of public spaces. For these Zapotec people, endangering the interests of the Commons is among the most serious cases that are referred to the court. What would the Zapotec say about Woburn? Most likely they would debate among themselves the charge that two groups contaminated the drinking water and that this resulted in eight poisoned children who died. All sorts of facts would be admissible because context is critical to decision-making. It would probably not be difficult to find out whether the two accused groups were guilty because, in a small community, it is hard to hide one’s business. The case would likely be about murder. But, despite their sophisticated legal reasoning, the Zapotec would be in the same place or worse than the families of Woburn should a modern case of pesticide poisoning actually occur. First, the case could not be heard in the village; it would be taken to the district court or Oaxaca City, the state capital. Second, the accused companies might not be national companies; they could be international or multinational and beyond the law. Finally, small agricultural communities would not have the resources to pursue such litigation even if there were laws protecting them, and a Mexican version of the EPA. The story of such an attempt to bring multinational corporations to justice would be brief, which gives us some sense of the incentive needed to get to where we in the United States are in tort litigation cases. If one wants to chart the evolution of tort litigation, and especially mass toxic tort cases, it would be a story of the elongation of the distribution chain in which latency and the time dimension plays a large role—both the time that it takes for harm to surface and the time that it takes for scientific evidence to catch up with the uncovering of public health harms. As depressing as the story of Woburn is to many American readers, the United States is probably the leading industrial

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country in the development of tort litigation. Yet the challenge here, as in any Western legal democracy, returns to the challenge of crime as a category. Is a criminal charge more effective than a civil suit? Is it easier to prosecute? And what about differences in burden of proof between civil and criminal cases?

Modern Law and the Quest for Responsibility: Two Ironies There are two ironies relevant to the subject of crime as a category. The first involves the stigmatization of the poor and powerless; the second pertains to the incivility involved in the pursuance of a civil complaint. In the first instance we are bombarded with statistics about street crime. Yearly, the Federal Bureau of Investigation (FBI) publishes its Uniform Report for Crime in the United States. The report documents murder, robbery, assault, burglary, and other street crimes, while ignoring corporate and white-collar crimes such as occupational homicide and life-harming industrial contaminations. Russell Mokhiber (1996), editor of the Corporate Crime Reporter, points to evidence that indicates that crimes committed by people of means cost the nation about fifty times as much per year as the combined cost of burglary and robbery. He was quoting from a report by a professor of accountancy at Brigham Young University. He goes on to note that the FBI publishes a homicide rate for street crime that is only half as high as the numbers the Labor Department reports for occupational diseases. Mokhiber (1996) notes that “on-the-job homicides are some of the most heinous crimes corporations could be charged with. Yet corporate violence that results in worker deaths rarely provokes criminal prosecutions, either at the state or federal level.” Mokhiber also quotes a number of Washington reporters who declare that young black males commit most of the crimes in Washington, DC. It is because the stigmatization that accompanies the criminal category is so powerful that we have had such powerful lobbying against the criminal category for certain acts and for the “violation” category instead, something Edwin Sutherland (1949) wrote about many years ago. From this flows another irony that pertains to the pursuance of justice. It has been observed that those who commit corporate misdeeds are commonly those who, unlike all other criminal groups in the United States, have the power to define the law under which they live (Mokhiber 1996, p. 14). Mokhiber uses the federal auto safety law as a case in point, noting that the law carries no criminal sanctions. The auto industry lobby has for years blocked the passage of laws that would add criminal sanctions to corporate offenses, and at the same time they blocked

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the law requiring air bags in all new vehicles. Estimates are that almost three Vietnam walls worth of Americans died in auto crashes since the early 1970s because the auto companies thwarted all efforts to develop and legally mandate the air bag in American cars (until the air bag law was passed in 1991). Mokhiber (1996) also notes that even if there were criminal sanction laws, the problem of prosecution would be central because again, unlike most other criminal groups, powerful corporations can influence prosecutors not to bring criminal charges. The social science literature on prosecution is replete with references to unacknowledged class and racial biases, poorly drafted laws, political deals, and incompetence as factors that mitigate against the criminal prosecution of the powerful. Mokhiber (1996) calls the problem “law enforcement obscenity” and points out that someone who harasses an animal gets more time than someone who violates federal worker safety law. He explains that “the maximum criminal penalty for harassing a wild burro on federal land is one year in jail, and seven people have been jailed for this crime” (Mokhiber 1996). Clearly, use of the criminal category, application of criminal sanctions, and apparently, the public’s general perception of the seriousness of an offense, all are mediated by the diacritics of power in the relationship between the perpetrator and the victim.

Chemical Rights “Our administration of justice is not decadent. It is simply behind the times.” 7 An increase in incidents that seriously threaten the public good accompanies the growing problem of industrial chemical contamination. Anthropologists encounter such cases in the places where they have traditionally been working. For example, Canadian studies have shown that the Inuit people on Broughton Island, which is part of the Baffin island group in Canada’s Arctic Northwest Territories, have the highest levels of PCB found in any human population.8 Other Baffin Island Inuit shun the villagers as the “PCB” people, and refuse to intermarry, as if they themselves were clear of contamination. The victims of corporate irresponsibility, rather than the perpetrators, are banished and shunned. Industrial chemicals not only contaminate, they also change human biology and transform social and cultural forms. Chemicals have merged with human qualities in other ways as well. Here in the United States, the law reflects anthropomorphic qualities chemicals have acquired. For instance, under United States law, chemicals have rights (Coco 1998). That chemical rights precede human rights

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is indicated in numerous Supreme Court cases dealing with constitutional law and industrial rights. A chemical is assumed harmless until proven harmful. Chemicals enjoy certain legal privileges and protections under the Toxic Substance Control Act enacted on 11 October 1976. The EPA charges the Office of Pollution Prevention and Toxics with the responsibility of proving that some chemicals present an “unreasonable risk” to human health or the environment. The cumbersome procedure for making such judgments, a process that entails comparing risks with supposed economic benefits, invites negotiation. According to one study of “chemical rights” (quoted in Coco 1998, p. 16), “The EPA representatives do admit that industry can negotiate the entire agreement. … The EPA comes to the table asking for things they know that they cannot get and same with industry. It’s just like negotiating a settlement in a tort case.” The larger story is about toxic deception or how “the chemical industry manipulates science, bends the law, and endangers your health” (Fagin and Lavelle 1996). Coco concludes that “regulation of corporate behavior under the TSCA (Toxic Substance Control Act) has been for the most part turned on its head. The rules are working to protect chemical companies not to protect the public” (Coco 1998, p. 38). She advocates the overturning of the chemical rights doctrine, and the use of public relations campaigns to do so. If industry wants to contain the debate within the language of risk assessment, it should create a user-friendly public database such as the 1998 Environmental Defense Fund–launched Chemical Score Card information service on the Internet. At the moment, however, the general population serves as the laboratory for discovering adverse health and environmental effects.

Discussion In The Growth of American Law, Willard Hurst (1950) sees law as a term of convenience without any precise boundaries, and his Wisconsin external legal history school takes seriously Oliver Wendell Holmes and Roscoe Pound’s call for reconnecting legal to social history (Gordon 1975). Theirs is not an autonomous law, but one that sees law as connected to social structure, administration, economic and political organization, professional habit, or religion. However, the widespread notion of the law as distinctively legal, free from the effects of social stratification and political power, has had a pernicious effect. Perhaps only a nonfiction writer or a good ethnographer could reconnect the legal to the social and cultural as did Jonathan Harr—providing what in another context someone called democratic detail, rather than aristocratic detail. There is

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more to understanding mass toxic tort cases than the conceptual aspects of the adversary process. Other actions by the state, the politicians, the regulators, the propagandists, the harmed, and the harmers are all part of the law-making process; so too is crime as a social category. The internal analyst of law stays within the box of adversariness. The anthropological perspective, along with Willard Hurst, concentrates on interactions between the box and the wider society to explore social context and the social effects of law. Thus while the idea of “equality before the law” obscures the fact that there is rampant social inequality, equality before the law is a legal guarantee for the protectors of citizens from real power differentials that affect or might affect them. The Anglo common law tradition states that legal decisions should be based primarily on legal precedents, which places a tremendous social import to each individual case. Under this interpretation, law is constructed from below, and the legal classification that differentiates criminal from civil cases may be reinterpreted from the point of view of new interest groups. Finally, I should note that this article is not meant to be novel, although its configuration might be. Rather, it is intended to remind us of what we already know, because what we already know is critical to any broadscope understanding of crime in the United States today. Let me delineate the key points. First, the issue of boundaries and power is a key point in any assessment of academic or public policy considerations, one that should not wax and wane with political currents. That crime is a category applied arbitrarily in relation to social configurations expressed in law is illustrated by cross-cultural examination, and long ago accepted as an important finding among anthropologists. As my colleague Nelson Graburn used to say of the Canadian north, “No law, no crime.” Or as in the case cited earlier, environmental laws create new crime categories. The second point relates to category boundaries and the observation that categories change. Where there is serious threat to the public good, as with hazardous work places and health and safety more generally, the charge may be civil or criminal. In spite of the near hysteria about street crime in the United States, new cases may indicate a shift in recognition of the seriousness of corporate and white collar crime, an awareness that extends the popular definition of crime beyond the “street,” thereby raising comparable arguments on deterrence. A third and glaring issue relates to context. The assumption that jurors are not informed by the full context (criminal or civil) and that full context impedes rational decision-making is a subterfuge of the efficiency experts. There is no rationality in the absence of interrelatedness—rather, as we saw in the Woburn case, confusion among jurors who were expected to render a just verdict in a civil action.

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One last issue remains to be addressed at another time—a full history of burden of proof, when it is shared by defendants and plaintiffs, when it is wholly the responsibility of the defendant or the plaintiff and why, especially in relation to the Daubert principle,9 which is supposed to ensure adequacy of the scientific evidence. All of these issues rolled in together comprise a critique of why there is so little tort litigation. Not only does the plaintiff have uphill legal battles as illustrated by numerous cases, but massive campaigns of misinformation contribute to general ignorance about the American tort system—and where it stands in worldwide comparisons. NOTES Originally published as: Laura Nader, “Crime As A Category,” pp. 326–340 from Windsor Yearbook of Access to Justice, Jeff Berreman, ed., 19 (2001).   1. From Jerome P. Mullins, “The Three ‘Strikes [sic] and You’re Out’ Law,” California Criminal Law Observer, 1995–98 (accessed 13 July 2017, http://www .silicon-valley.com/3strikes.html): “In 1994 California voters approved a ballot initiative known as ‘Three Strikes and You’re Out.’ Basically what it means is that people who are convicted of three felonies may end up facing life in prison. The actual ‘law’ has five major moving parts. First there is the ballot initiative (i.e. Proposition 184), then there is there the actual statute that was passed (California Penal Code Section 667 (b) through (i)), and then there are three other code sections that identify the types of violations that count as ‘strikes’ against you.”   From Chris Tozer and Janet Rausa, Facts about the American Criminal Justice System (Chicago: American Bar Association, Division of Media Relations and Public Affairs, 1996):

 What has been the impact of “three strikes” laws on crime and the criminal justice system?    The impact is unclear. The only real research comes from California, because that is the only state that is making frequent use of the law. While at least 22 states and the federal government have enacted three-strikes laws since 1993, the laws in most jurisdictions are drafted much more narrowly than in California, and for this reason, or because they have not seen the need, prosecutors nationwide have not extensively applied three strikes legislation.   How has “three strikes” legislation worked in California?    The vast majority of those sentenced under the law—85 percent—are sentenced for nonviolent offenses. And second and third strike cases are resulting in many more jury trials. While more than 90 percent of felony cases are disposed of through plea bargaining, many fewer offenders agree to plead guilty in three-strike cases. Such cases account for only three percent of the filings in Los Angeles, but make up 24 percent of the jury trials. A California study also found that African Americans—who make up seven percent of the state’s

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population and 20 percent of its felony arrests—are imprisoned under the law 13 times as often as whites, and constitute 43 percent of third strike inmates.

 2. Webster’s Third New International Dictionary (Springfield, MA: Merriam-Webster, 1986).   3. From Brian Tokar, “Monsanto: A Checkered History,” The Ecologist 28, no. 5 (1998): 254–80:  The herbicide “Agent Orange,” which was used by U.S. military forces to defoliate the rainforest ecosystems of Vietnam during the 1960s … was a mixture of 2,4,5-T and 2,4-D that was available from several sources, but Monsanto’s Agent Orange had concentrations of dioxin many times higher than that produced by Dow Chemical, the defoliant’s other leading manufacturer. This made Monsanto the key defendant in the lawsuit brought by Vietnam War veterans in the United States, who faced an array of debilitating symptoms attributable to Agent Orange exposure. When a $180 million settlement was reached in 1984 between seven chemical companies and the lawyers for the veterans, the judge ordered Monsanto to pay 45.5 per cent of the total. In the 1980s, Monsanto undertook a series of studies designed to minimize its liability, not only in the Agent Orange suit, but in continuing instances of employee contamination at its West Virginia manufacturing plant.

  4. BNA Daily Law Report, Nov. 25, 1997, A-8.  5. Corporate Crime Reporter, 13 October 1997.   6. Benito Juarez.   7. Pound 1906, p. 403.   8. For source of PCB on Baffin Island, see Colborn 1996.  9. In Daubert v. Merrell Dow Pharmaceuticals, plaintiffs sought to introduce evidence that birth defects had been caused by a mother’s ingestion of the anti-nausea drug Benedictin. Despite the fact that the Supreme Court sided with the plaintiffs in Daubert, by setting up a process for judges to determine the reliability and relevancy of scientific evidence, the decision has been perceived by many trial lawyers as giving trial judges important powers to exclude scientific evidence and thus undermine plaintiffs’ chances in toxic tort cases.

REFERENCES Alexander, S. 1998. “Getting Tough in Fight against Pollution.” Chicago Daily Law Bulletin, 11 March. Bloomquist, R. F. 1996. “Bottomless Pit: Toxic Trials, the American Legal Profession, and Popular Perceptions of the Law.” Cornell Law Review 81: 953–88. Chambliss, W. 1982. “Toward a Radical Criminology.” In The Politics of Law: A Progressive Critique, ed. D. Kairys, 230–41. New York: Pantheon. Coco, L. 1998. Chemical Rights. Manuscript, University of Maryland Law School, Baltimore.

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Colborn, T. 1996. Our Stolen Future: Are We Threatening our Fertility, Intelligence, and Survival. New York: Dutton. Reviewed/ Reprinted in Corporate Crime Reporter, 13 October 1997. Currie, E. 1990. “Crime, Justice, and the Social Environment.” In The Politics of Law: A Progressive Critique, ed. D. Kairys. New York: Pantheon Press. ———. 1998. “Crime and Punishment in the United States: Myths, Realities, and Possibilities.” In The Politics of Law: A Progressive Critique, ed. D. Kairys. New York: Pantheon Press. Fagin, D., and M. Lavelle. 1996. Toxic Deception: How the Chemical Industry Manipulates Science, Bends the Law, and Endangers your Health. Secaucus, NJ: Carol Publishing Group. Gest, T. 1995. “A Shocking Look at Blacks and Crime.” U.S. News and World Report 119 (15): 53–54. Gordon, R. W. 1975. “Willard Hurst and the Common Law Tradition in American Legal Historiography.” Law and Society 10: 325–33. Harr, J. 1996. A Civil Action. New York: Random House. Hyndman, D. 1994. Ancestral Rain Forests and the Mountain of Gold: Indigenous Peoples and Mining in New Guinea. Boulder: Westview Press. Leach, E. R. 1968. “Ignoble Savages” (a review of four books on violence). New York Review of Books 11 (6): 24–29. Malinowski, B. 1926. Crime and Punishment in Savage Society. New York: Harcourt Brace. Reprinted 1951, New York: Humanities Press. Mokhiber, R. 1996. “Underworld, USA.” In These Times, 1 April, pp. 14–16. Nader, L. 1964. “An Analysis of Zapotec Law Cases.” Ethnology 31 (4): 409–19. ———. 1990a. “The Origin of Order and the Dynamics of Justice.” In New Directions in the Study of Justice, Law, and Social Control, ed. John R. Hepburn, 189–206. New York: Plenum. ———. 1990b. Harmony Ideology: Justice and Control in a Zapotec Mountain Village. Stanford: Stanford University Press. Nader, L., and P. Parnell. 1983. “Comparative Criminal Law and Enforcement: Preliterate Societies.” In Encyclopedia of Crime and Justice, vol. 1, ed. S. Kadish, 200–7. New York: The Free Press. Pound, R. 1906. “The Causes of Popular Dissatisfaction with the Administration of Justice.” American Bar Association Report (Part 1) 29: 395–417. Radcliffe-Brown, A. R. 1933. “Primitive Law.” In Encyclopedia of the Social Sciences, vol. 9, ed. E.R. A. Seligman and A. Johnson, 202–6. New York: MacMillan. Smith, S. A. 1998. “Comment: Polyfurcation and the Right to a Civil Jury Trial: Little Grace in the Woburn Case.” Boston College Environmental Affairs Law Review 25 (3): 649–86. Sutherland, E. 1949. White Collar Crime. New York: Dryden Press. Webster’s Third New International Dictionary. 1986. Springfield, MA: MerriamWebster.

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E c ha p te r 1 9

Breaking the Silence Politics and Professional Autonomy

Introduction Sometimes it’s useful to look back in order to move forward. The response of anthropologists to the Gulf War raised questions about violence and professional autonomy, about whether anthropology was unencumbered enough to contribute to the reduction of violence by breaking the silence about the Arab World, much as we did for Vietnam. My question then had to do with professional responsibility. Does anthropology only reflect dominant hegemonies, or is it possible to have an anthropology free of central dogmas originating outside the discipline? The Islamic world, in general, and the Arab world, in particular, are a part of the world still among the least known ethnographically. It is also a part of the world about which disinformation and misinformation are rampant. In spite of the good work of numbers of anthropologists, since 1951 there has not been a general book about the area that has enjoyed the circulation of Carleton Coon’s Caravan. Indeed, since World War II our discipline seems predisposed to feed silence and starve informed opinion about the area. While this became crystal clear during the Gulf War, it may be even clearer after September 11, 2001. For example, if we examine the major hiring practices of elite universities, we might notice that when hiring ethnographers of the Arab world, major departments select people who work at a distance from “troubled areas” such as the Levant, Iraq, Sudan, or the West Bank. Harvard University hires specialists in Turkey or Yemen. Columbia University hires a specialist in Morocco. At the University of Michigan, an anthropologist who works in Yemen (although more recently a hire who works in Jordan). At Stanford University, in Turkey. At the University of California, Berkeley, and at Princeton University, Moroccan specialists, etc. Such

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hiring choices reflect a nervousness in major anthropology departments that, whether conscious or not, diminishes the possibility of breaking the silence about zones of serious violence. Some anthropologists try to explain the silence, the absence of activism. But what little there is suggests that Anglo-American anthropologists are not learning fast, in spite of the fact that over the past twenty years we have been pounding the table with relentless critiques of the British structural-functionalist anthropologists working in colonial Africa who ignored colonizers, power, and imperialism. Such was true for the Gulf War and, as we see, history may be repeating itself since September 11, but with a new twist; few Anglo-American anthropologists are speaking or writing to inform citizens in our country, who may not only be uninformed but grossly misinformed about other peoples, but foreign-born anthropologists may be stepping into the breach.

Silence and Dominant Hegemonies Again it might be useful to look back to the Gulf War. Commenting on the massive disinformation campaign launched by the 1990s Bush White House, Susan Pollock and Catherine Lutz (1994) wrote about “Archaeology Deployed for the Gulf War.” They discovered shameless uses being made of Iraq’s archaeological past: the focus of White House discourse was on commoditized items (archaeological relics), not the lives of the creators of this past. The media made points about Iraq’s ancestral ties to “our” civilization, suggesting that Iraq’s heritage belongs to all of us. The archaeological sites were given great respect and Iraq’s past humanized. It’s ironic that the first Bush administration, while killing innocent Iraqi civilians, was making use of Iraq’s ancestral ties by paying lip service to Arab allies while simultaneously bombing that heritage. More recently, when the Taliban were destroying archaeological monuments, they were rightly labeled barbaric acts. In a paper about internally generated state violence, William Young (1999) suggests that the sympathies of anthropologists are more easily mobilized if human rights issues involve tribal peoples in conflict with a state. But, he says, when it comes to the Middle East, where the victims are commonly identified in the media and in scholarly writings as ethnicities or nations, few anthropologists feel ready to, or are loathe to, champion such causes. He goes on to confess that those anthropologists without tenured positions may be reluctant to offend their colleagues who work in Israel, Turkey, Iran, Egypt, or any other state that does not accept scholarly criticisms of national policies. Ted Swedenburg (1995)

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notes that researchers can be tainted by their informants. In the case of research on Palestinians, he quotes the Chronicle of Higher Education as noting that studying Palestinians “was not always a wise career move for aspiring academics” (Coughlin 1992: A8). He should know. In his search for a job at major anthropology departments, he came in number two each time, in spite of an excellent book, Memories of Revolt, and superlative work on subjects ranging from Algeria, to Egypt, to the use of musical text as a form of political expression in the Levant. Julie Peteet (n.d.) speaks of “permission from the academy and the public to narrate the violence experienced by the Palestinians.” She notes that such permission is more forthcoming now than in the past, while also quoting a Palestinian who commented that the possibilities for such narration are greater now because it no longer matters. Containment or defeat may dilute the need for the imposition of silence and censorship. Peteet is also exasperated that scholarship on Palestine must always be “balanced” by an Israeli speaker or presence in order to gain legitimacy in the academy, thus acquiescing to ethnography of the silences and censorship of the scholarship itself. She adds that Palestinians are the largest group of refugees and the longest refugee presence, yet in a widely praised volume on refugees by Zolberg, Suhrke, and Aguayo (1989), there is hardly more than a paragraph or two on Palestine. The violence evaporates. And speaking about silencing forces, I once assigned Peteet’s book Gender in Crisis (1986), an ethnography about a Palestinian refugee camp in south Lebanon, in an introductory anthropology course. A lobby of parents came asking why Palestinians were being humanized when they were terrorists, while insinuating that, as a result, the class had an antiSemitic outlook—an example of a campaign of accusations, echoing similar experiences in many past years. Fed up with the silence, Congressman Paul Findley (R., Illinois) documented the making of silence in his book, They Dare to Speak Out: People and Institutions Confront Israel’s Lobby (1985), and more recently in Silent No More: Confronting America’s False Images of Islam (2001). The decline in informed critical commentary has contributed in turn to the structural/institutional changes we are seeing in universities. In a rare piece on “Intellectuals, the Media and the Gulf War,” Patrick Wilcken (1995), an anthropologist at Goldsmiths College, University of London, began by noting, “One of the notable features of the reporting of the Gulf War in the mainstream U.S. press was the near total unconcern with Iraqi casualties (Herman 1991, p. 5) … a complete blindness to the devastating consequences of such one-sided military action.” “Where were the dissenting voices?” he asks. He argues that the silence is due

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to structural, institutional changes that are causing a decline in informed critical commentary. For him, the massive expansion of the universities means that intellectuals have been absorbed into the state, to wit the institutionalization of intellectuals, increasing specialization and the disappearance of generalists, and the inability of public intellectuals, highly visible intellectuals, to critically assess a major political event like the Gulf War (or now the September 11 happenings). Audit Cultures (Strathern 2000) provides ethnographic accounts of such changes in the academy, contextualizing Wilcken’s observations. Wilcken gives examples of three public intellectuals who spoke more generally without dissenting or presenting information useful to dissenters. The first described the Gulf War as “virtual reality,” a form of war in which one never has to face up to war; the second saw war as inevitable because of the impossibility of adjudicating the conflict; and the third wrote that war reflected the predisposition of a warrior cult in the United States. Hardly critical assessments, it is true. Dissent in the press by academics was virtually nonexistent with the exceptions of two university professors—both non-anthropologists, Noam Chomsky and Edward Said. In his section on anthropology’s silence, Wilcken’s question, “Where are the anthropological voices to counter the ethnocentric claims (or racist claims)?” indicates they are largely mute in the U.S. and inert in Great Britain, both countries involved in the Gulf War bombing and the passive violence of sanctions that has resulted in greater loss of civilian life than the nuclear bombing of Nagasaki and Hiroshima. Wilcken concedes a conference on the Gulf War was held at the London School of Economics, during which the war was intellectualized and metaphorized by anthropologists: the Kurdish and Shi’ite kinship systems were segmentary, the Iraqis were caught up in patriarchy, their leader was a psychopath, and Arabic/Islamic codes were part of the problem. He also reports comments attributed to Ernest Gellner to the effect that “only the developing world with its devotion to economic development could be trusted with high tech weaponry since the West no longer valued aggression and had no interest in acquiring land. Saddam, on the other hand, had proven untrustworthy” (Wilcken 1995, p. 59). One observer (Mir-Hosseini 1991, p. 6) determined that anthropology has very little to contribute “in a world in which realpolitik rules,” that is, in a world in which self-interest rules. Wilcken concludes that anthropologists have been institutionalized into what C. Wright Mills calls “organized irresponsibility.” The media expect people who can comment on the larger picture, whereas the anthropologist, he bemoans, prefers to focus on the “fine-grained ethnography” and internalist analyses. We might put it dif-

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ferently and expect the media to want the greater depth that anthropology can offer. The problem of Iraq, and now Afghanistan, was not cultural misunderstanding or ineptitude but propaganda shrouding the mass destruction of the war. That a ruthless regime that had been receiving military and economic support from the West for almost a decade could be toppled by segmentary opposition or a war against patriarchy was not only absurd but reminiscent of the Orientalism or the filtered western scholarship that Edward Said has long written about. The lack of information or the flood of misinformation contributes to desensitization. The musicologist Dwight Reynolds (1991, p. 20) wrote about cultural translation, noting, for example, how Thomas Friedman of the New York Times serves as the “tolerant-to-Arabs” foil by describing the region as “a culturally unique phenomenon, a land where no one means or understands anything.” One attempt to break the silence was a project titled Forces of Change (1994), an art exhibit of modern Arab women artists. The International Council for Women in the Arts found talented Arab women artists whose voices of dissent often endangered their lives because they painted scenes of violence and torture, war, revolution, and resistance. The effort (which included an anthropologist) aimed at humanizing the present Arab world (using a venue comprehensible to Western elites), and called attention to the silences by visual means. This exhibit opened in Washington, D.C., and traveled to ten major cities around the country—the first major contemporary Arab cultural exhibit ever. The common reaction of viewers was, Arab artists? Arab women artists? Arab women artists speaking up? They could not imagine Arab artists, let alone Arab women artists, speaking up. Although little has changed since September 11, it may be too early to tell. Anthropologist William Beeman was initially the sole voice. In his op-ed pieces for the Milwaukee Journal Sentinel, the Baltimore Sun, and the Columbia Dispatch, he spoke about root causes, such as the relationship between the United States and the Islamic world, for which he is being excoriated for seemingly justifying rather than explaining September 11. In an earlier piece, Beeman (1989) ended with a section on the United States and the Gulf War. Who listened then? September 11 did inspire a few anthropologists. Arthur Kleinman and others spoke of the shock to American emotional stability; Diane France, forensic anthropologist from Colorado State University, and archaeologists from Columbia University offered their services at ground zero. Anthropologist Nabeel Abraham, who studied Arab-American communities, as in Dearborn, Michigan, spoke of their anxieties about the racist anger that followed

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the terrorist attacks. Catherine Lutz once again tried to contextualize and respond to Americans who asked, “Why do they hate us?” Ali Quiebo of Jerusalem spoke about the tolerance of Islam. But it was the anthropologists from the areas concerned who came forward to inform and to recommend ways to reconstruct an independent Afghanistan after decades of external meddling. Although there are eloquent others, such as David Edwards. Ashraf Ghani (2001) has been the most ubiquitous presence on “The Brian Lehrer Show,” “ABC News Tonight,” PBS, and CBC, carefully outlining the catastrophe that is Afghanistan today, using his knowledge of economics and political alliance to recommend forward movement.

Discussion Anthropology is not only an unfolding of ideas inside the discipline, but is also shaped by a wider sociopolitical environment (Wolf 1999). The first step to avoiding having our agenda set by broader mainstream ideologies is to recognize how they work on the discipline. If we ignore external influences in favor of internal dimensions, a significant part of the power dimension is neglected. The Arab and Islamic worlds are probably the only region of the world suffering from the absence of multisited ethnographies that make the connections. Yet Eric Wolf remained hopeful: “We are one of the very few remaining observational sciences [and] … we are able to entertain the possibility of multiple causation.” During the Gulf War the overall silence had multiple causes, none of which are emphasized, and are seldom even mentioned, in anthropological contributions: (1) religious zeal—Christianity versus Islam and the possibility that the Crusades had never ended (at least since Pope Urban II, in a rousing speech in 1095, had challenged Christian Europe to meet Islam on its own doorsteps); (2) militarism—the military-industrial complex that President Eisenhower warned us about that at times operates independent of democratic governance; (3) racism—the need for weaponry (and the people who run it) to be tested to see if it works, and where better than on “inferior races?” (4) ideology—the powerful impact on Western intellectuals of Zionist ideology; and, most important, (5) desensitization—forms of war that mean we never have to face up to war or to the passive violence that follows, justified by language wars through double-talk. Ideology, both religious and political, racism, self-interest, and pragmatism were then and now at work in silencing dissent. After September 11, the silence is less deafening; Americans asked, “Why do they hate us?” and some anthropologists and others tried to answer these

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and other questions about Islam and the region. But if the vituperative responses to nonconforming pieces are any indication, we may all be facing difficulties ahead. The overall issue which I think we need to think deeply about is desensitization. Desensitization is what occurred in Nazi Germany and allowed genocide. It is trained into those fueling the various genocides in the contemporary scene. Genocide is not solely part of national fabrics and internal happenings in nations; it is also embedded in war. The total unconcern with the consequences of one-sided military action—whether by the U.S. or its allies in Iraq, or the U.S. in Libya or Sudan, or the Israelis in Lebanon, or the “allied” forces in Afghanistan—is fed by silences that at bottom may be about deeply embedded racism against Arabs and Islamic countries more generally, a cultural racism in the guise of Orientalism about which most anthropologists have had little to say, contrary to positions they have taken elsewhere. There cannot be serious knowledge about a region of the world about which there are so many taboo subjects and myths. Think of them. Where in the anthropology of the Arab world do we write about the impact of Western economic interests on the Gulf, a region of strategic importance? Where do we write about relations between oil-supply nations and Western support of dictatorial regimes? Where are the studies of the myth that Israel is the only “democracy” in the Middle East when it practices apartheid? One might think that a study of Israel’s syphoning water and topsoil from south Lebanon into Israel punctuated by sporadically bombing of power stations in Beirut would make a contribution to the anthropology of imperialism. What anthropologist speaks to the fact that Israel is a military force of such technological power that it could wipe out the Arab world in one day? What anthropologist writes about normalized racism, about the double standard? It is still possible to say things about Islam that would be unacceptable if said of Christianity or Judaism, and we too often, and too easily, work within these strictures. One source reports the loss of four thousand Iraqi children a month. Imagine the effect of comparable loss of children’s lives from the U.S. or Israel. How many anthropologists who document war zones elsewhere include the Arab world? Anthropologists, of all people, should be the most sensitive to being caught by cultural hegemonies. Our work suffers, so do the people we study, and so does our country. If one considers the cultural misinformation emanating about the Islamic world and between the Islamic world and the West, it is the cultural parallel to the biological misinformation the Nazis promulgated about Jews, gypsies, gays, those with handicaps, and others. If biological misinformation is so horrific, why not make the same critique on the cultural front? And if anti-Semitism is not acceptable, why not apply the same reasoning to anti-Arab Semitism? EBSCOhost - printed on 2/19/2021 12:59 AM via MCGILL UNIV. All use subject to https://www.ebsco.com/terms-of-use



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NOTE This chapter was originally published as: Laura Nader, “Breaking the Silence: Politics and Professional Autonomy,” pp. 161–170. Anthropological Quarterly 75:1 (2001).

REFERENCES Beeman, W. 1989. “Anthropology and the Myths of American Foreign Policy,” In The Anthropology of War and Peace, ed. P. R. Turner and David Pitt. Granby, MA: Bergin and Garvey. Coon, C. 1951. Caravan. Holt, Rinehart and Winston. Coughlin, E. K. 1992. “As Perceptions of the Palestinian People Change, Study of Their History and Society Grows.” Chronicle of Higher Education, 19 February, A8–9, A12. Edwards, D. 2001. “Bin Laden’s Last Stand.” Anthropological Quarterly 75 (1): 178–85. Findley, P. 1985. They Dare to Speak Out: People and Institutions Confront Israel’s Lobby. Westport, CT: Lawrence Hill and Co. ——— . 2001. Silent No More: Confronting America’s False Images of Islam. Beltsville, MD: Amana Publications. Ghani, A. 2001. “The Folly of Quick Action in Afghanistan.” Financial Times, 27 September. Herman, E. 1991. “Mere Iraqis,” Lies of Our Times, February. Mir-Hosseini, Z. 1991. “RAI Public Seminar on the Cultural Aspects of the Gulf War,” Anthropology in Action, Autumn. Nashashibi, S. M. 1994. Forces of Change: Artists of the Arab World. Exhibition catalog. Washington, DC: National Museum of Women in the Arts. Peteet, J. 1991. Gender in Crisis: Women and the Palestinian Resistance Movement. New York: Columbia University Press. ———. m.s. “Violence, Borders, and Crossings: The Potential for Recovery and Reconciliation.” (unpublished) Pollock, S., and C. Lutz. 1994. “Archaeology Deployed for the Gulf War.” Critique of Anthropology 14 (3): 263–84. Swedenburg, T. 1995.”With Genet in the Palestine Field.” In Fieldwork under Fire: Contemporary Studies of Violence and Survival, ed. C. Nordstrom and A. R. Robben. Berkeley: University of California Press. Young, W. 1999. “Anthropologists and the Problematic of Human Rights Activism in the Middle East.” Human Peace and Human Rights 12 (1): 3–9. Wilcken, P. 1995. “The Intellectuals, the Media and the Gulf War.” Critique of Anthropology 15 (1): 37–69. Wolf, E. 1999. “Anthropology among the Powers.” Social Anthropology 7 (2): 121–34. Zolberg A.R., A. Suhrke, and S. Aguayo. 1989. Escape from Violence. New York: Oxford University Press.

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E c ha p te r 2 0

Iraq and Democracy

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here is an uneasy feeling in our country—a feeling that something unprecedented is happening. A Vietnam veteran put it more bluntly: “We’ve lost all three branches of government to the judiciary when they selected the president, the Congress when they abdicated to the executive branch, the executive branch when they refused to listen to dissenting Americans” (personal conversation). There is an uneasy feeling in the country—our founding fathers placed the war-making power in the hands of Congress where decisions could be openly debated. Slowly we realize that a dozen unelected men and one woman are making decisions that will compromise the lives of American fighting forces, the lives of Iraqis we say we want to liberate, the future of American schools, health care, our relations with old allies—the costs of war unfathomable. Senator Byrd’s “we stand passively mute” speech objected to Congressional abdication. Three branches of government are now one; objections by high-ranking military officers are muted—all of this justified by unsubstantiated presuppositions fed to the public ad nauseam: (1) that Iraq has weapons of mass destruction and that they are linked up with al Qaeda; (2) that the rest of the world, including NATO allies, are wrong; (3) that the Iraqis would welcome us as liberators—in spite of twelve years of sanctions and thousands of child deaths, in spite of daily bombing missions since 1991, in spite of an illegal invasion. Such prognostication is indicative of poor intelligence, an example of what happens when a president is isolated by a band of self-serving advisors. How little we know of the Arab world, of Iraq and its people, of the place that Baghdad—the Florence of the Middle East—has in the hearts and minds of Arab peoples. Iraq—the cradle of civilization. How could we have thought that Iraqis would not defend their country from invasion? Why would the Shias in the south have welcomed the Americans when Shia Iran is also being threatened by the American administration?

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How little we know about the Arab world—do we really think there is no consequence of our double standard foreign policy? One for Saddam Hussein and one for Ariel Sharon—both brutal men responsible for the death and destruction of innocent civilians. Hussein gassed the Kurds, Sharon killed seventeen thousand Lebanese civilians before he got to Sabra and Shatila omitting his provocation of the present intifada, both fed by arms from the United States. Double standard—the attack on the USS Cole by Muslim terrorists was rightly condemned, but the USS Liberty in 1967 bombed by Israeli war planes was covered up by the Pentagon. Israel is the sole country in the region with weapons of mass destruction. I’ve taught about the peoples and cultures of the Arab world at the University of California, Berkeley, since 1960. Currently, I teach a seminar on what other civilizations think of the West, beginning with a Chinese Buddhist missionary who went west to India in the ninth century. In teaching I have been struck by the depth of ignorance about this large expanse of the world. In my research I have noticed mirrored images. The Arab historians of the Crusades thought the Crusaders were barbaric savages, ignorant of medicine, without culture or civilization, although they had technology. Gandhi said the same about the British—brute force. Some years ago when the Middle East Center entertained a visit from Moroccan governors, I argued with one of the governors over their use of lightwater nuclear reactors along their coast in the absence of Moroccan know-how, making them dependent on the French, their former colonizers. In frustration the governor blurted out, “The French—they have no culture, no civilization, but they do have technology (not the same as civilization).” This is an observation that we hear from Tokyo to Gibraltar, most recently from Japanese CEOs, and even more recently the Europeans refer to the U.S. as the extreme West in making similar points. In her new book, Leap of Faith, Queen Noor of Jordan quotes George Bush Sr. as saying to her husband, “I will not allow this little dictator [Saddam Hussein] to control 25 percent of the civilized world’s oil.” Of course, the key words here are “the civilized world.” By their very nature, fundamentalists of all stripes consider their doctrines to be the truest, superior to all others, who fall into the category of uncivilized. At the time of the first Gulf War, I was told by a distinguished Kuwaiti woman that the invasion of Kuwait was a family quarrel that should be settled by Arabs. Queen Noor tells us that King Hussein thought his peace effort was sabotaged; his mission was to avoid bringing Western troops into the region, which would trigger radical Islamacists. Why didn’t we let the King of Jordan deal with the problem? If we had a Senator Fulbright today, he would answer, “The arrogance of power.” How is such arrogance expressed? In religious zeal—perhaps the Crusades have

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never ended; in militarism—the military-industrial complex that President Eisenhower warned about, independent of democratic decisionmaking; racism—the need for weaponry to be tested on somebody; and finally the powerful impact of intertwining domestic fundamentalist Zionist ideology with American foreign policy, a position which, under the Truman administration, Secretary of Defense Forrestal passionately warned as dangerous to the security of the United States. Today we face the consequences of the unilateral invasion of a sovereign country that at the time of invasion posed no threat to the United States. It is, as my neighbor said, like taking a baseball bat to a bee’s nest, playing free and easy with American lives. The double-talk is extraordinary. On the one hand, we are bringing democracy to Iraq; on the other, we’re doing it by means of war not democratically declared. As is common, democracy promoters ignore the traditions of those they seek to assist, and lack a grounded understanding of their own political democracy. Although it has been repeated ad nauseam that there is only one democracy in the Middle East, a recent study of Muslim and non-Muslim nations concluded that while few citizens of Muslim states enjoy democratic rights, there is roughly equal respect for democratic principles in Muslim and Western societies. All to say we must be alert. Representations are amplified and coarsened by the mass media. The current United States invasion of Iraq can only exacerbate the vicious circle of anti-American and anti-Muslim or Arab stereotyping. There are times when events compel nations to bring their actions to the test of principles. At such times, the truly patriotic citizen is forced to compare national ideals with immediate national purposes and policies. Decisions made at these crises points determine the fate of the nation— whether it rises further toward its ideals or moves away from them. As it stands now, under the leadership of Bush and Blair, we are proceeding to massive assaults in the midst of civilian populations that eclipse the bombing of Hanoi. The actions taken under cover of the Patriot Act make the Palmer raids of the 1920s and the McCarthyite tragedies of the 1950s minor by comparison. The silver lining in all this is the worldwide objection to unilateral war. The worldwide peace movement is a movement for global survival. Democracy has made great strides—people want to decide the fate of the world, sometimes in direct opposition to their governments and against talk of nuclear strikes. The peace protests have been our best citizen efforts at homeland security—not all Americans agree with the actions of their government. It is also true that peace protesters have been unsuccessful thus far in communicating with our own government. Suggestions: we need to get specific. The media are obsessed with tactics and technology over political

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analysis. Embedded media may find it difficult to maintain an arms-length with government in order to question the official story. Seymour Hersh’s reporting of Richard Perle and the Defense Policy Board and their ties with war profiteering is good investigative reporting, a tiny inroad toward dismantling the military-industrial complex. That these war profiteers operate unabashed in and out of government could be in our favor. We need to be more politic on the international scene—our ambassador shouldn’t walk out of the UN because he doesn’t like what the Iraqi ambassador is saying. We need to repair relations with the French, Germans, and Russians, who have closer ties to Iran and recognize their long-term oil contracts in Iraq, and with others—through diplomacy, not bribes. Efforts at cultural exchange with the Arab world should be stepped up. In the late nineteenth century, Americans founded universities and colleges in Cairo, Beirut, and Istanbul, a civilized way to introduce democratic thought and American good will, and a cheap investment compared with the use of military might. There is nothing inevitable about the military-industrial complex. Remember the peace dividend? Just because Congress dropped it doesn’t mean that citizens should. Our leaders might listen to dissenting voices as a way to avoid miscalculations, as a way to develop criteria for what it means to win or lose. Islam is the world’s and America’s fastest growing religion; 1.2 billion people should give pause to those who think only of military victories. When hostilities cease there will be the challenge of rebuilding what we have destroyed and finding a graceful way out. Before the 1990 Gulf War, Iraq had a stable middle class, largest in the Arab world; education and health care were almost universal; women had achieved in the professions and elsewhere. For a postconflict Iraq, there is no culturally sensitive plan as General MacArthur had before he entered Japan, where the first rule was “do not humiliate the enemy.” We might learn from the nineteenth-century Americans who built universities, a civilized effort that does not require jeopardizing American lives. Most of all, Americans need to start practicing democracy; if we did we wouldn’t have to sell it. Government by the people and for the people is the vision the United States has given the world. Never before in history had a government been created with its main purpose to secure people’s rights regardless of what the government said. The Bill of Rights was the first legal document in the history of the world to limit what the government could do and to secure those rights for individuals. That is something to remember.

NOTE This chapter was originally published as: Laura Nader, “Iraq and Democracy,” pp. 479–483 from Anthropological Quarterly 76: 3 (2003).

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E c ha p te r 2 1

Law and the Theory of Lack The 2005 Rudolph B. Schlesinger Lecture on International and Comparative Law

Introduction True, our system is wasteful, and fruitful of many small disputes. True, a large estate can be managed more economically than a small one. True, pasture farming yields higher profits than tillage. Nevertheless, master steward, our wasteful husbandry feeds many households where your economical methods would feed few. In our ill-arranged fields and scrubby commons most families hold a share, though it be but a few roods. In our unenclosed village there are few rich, but there are few destitute, save when God sends a bad harvest and we all starve together. We do not like your improvements which ruin half the honest men affected by them. (Imagined statement from a manor jury to an estate steward).1

With all that has been written about comparative law, it is remarkable how little notice has been taken of the cultural politics of law. This is in part attributable to the assumption that families of legal systems have developed in isolation from each other, and the belief that law is above politics. This omission of the politics of law is significant, for law was and is commonly constructed to justify, administer, and sanction conquest and plunder. While theoreticians of Euro-American imperialism recognize the uses of law discourse and practice that constitute keystones of the “civilizing process,” the dark side of the law is its imperial uses—historically and currently—a cultural project that merits empirical attention. A Euro-American configuration of institutions and belief systems has normalized and powered a Euro-American use of “rule of law” and lack, an ideology key to the colonial and imperial project whether it was being exercised by the British, French, American, Belgian, Dutch, Portuguese,

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German, or Italian colonial interest in pursuit of their enrichment. In the contemporary period, the appropriation of resources and ideas belonging to other peoples are sometimes justified by notions of civilization, development, modernization, or alternative dispute resolution. Lack has been used to highlight positional superiority, an important mechanism for constructing and legitimizing conditions for plunder. Rhetoric attendant to the rule of law or its lack has been used throughout Euro-American expansions and with repetitive frequency to camouflage the taking of land, water, minerals, and labor, as happened in countless locales to native peoples under colonialism. An interesting question is why powerful nations or groups bother with legitimating devices such as “the rule of law” when history clearly shows that they can dispense with such legitimating devices. Another interesting question is how the process of implementing an uninvited law works. The claims of a developing nation against the inherited rights of the First Nations / Native Americans was decided in the United States by Chief Justice John Marshall in 1823. Accordingly, the Indians of the United States did not possess unqualified sovereignty as independent nations. How is it that so many legal scholars can so easily dispense with such acts as U.S. allotment policies culminating in the Dawes Act of 1887? It’s the how that interests me in what follows. When legal scholars or practicing lawyers speak publicly of law, they commonly refer to the purposeful functions of the law—a process for facilitating and protecting voluntary arrangements or as a process for resolving acute social conflicts, or as process necessary for orderly continuities. But Euro-American law cuts both ways. The not-so-nice functions of the law are adumbrated in the research on European colonialism, the work on legal orientalism, the work on law and development as legal imperialism, or the work on states of exception as in the “War on Terror” in the foreign arena or the curtailment of the Bill of Rights on the domestic front. Ideas such as the promotion of the “rule of law” or its lack are key in American discourse on foreign policy. In fact, what Woodrow Wilson considered an obligation of the United States, the universal dissemination of the “rule of law,” has rarely been the object of public discussion because its positive connotation has always been taken for granted. Today, in the name of democracy and the rule of law, the American public has been persuaded of the moral acceptability of military aggression and occupation of a foreign country, Iraq, utilizing among others George Kennan’s “straight power doctrine” to protect our extractive and ideological needs, and once again utilizing ideas of lack to underscore positional superiority. Thus, the European roots of the colonial project were tied to a theory of lack—a theory that justified taking property from those deemed lack-

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ing in the ability to exploit resources around them. Other peoples lacked law—a provider of order, beneficial to the public good. Steeped in nineteenth century unilineal evolution—whereby human society progressed from savagery, to barbarism, to civilization as exemplified by Europe— Western countries identified themselves as being civilized because they were governed by the rule of law, no matter what the actual history of a present situation might be. Such identity was acquired by knowledge of and false comparison with other peoples, those who were said to lack the rule of law, such as indigenous people, or in reference to China, Japan, India, or the Islamic world more generally. In addition, today the Third World developing countries lack further the minimal institutional system necessary for the unfolding of an efficient market, one that serves, today as in the past, to further the construction of Western superiority. Of course, the Other is often aware that “lack” is about building a universal rule of law that, while ethnocentric, is capable of facilitating efficient transfers of property rights from whoever values them less to whoever values them more, such that global rule-makers claim sovereignty over local politics.

The Beginning Property rights long engaged philosophers and perhaps most famously John Locke, whose justification for entitlements through improvements led to alterations in law and administrative practices. When Swiss philosopher and statesmen Emrich de Vattel published his book The Law of Nations in 1758, he had a ready audience among the colonizing nations of Europe then located in North America. His arguments about land were congenial to the colonizing nations of the eighteenth century because he gave legal justification for the colonial appropriation of lands, thereby lending moral authority to what First North American Peoples might describe as theft. In his words: The earth belongs to all mankind … All men have a natural right to inhabit it … All men have an equal right to things which have not yet come into the possession of anyone. When, therefore a Nation finds a country uninhabited and without an owner, it may lawfully take possession of it. In connection with the discovery of the New World, it is asked whether a Nation may lawfully occupy any part of a vast territory in which are to be found only wandering tribes whose small number cannot populate the whole country … we are not departing from the intentions of nature when we restrict savages within narrower bounds. (De Vattel, quoted in Williams 1986, pp. 127–29)

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These were sweet words and not the only such words written to justify the legal taking of land in the New World. Terra Nullius—vacant land—an untouched wilderness: the fact that most of the land was occupied by indigenous nations was brushed aside since as “pagan and uncivilized people” Native Americans lacked; they were not capable of holding territorial title, property rights, or jurisdiction over their land. So when the British Crown assumed sovereignty over all American territory, they asserted full title and complete jurisdiction as if it were a vacant country. Although the British Crown made a practice of entering into treaties with some Indian groups for purposes of “purchasing” lands, such did not involve recognition of their land rights. The doctrine of legal vacuum was popular even though not unchallenged, or at least rethought—a more sophisticated version of the doctrine of legal vacuum appeared later when Chief Justice Marshall elaborated the principle of discovery—recognizing the relations between the discoverer and the natives, then moving later on and finally to the rights of conquest. It is important to note that the imperial side of American law was present long before neoliberalism. It was present before the American Revolution of 1776. It was already present in doctrinal thinking when British colonists arrived in North America and encountered Native American communities. Inherent in the philosophy of John Locke’s 1689 Treatises of Government was the idea that Native American properties could be appropriated by command of the Christian god—“as much land as a man tills, plants, improves, cultivates and can use.”

Law and Development Law and development is but a continuation of the “need” for progress and the “need” to improve others who lacked something we could provide. American legal assistance to the Third World was crafted by American lawyers and supported by both private foundations and governmentdeveloped assistance programs. Legal missionaries, as James Gardner called them, were sent to Asia and Africa in the 1950s and to Latin America in the 1960s. The purpose, according to many writers, was to include lawyerly aid in the foreign-aid process, to encourage development along capitalist and liberal democratic lines as opposed to possible communist penetration in these areas. The rule of law would facilitate democratic reforms and economic development and nation-building. And, of course, there were human rights that needed to be protected. What they lacked we could provide—legal engineers and a vision of law as an instrument of development policies. And, of course, this meant the transfer of American

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models of what it means to educate an American lawyer and what purposes law might serve. There was little doubt that American legal models would benefit Latin America and the Third World more generally. It would bring democracy to authoritarian states. There was optimism and excitement among these legal missionaries even though they often could not speak the language nor did they carry any knowledge of the peoples and places to which they were sent. The critique provided by James Gardner’s Legal Imperialism book cut to the core—American legal assistance was a product of hubris. More importantly, the movement did not carry abroad the most enduring and basic instruments of American law: the Constitution, the Bill of Rights. Instead, there were legal transfer mechanisms—visiting American law professors, fellowships for study in the U.S., conferences on law and development, legal assistance grants and institutional supports between American and foreign law schools. Receptivity was found among lawyers anxious to modernize antiquated systems, to rid themselves of formalistic traditions, those more pragmatic, people training to be “legal engineers” of development and the “technicians of democracy.” The consequences were frequently unanticipated—some recipients were technicians of regressive change, and, Gardner notes, some were technicians of repressive change, apologists for one or another military dictatorship. Put in its simplest form, Gardner notes that those all too ready to embrace American legal models served to diminish the legal professional as a source of opposition to state policies. What started out as a desire to help the little people changed, and the “legal missionaries” returned home to begin a new field of inquiry, one that required them to look in the mirror, at the flaws in the models they were taking abroad—an interest that was reflected in new movements here—legal services for the poor, public interest law, and law reform. In the end, legal missionaries concluded that it was we who lacked. But they were few in number, and outnumbered by powerful institutions whose hubris was even greater and continuous. There had been public pronouncements by various presidents of the American Bar Association. I will only quote one so that you have a flavor of deeply held ideas that continue to this day: “A new and magnificent duty now rests with the legal profession … it is the especial duty of lawyers to establish and maintain lawful order for the world, because they are the ministers of the law. … Because of the strength and position of America, we, the lawyers of America, face an opportunity to take a decisive part in reshaping the future of the world” (Robert Wilkin 1961). American legal structures and ideas were neither invited to take their law and development schemes abroad nor did they have the power to impose law in the usual sense, and thus American law could not be exported

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directly. Indirect and infused export meant introducing paradigms and values of legal education models, “rule of law” and “case law” jurisprudence, and the idea of legal engineers as architects of a free society. For the legal missionaries, law was a “nicely adjusted piece of legal machinery.” Others disagreed and thought that law was inseparable from its origin, not “socially easy.” And also there was competition with French and English exports. But whether it be European or American, the hubris was there. Latin American legal education was thought to be defective; Africa was thought not to have law since customary law was not really law. They lacked what we had, and what we have they should also have.

The Chinese Lack Law The same paradigm of lack is also applied to the other extant civilizations. Even today, we hear repeatedly that China lacked and lacks law, or was and is averse to law. Such statements are often accompanied by arguments as to the difficulty of bringing the rule of law to China. One American lawyer unselfconsciously states that “basically the bar must be invented as a profession without any guidance from Chinese tradition, or China’s recent history” (Lubman 2002, p. 158). Beyond lacking law, the Chinese are now charged with ignoring the law they had! Erasure becomes part of the policy. What has buttressed the hegemonic scope of law is now an internal cultural logic based on lack or emptiness, a logic that has had lasting power over centuries of Euro-American dominance, even though perceptions of what they lack may change. In the context of the rise of law and economics strategies, this lack theory has today been fully rationalized as a lack of efficiency. Legal ethnocentrism has recently been classed as a form of legal orientalism. In one article that appeared in the Michigan Law Review (Ruskola 2002) we can see why. The author observes that “by considering Legal Orientalism as an ongoing cultural tradition we can understand better why, even today, claims about the status of Chinese law are so relentlessly normative … because … they support an overly idealized self-image of the American legal subject and an unduly negative view of the Chinese (non)legal (non)subject: Chinese are ruled by morality, Americans by law; Chinese are lemmings, Americans individuals; Chinese are despotic, Americans democratic; China is changeless, America dynamic.” Ruskola wishes to challenge the historic claim made by many Western observers that China lacks an indigenous tradition of “law,” while doing more to understand how the West “has come to understand itself through law.” After all, China boasts dynastic legal codes going back to the Tang dynasty. Yet, Western scholars have constructed their cultural

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legal identity against China, and despite vigorous efforts to debunk the view of China as lacking in law, we still have scholars such as Thomas Stephens (1992) arguing that Chinese law is not even worthy of the term “jurisprudence.” The task, Ruskola (2002) argues, may be to “provincialize Europe” and by doing so renew European traditions “from and for the margins.”

Islam Lacks Rational Law Legal orientalism has been receiving a good deal of attention of late, especially with the American invasion of Iraq. Jedidiah Kroncke’s article on “The Flexible Orientalism of Islamic Law” (2005) begins with a quote from John Strawson’s (1995) Islamic Law and English Texts: “English texts do not merely present Islamic law, they construct it.” Not far into his paper Kroncke has a section titled “Weber’s Taxonomy and Islamic Law.” He begins by quoting not Weber but Supreme Court Justice Felix Frankfurter, who had undoubtedly read Max Weber (the father of legal orientalism): “[The Supreme Court] is not a tribunal unbounded by rules. We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency” (in Kroncke 2005). Kroncke, who is studying Chinese law, summarizes ideas of Max Weber as published in his book Economy and Society in order to understand why Weberian legal orientalism remains entrenched, in spite of empirical research to the contrary. Weber focuses on several historical legal traditions, including Islam. Weber uses the term “kadi” to describe a system of justice that is not focused on a formally rational law, but on the ethical, religious postulates of a substantively legal system with two dimensions: formal/substantive and rational/irrational, thereby generating four categories. For Weber, Western continental law fits into the ideal type of “formal rationality.” In contrast, Islamic law was one of substantive rationality concerned with the implications of Islam’s religious norms: “The dominance of law that has been stereotyped by religion constitutes one of the most significant limitations to the rationalization of the legal order” (Weber 1968, p. 657). Weber defines the groundwork of subsequent legal orientalism in making the distinction between the substantive rationality of Islamic law and its substantively irrational administration of justice. As he puts it, “a typical feature of the patrimonial state … is the juxtaposition of traditional prescription and arbitrary decision-making, the latter serving as a substitute for a regime of rational rules” (Weber 1968, p. 1041). Weber rejects the possibility of an Islamic jurisprudence. Kadi opinions may be authoritative, but they vary from person to person, and are given without any statement of rational reasons. While Weber’s analysis has

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been called into question by a number of scholars, that is not Kroncke’s point, nor mine. We are concerned with the relatively undisturbed aspect of Weber’s characterization of Islamic law. People like Bryan Turner (1978, p. 87) continue the stereotype with essentialized comments such as “Islamic Law provided society with a tight, normative structure which … cannot change rationally to meet new contingencies.” Wolfgang Schluchter writes that Islamic “legal development was paralyzed” (Schluchter and Huff 1999, p. 108). Patricia Crone (1999) reiterates the “impossibility of Islamic law as an effective legal system because of its substantive grounding.” The work of critics Moosa (1999) and Hanif (1999) does not make a dent in Weber’s pejorative representation of Islamic law. Kroncke moves to examine the major work on Islamic law by the influential scholar Joseph Schacht (1950, 1964) and by American anthropologist Lawrence Rosen (1984, 2000). For Schacht, Islamic legal theory is rote and mechanical, Islam is “only arbitrary opinion” and “a formidable obstacle to every innovation, and in order to discredit anything it was, and still is, enough to call it an innovation” (1950, p. 129), a “jurist’s law,” concerned with its own internal logic and nothing with social reality, and suffering from “an inherent rigidity … disinterested in any notion of justice,” the “letter rather than the spirit of the law” (1950, p. 72), a concern with appearances. Irrationality and unreality are the common themes. While there may be a growing mistrust of Schacht’s assumptions (See Haim Gerber’s [1999] Islamic Law and Culture), the continuing stereotyping of Islamic law gives full expression to the negative implications of Weber’s work for representing “the anarchy of the Arab way of life” (Weber 1964, p. 23), a position that feeds into twenty-first-century global politics. When Kroncke (2005) examines the work of Lawrence Rosen, things don’t get better, even though Rosen is an anthropologist. Rosen revives Weber’s characterization of the capricious kadi, thereby reaffirming the basic structure of Islamic legal orientalism. In his books, The Anthropology of Justice (1989) and The Justice of Islam (2000), Rosen uses the concept of totalizing subjectivity as well as the metaphor of the bazaar to describe an essentialized Muslim society, a world of premonitory chaos, one in which Arabs lack an appreciation for regularity and tangibility of space and of time. In his neo-Weberian view of kadi justice, Rosen explains that part of the trauma of colonialism for Muslims was the fact that European powers tried to introduce specific legal codes, troubling in a world where truth and veracity are not motivating concerns! Kroncke (2005) concludes, Rosen and Schacht both exhibit the same inability to make reference to Western law in anything but the most idealized representations. Western law becomes the evaluative standard and both are oblivious

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to peoples who have been radically impacted by colonialism, all of which plays into the hands of those uncritical thinkers planning U.S. foreign policy in these Eastern lands, people who only hear irrationality, illegitimate, unchanging, immorality. The legacy of colonialism continues and expands to include those who self-colonize thereby reaffirming Weber’s caricatures and uncritical idealizations of Westernization and law or even to idealizations of Islamic law.

Idealizations have been of concern to anthropologists for as long as there has been anthropological fieldwork resulting in ethnographies, or because of the use of idealizations as a form of hegemony or even counterhegemonies (Nader and Ou 1998). With regard to the study of law, anthropologists are not the only professionals who worry about idealizations as an impediment to understanding how law works, indeed what law is. The concern of legal scholars can be found in earlier work by Judith Shklar (1964, p. 31), who observes the tendency among legal scholars who are caught by “the ideal purposes of law to govern one’s thinking about law in general. It means thinking of law only as it ought to be—as legalism wants it to be, not as it actually is.” For Shklar (1964, p. 31), this means a legal system that meets the formal qualifications of being “self-regulating, immune from the unpredictable pressures of politicians and moralists, manned by a judiciary that at least tries to maintain justice’s celebrated blindness.” We are all limited by the belief systems and thought structures of our own cultures and disciplinary paradigms. And different versions of this problematic of an internalist perspective dominating the investigatory capacities and theorists of law appear in the work of legal theorists such as H. L. Hart, but not apparently in the work of Max Weber and his heirs. Needless to say, nowhere are such issues more salient than under colonial or imperialist conditions as in present-day Iraq, where such legal ideologies are normalized.

Iraq: Direct Imposition of Law, Uninvited An illustration of the continuities of imperialism and a powerful example is the case of Iraq during the contemporary occupation by American and British forces. A non-elected Paul Bremer and the Committee of the Iraqi Governing Council passed edicts, closed newspapers under the “rule of law,” ordered curfews, and wrote and spoke about what one journalist called “Phantom Sovereignty.” Paul Bremer used military force to back these moves and, more importantly, a military force that allowed the total disorganization of competing legal controls in Iraq—customary, Islamic, and state.

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According to the U.S. press, the first few months of occupation of Iraq were about bringing the rule of law to Iraq as part of democracy promotion measures. There were eye-catching headlines in U.S. newspapers and magazines. A few excerpts give a flavor of how systems targeted as lacking work for the more powerful. San Francisco Chronicle, 11 April 2003, “Iraq’s Judicial System Lacks Practitioners, Scholars Say,” by Reynold Holding. The article reports that Iraq’s current legal system derives from the nation’s 1924 constitution, which created a parliamentary monarchy similar to the one that rules Jordan and contained certain basic guarantees of human rights indicative of influence from France’s Napoleonic Code. The article also notes that in the 1960s, Iraq adopted a new set of codes; a 1968 Baath Party established a council that circumvented existing laws, by means of courts— their version of the Patriot Act—allowing people to be tortured or killed. The trick today, the experts argue, is to strip the system of all the laws and special courts established by the revolutionary command council. Legal specialists suggest taking the existing system, and using what there is in a more modern context. Such a policy means not changing the substantive law, but changing the procedures to ensure that they are fair and efficient. William Alford’s (2003, p. 74) observations bear repeating: we “approach legal reform in other societies as if the past were little more than an encumbrance, that the clear-minded should be only too ready to discard for a future remarkably akin to ours.” Wall Street Journal, 29 April 2003, “Team to Rebuild Iraq’s Courts Includes Three Federal Judges.” “Members of the team, which includes federal prosecutors, public defenders, court administrators, and a state judge have signed on … to assess the condition of Iraq’s judicial system. … 13 member [group aims] … to develop an independent judiciary so that Iraqi people will have confidence in their courts.” And “legal experts say Iraq had been developing a sophisticated justice system prior to 1968 when the Baath Party took power. Khaled Abou El Fadl warned they are not writing on a clean slate [and should] watch mucking around with the tribal courts and customary law.” New York Times, 11 May 2003, “American Will Advise Iraqis on Writing New Constitution,” by Jennifer Lee. “Noah Feldman … will try to blend American ideas of democracy with Islamic traditions. … Looking for common ground between Islam and American democracy.” What Western ideals? Whose model of democracy? Why democracy? In whose interests? The experience of trying to shape others, as we can see, inevitably shapes us (Nader 2003) as well. Early on after the invasion of Iraq, the distinguished Islamic scholar, Khaled Abou El Fadl (2003), a law professor at UCLA, wrote an opinion

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piece for the Wall Street Journal titled “Rebuilding the Law.” In this piece, Abou El Fadl maintains that Iraq had a rich and long jurisprudential tradition long before Saddam Hussein came to power. He noted that after gaining independence from Britain in 1930, Iraq, like most Arab countries, adopted civil and criminal law codes from the French and Germanic legal systems. Iraq’s personal law, however, continued to be based primarily on Islamic law. The Iraqi Civil Code of 1953 was one of the most innovative and meticulously systematic codes of the Middle East. Iraqi jurists, working with the assistance of the famous Egyptian jurist Abd Al-Razzaq Al-Sanhuri, drafted a code that balanced and merged elements of Islamic and French law in one of the most successful attempts to preserve the best of both legal systems. In 1959 Iraq promulgated the Code of Personal Status, which on issues of family and testamentary law was at the time the most progressive Muslim code of law. Importantly, for our purposes now, this code merged elements of Sunni and Shiite law to grant women greater rights in marriage, divorce, and inheritance. (Abou El Fadl 2003)

According to Abou El Fadl, when the Baath Party came to power in 1968, Saddam involved Iraq in a series of wars that enabled him to declare a constant state of national emergency and to rule mostly by executive order. Iraq became one of the few countries that legally sanctioned the use of torture in pretrial investigations and as a punitive measure, and the death sentence was prescribed for a large variety of offenses. Law became contingent on the will of the party and the president. After the Gulf War of 1991, Saddam announced that he would implement Islamic law in Iraq, a theatrical move the point of which was public spectacle. Abou El Fadl (2003) concludes his opinion piece by recommending that “American policy makers must understand that Iraq’s legal and ethical history did not start with the overthrow of Saddam.” They do not lack. The 100 Orders enacted by Paul Bremer III, who was head of the nowdefunct Coalition Provisional Authority (CPA), were apparently meant to fill a lack—the minimal reform necessary for the unfolding of an efficient neoliberal market. Thus, Bremer’s Orders give preference to U.S. corporations over the development of Iraqi economy intended to change Iraq from a centrally planned economy to a market economy, and Order No. 39 does not shrink from openly asserting such a goal, allowing for the privatization of Iraq’s two hundred state-owned enterprises. Order No. 40 changes the banking sector from a state-run system to a market-driven system. And Order No. 81 prohibits Iraqis from saving seeds; they may only plant seed for their food from licensed, authorized U.S. distributors. And one Iraqi is quoted as saying that “the day will come, sooner rather

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than later, when the Iraqis will shred Bremer’s law, soak them in water and offer them to Bremer to drink.”

A Time for a New Paradigm I recently heard a Zapatista speaking on a radio program. His words resonate: “Our crime is in being who we are; in being different, not what power wants us to be. We wish for a world where many worlds exist.” And there have been times when many worlds existed, amid lively trade and contact. In her book Before European Hegemony (1989), Janet Abu-Lughod described the world system of the thirteenth century, a time in which a wide variety of culture systems coexisted. Christianity, Buddhism, Confucianism, Islam—all seem to have permitted and facilitated lively commerce, production, and exchange. Nor were underlying bases for economic activities uniform. Weber was wrong about Eastern cultures providing an inhospitable environment for merchant accumulators and industrial developers. What they lacked were free resources as those that flow from the Americas to Europe. A restructuring of the Eurocentric modern world system might provide a new energy, new creativities, and inspire a rule of law with a humanitarian impulse.

NOTES Originally published as: Laura Nader, “Law and Theory of Lack,” pp. 194–204 from Hastings International and Comparative Law Review 28: 2 (2005). Reprinted with University of California, with permission of Hastings.   1. R. H. Tawney, The Agrarian Problem in the Sixteenth Century (London: Longman, Green, and Co., 1912), p. 409, quoted in and with parenthetical note by Weaver 2005.

REFERENCES Hanif, N. 1999. Islamic Concept of Crime and Justice. New Delhi: Sarup. Lubman, Stanley B. Bird in a Cage: Legal Reform in China after Mao. Stanford: Stanford University Press. Kroncke, Jedidiah. 2005. “Substantive Irrationalities and Irrationals Substantivities: The Flexible Orientalism of Islamic Law.” UCLA Journal of Islamic and Near Eastern Law 4 (1): 41–73.

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Moosa, E. 1999. “Languages of Change in Islamic Law: Redefining Death in Modernity.” In Perspectives on Islamic Law, Justice, and Society, ed. R. S. Khare, 161–97. Lanham, MD: Rowan & Littlefield. Ruskola, Teemu. 2002. “Legal Orientalism.” Michigan Law Review 101: 179–234. Schluchter, W., and T. Huff, eds. 1999. Max Weber and Islam. New Brunswick: Transaction Publishers. Turner, Bryan. 1978. Marx and the End of Orientalism. London: Allen and Unwin. Weaver, John C. 2005. “Concepts of Economic Improvement and the Social Contradiction of Property Rights: Highlights from the English-Speaking World.” In Despotic Dominion, ed. T. McLaren, A. R. buck, and N. E. Wright, 79–102. Vancouver: UBC Press. Weber, Max. 1968. Economy and Society. New York: Bedminster Press. Williams, N. 1986. The Yolngu and Their Land: A System of Land Tenure and the Fight for its Recognition. Stanford: Stanford University Press.

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E c ha p te r 2 2

Promise or Plunder? A Past and Future Look at Law and Development

The Present in Context In order to assess the promise of any modern law and development program, it is imperative that the foundational ideas of development policies be clarified, no matter how distasteful it may be to practitioners. In other words, the lens through which we view development must come under scrutiny, in particular the use of law in the historical expansion of Euro-American influence. Failure to scrutinize these foundational ideas dooms us to repeat the mistakes of past centuries. The world is smaller now than it was during the first waves of colonialism, and rhetoric and practice of law and development are now better known to its objects of attention. Similarly, failure to scrutinize the object of development in the Third and Fourth Worlds means that change is planned and implemented as if in a vacuum. As this article will make clear, non-Western legal systems are not of one color, nor are they necessarily ideal. Prior to the appearance of centralized state judicial systems, local systems were in place that allowed relatively easy access to forums for justice. If one traces the evolution of the plaintiff worldwide, however, it becomes obvious that when state law is introduced, the state assumes the plaintiff role in criminal cases and the real plaintiff becomes the victim. It is thus critical to understand how legal relations have changed with respect to the development of modern nation-states, especially with respect to legal change agents. The concept of positional superiority put forth by Edward Said (1978) to illuminate how European scholars constructed an imagined East is useful here. In addition to the ethnocentrism that characterized numer-

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ous Oriental scholars, there were power differentials between Europe and the Orient. At the time, Europe was more powerful culturally, as well as in every other way, than other cultures. It was, in a word, exceptional. European Orientalists accordingly perceived their own societies as exceptional and, using binary logic, deduced that non-Western societies lacked what it took to follow the path toward a more advanced, and assumedly just, level of development. Notions of positional superiority or cultural superiority were coupled with eighteenth- and nineteenth-century ideas about social evolution and progress, with a strict linear progression from savagery to barbarism to civilization. European status—seen as the most evolved—was expressed as the white man’s burden to remake the world in his own image (see Easterly 2005). Both concepts—positional superiority and social evolution—still guide law and development efforts today, resulting in what international law scholar Richard Falk (1992) has labeled “normative blindness,” the inability to understand that what we observe is a cultural construct, not a given. A model in which progress is linear and progressive gives rise to the idea that certain legal systems lack elements of better systems. This “theory of lack” and its implicit comparison posit Western cultural values as the desired norm and engender the ideological construction of a developing world where Western “rule of law” is a key ingredient for betterment. The historical story of this theory of “lack” is fairly straightforward, especially if one examines recent law and development projects. It is a continual (now cyclical) process in which the “need” for progress drives the “need” to improve others who lack the key social characteristics of Western culture. “Legal missionaries,” as James Gardner (1980) called them, were thus sent to Asia and Africa in the 1950s and to Latin America in the 1960s. Ostensibly their purpose was to encourage development along capitalist, liberal-democratic lines and forestall possible communist infiltration.

The Persistence of a Self-Validating Ideology The essential ideological belief of the legal missionary effort was that introduction of the rule of law would facilitate democratic reforms, economic development, and nation building. Of course, human rights—simultaneously defined as universal, yet historically specific to the West—also needed to be protected. Moreover, what other cultures lacked in law, the West would provide through conscious transfer via culturally unencumbered legal engineers. These “engineers” ascribed to a culturally unspecific vision of law as an instrument of development policies. There was little doubt or humility in this vision. Modern American legal models,

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for example, would bring democracy to authoritarian states, regardless of their dissonance with the legal models already in place. This a-cultural vision spawned an empirically unassailable optimism among the legal missionaries. It was considered irrelevant that they often could not speak the language and knew little else of the peoples and places to which they were sent: American legal models were autonomous. Gardner’s (1980) critique cut to the core of the perceived altruism of these legal missionaries. He depicted American legal assistance as a product of disconnect because the movement did not carry abroad the most enduring and basic political foundations of American law and democracy: the Constitution and the Bill of Rights. Instead, modern economic law, including bankruptcy and contract doctrines, became the most common transplant. The consequences were frequently unanticipated: some recipients were technicians of regressive change; others, technicians of repressive change (i.e., apologists for one or another military dictatorship). Concessions by the countries that received legal assistance were, moreover, perceived as exhibiting their faith in an inevitable, linear social evolution underpinned by law. The negative consequences of this trajectory affected all parties concerned. The application of a theory of lack was not only humiliating to people in other lands, but also had the effect of making the West believe that it did not lack anything. One anthropologist has referred to this phenomenon as “false comparison”: comparing the ideal here with the “realities” there (Van Velsen 1969). Legal ethnocentrism has recently even been classified as a form of legal orientalism (Ruskola 2002). Thus, the historic claim made by many Western observers that China lacks an indigenous tradition of “law” displays Western ignorance. After all, China boasts dynastic legal codes going back to the Tang Dynasty (a.d. 618–907), which were predominantly (and ironically) based on notions of legal authoritarianism. Yet, despite vigorous efforts to debunk the idea that China is lacking in law, scholars such as Thomas Stephens (1992) continue to argue that Chinese law is not even worthy of the phrase “jurisprudence.”

Idealization and the Implicit Lack of “Others” Several historical examples will be cited in this article to provide evidence of the continued use of an a-cultural notion of “lack” grounded in false idealizations of non-Western legal cultures. Weber ([1922] 1968) was the first sociologist to develop an explicit taxonomy of law that exemplified the character of Chinese and Islamic legal systems. Of special relevance to the present, Weber claimed that Islam lacked rational law

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and rejected the possibility of Islamic jurisprudence. Kadi (judge) opinions might be authoritative, but they varied from person to person, and were pronounced without any statement of rational reasons. As Jedidiah Kroncke (2004–05) points out in his article, “The Flexible Orientalism of Islamic Law,” Weber’s analysis has since been called into question by numerous scholars (e.g., Berman 1987), yet his characterization of Islamic law remains relatively undisturbed—a stagnation in scholarship that has serious consequences (Nader 2006). Kroncke (2004–05) notes that an idealized Western law “becomes the evaluative standard … oblivious to peoples who have been radically impacted by colonialism, all of which plays into the hands of those uncritical thinkers planning U.S. foreign policy in these Eastern lands, people who only hear irrationality, illegitimate, unchanging, immorality.” While idealizations have been operating for as long as other peoples have been observed, it is always easier to create identity through opposition, especially from a perspective of relative ignorance. Law stereotypes, however, are an impediment to understanding how law works, indeed, what law is. Judith Shklar (1964) has observed that legal scholars tend to be so captivated by the ideal purposes of law that they think about law only as it ought to be and not as it actually is. While the debate over the impact and utility of legal realism continues in American law schools, this debate has had little lasting effect in the international arena. Needless to say, nowhere are the issues of legal idealization more salient than in colonial or imperial conditions of social and cultural disruption. “Normative blindness” has consequences. Societies are commonly disrupted as a result of international aid. Resistance to this disruption sometimes evolves into violent conflict, as in the period of African or Indian independence from colonialism, because of the imposition of foreign law. Customs thought to be barbarous by the international community may increase in incidence when the civilizing posture of foreigners is perceived as disrespectful. Such a phenomenon could be seen in the treatment of sati (or suttee) in British India, where stigmatization of a marginal ritual caused the proliferation of its practice as a symbol of resistance (Engles 1992). Disbelief or cynicism about the promises of international aid organizations arises from increasingly accessible knowledge of the divergence between Western social ideals and Western realities— for example, the increasing disparities in income in the United States, despite its “modernized” and “developed” institutions. The single most important difference between the Euro-American colonial period and the present is that the world is shrinking. “Others” can evaluate our promises by looking at real performance in the United States. Take, for example, Washington, D.C.—home of the World Bank’s headquarters. There, for

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all visitors to see, is widespread poverty that apparently has not been resolved by our own law, equity, and development policies.

Invalid Comparisons and the Avoidance of Self-Criticism Foreign populaces can now read contemporary articles on law, such as “Peasant Justice” by Michael Goldhaber (2005), which states that “in rural China, tort reform means jailing the plaintiffs and their lawyers. Getting them out isn’t easy.” Goldhaber recommends that readers draw their own conclusions about cause and effect. Yet, while arbitrary local justice is probably present in China’s Shaanxi Province, the United States is also vulnerable to criticism. Not only are large numbers of American prisoners behind bars because they are victims of racial discrimination or because they had woefully inadequate counsel, the tort reform movement in the United States is working to damage possibly the best tort system any modern country has known.1 Comparisons might be valid if the difference between the imposition of law and equity and the voluntary reception of Western law was recognized. Turkey and possibly Japan are often touted as having successfully adapted European legal traditions. However, not only was voluntary reception rare, it is debatable just how “voluntary” such processes were. In Turkey, reception was deliberate because the Ottoman Empire borrowed its private and public law from the Swiss, German, Italian, and French (Örücü 1992). It helped that Turkey was never a colony and that its ruling elite was intent on modernization and national integration. For Turkey, then, “voluntary” meant willing imposition by a social elite. The Japanese case involved more coercion due to its precarious situation in the middle of the nineteenth century, when Western powers attempted to force the Japanese empire to renounce its isolationist policies. Dealing with the “white peril” required that Japan accept the legal concept of “the law of nations” while preserving its own identity. Accepting a global system of law for diplomatic reasons then opened the door to foreign legal advisors (Seizelet 1992). Nevertheless, as Martin Chanock (1992) notes, imposition of law under colonial conditions was the rule, and this imposition was one of the most durable consequences of imperialism: it even survived decolonization. In other words, no attempt to adapt (postcolonial) legal systems to an indigenous culture has been successful. Chanock (1992, pp. 284–85) summarized the African situation as follows: “The picture is one of a population subject to extensive regulation imposed by laws, the content of which they [did] not know, and randomly administered by officials, both white and African, who [combined] administrative and judicial roles.”

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Chanock’s subtle analysis indicates how customary law was interwoven into British law. In this case, the law served the combined interests of colonial governments and African local authorities. This coincidence of interests has, in essence, trapped “natives” in what was supposed to be their idea of communal ownership, such as patriarchal control of family estates. Anglo-colonial law is thus a transformed law that combines imported and constructed laws. Chanock does not mince words in his conclusion: “The colonial period provided no foundation for the use of law by citizens in defense of their rights.” Indeed, the consequence of the legal encounter was “individualization without rights and bureaucratization without the rule of law” (Chanock 1992, p. 304). In any society, it is difficult to escape the power of elites to shape the law, but in an increasingly globalized world, elites become increasingly disembedded in their cultures, whether in formally democratic nations or not. The extra-national forces to which they are subject increase their relative social distance and make domestic accountability and attempts to improve their responsiveness even more difficult.

Ethnography: The Empirical Subverts the Ideal For close to fifty years, ethnographers at Berkeley have concentrated on the direction and development of law in new and old nations. Together with ethnographers elsewhere, their studies have examined isolated instances of customary law (e.g., in West Irian, New Guinea), customary or non-state law as it interacts with nation-state law (e.g., Sardinia, Zambia, and Sweden), and the coexistence of customary, religious, and state law worldwide, including in Euro-American countries (Nader 1978). In the United States, the issue of no access to law (Nader 1980), and non-state alternatives to the American judicial system used by American consumers of goods and services, were a particular focus. In addition, this author has followed the rise of the alternative dispute resolution (ADR) movement from its public inception and launch in 1977 by then Chief Justice of the U.S. Supreme Court Warren Burger (ADR was part and parcel of his anti-law movement). The energetic anti-law movement in the United States that began in the early 1970s and continues into the present, including ADR and international dispute resolution (IDR), has spread worldwide. Both ADR and IDR address the disenfranchised, described by Mauro Capelletti (1973) and other legal scholars as having no access to law. Both of these forms shift dispute resolution away from public institutions into private networks where essential ingredients, such as transparency, precedent, and social context, are often omitted.

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This ethnographic work on law, which is embedded in social and political contexts—whether counterhegemonic or organic (i.e., bottom up) or hegemonic (i.e., top down)—culminated in a deeper understanding of the multiple uses for which law of Western origin is promoted. Empirical research has, for example, examined how “little injustices” that add up to large systemic injustices are managed in the United States. The transmission of law from one country to another, its transformations, its instrumental use by neoliberal economics in pursuit of self-interest, and the use of the concept of lack to engineer change are compatible with Euro-American economic ideas about progress and the civilizing mission. All of these uses of law combine to justify interference in other places. Continuities in this approach have persisted since the early expansion of European law, which favored certain uses of the “rule of law,” democratic theory, and ideas of development rooted in Western notions of EuroAmerican exceptionalism and progress. Ethnographic work, on the other hand, has repeatedly shown that the justice motive is universal (Nader and Sursock 1986). No scholar has yet made the same case for “efficiency,” which is so often invoked in arguments that link legal and economic development. And while negotiation and mediation practices appear worldwide, they work best under conditions of relatively equal power.

Local Law and the Failure of National Integration The comprehensive publication of the Berkeley Village Law Project, The Disputing Process: Law in Ten Societies, asked what the lives of people in developing countries would be like if they were increasingly integrated into state and national frameworks, but proportionately more of their grievances resulted from contact with larger-scale impersonal organizations, rather than with their neighbors (Nader and Todd 1978). At the time, the authors had little idea that they would eventually be speaking about structural adjustments, the WTO, TRIPS, NAFTA, CAFTA,2 and other agreements generally classified as neoliberal. They noted that a major problem for the new states would be that law—one of the most powerful tools for integrating and cementing national goals—might be despised by the majority of people for reasons that Chanock (1992) and others have elaborated (i.e., questions of accessibility). The reasons for people’s disaffection with state law are multiple: the intolerance of social and cultural pluralism in Westernized law, unequal power (which becomes more pronounced in differentiated and stratified societies), professionalism (which alters patterns of access to major dispute-resolution mechanisms), and general problems of legal competence, corruption, and/or delayed prosecutions. Sometimes these matters are all rolled into one cluster of variables—the distribution of power.

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I belabor these issues not because they encompass novel observations, but because people in law and development keep repeating the same mistakes. If they mean what they say about democracy, poverty, equity, and other rousing issues, they need to understand the history of their predecessors, both institutionally and culturally. To be totally cynical about repeated failures would not be supportive of those who really do see liberating possibilities in the dissemination of Euro-American rule of law or, for that matter, the possibilities of Western culture accepting other (especially non-Western) ideas of justice into its own system (currently a conceptual impossibility). While the World Development Report 2006 of the World Bank (2005) recognizes many positive ideals, normative blindness is likely to take over in the practice of law and development without an understanding of the history of this practice. The examples of recent law and development projects that follow illustrate precisely this blindness.

Afghanistan: The Rejection of Local Knowledge A current example of the failure to make use of either local knowledge or anthropological observations of a country’s existing legal traditions can be seen in Afghanistan, where local knowledge is being rejected. In December 2001, an international meeting in Bonn, Germany, produced an agreement on provisional arrangements for legal reform in Afghanistan. As a result of that meeting, Italy assumed the preeminent role in judicial reform and, in February 2004, presented a complete criminal procedure code to the new Afghan government for implementation at all levels of the Afghan judiciary. The purpose of codification was to reduce arbitrary decision-making and promote judicial uniformity, as part of an effort to extend a centralized state structure to outlying provinces. As with past colonial policies, a unified legal system would both standardize state law and abolish customary or sharia religious precepts. As Faiz Ahmed (2005) points out, however, a central problem in this scenario is the imposition of law with little to no Afghan involvement. In addition, Afghanistan has a history of extremely deep distrust of centralized government, let alone foreign presence or the contravention of Islam. In a country where law is adapted locally to an extreme degree, success of Italian, rule-based criminal procedure seems unlikely. What is missing from the planning of such efforts is history. Ignorance of the fact that imposition of law tends to exacerbate internal conflicts, or serves a minority elite at the expense of the poor and the needy, does not serve legal reform efforts. Neither does ignorance of the fact that the role of the active plaintiff in traditional societies differs from litigation traditions in Euro-American societies. But active plaintiffs are not usually what state-

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centered legal systems are about. Anthropologist Thomas Barfield (2002) articulates the problem: I think one of the difficulties the international community is going to find in Afghanistan is that the Afghans have a very well developed structure of law, or morality and of justice, but it follows a different logic than our own. … While state structures are very underdeveloped, the question of running a society without state structures is highly developed. And that is not something that people in the international community are used to dealing with, and unless they do recognize the fact, it’ll be asking for trouble, as it attempts to create a viable Afghan government over the course of the next two years.

The validity of the notion that homogeneity, the state, success, and progress go hand in hand can be challenged by charting the consequences of modernizing actions in particular contexts. One of the intentions of the Berkeley Village Law Project was precisely to examine village law in fifteen different geographic contexts in order to have a baseline from which the flood of changes following independence from a colonial situation, and/or modernization more generally, could be measured. Barfield and other anthropologists would concur that the imposition of centralized judicial institutions on local communities that have their own non-state institutions for regulating behavior would periodically provoke regional rebellions, such as the opposition to the Taliban in Afghanistan prior to the U.S. intervention. In the non-state societies traditionally studied by anthropologists, a plaintiff is motivated to secure justice. He or she is not concerned with efficiency, per se, although access to disputing processes is, more often than not, easier than access to national state law. His or her experience is in many ways similar to that of average citizens in the United States, where plaintiffs often pursue claims at great cost simply to validate their sense of being wronged. Yet, this experience of the average person is almost completely at odds with economically based justifications that are at the forefront of international rule-of-law efforts. Given that the recent trend of integrating economic analysis and its formalistic assumptions about law has had deleterious effects on social policy in America, it is not surprising that the introduction of modern Western law is often a major cause of unrest in more removed cultural settings.

Centralized versus De Facto Law: Sardinia and Zambia Sardinia is a place where state law functions as the legitimate law. Alongside this state law, however, is a working de facto system of law of the Sard shepherds. The Italian state views the shepherds as lawless. The shepherds see state law as foreign and unresponsive to their daily needs.

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State law seems unnatural because it is imposed from without, while their own law emerges from their environment and seems natural to them. The shepherds argue that state law is not attuned to their reality and describe it as “arbitrary,” “expensive,” “time consuming,” and “corrupt” (Ruffini 1978). They are more gracious when describing their own system. If we look at how cattle theft is handled by the two systems, we find that the distribution of wealth is key. For the Sards, stealing cattle is a redistribution of cattle wealth—a movement of something from one place to another. It is not regarded as a crime, but a source of dispute to be handled without resort to state law, where the solution results in criminal, rather than restorative, consequences. Richard Canter (1978) examined cattle rustling in the central province of Zambia after the country’s independence. Mungule, a multiethnic area, is the home of the matrilineal Lenje-speaking people. There is a sharp dichotomy between the settlement processes applied to civil and criminal cases in this area. Civil cases, such as divorce, adultery, petty theft, land disputes, and the like, have been left to the local court, where disputes are settled by unwritten, yet changing, customary law that is elaborated by statutes and courts in urban centers. Criminal cases are heard at magistrates’ urban courts, where hearings follow a form dictated by a unified criminal code originally imposed by the British. From about 1950 to 1970, cattle-rustling cases increased and were taken to the magistrate’s court. By 1970, the huge number of such cases and the lack of deterrence that legal judgments were having on the practice precipitated a local demand that cattle rustlers be returned to the local court for trial. Yet in the Lenje court, two procedures for effecting a just decision were in conflict: those for proof and those for sanction. Local court decisions were primarily based on compensation and group responsibility. Magistrate’s courts, however, used punitive sanctions that mandated years in prison at hard labor—compensation for the theft was perceived only as a secondary consideration and often postponed for years. The response of the locals was to create their own (self-help) solutions, which were often devastatingly damaging and disruptive. National officials responded in turn by increasing the maximum penalty for convicted cattle rustlers from seven to fifteen years of hard labor. Most legal systems do not recognize the distinction between civil and criminal law, both of which are European legal categories related to the rise of the nation-state and the need for the state to justify its control and power over its citizens (Nader and Parnell 1983). In so-called Third World states, “civil” and “criminal” are the legacy of a specific Western tradition. Thus, in the Sardinian and Zambian examples, the state assumes the role of plaintiff, thereby supplanting the authority and intentions of

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the original plaintiff and often criminalizing him or her, as in the example that follows.

Papua New Guinea: The Role of Law in Plunder An elegant description of the role of law in plunder can be found in present-day Indonesia and Papua New Guinea, as presented by David Hyndman (1994). Here, two states facing a debt crisis—Indonesia and Papua New Guinea—favored investors who plundered natural resources, casting indigenous peoples in the role of subversive criminals when, in the view of anthropologists, they took up arms to protect their cultural and ancestral homelands. Hyndman observes that Third World colonialism has replaced First World colonialism. In collusion with Papua New Guinea and Indonesia, transnational corporations entered New Guinea to mine gold and copper—a process Hyndman describes as economic development by invasion. Local peoples fought the foreign presence by blockading airstrips and blowing up the pipes that ran from the mines. Lives were lost and property destroyed. Those who resisted were prosecuted as criminals under state laws that favored the investors. The crime rate went up. Ultimately, those in power decided what constituted a crime. Unsurprisingly, the actions of locals were criminalized and those of Indonesian, Papua New Guinean, and wealthy transnational corporations were legitimized using Western justifications of economic development and efficiency. Hyndman concludes that indigenous and Western resource management can be incorporated into state policy only if economic development is based on how people are already using their environment—a project more likely in independent Papua New Guinea than in Indonesia.

Iraq: Law, Plunder, and the Implications of Imposing Centralized Law It is illuminating to compare the ethics of customary or Islamic law in the Middle East with that of Paul Bremer’s 100 Orders when Iraq was ruled by the Coalition Provisional Authority. When the official reasons for the 2003 American invasion of Iraq evaporated, the justification for war shifted to ridding Iraq of Saddam Hussein in order to bring democracy and the rule of law to the country and region. This shift of rationale was headlined all over the United States with fanfare, and American lawyers and judges were sent to Iraq to pave the way. Because Americans were ignorant of twentieth-century legal developments in the Arab world—and the fact that the Iraqi Civil Code of 1953 was one of the most innovative, balanced attempts to merge Islamic and French law in the Middle East— Iraq was said to lack the rule of law.

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As in the case of Afghanistan, empirical ignorance prevailed among American legal engineers. One result was the key to the occupation of Iraq: the five hundred pages of Paul Bremer’s orders. A sampling of some of the most important orders includes Order No. 39, which stipulated that Iraq’s two hundred state-owned enterprises be privatized with unrestricted tax-free remittance of all profits and other funds and granted fortyyear ownership licenses. Foreign companies and investors can reject Iraq’s domestic courts and turn to international tribunals like the World Trade Organization (WTO), with its closed-door courts, as Order No. 17 granted foreign contractors full immunity from the laws of Iraq. Order No. 81 rewrote Iraq’s patent, trademark, and copyright laws so that they complied with WTO requirements on intellectual property (which is presently under scrutiny by activists that follow biopiracy practices). These orders provoked an anonymous warning by an Iraqi: “The day will come sooner rather than later, when the Iraqis will shred Bremer’s laws, soak them in water, and offer the glass to Bremer to drink” (Khaduri 2005). Meanwhile, disconnected from on-the-ground practices in Iraq and their consequences, American pundits pontificated on Sunday morning news interviews that democracy was difficult to build and that one couldn’t expect to make it work overnight. According to some observers, the making of democracy and freedom was thus transformed into “plastic words.”

Middle East: Traditions of Islamic and National Law Unlike nation-state law, Islamic law has a flexibility that historically tolerates and includes pluralities of law. Even in the contemporary Middle East, customary and religious laws coexist or even compete with national legislation. The sociolegal dynamics surrounding Islamic law explain the erroneous essentializing of sharia, an idea offered by Western thinkers since and including Max Weber (Kroncke 2004–05). Sharia is not a single entity; there are variations. It can, for example, justify and afford protection for rights of private ownership in urban areas, and of private ownership of natural resources and land outside urban areas. Historically in the Middle East, provisions have existed for common or communal ownership of water and grazing land (Mayer 1985). That sophisticated commercial activity existed in this area prior to colonialism should come as no surprise to those who but for a moment reflect on the role of the Middle East in premodern global economic development. Islamic law was not, moreover, always the overarching norm that determined how property was regulated. Rather, at times it functioned to complement other modes of property regulation, particularly in rural settings where customary laws existed prior to Islamic law. Classical Islamic theory also

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does not prohibit Muslims from following customary law, since it treats custom as a complementary source of legal rules, a strategy that supports resolution of conflicts and differences without resorting to hierarchical authoritarian political structures or alien political powers. The process is thus structured to prevent the development of a hegemonic political power in support of elite groups, alien or indigenous.3 In independent countries, such as Morocco, Algeria, or Tunisia—once colonized by the French—the unified notion of legal power inherent in the Western notion of the nation-state, first articulated in the colonial period, remains intact. Centralized law appears, on the surface at least, to have maintained the upper hand, if not over Islamic law in its entirety, then at least over customary law. “On the surface” because at any moment, the interrelatedness of customary, Islamic, and state law is significant. But this interrelated character of law is not static; reassertion of one or another sphere can be seen, for example, in the recent histories of Yemen, Sudan, Iran, and Afghanistan.

Considering the Inconceivable: A New Context for Moving beyond Western Law Military law and development schemes make it difficult to continue to work in a “business-as-usual” style. Indeed, the invasion and occupation of Iraq prompted Tanzanian jurist Issa G. Shivji (2003) to write, “The ‘new’ comeback of rule of law had little to do with the original Enlightenment values … this time it came as both a farce and a tragedy.” He continues: We have to re-think law and its future rather than simply talk in terms of re-making it. I do not know how, but I do know how not. We cannot continue to accept the value system underlying the Anglo-American law as unproblematic. The very premises of law need to be interrogated. We cannot continue accepting the … Western civilization’s claim to universality. Its universalization owes much to the argument of force rather than the force of argument. We have to rediscover other civilizations and weave together a new tapestry borrowing from different cultures and peoples. (Shivji 2003)

Shivji (2003) also notes, “The moral rehabilitation of imperialism was first and foremost ideological, which in turn was constructed on neo-liberal economic precepts—free market, privatization, liberalization, etc., the socalled Washington consensus. Human rights, NGOs, good governance, multiparty democracy, and rule of law were all rolled together.” Professor Shivji is not, moreover, a solo voice on contemporary imperialisms (see Aoki 1998).

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Disputes in village or tribal law are mostly between people who know each other or at least share certain common social and political linkages. But the spread of industrialization and the migration of people from rural to urban centers changes not only production but also consumption patterns. The effects of these developments on law are dramatic. The function of law as a power equalizer, and its role relative to everyday quality-of-life issues, diminishes. This shift is reflected in the general absence of any kind of social control through which order is traditionally maintained. The diminishing centrality of law at the local level is exacerbated because, in Western tradition, law has commonly been considered autonomous and independent from the rest of society. Hence the cookie-cutter, a-cultural approach (e.g., transplanting an Italian criminal procedure code to Afghanistan). In Islamic thought, the gap between sharia and social needs and opinions was addressed by recognizing customary law as a legitimate source of law. Western law, whether in code or other form, continues to affect practically all countries of the world. Although there is some recognition of the problems that this influence entails, the juggernaut moves ahead, independent of the consequences for locals and localities in their struggle for a livelihood. Even in decentralized places like Afghanistan, people react to national legal systems that do not respond to their needs either by violence or the elaboration of local solutions. International law and economic schemes conceived in some distant place may be viewed as suspect or anathema.

Rationalized Ignorance: Repeating the Mistakes of the Past The first wave of law and development efforts in the 1960s operated within a paradigm that gave priority to the role of the state. Through state-managed industry, lawyers facilitated state-led economic development (when trained to do so with an instrumental view of the law). The history of the demise of this first wave of legal assistance has been repeatedly analyzed since James Gardner’s (1980) initial critique in Legal Imperialism, but it is not clear that any lessons have been learned.4 The rule-of-law development efforts that followed have eclipsed all earlier efforts, aided by the post–Cold War historical moment and an organized, global international regime with a vision of world economic integration. The rule-of-law enterprise is now big business, responsible for billions of dollars of investments. Legal connections are being established between national legal systems and transnational legal power brokers, interwoven with Western ideas of democracy and international (read Western) approaches to such issues as national human rights, women’s rights (paving the way toward

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more strident, holier-than-thou rhetoric), guarantees of property rights, contracts, and minimal regulation—the purpose being to attract foreign investors. While political ideals are given rhetorical prominence, in practice, good governance is always judged in terms of economic practice. But where are the little people in this picture? Trickled down upon? They are exactly where Paul Bremer put them: at the bottom of the ladder, ensuring that they will continue to be an example of lack, which will again justify further foreign interference.

Reinvigorating the Credibility Gap Throughout this review, examples past and present have implied that law and development efforts have a credibility problem. During the colonial period, the colonized were generally ignorant of their Western colonizers; that is not the case today. The histories of Europe and the United States— with all their strengths and weaknesses, accomplishments, and failures— are available, as is a plethora of information sources that document how law and development has been oversold. A final example illustrates the results of how multiple interested parties participating in reform, or economic development, jeopardized indigenous rights to traditional lands. Because native peoples have been plundered for over five hundred years, the credibility gap—between reformers, governments, and international agencies (whether non-profit or not)—may best illustrate the problems associated with law and development. Richard Reed (2003) summarizes the development problem in his article, “Two Rights Make a Wrong,” which concerns indigenous peoples, the Guarani and Ache, who maintain traditional ways of life in the forests of eastern Paraguay, and their encounter with joint Paraguayan and international “debt-for-nature” swaps. In 1968, the forest of these two indigenous peoples was purchased by a timber company. In 1971, the Guarani were forced out of their territory by the timber company. In 1974, the timber company went bankrupt, and the World Bank acquired the land by default. In 1976, the World Bank and the Paraguayan government tried to force the Ache people out of the forest. In 1983, anthropologists approached the World Bank and requested that it cede the forest to the indigenous groups, but the Bank ignored both the anthropologists and its own guidelines on indigenous peoples. Nevertheless, the Nature Conservancy acquired fifty-three thousand hectares of forest from the World Bank and anthropologists then worked with indigenous groups to create a reserve. In 1991, all Guarani indigenous people were denied access to the reserve, while the Ache were granted limited access to it, provided that they maintained their “traditional” lifestyles as defined by the Nature

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Conservancy and the NGO Fundación Moises Bertoni. As Reed (2003) concludes, “The plan that was implemented reinforced the inequities of power and resources that characterize other relations between smallscale societies and the larger system.” Once touched by the market, native peoples are expected to lay down the mantle of “noble savage” and align with the environmentally destructive society. In this context, environmental protection groups are the new “developers,” backed by worldwide networks of information, political connections, and significant amounts of money—economic and political weapons—that enable them to confront some of the most powerful corporations and many national governments. The Nature Conservancy, for example, was able to rally support for the reserve and the relocation of indigenous residents. From the indigenous peoples’ point of view, however, its activity was just one more appropriation of indigenous land for purposes outside the rule of law. The credibility of law and development projects is compromised by such outcomes. The story has been repeated so often that indigenous groups do not distinguish between latifundistas (landowners), the Nature Conservancy, or the World Bank. Proponents of new projects thus often set the stage for failure or unrealistic expectations. Their credibility is also compromised by pressures from various political and economic interest groups, which in the above case were agro-industrialists and a growing peasant population whose land demands were satisfied by the Paraguayan government land reform law. Between 1963 and 1984, the Paraguayan land reform agency redistributed millions of hectares to peasant colonists.46 The resulting (and continued) deforestation in Paraguay is the most significant in any Latin American country (Reed 2003). Paraguay’s subtropical forests are becoming an international breadbasket, while indigenous peoples are losing their land. It is important to be aware that such outcomes produce effects on those who interact with projects on the rule of law—what they have known best is lawlessness and public pronouncements. Is there any reason for them to trust yet another development effort, especially one that promises equity and the rule of law (a particularly untrustworthy institution vis-à-vis indigenous affairs in both North and South America)?

Conclusion: Bridging the Word-Deed Divide Critically learning from the past opens the way for a new dynamic, one that brings practice and ideals into more healthy alignment. In doing so, we must be attentive to the underside of law and its practice as an instru-

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ment of appropriation, given that shifting legal ideologies can make illegitimate acts legitimate, depending on the contenders and the prizes at hand. During different periods in history, there have been changing legal emphases—exploration, “missionizing,” colonization, depopulation, development, democratization, or (in the present military-industrial period) globalized development—but local, regional, and international networks of power have consistently disrupted idealized notions of law.

New Legal Instruments The implicit assumption that markets conform to fixed laws impervious to human intervention strengthens the view that the economic forces that shape the world are predetermined and beyond human control. Few writers, however, have analyzed the role of ideologies of fate and destiny as insulating mechanisms (Reed 2003). Those who have studied the role of ideology indicate that the belief in neoliberalism as destiny produces passivity and acquiescence in local cultures, which in turn inhibits creative thought and problem solving. A crucial starting point, then, would be to recognize that what we think of as the natural unfolding of history is actually humanmade and, therefore, can be redesigned. Real alternatives are more likely to enter the conversation at a point of discontinuity. A number of alternative legal instruments exist, for example, in the thoughts and actions of people around the world who already had or have adopted the ideals of the rule of law. These instruments range from the development of a database on India’s traditional remedies by Indian physicians and technicians (to protect them from theft by multinational drug companies in a practice known as biopiracy) to efforts to control the definition of nature, as in the Kayapo Indian case in Brazil (Shorett 2002). Other new legal instruments seek to address the way in which individual rights are favored over collective rights. Native Americans, for example, question the legitimacy of law that absconds with their land by people who employ the “make good use” argument (Nader 2000). In addition, efforts to reinvent or eliminate patent laws so as to protect local peoples’ use of seeds are now ubiquitous. These efforts to work within the concept of the rule of law are but a sampling of examples.

Reweaving Notions of Law and Civilization Shortly before her death, Margaret Mead was reported to have observed that capitalism, socialism, and communism were invented in the nineteenth century to deal with nineteenth-century problems. She concluded that we need a philosophy for our own times. Professor Shivji’s critique

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cited earlier echoes her observation. Shivji begins with hope—“We are on the threshold of reconstructing a new civilization, a more universal, a more humane civilization”—and ends with a challenge for all people on this planet: “We have to rediscover other civilizations and weave together a new tapestry, borrowing from different cultures and peoples” (see also Pinkoski and Asch 2004). As this author has argued previously, it is possible for law to serve as the basis for a more just democracy, provided that the plaintiff is not thwarted (Shivji 2003). Rule-of-law projects, however, will continue to lack wider legitimacy if law is used, as is the norm today, to maintain factors of power and control that work against the majority of the world’s citizenry. NOTES This chapter was originally published as: Laura Nader, “Promise or Plunder? – A Past and Future Look at Law and Development,” pp. 87–111 from The World Bank Legal Review: Law, Equity and Development, Volume 2, Ana Palacio, editor in chief, Washington D.C.: The International Bank for Reconstruction and Development, (reprinted in Global Jurist, (August) 7(2), Article 1 (Frontiers): 1–24, 2007.) Copyright © 2006, World Bank. All rights reserved. Reproduced with permission of the World Bank.   1. The United States has the only system of tort law that provides compensatory and punitive damage relief for wrongfully injured people before a civil jury and judge, with separate functions that determine facts (jury) and law (judge) in a precedential system of common law. This allows the law to continue to develop and reflect new conditions, values, and community expectations vis-à-vis the responsibility of the defendant and the rights of the plaintiff. Moreover, the common law of torts and its associated judicial system allows both middle-income and poor people unparalleled access to top legal counsel (which they otherwise could never afford) through the contingency fee.   Over the last twenty years, a defendants’ lobby and insurance companies have attacked the tort system and succeeded in codifying (i.e., restricting) common law through state and federal laws passed by legislators. Such restrictive changes seriously erode the capacity of the common law of torts to evolve, award adequate compensation, and preserve the independence of the judiciary and the critical role of the civil jury. More one-sided restrictions against plaintiffs are being planned, which will further erode the tort law system and its ability to address the epidemic percentage of wrongful injuries that are part of this industrial society. These developments may even halt improvements that stem from the impact of the tort system (e.g., safety improvements in the automobile, foundries, coal mining, medical device industries, etc.).

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 2. WTO—World Trade Organization; TRIPS—Trade-Related Aspects of Intellectual Property Rights; NAFTA—North American Free Trade Agreement; CAFTA—Central American Free Trade Agreement.   3. For an analysis of antagonism against state law in positive terms, see Pierre Clastres, Society against the State: Essays in Political Anthropology, trans. Robert Hurley (Cambridge, MA: Zone Books, 1987).   4. The globalization of informal law (such as ADR, peacekeeping, and peacemaking strategies) are, perhaps, an attempt to use soft legal technologies to address local-level law. See Laura Nader, “The Globalization of Law: ADR as ‘Soft’ Technology,” in American Society of International Law (ASIL), Proceedings of the 93rd Annual Meeting (Washington, DC: ASIL, 1999).

REFERENCES Ahmed, Faiz. 2005. “Judicial Reform in Afghanistan: A Case Study in the New Criminal Procedure Code.” Hastings International and Comparative Law Review 29 (1): 93–134. Aoki, Keith 1998. “Neocolonialism, Anticommons Property and Biopiracy in the (Not So Brave) New World Order of International Intellectual Property Protection.” Indiana Journal of Global Legal Studies 6 (1): 11–58. Barfield, Thomas J. 2002. “On Local Justice and Culture in Post-Taliban Afghanistan.” Connecticut Journal of International Law 17 (3): 437–44. Berman, Harold J. 1987. “Some False Premises of Max Weber’s Sociology of Law.” Washington University Law Quarterly 65 (4): 758–70. Coalition Provisional Authority (CPA) in Iraq. L. Paul Bremer III, CPA Administrator. 2003–2004. Orders, no. 1–100. CPA official documents page, website of the Coalition Provisional Authority in Iraq. Accessed 3 February 2006. http:// www.iraqcoalition.org/regulations/index.html#Orders. Capaletti, M. 1973. Civil Procedure. Tübingen, Germany: J.C.B. Mohr. Canter, Richard S. 1978. “Dispute Settlement and Dispute Processing in Zambia: Individual Choice versus Social Constraints.” In The Disputing Process: Law in Ten Societies, ed. Laura Nader and Harry F. Todd, 247–80. New York: Columbia University Press. Chanock, Martin. 1992. “The Law Market: The Legal Encounter in British East and Central Africa.” In European Expansion and Law, ed. W. J. Mommsen and J. A. De Moor, 279–306. Oxford: Berg. Clastres, Pierre. 1987. Society against the State: Essays in Political Anthropology. Trans. Robert Hurley. Cambridge, MA: Zone Books. Easterly, William. 2005. The White Man’s Burden: Why the West’s Efforts to Aid the Rest Have Done So Much Ill and So Little Good. New York: Penguin Press. Engles, Dagmar. 1992. “Wives, Widows, and Workers: Women and the Law in Colonial India.” In European Expansion and Law, ed. W. J. Mommsen and J. A. De Moor, 159–78. Oxford: Berg.

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Falk, Richard. 1992. “Cultural Foundations for the International Protection of Human Rights.” In Human Rights in Cross-Cultural Perspective: A Quest for Consensus, ed. A. A. An’Na’im, 44–64. Philadelphia: University of Pennsylvania Press. Gardner, James. 1980. Legal Imperialism: American Lawyers and Foreign Aid in Latin America. Madison: University of Wisconsin Press. Goldhaber, Michael. 2005. “Peasant Justice.” American Lawyer, 1 November. Hyndman, David. 1994. Ancestral Rain Forests and the Mountain of Gold: Indigenous Peoples and Mining in New Guinea. Boulder, CO: Westview Press. Khaduri, Iman, ed. 2005. “US Declares Iraqis Must Destroy Their Own Seeds.” (From http://abutamam.blogspot.com and http://www.globalresearch.ca, 2-1-5, [1 February 2005]). Accessed 18 July 18, 2006. http://www.rense.com/ general62/seeds.htm. Kroncke, Jedidiah. 2004–05. “The Flexible Orientalism of Islamic Law.” UCLA Journal of Islamic and Near Eastern Law 4: 41–73. Mayer, Ann Elizabeth, ed. 1985. Property, Social Structure, and Law in the Modern Middle East. Albany: State University of New York. Mommsen, W. J., and J. A. De Moor, eds. 1992. European Expansion and Law: The Encounter of European and Indigenous Law in 19th- and 20th-century Africa and Asia. Oxford: Berg. Nader, Laura. 1980. No Access to Law: Alternatives to the American Judicial System. New York: Academic Press. ———. 1999. “The Globalization of Law: ADR as ‘Soft’ Technology.” In American Society of International Law, Proceedings of the 93rd Annual Meeting. Washington, DC: ASIL. ———. 2000. The Life of the Law: Anthropological Projects. Berkeley: University of California Press. ———. Forthcoming 2009. “Law and the Frontiers of Illegalities.” In The Power of Law in a Transnational World: Anthropological Inquiries, ed. F. von BendaBeckmann, K. von Benda-Beckmann, and A. Griffiths. Oxford: Berghahn Press. Nader, Laura, and P. Parnell. 1983. “Criminal Law and its Enforcement in Preliterate Societies.” In Encyclopedia of Crime and Justice, vol. 1, ed. Sanford H. Kadish, 200–7. New York: Free Press. Nader, Laura, and Andree Sursock. 1986. “Anthropology and Justice.” In Justice: Views from the Social Sciences, Critical Issues in Social Science series, ed. Ronald L. Cohen, 205–33. New York: Plenum Press. Nader, Laura, and Harry F. Todd, eds. 1978. The Disputing Process: Law in Ten Societies. New York: Columbia University Press. Örücü, Esin. 1992. “The Impact of European Law on the Ottoman Empire and Turkey.” In European Expansion and Law, ed. W. J. Mommsen and J. A. De Moor, 39–58. Oxford: Berg. Pinkoski, M., and M. Asch. 2004. “Anthropology and Indigenous Rights in Canada and the United States: Implications in Steward’s Theoretical Project.”

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In Hunter-Gatherers in History, Archaeology, and Anthropology, ed. Alan Barnard, 187–200. Oxford: Berg Publishers. Reed, Richard. 2003. “Two Rights Make a Wrong: Indigenous Peoples versus Environmental Protection Agencies.” In Applying Cultural Anthropology: An Introductory Reader, 6th ed., ed. Aaron Podolefsky and Peter J. Brown, 108–15. Boston: McGraw-Hill. Ruffini, Julio. 1978. “Disputing over Livestock in Sardinia.” In The Disputing Process, ed. Laura Nader and Harry F. Todd, 209–46. New York: Columbia University Press. Ruskola, Teemu. 2002. “Legal Orientalism.” Michigan Law Review 1 (1): 179–234. Seizelet, Eric. 1992. “European Law and Tradition in Japan during the Meiji Era, 1868–1912.” In European Expansion and Law, ed. W. J. Mommsen and J. A. De Moor, 59–82. Oxford: Berg. Said, Edward. 1978. Orientalism. New York: Vintage Books. Shivji, Issa G. 2003. “Law’s Empire and Empire’s Lawlessness: Beyond AngloAmerican Law.” Journal of Law, Social Justice and Global Development 1 (Electric Law Journals, University of Warwick/University of Strathclyde, UK). Accessed December 2005. http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/ 2003_1/shivji2/shivji2.rtf. Shklar, Judith N. 1964. Legalism: Law, Morals, and Political Trials. Cambridge, MA: Harvard University Press. Shorett, Peter. 2002. “Dogmas of Inevitability: Tracking Symbolic Power in the Global Marketplace.” Kroeber Anthropological Society Papers (University of California, Berkeley) 87: 219–41. Stephens, Thomas P. 1992. Order and Discipline in China. St. Louis, MO: Washington University Press. Van Velsen, Jan. 1969. “Procedural Informality, Reconciliation, and False Comparison.” In Ideas and Procedures in African Customary Law, ed. M. Gluckman, 137–52. London: Oxford University Press. Weber, Max. (1922) 1968. Economy and Society: An Outline of Interpretive Sociology. Ed. Guenther Roth and C. Wittich. Trans. E. Fischoff and others. New York: Bedminster Press. World Bank. 2005. World Development Report 2006: Equity and Development. Washington, DC: World Bank and Oxford University Press.

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E c ha p te r 2 3

What the Rest Think of the West Legal Dimensions

Introduction The notion of others observing Us before there was such a thing as anthropology was brought to my attention by Carleton Coon’s General Reader in Anthropology. Coon (1948) made a break with previous anthropological selections by including what other peoples had to say about the West in addition to what anthropologists have said about other cultures. He introduced me to the Chinese Buddhist who went to India in a.d. 600 and wrote about—among other things—manners, the administration of law, and trials by ordeals—and to Ibn Fadlan, who in traveling from Baghdad to the Volga left us with the earliest known texts describing what we now call human rights violations among the Scandinavian traders in early Russia, there to reap the rich overland trade from India and China. That graduate experience stayed with me.

Orientalism, Occidentalism, and Control As an anthropologist, I have written about the act of thinking comparatively. Even though one may not see oneself as a comparativist, thinking comparatively is probably universal. When we look at others objectively, we cannot help but at least implicitly be comparing what we see with what we already know. In the 1980s I wrote about comparative consciousness, arguing that without making explicit our implicit comparisons the validity of our work was diminished. I used as illustrations what the West notices about the conditions (legal and otherwise) of Islamic women and what Islam may observe about women in the West (Nader 1989). I recognized “the mutuality” of the gaze—each seeing the other as repressive—legally

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and otherwise. For example, Western legal observers see plural marriage as impinging on women’s status, while Islamic legal scholars might argue that such arrangements come with legal responsibilities while having mistresses in Europe does not. My interests led to teaching a graduate seminar around the diplomats, adventurers, religious missionaries, lawyers, and more who traveled to the West—mostly members of the literate elite. This work in progress, titled “What the Rest Think of the West: a.d. 600 to 2010,” will include selections from various historical periods of extant civilizations—Japan, China, India, and Islam—during first contact, the colonial era, independence, and the contemporary period. The early first-contact writings are most interesting, especially because European intellectual, cultural, and commercial life was relatively stagnant during the early medieval period, a time when Asia was a flourishing wellspring of science, philosophy, and religion—When Asia was the World (Gordon 2008), the book title reminds us. Orientalism was not yet pervasive. In this brief talk, three examples of commentary on Western law will suffice. Mirza Abu Taleb Khan—who wrote of his travels from 1799 to 1803, from India to Europe, mainly to England; Abd al-Rahman Al-Jabarti during the same period—1798 to 1803—covering the Napoleonic invasion of Egypt (Al-Jabarti being probably the most respected Arab historian of any period); and a more recent twenty-first century observer, Issa Shivji, professor of law at the University of Dar es Salaam in Tanzania.

Mirza Abu Taleb Khan From the establishment of the East India Company in the early seventeenth century, India’s exposure to Britain had been primarily through the company’s monopoly of trade east of the Cape of Good Hope and across to Cape Horn—that is, Indian and Pacific ocean trade. Mirza Abu Taleb Khan was raised in a relatively mobile Turkish/Persian family. He himself was born in Lucknow in northern India in 1752, settled in Bengal, and was exposed to the East India Company as a mediator between English officers and the Indian ports men. Through his friendship with a Captain Richardson, Abu Taleb (Khan [1803] 2008) visited London and left us with a detailed description of the “exotic” European world. Most engaging among Abu Taleb’s observations and of relevance to my topic here are his comparisons between Indian and European liberties, both juridico-legal and gendered. He is unconvinced by the “boasted palladium of English liberty,” and finds it is difficult to defend the corruption of the British courts as evidenced by Abu Taleb’s unlucky ex-

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changes with the tailor who had swindled him by taking advantage of a bureaucratic legal system comprised of exorbitant court costs, extended lawyer charges, and the absolute dictates of an overworked judge. To Abu Taleb’s credit, he is nonetheless able to value English judges with a charitable eye as “above all temptation to act unjustly.” His position as a Muslim Indian permits him to observe the unique circumstances surrounding a non-native embroiled in unpredictable legal games in which he is at the whim of translators and lawyers. However, his critique is not unidirectional. After discussing the “terrors” of the British legal system, he draws a comparison with Calcutta courts by invoking familiar Indian procedures in which witnesses accused of being liars are sent home without remuneration, and by recalling a local anecdote in which a woman outwits a judge who has some measure of sovereignty in the court. But his critique is ultimately constructive: he suggests that lawyers, like judges, be paid by public funds in order to eliminate incentive for financially-interested delays. In addition to his critique of English legal liberties, he draws comparisons between the liberties of Indian and British women in an attempt to vindicate perceptions of Asian women. The parallels between his time and the contemporary period are unmistakable: Asian women are described as isolated from the public sphere, victims of polygamous arrangements, unable to initiate divorce, etc. Not only does he refute notions of an oppressed Asiatic woman, he proposes a bolder claim—that they actually have more liberties compared to the European woman. Finally, although his is a book about his travels, he says that he “cannot pass over this opportunity of freely expressing my sentiments with respect to the establishment of British courts of law, which I contend, are converted to the very worst of purposes” (Khan [1810] 2008, p. 9). He points to some of the problems that arise when an English way of life is translated into an Indian context. Because most Indians are “unacquainted with the English laws and customs, unsavory crooks and cheats are able to take advantage of them and thus turn the legal system into a joke.” Khan takes a supposedly universal principal, “law” and shows how it can be utilized in a way that is not universally beneficial, indicating that it is untenable to impose one way of life onto another without causing major disruptions.

Abd al-Rahman Al-Jabarti Al-Jabarti ([1798–1803] 1993) recorded Napoleon’s invasion of Egypt in 1798 through observations and detailed accounting of the invasion. It is a story told by a Muslim scholar to a Muslim audience using a methodology

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of utmost contemporary sophistication. He denounced French rhetoric of liberation as a justification for their invasion of Egypt, and exposed the inconsistencies between their words and their actions. Napoleon’s proclamation to the Egyptian people seems accommodating: he comes to Egypt not to abolish their religion but rather “to restore their rights from the hands of the oppressors” (Abd al-Rahman [1798–1803] 1993). As Al-Jabarti recounts, this friendly Bonaparte not only failed to free the Egyptians from oppression; he just changed the faces of the oppressors from the Mamluks to the French. The Egyptians faced many indignities under this regime change including the imposition of heavy taxes, the loss of property and goods, and even the destruction of their mosques. Napoleon had proclaimed that the foundation of liberty and equality that France was founded on would extend to the Egyptian people. The beneficiaries are supposed to be those being invaded, but Al-Jabarti points to the reality that belies the claim. Napoleon brought his own historian with him—Louis de Bourrienne— whose account of Napoleon’s invasion could not be more different than Al-Jabarti’s. De Bourrienne’s ([1836] 1885, p. 141) account reveals that the French believed in their own magnanimity: “No conqueror, perhaps, ever enjoyed a victory so much as Bonaparte, and yet no one was ever less inclined to abuse his triumphs.” Compared to Al-Jabarti, De Bourrienne never sees any conflict beyond that of native rebellion. Al-Jabarti is not taken in by the propaganda. He analyzed the geostrategic French interest that would benefit from French occupation, particularly the French rivalry with England over control of trade from the Indian subcontinent. The local notables note that the ideology of local rule in the proclamation is a lie, and that the rulers are not carrying out their obligations. Preventing chaos eventually falls back to the locals, while the new rulers occupy themselves with writing new laws and creating new procedures that result in the expropriation of property. In sum, creating the new rules belongs to the occupiers, preventing chaos to the locals. Al-Jabarti notes that the French fail to pay civil servants as promised and the people finally riot in disobedience to the new rulers. The reaction of the French is reminiscent of Iraq today—surprise at the resentment, and the riots then become justification for further hostile military actions. French claims that all people are equal is opposite of the practice that Al-Jabarti notices: the French may have proclaimed their intention to bring republican ideology to rule the Egyptians, but they do not introduce actual republican rule. For Al-Jabarti, the civilizing mission was at the hands of the godless, neither Christian nor Muslim. He does not identify the French with Christianity. The French are ruthless hypocrites, confessing allegiances to re-

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ligious traditions yet murdering Catholic priests and Muslim inhabitants, destroying European churches and Egyptian mosques. He disparages French revolutionary ideals of equality and liberty. Yet, his own historical practices of equality are in sharp contrast to French claims of equality.

Issa G. Shivji, Professor of Law, University of Dar es Salaam, 2003 When the United States invaded Iraq in 2003, Professor Shivji canceled his attendance at a conference in Britain and in protest and anguish wrote the following forward-looking critique. His own words capture the moment better than any summary I could provide. “For those of us who come from Africa, the hypocrisy and double standards of the Western establishment are not new. . . . the admirers, nay believers, in the values of the enlightenment and the virtues of the rule of law have been many. The Nkrumahs and the Nyereres, the Mandelas and Mondlanes were all steeped in Western liberal values and crafted their people’s independence in the language of law and rights” (Shivji [2003] 2009). This African critique of the Western legal order, after and before Independence, was a critique that highlighted the divergence between the ideal and the real, between theory and practice: The “new” comeback of rule of law had little to do with the original Enlightenment values. . . . This time around it came as both a farce and a tragedy. Farce because the law was not being made by the representatives of the people. International Financial Institutions (IFIs) and their consultants dictated it. Tragedy because the national sovereignty won by the colonized people was all but lost except in name. . . . Witness Panama. Witness Sudan. Witness Somalia and Iraq and Iraq again. . . . We cannot continue to accept the value-system underlying Anglo-American law as unproblematic. The very premises of law need to be interrogated. We cannot continue accepting Western civilisation’s claim to universality. Its universalization owes much to the argument of force rather than the force of argument. We have to rediscover other civilisations and weave together a new tapestry borrowing from different cultures and peoples. (Shivji [2003] 2009, pp. 222–28)

Conclusion Words and deeds, access to legal authority, arbitrary judgment, hypocrisy, legitimacy, and legacy are what the Rest notice when they observe

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Western laws in practice. We do need to rethink the premises of Western law practice to augment argument rather than force and rhetoric in the light of what makes a rule of law in fact possible. Global political realism requires us to look in the mirror because exercise of law (authority without legitimacy) cannot be referred to as a democratic law that might be a new basis for planet security and prosperity.

NOTE This chapter was originally published as: Laura Nader, “What the Rest Think of the West—Legal Dimensions,” pp. 765-777 from Hastings International and Comparative Law Review. (Summer) 32:2 (2008). Reprinted with permission from University of California, Hastings (UCH).   1. This paper was delivered at the Annual Meeting of the American Society of Comparative Law, Hastings College of Law on 3 October 2008.

REFERENCES Al-Jabarti, Abd al-Rahman. (1798–1803) 1993. Napoleon in Egypt: Al-Jabarti’s Chronicle of the French Occupation, 1798. Translated by Shmuel Moreh. Prince­ ton: Markus Wiener Publishing. Coon, Carleton. 1948. A General Reader in Anthropology. New York: H. Holt & Co. De Bourrienne, Louis Antoine Fauvelet. (1836) 1885. Memoirs of Napoleon Bonaparte, vol. 1. Edited by R. W. Phipps. London: Richard Bentley and Son. Gordon, Stewart. 2008. When Asia Was the World. Philadelphia: De Capo Press. Khan, Mirza Abu Taleb. (1810) 2008. The Travels of Mirza Abu Taleb Khan in Asia, Africa, and Europe, during the Years 1799, 1800, 1801, 1802, and 1803. Edited by Daniel O’Quinn. Peterborough, ONT: Broadview Press. Nader, Laura. 1989d. “Orientalism, Occidentalism and the Control of Women.” Cultural Dynamics, (July) 2(3): 323–355. (Reprinted and transl. “Orientalisme, Occidentalisme et contrôle des femmes.” Nouvelles Questions Feministes– Revue internationale francophone sexism et racism: le cas francais, 25(1): 12– 24, 2006). Shivji, Issa G. (2003) 2009. “Law’s Empire and Empire’s Lawlessness: Beyond the Anglo-American Law.” In Where Is Uhuru?: Reflections on the Struggle for Democracy in Africa, 222–28. Cape Town: Fahamu Books.

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E c ha p te r 2 4

The Words We Use Justice, Human Rights, and the Sense of Injustice

Were there no injustice, men would never have known the name of justice. —Heraclitus, nearly 2,500 years ago

Introduction In this epigraph, my interests lie in the taken-for-granted uses made of words to describe law-related phenomena—justice, injustice, human rights. In national and transnational contexts of power the ambiguities embraced by words such as justice, injustice, or human rights are often there for a purpose—the masking of imperial intent or power disparities that some might call recycled indirect rule; or a favored concept may be selected as a distancing mechanism, or word use may be the result of confusions. Others may select words to provoke debate in reference to concrete instances or to avoid confrontation by keeping the conversation abstract enough to keep within boundaries. In addition, words such as justice may be used to differentiate between us and them, the virtuous and the wild animal, or good and bad scholarship. As a cultural anthropologist, my professional interest lies in understanding the eye that sees, the mind that makes sense of ethnographic findings, and the controlling processes that mediate word use more generally. Simply put, the words we use to discuss law in the making of history often color the content of what we write while also shaping the possibilities for global research efforts to transform human relations. The process by which words can be made to convey thought is far more complex than is ordinarily understood. In order to indicate the constraints imposed by justice as the concept of choice, I start my paper by summarizing a corpus of work written over several decades during which time I, the anthropologist/author, was in-

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vited to write about justice. Then, I introduce Edmond Cahn’s ([1949] 1964) efforts to bring together the abstract and the concrete in his book The Sense of Injustice, and indicate further what surveys reveal about academic preferences for the words justice, injustice, and human rights. Finally, I return to my two foreign field sites to query the utility of words like justice, injustice, or human rights for understanding changes during a period of war and rapid globalization. I conclude with a brief commentary—a non-theory of law and justice word use in an increasingly lawless world punctuated by technology- and profit-motivated warfare.

A Corpus of Work, 1971–2007 In the fall of 1971, while a visiting professor at the Yale Law School, I received an invitation to attend a conference on injustice in Canada. I was taken aback since nobody had ever to my knowledge had a conference on injustice. Usually conferences are about justice, not injustice. I was intrigued, readily accepted the invitation, and presented a paper titled “Perspectives on the Law and Order Problem” (Nader 1974). I began my paper in the following manner: As an academic concern, anthropologists have only rarely been interested in cross-cultural descriptions of justice, and almost never interested in comparative conceptions of injustice. We have, until recently, described social and cultural systems as smooth-working affairs. … I myself made a film (Nader 1966) of people’s behavior in a Zapotec Indian law court which stimulated the comment from a Mexican anthropologist that Americans always look at life through a silver lining. It was this comment as well as the happenings in universities and in the world during the 1960s that stimulated me … to research the Zapotec sense of injustice. … At the same time, my Zapotec studies silhouetted the injustices connected with the practices of law in twentieth-century America. (Nader 1974, p. 65)

As my research networks expanded, I was to realize exactly how aberrant that first Canadian invitation had been. In the following year, I published another invited paper, “Forums for Justice: A Cross-Cultural Perspective” (Nader 1975), an essay that dealt with what people do when they feel they have been wronged and why, as well as what is done to them in relation to that wrong. I remarked that justice was a slippery concept, but that all societies have accepted ideas as to what is fair or just while ethnocentrism probably reigns supreme in the area of justice. I told of a conversation with a fellow American anthropologist about the acceptable excuses for certain types of other-

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wise criminal or at least deviant actions that all societies have and noted that in the United States the insanity plea was such an excuse while in Mexico drunkenness was its functional equivalent. The anthropologist responded, “That goes against every grain of justice that I have in my body” (Nader 1975, p. 153). Three years later, I was invited by the National Center for State Courts to write a piece on “Justice: A Woman Blindfolded?,” a paper I wrote with Jane Collier (Nader and Collier 1978). (We added the question mark.) We began by noting that broader socioeconomic contexts limit possibilities for access to court justice and in speaking about two African societies pointed out that women in less developed countries may have more access to forums such as courts than their Western sisters, while courts in the developing nations are becoming less accessible as they come under the aegis of nation-state law. In other words, we argued that the relation of women to courts is elsewhere becoming more like that in the United States—inaccessible for the handling of problems of everyday life such as wife-beating, and indeed ineffective in changing the trend towards unequal pay for equal work (Nader and Collier 1978, p. 203). And in conclusion we noted that justice will continue to be personified as a woman blindfolded until we resolve two basic contradictions. On the one hand, American culture has long promoted ideologies of equality and protected fair and equal treatment in the courts. On the other hand, the repressive effect of a U.S. male-dominated economic system makes such equality impossible (Nader and Collier 1978, p. 221). As the years passed, the injustices resulting from development models called attention to a bias in legal research—a bias that preferred justice talk rather than injustice talk. Development would bring prosperity, freedom, and justice. Even in the 1960s and 1970s we spoke about rights more commonly than injustice—civil rights, women’s rights, Native American rights, consumer rights, and more. By 1981, Public Broadcasting Associates, with Terry Kay Rockefeller as producer, launched a documentary film about my work. We called it Little Injustices: “What happens outside of law affects what’s happening inside the judicial system, and you can’t look at one without looking at the other. You can’t understand consumer behavior without understanding production behavior. You can’t understand increased disrespect for law if you ignore the cumulative impact of little injustices” (Nader 1981). In industrialized societies, little injustices (the consequences of which are not often little) commonly go ignored and unresolved. However, the PBS-published interview with me ended on an optimistic note about the potential of America and the fact that we can have citizen-action groups in this country while in Eastern Europe or the Soviet Union there is less potential: they lacked, we do not.

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In 1986, I published a paper on “Anthropology and Justice” with Andrée Sursock. Once again this resulted from an invitation to participate in the volume Justice: Views from the Social Sciences (Cohen 1986). On the first page of our paper, we noted that discussions of the idea of social justice include mention of injustice mainly when anthropologists are writing about inequality, as for example in the work of Gerald Berreman’s (1960) work on caste and class. However, the central notion that served as the organizing concept for this particular contribution was the idea that justice beliefs and behaviors, and especially the justice motive, are universal phenomena, an idea that had been explored earlier by psychologists (Lerner 1975; Lerner and Lerner 1981).1 We also indicated that although the justice motive may be universal, its meaning varies in different social and cultural settings, and even within one sociocultural setting, as for example, if a society is ranked or stratified. Hence, Greek conceptions of justice that stress equality and harmony may be anathema to Koreans, where social life is vertically structured because of a denial of the intrinsic equality of all people. As Korean scholar Hahm Pyong-Choon (1967, p. 40) noted, “The Western concept of justice is not an easy one to grasp … the Koreans followed the Confucian way of taking a man’s status and merits into account.” We concluded our survey by returning to the question of injustice: “It is the realization that something is wrong, that something is unjust, that spurs ethnographic reports of cultural and personal genocide (e.g., Bodley 1975; Davis 1977; Heizer 1974). Yet ethnographic, concrete studies of injustice are even less tolerated in the American academic world than are ethnographic studies of justice, and for the same reason: Justice is seen as an ethnocentric concept that is not amenable to objective and analytical treatments” (Nader and Sursock 1986, p. 229). In 1990, I once again was invited to write a paper for the volume New Directions in the Study of Justice, Law and Social Control (School of Justice 1990). My paper dealt with “The Origin of Order and the Dynamics of Justice” (Nader 1990a). I began by noting that throughout American political history, corrective justice (as with punishment) had often been opposed to distributive justice (as when people get their fair share in life). I argued that discourse that is centered on law and order or social justice does little more than sustain the status quo, while discussion of “injustice would force an examination of concrete events rather than abstract ideas and interrupt the oscillation between government programs to cure law and order problems and government programs to address questions of social injustice” (Nader 1990a, p. 189). The central question of this chapter was a conceptual one—what type of discourse would work to produce social justice transformations. I continued:

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Discussions centering on order will not do because it is possible to have order without justice. It may also be true that discussions focusing on justice would not work to produce social transformations because a discussion of justice centers on abstract ideals. Instances of injustices, on the other hand, reveal the impediments to both order and justice. … Advocates of law and order believe that order can be maintained by controlling deviants through enforcement machinery. Advocates of justice, however, pursue the same goal by ridding the system of inequities they deem unjust through the use of the courts or Congress. Supporters of both these positions utilize government social engineering to achieve their goals without having to alter the basic design of an industrial structure that hides the inequalities of income, race, gender, and age. (Nader 1990a, p. 190)

This essay basically sought to illustrate how discourse obfuscates issues of injustice, thereby not addressing the origin of law-and-order problems, thereby standing in the way of and obstructing social justice change. Nor had there been an adequate testing of assumptions: is it true that more law enforcement automatically leads to more order, or is it true that government programs for victims can permanently alter their positions in society? It was at this point that Edmond Cahn’s ([1949] 1964) work entered my analysis and led me to conclude that we need to change our vocabulary. Imagine a department of injustice, imagine law-and-order theorists becoming community-breakdown theorists, imagine rights specialists becoming wrongs specialists, imagine justice philosophers becoming injustice specialists! It must be noted that by 1980, along with an energetic group of undergraduate students, we had completed a decade-long study of how Americans complain, a study which necessitated that we focus on a citizen’s sense of injustice in dealing with consumer issues (Nader 1980). There was nothing abstract about unsafe automobiles, contaminated food, building materials that cause long-term health problems, defective ovens that result in losing one’s home by fire, appliances that do not perform as advertised, warranties that are hollow, damage to health from under-tested pharmaceuticals, and more. And while the complainants might in frustration bellow “There’s gotta be some justice somewhere,” it was the sense of injustice that motivated their actions. The PBS film based on this work, Little Injustices, sold to over seventy-five countries. By now the access-to-justice movement had caught up with me, and I was again invited to Canada to speak about access to justice. My 1990 essay was titled “Processes of Constructing (No) Access to Justice (for Ordinary People).” The essay is dense and covers the complexities and uses of ideologies (hegemonies) in the politics of law. I concluded that

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the “debates about legal reform divorced from political, social, and ideological backgrounds … are of limited value. … What is missing in our thinking about justice is an explicit concern for citizens to express their sense of injustice. Discussion of justice leads to maintenance of the status quo, to treatment rather than prevention” (Nader 1990b, p. 513). And once again I urged, “Imagine a department of injustice.” Two years later I was writing about trading justice for harmony. By 1992, the alternative dispute resolution movement (ADR, which some critics see as an anti-law movement) was well underway. ADR enthusiasts made little to no use of the concept of justice except perhaps in the use of terms such as “delivery of justice.” Little injustices by the 1990s were referred to as the “garbage cases.” Neighborhood justice centers appeared, over four hundred such centers; yet in spite of mediators or arbitrators, resolution of controversies involving consumer goods was still inaccessible, ineffective, or unfair. ADR was geared to induce passivity, trading justice for harmony (Nader 1992, 2002).

The Sense of Injustice The last article I wrote using the word justice in the title was published in 1993: “When is Popular Justice Popular?” It was published in a book that examined as a case study a community mediation center in San Francisco. I maintained that “popular justice” movements are not usually popular in the sense of being locally controlled or bottom-up in origin. Rather they are movements that originate in centers of power and that try, after the fact, to connect with local populations for purposes of legitimacy and control. By now I was ready to articulate the manner in which controlling processes work in the alternative “justice” field in the United States and abroad, part of a broader strategy of minimizing conflict and maximizing order by managing interpersonal conflicts—rather than addressing root causes. Barbara Yngvesson (1989) referred to this as the arrival of “a professional therapeutic culture in the guise of popular culture.” I concluded my argument with the question Marc Galanter (1989) had asked: “What’s so good about settlements?” The uncritical celebration of harmony is at base acceptance of philosophies that have more to do with religious or ideological belief than with social justice. I was concluding that ADR was a pacification movement invented to quell the public interest movements of the 1960s and 1970s, a technique that has been used before in the United States to cool out protest (Auerbach 1983). The uses being made of the concept “justice” were hardly benign, and most certainly not a remedy for injustices as defined

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by the bearers of injustices. When we speak of justice, we are inclined to vague verbalisms, which is more difficult to do when we speak about specific injustices or suffering. By 1994, I authored “‘Solidarity,’ Paternalism and Historical Injustice: Development of Indian Peoples of Mexico,” a prelude to a coauthored study of how words and the law together are used to plunder the weak—hegemonic uses of the rule of law that we now argue is illegal (Mattei and Nader 2008). I indicated earlier that the search for justice is a fundamental part of the human trajectory, although its meanings and contexts change. That is, feelings of wrong and right are ubiquitous, as are feelings of injustice. Such recognition is at the base of the argument that Edmond Cahn ([1949] 1964) makes in The Sense of Injustice, mentioned earlier. He implies that the sense of injustice is a biologic reaction combining both reason and empathy or the projection of one’s self onto others. For Cahn, the sense of injustice forms the basis of law, indeed makes possible the realization of justice through law. As in the quote from Heraclitus at the outset—“Were there no injustice, men would never have known the name of justice”—Cahn proposes an “anthropocentric view of law” as a cure for legal abstractions or concepts that have engrossed legal philosophers at the expense of what is “vibrant, fleshy, and individual.” In other words, as with Heraclitus, we should begin with the sense of injustice: Where justice is thought of in the customary manner as an ideal mode or condition, the human response will be merely contemplative and contemplation bakes no loaves. But the response to a real or imagined instance of injustice is something quite different; it is alive with movement and warmth in the human organism. … Nature has thus equipped all men to regard injustice to another as personal aggression … an indissociable blend of reason and empathy. It is evolutionary in its manifestations. Without reason it could not serve the ends of social utility, which only observation, analysis, and science can discern. Without empathy, it would lose its warm sensibility and its cogent natural drive. … Is the sense of injustice right? Certainly not, if rightness means conformity to some absolute and inflexible standard. … Blended as it is of empathy and reason, its correctness in particular cases will vary greatly, for how can we know that the intellect has understood and that projection has comprehended every last relevant factor?” (Cahn [1949] 1964, pp. 13–14)

Cahn is as much poetry as legal philosophy. Yet, there is something useful for academics to learn here. The heart may be as necessary as the head for good scholarship, as was indicated by my own intellectual struggles with invitations to write about justice when what moved me to even think about justice was injustice.

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The title of Cahn’s book sparked an observation that in the history of Western philosophical thought justice is generally written and spoken about absent its opposite: injustice. Examinations of books on law and justice are usually absent specific mention of injustice as a concept, and Cahn ([1949] 1964, p. 1) explains why such absence is important to notice: “Justice has been so beclouded as a concept by natural law writings that it almost inevitably brings to mind some ideal relation or static condition or set of perceptual standards.” In contrast, “the response to a real or imagined instance of injustice,” and this bears repeating, “is something quite different: it is alive with movement and warmth in the human organism” (Cahn [1949] 1964, p. 13). In Cahn’s ([1949] 1964, p. 1) understanding, “justice would not be a state, but a process, an action— the active process of remedying or preventing what would arouse the sense of injustice.” For Cahn ([1949] 1964, p. 3), “justice or righteousness is the source, the substance and the ultimate end of law.” In a long and thoughtful review of Edmond Cahn’s Sense of Injustice, Bruce Ledewitz (1985, p. 281) observes, “There no longer seems to be a vision among lawyers that law can be a source of nourishment for society. The positivist vision of law— the will of the strong—dominates legal thinking. Even the liberals, “burntout” and cynical in the light of legal realism, do not think of law as special.” Ledewitz goes on to note that, in the mid-eighties, “the nature of a meaning for law that is beyond the service of power is not obvious … [especially] for our time, a time without commitment to justice in law.” When Cahn ([1949] 1964, p. 24) speaks of a sense of injustice he is specific as to emotions evoked: “outrage, horror, shock, resentment, and anger, those affections of the viscera and abnormal secretions of the adrenals that prepare the human animal to resist attack.” His is emotional rather than solely rational, active rather than passive, personal rather than abstract, injustice rather than justice. Ledewitz (1985, p. 284) believes that in a time of breakdown of consensus about values, an emphasis on injustice can provide common ground for the betterment of the human condition.” Edmond Cahn was not really interested in concepts, but in the consequence of concepts that are static as in justice, or active as in injustice. There was more to life than the intellect; Cahn wants to prevent injustices from happening by focusing on the interconnectedness of human beings by means of empathy. In speaking of judges, Cahn recognizes that somewhere judges learned to ignore their consciousness when deciding cases, or worse to “read the law through bifocal spectacles, the upper lens being reserved for men of the white race” (Cahn [1949] 1964). Ledewitz concludes his reintroduction of Cahn’s work by reference to the law

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school experience, in particular the emphasis upon doctrine, its history and uses. He notes that law students “hunger for concrete reality,” while being deluged with the “inauthenticity of abstraction” (Ledewitz 1985, pp. 325, 329). The various reviews of Cahn’s book by legal philosophers often indulge in contrasting various dimensions of the different schools of legal philosophy—natural law, positivist law, critical legal—most of which are outside the interest of this paper. What I am mainly interested in is how the uses of an abstract concept like justice might have led to static rather than active results. I want to know whether there is any meaning in the bias for justice rather than injustice, or, on the other hand, for the merging of reason and empathy. Intuitively, I went to the anthropology library and asked for a count of titles from the University of California catalog—works with justice in the title and works titled with injustice. The first count for titles with injustice encompassed approximately 667 titles. But then the librarian made a count of titles with justice and the count was over 8,800 items. The count for anthropology items was 44 items with injustice, 912 for justice entries—about the same ratio as the original overall count. One learns what is acceptable language as a part of assuming membership in a peer group, and, needless to say, self-editing deletes disfavored words; words become signals of inclusion and exclusion, signals that have consequence because they may be used to distribute advantage or disadvantage in the scholarly world and beyond. Although there seems to be a preference for the word justice, the categories represented are almost mirror images of one another. There is criminal justice, juvenile, economic, racial, public, popular, social, international, and God’s justice. There is civil justice, justice halls, equal, southern, organizational, and as well restorative, distributive, global, environmental, collective, and color-blind justice. There are centers for justice, quests for justice, remaking justice, reason and justice, fighting for justice, the game of justice, and the struggle for justice. Titles with injustice include some of the same words—social injustice, gender and racial injustice, economic, historical, global, popular, lethal, supreme, juvenile, American, essential, procedural, urban, and military, revolutionary, and environmental injustice. In addition, we find stories of injustice, fugitive from injustice, fabric of, frontiers of, retreat from, harvest of, production of, profiles in, struggle against, injustice of the second Gulf War, and uprooting and systemic injustice. In the sections on legal philosophy there are about a dozen authors who use the word injustice in the title: economic injustice, structural injustice, greed and injustice, democracy and social injustice, injustice and

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restitution, and injustice of capital punishment. In the process of undertaking these rough surveys, I encountered an edited volume, Justice and Injustice in Law and Legal Theory (Sarat and Kearns 1996), a selection of which at the outset makes the point that “From Plato to Derrida,” discourse about law and justice has been conducted in abstract and general language producing “elusive, if not illusory” notions of justice (Sarat and Kearns 1996, p. 3). Cahn’s observations made several decades ago about the need for reason and empathy in thinking about justice and injustice deserve our attention today. In reviewing my work on the subject of justice and injustice, I omitted mention of the one paper I had written with the concept of human rights in the title—“In a Woman’s Looking Glass: Normative Blindness and Unresolved Human Rights Issues” (Nader 1999). Following upon Cahn’s notion of a sense of injustice, I examined the best human rights literature of the time in order to test my intuitions about the field of human rights as being full of ethnocentric “universalisms.” Unfortunately, my sense of outrage was more than justified by much of the literature. At the outset of “In a Woman’s Looking Glass: Normative Blindness and Unresolved Human Rights Issues,” I note that we needed more human rights activists today than ever, but cautioned that such people needed to be activists who are part of a world citizenry, people “who are alert to the speed of technological impact, the centralization of power and its impersonal aspects as reflected in warring at a distance” (Nader 1999, p. 61). The unresolved issues of the declaration of human rights were issues that made way for a more inclusive framework for human rights, including views from the margins—from the so-called Third and Fourth Worlds and from the world of women. I also called attention to a new site for human rights work—a wildly out-of-control corporate commercialism. Human rights violations were not only governmental. My outlook was comparative—one that required looking in the mirror from the start. That in turn required honing an awareness of the role Euro-American human rights activists were playing. I argued that for a leap forward in human rights work to happen we needed a broad-gauged philosophy about human suffering, one that cuts across positions that are at cross purposes. Interestingly, my original invitation to write this paper came from an anthropologist convening a conference on human rights and Islamic women, with papers to be published in a conference book. That did not happen. I then sent the paper around to a recommended human rights publication, but the editor thought the paper did not fit their format. At precisely that moment, I was invited to submit it to a Brazilian journal Horizontes Antropológicos (Nader 1999), and it was published in a special issue almost immediately. It deserves mention that in the process of

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surveying the human rights literature I ran across several publications by Third World women who were also critiquing both the ethnocentrism of the human rights literature as well as barriers to publication in dominant publications on human rights. At the time, human rights activism was in large measure a hegemonic project, Euro-American mostly. It is fair to say that by 2007 the language of human rights had lost its initial power mainly, as critics note, because prospective universality became tainted. After the Cold War, the United States began pursuing imperial goals using high-toned humanitarian discourse. For many First World scholars today, human rights stands as an ideology to mask the goals of empire, particularly in the current wars in Iraq and Afghanistan. Whose human rights is a question pursued by ethnographers of the subject (Goodale and Merry 2007). Hannah Arendt and others have argued that humanitarian efforts could lead to violation of rights as well as their defense. After all, George W. Bush’s war was floated as a human rights cause. So, too, Western feminists supported wars in both Afghanistan and Iraq as a way of availing Islamic women of “human rights” (Hirschkind and Mahmood 2002). In other words, human rights as a concept is even more entangled with imperial causes than either justice or injustice perhaps. Having emerged with the growth of nongovernmental organizations of the 1970s, its agendas are increasingly both national and corporate, a most unfortunate transformation since human rights organizations are still a source of hope and idealism among well-meaning do-gooders. The words we use are double-edged. They have an emotional charge, which may be one reason why scholars prefer the abstract, the world of ideas, and not the world of practice. Interestingly, excavations of precursors to the contemporary human rights movement often make reference to the use of fiction as a way to see one’s fellow humans as worthy of empathy, as for example in the novel of Joseph Conrad’s Heart of Darkness. But philosophers also deal in the imaginary when writing about justice. Take John Rawls’s ([1971] 1999) A Theory of Justice, which over time spawned a virtual justice industry. Many commentators note that John Rawls is concerned with “ideal theory,” one that generates “realistic utopias.” His accounts are utopian insofar as they do not reflect any existing arrangements, and realistic insofar as they are possible given what we know about human nature (Brown 2000, p. 126). Rawls employs a fictional “social contract.” In The Law of Peoples (1999), he even identifies a fictional example of a “hierarchical” society that still protects basic human rights and is peaceful and calls it “Kazanistan”—a decent society even though there is no fair equality of opportunity and not perfectly just (according to Rawls) and not a liberal society. As Chris Brown points out in his review article, “one of the most

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important impacts of Rawls on international relations and the study of international ethics might be to relegitimate the construction of utopias— always assuming that they are ‘realistic utopias,’ and that the mistake of taking ‘what might be’ as a description of ‘what currently is’ is not repeated” (Brown 2000, p. 132). In another commentary, Thomas Nagel (1999, p. 37) notes, “As is always the case with philosophy, Rawls’s direct influence is almost entirely intellectual … in any case, he is self-consciously ahead of his time, engaged in what he calls ‘realistic utopianism,’ or the imagination of human possibilities which, when properly described, will give us something to aim at.” Nagel also tells us that Rawls’s concern is with social justice issues, that his dominant concerns have always been the injustices associated with race, class, religion, and war. Black slavery is his paradigm of injustice—much like Edmond Cahn. But the warmth and outrage of recognizing an injustice does not lend itself to imagined communities, abstract and mathematically constructed societies. Strategies for working with the words we use differ and, for Edmond Cahn, there are consequences: “Contemplation bakes no loaves.”

Concrete Instances Irrespective of whether we agree politically or not, after reading John Rawls’s (1971) first edition of A Theory of Justice, I felt repulsion—where are the concrete instances? Ethnographers go there, participant-observe by living there, leaving, and returning, recording what happens. Two places where I worked as an anthropologist have been in my mind of late—the Rincón Zapotec of Oaxaca, Mexico, and the Shia Muslims in south Lebanon. Both places were at peace when I first entered to do fieldwork—1957 among the Rincón Zapotec and 1961 among the Shias of Libaaya in Lebanon. My work involved the collection of concrete cases of disputes and their resolution or not. Both peoples worked the land and mainly married within the villages, although they had networks that extended far beyond their place. During the summer of 2006, I journeyed to the Rincón with anthropologist Roberto Gonzalez, who had also worked there and authored Zapotec Science (2001), and photographer and videographer, Kike Arnal, who was to record with us on video the changes that have transpired since 1957. Oaxaca City during the summer of 2006 was in the midst of a rebellion that erupted with the mishandling of a teacher’s strike by the present governor, but we made it to the Rincón by bus in a matter of six hours—short in comparison to the eighteen-hour trip by jeep and

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the three- to four-hour walk at the end of the road in 1957. In 1957, the villagers were pressing the government for a road and with the aid of the Paploapan Commission helped build one. What changes did we find? Many, all related to social justice issues, but injustice was what people spoke about. The road was supposed to allow the Rincóneros to take their plentiful produce out. Instead, by way of the North American Free Trade Agreement (NAFTA), produce came in, primarily corn that undersold the local producers. Tilling the land is not economically feasible anymore; as a result many campesinos go North. The diet changed; junk food is abundant. Village government also changed. No longer were the dispensers of justice in the local courts citizens selected to do their social service as part of their contribution to the community. They are now paid officials on the state payroll. And, as the saying goes, he who pays the piper calls the tune. Morale is low, especially among those who had hoped and worked for progress or improvements. A self-sufficient village is losing knowledge necessary for self-sufficiency. Meanwhile, in Oaxaca City, the Popular Assembly of the Peoples of Oaxaca (APPO) was formed. Hundreds of organizations with varying issues came together from areas of community development, cooperative production, health and social services, human rights, women’s rights, indigenous rights, and political action labor unions. People began to contemplate their relations with the state based on indigenous Oaxacan understanding of collective responsibility and customary law, as when group needs conflict with individual wants. Their assembly was to be a basis not just for “oppositional politics,” but rather for the juridical refounding of a new state form. Development for them was not supposed to mean loss of autonomy and increased dependence. By summer 2007, the Popular Assembly once again returned to the streets to regain control of the summer Oaxacan folklore fiesta. The state government was now indebted to Coca-Cola for sponsorship. Once again the streets were bloodied. In Lebanon the story was much bloodier. By 1982, the Shias in south Lebanon abandoned the traditional use of their legal system of justice, based principally on mediation when solving conflicts over land and water. As the Israelis had invaded the south, I was unable to return to my field site for reasons of health and safety. In dealing with the 1982 Israeli invasion and the eighteen-year occupation and plunder of topsoil and water that followed, force superseded mediation. In Libaaya, local justice traditions were of little use in stopping the Israelis during their invasion and occupation. A resistance movement grew, and Hezbollah emerged to defend the people of south Lebanon from illegal expropriation and daily kidnapping. There was no Hezbollah before the Israeli invasion. Resis-

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tance to injustice at the hands of the Israelis failed at the national and international levels. But the words had changed. Resistance is now called terrorism by the international media. Neither “justice” nor “injustice” was on onlookers’ lips whether in 1982, during the eighteen-year occupation, or after the Israeli bombing during the summer of 2006; the terrorism trap prevailed. The aftermath of cluster bombs raised little sense of injustice or outrage resulting from empathy that Edmond Cahn might have hoped for, except for animals that were airlifted to the American southwest to be out of harm’s way. International lawyers did not come to the rescue with measures of justice. At least not yet. Human rights advocates played a minimal role. During the summer of 2007, the same filmmaker who accompanied me to Oaxaca left for south Lebanon to document measures of damage from the Israeli bombing and to see if the town of Libaaya still exists, and in what form. What is an anthropologist of law and justice to do with these ends of story?

Towards a Non-Theory of Law and Justice Somewhere between large scale movements and the resistance or vulnerability of individuals lies the work of the anthropologist/ethnographer. We are in a privileged position to bring a critical approach to a jurisprudence of injustice. We can put familiar facts together in unfamiliar ways and thus provoke thought about fundamentals. And is there anything more fundamental to what makes humans human than ideas of right or wrong? The preceding assessment makes it clear that one common function of justice theories is to provide justification for an orderly and just world. The most interesting aspect of the work of anthropologists today is that we bring back into fashion a concern with right and wrong. This is especially important in this early part of the twenty-first century, when the speed at which people are living, hearing about what terrible things are happening all over the world at one time, could deaden even the most compassionate. There is something to the idea that a radically different framework is transforming public cultures as to what is just and what is unjust. Slowly and gradually, the injustices of the world are being shared by victims worldwide and globally, beyond specific cultures—communication technologies are developing faster than scholars can keep up. The Oaxacan Popular Assembly, composed of indigenous peoples, teachers, and working people, want new juridical institutions that are fair according to their ideas of fairness. The world condemns unilateral war in Iraq by protesting in multiple sites worldwide. World opinion is surfacing regarding

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occupation in Palestine, water pollution in China and India, and depleted uranium or cluster bombs in Iraq, south Lebanon, and elsewhere. Anthropologists have a responsibility to spread understanding of injustices that lead to violence that the common American citizen might think comes from nowhere. The question “Why do they hate us?” would never have been asked had we done our job in classrooms, on the op-ed pages, in our writings. When our work brings into fashion a concern with right and wrong, we give reason for the emotional connotations that follow from protest, riot, organizing. In writing this essay, it becomes clear to me that academic interest in justice is symbolic, providing hope for the present by celebrating an ideal. In a sense, conferences and the volumes that result are rituals, places where myths are strengthened and ambiguities nourished. Cahn’s approach argues that it is energizing to use one’s emotion when working on injustice, in addition to reason. Injustice has been a motivating factor in my own work. On the other hand, John Rawls played by the rules of the game, kept it abstract, but got a whole industry going on questions of justice. The anthropologist is, however, in the best place—we can use all of this knowledge, break disciplinary boundaries, borrow from whomever and whatever sharpens our understanding and contribution to new ordering principles. Look at what has been accomplished by the words “war on terror.” How about a “war on injustice?”

Acknowledgements The author is especially grateful to our master librarian Suzanne Calpestri of the George and Mary Foster Anthropology Library, University of California, Berkeley, for her help with this paper.

NOTES This chapter was originally published as: Laura Nader, “The Words We Use,” pp. 314–333 from Kamari Maxine Clarke and Mark Goodale ed., Mirrors of Justice: Law and Power in the Post-Cold War Era. Cambridge University Press (2010). Copyright © 2010, reprinted with permission from Cambridge University Press.   1. My colleague Katharine Milton recently called to my attention an interesting experiment by two scientists at the Yerkes National Primate Research Center, Emory University. Their report appears in Nature, vol. 425 (18 September 2003) and is headlined “Monkeys Reject Unequal Pay.” The authors, Sarah F. Brosnan and Frans B. M. de Waal, note that “Monkeys refused to participate

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if they witnessed a conspecific obtain a more attractive reward for equal effort, an effect amplified if the partner received such an award without any effort at all. These reactions support an early evolutionary origin of inequity aversion.”

REFERENCES Berreman, Gerald. 1960. “Caste in India and the United States.” American Journal of Sociology 66: 120–27. Brosnan, Sarah F., and Frans B. M. de Waal. 2003. “Monkeys Reject Unequal Pay.” Nature 425, 18 September. Brown, Chris. 2000. “John Rawls, ‘The Law of the Peoples,’ and International Political Theory.” Ethics and International Affairs 14: 125–32. Cahn, Edmond. (1949) 1964. The Sense of Injustice—With a Personal Epilogue by the Author. Bloomington: Indiana University Press. (First published in New York: New York University Press, 1949). Cohen, Ronald L., ed. 1986. Justice: Views from the Social Sciences. New York: Plenum Publishing Corporation. Galanter, Mark. 1989. “Judges and the Quality of Settlements.” Working Paper, Center for Philosophy and Public Policy, University of Maryland, March. Goodale, Mark, and Sally Merry. 2007. The Practice of Human Rights—Tracking Law between the Global and the Local. Cambridge: Cambridge University Press. Hahm, P. C. 1967. The Korean Legal Tradition and Law: Essays in Korean Law and Legal History. Seoul, Korea: Hollym. Hirschkind, Charles, and Saba Mahmood. 2002. “Feminism, the Taliban and the Politics of Insurgency.” Anthropological Quarterly 75 (2): 339–54. Lerner, M. J. 1975. “The Justice Motive in Social Behavior.” Journal of Social Issues 31 (summer): 1–19. Lerner, M. J. and S. Lerner. 1981. The Justice Motive in Social Behavior: Adapting to Times of Scarcity and Change. New York: Plenum Press. Nader, L. 1974. “Perspectives on the Law and Order Problem.” In The Quest for Justice: Myth, Reality, Ideal, ed. M. Lerner and M. Ross, 65–81. Toronto: Holt, Rinehart and Winston of Canada. ———. 1975. “Forums for Justice: A Cross-Cultural Perspective.” Journal of Social Issues (Special Issue: The Justice Motive in Social Behavior, ed. M. Lerner) 31 (3): 151–70. ———. 1980. No Access to Law: Alternatives to the American Judicial System. New York: Academic Press. ———. 1981. Little Injustices: Laura Nader Looks at the Law. PBS Odyssey Series. Film.

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———. 1990a. “The Origin of Order and the Dynamics of Justice.” In New Directions in the Study of Justice, Law, and Social Control, ed. School of Justice, Arizona State University, 189–206. New York: Plenum Publishing Corporation. ———. 1990b. “Processes of Constructing (No) Access to Justice (for Ordinary People).” Windsor Yearbook of Access to Justice 10: 496–513. ———. 1992. “Trading Justice for Harmony.” In Forum (National Institute for Dispute Resolution) 12–14 (Winter). ———. 1994. “‘Solidarity,’ Paternalism, and Historical Injustice: Perspectives on the Development of Indian Peoples of Mexico.” PoLAR (Political and Legal Anthropology Review) 17 (2): 97–103. ———. 1999. “In a Woman’s Looking Glass: Normative Blindness and Unresolved Human Rights Issues.” Portuguese title: “Em um espelho de mulher: cegieira normative e questioes nâs—resolvidas de direitos humanos.” Horizontes Antropológicos (Special Issue on Cidadania e Diversidade Cultural) 10: 61–82. ———. 2002. The Life of the Law: Anthropological Projects. Berkeley: University of California Press. Nader, L., and J. Collier. 1978. “Justice: A Woman Blindfolded?” In Women in the Courts, ed. W. Hepperle and L. Crites, 202–21. Williamsburg, VA: National Center for State Courts. Nader, L., and A. Sursock. 1986. “Anthropology and Justice.” In Justice: Views from the Social Sciences, ed. Ronald L. Cohen, 205–33. New York: Plenum Publishing. Nader, L., and U. Mattei. 2007. Plunder: When the Rule of Law is Illegal. New York: Wiley-Blackwell. Nagel, Thomas. 1999. “The Law of Peoples, with the Idea of Public Reason Revisited.” New Republic, 25 October. Sarat, Austin, and Thomas Kearns, eds. 1996. Justice and Injustice in Law and Legal Theory. Ann Arbor: University of Michigan Press. School of Justice, Arizona State University, eds. 1990. New Directions in the Study of Justice, Law and Social Control. New York: Plenum Publishing. Rawls, John. (1971) 1999. A Theory of Justice. Revised ed. Cambridge: Belknap Press of Harvard University. ———. 1999a. The Law of Peoples. Cambridge, MA: Harvard University Press. Yngvesson, Barbara. 1989. “Inventing Law in Local Settings: Rethinking Popular Legal Culture.” Yale Law Journal 98: 1689–709.

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E c ha p te r 2 5

Vengeance, Barbarism, and Osama bin Laden Full Circle

Introduction Vengeance: punishment inflicted in return for an injury or offense; the act of correcting something; the opposite of excuse, pardon, or forgiveness. —Webster’s Dictionary

In the anthropological literature on law and conflict in preliterate societies, fieldwork may cover revenge killing or vendetta. At times, revenge killing is deemed ritualistic and thus is usually predictable within bounds, involves relations both near and far, and is almost always associated with status, shame, and/or a sense of right and wrong or what some call morality. Legal scholars, on the other hand, commonly refer to vengeance as the basis of liability; that is, they would argue that legal liability has its roots in the passion of revenge, and references are made to early forms of vengeance as if they were not contemporaneous but rather made part of the social evolution of mankind. As Oliver Wendell Holmes Jr. ([1881] 1909, p. 37) observed, “the various forms of liability known to modern law spring from the common ground of revenge.”

Conditions of Revenge In line with such nineteenth-century thinking, the anthropological posture was first grounded in terms of unilineal evolution. Human societies moved from magic to religion to science, or from barbarism to civilization. In this brief note, I argue that vengeance may appear at any level of social organization, whether in preliterate, prestate conditions or in

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nation-state societies where the rule of law is held up as a central feature of “civilized behavior” (Mattei and Nader 2009). Given my awareness from the literature and from my own firsthand research into questions of law, culture, and society, it appears that there is no necessary movement in law from barbarism to civilization, in spite of arguments of “exception” (Agamben 2005), since there exist contemporary acts of vengeance despite state of law or international rule of law. I use three societies to illustrate: the first from New Guinea, in the Pacific region, the second in European Montenegro, and the third, in a U.S. city, Houston, Texas. In 1974, Klaus Friedrick Koch, the first Ph.D. in the Berkeley Comparative Village Law Project, published a book on his field work in West New Guinea or West Irian—War and Peace in Jalemo: The Management of Conflict in Highland New Guinea. In a section on liability and retaliation he suggested the following theory: “In societies with localized descent groups lacking permanent superordinate political integration and without jural authorities, liability tends to be joint and absolute. Both attributes of liability tend to correlate with the necessity of solving disputes by selfhelp. If in the absence of jural authorities abscondence and alleged or actual accidents were to confer immunity, the maintenance of regulated social life would become a precarious enterprise” (Koch 1974, p. 89). Thus, lack of political organization and the absence of judicial authority make coercive self-help an institutionalized procedure. As he points out, “because any injury sustained in a scuffle can lead to revenge—in the form of a pig seizure or a retaliatory assault—the fear of an eventual war exerts far greater pressure to terminate a scuffle then to end an altercation” (Koch 1974, p. 72). No one would attempt to stop a “shouting match,” but a scuffle generates pleading to stop or even attempts to separate combatants and urge restraint; the concerns of escalation are too great. In the second ethnography, Blood Revenge: The Anthropology of Feuding in Montenegro and Other Tribal Societies, Christopher Boehm (1984) describes what happens in a European tribal area if one fails to take revenge: there is severe damage done to one’s honor. He begins by asserting that “vengeance killing predictably is outlawed in modern societies having formal legal systems with courts and laws. By contrast, in most segmentary tribal societies such as that of Montenegro the social-control functions of law … are partly fulfilled by … self-help” (Boehm 1984, p. 65). Thus, vengeance killing is considered to be legitimate in such segmentary societies, but not in state societies. In the European tribal societies reviewed in his work, vengeance, we are told, is a moral act and is differentiated from killing of a fellow tribesman who has done the killer no harm. Boehm’s ethnographic reporting is rich, with numerous re-

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corded cases both among the Montenegrins, Albanians, and other groups mainly in what was then Yugoslavia. Feuding was not taken lightly by the elders. In conclusion, the author discusses “Feuding in the Non-Literate World,” which itself implies that such behavior might not exist in the literate world. In the process he differentiates revenge killing, a label for single killings that permanently resolve a homicidal incident, from vendetta, which involves multiple killings and protracted conflict. In my third ethnographic selection, I examine Murder in Space City: A Cultural Analysis of Houston Homicide Patterns by Henry Lundsgaarde (1977), where rule of law is central to the definition of national law. Lundsgaarde notes, “Punishment, some people say, is a primitive form of inflicting pain and suffering to satisfy the need for revenge. The ‘primitive element’ supposedly is removed when the state rather than the victim’s survivors administers the punishment” (1977, p. 167). According to Lundsgaarde, in most of the so-called primitive societies of the world, survivor compensation may be the principle motive for punishment. In our modern nation-state, the government simply punishes offenders without compensating victims. And as part of his conclusion about Houston, Lundsgaarde (1977, p. 168) points out that “of those killers who actually have their cases brought to trial only slightly more than 50 percent actually go to jail.” In Texas, social norms sanction killings among intimates and discourage killing that “involve acts of abnormal behavior, unfair advantages (as in the killing of innocent and unarmed persons), or violations of property rights” (1977, p. 169). Homicides among friends and associates in Texas are more likely to result in low or no convictions, for most Americans a surprising observation perhaps.

Three Lawyers: Osama bin Laden, Barbarism, and Civilization On 1 May 2011, Barack Obama, the president of the United States and also a Harvard-trained constitutional lawyer, reported to the American people that the United States had conducted a special operation that killed Osama bin Laden—“the leader of al Qaeda, and a terrorist who’s responsible for the murder of thousands of innocent men, women, and children.” He spoke of our resolve “to protect our nation and to bring those who committed this vicious attack to justice” (my emphasis). Before the end of the speech he again noted that “Justice has been done” and that the American people could feel satisfaction in “their pursuit of justice.”

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Hillary Clinton, a Yale-trained law graduate and secretary of the State Department, also in several widely broadcast interviews referred to the killing of bin Laden as an act of justice. And Vice President Joe Biden, also a constitutional lawyer, quoted Barack Obama in 2008 as saying, “If we have bin Laden in our sights, we will—we will take him out … that has to be our biggest national security priority.” This was in Biden’s speech at the Democratic National Convention 6 September 2012. He went on to say, “It was about righting an unspeakable wrong. Literally, it was about healing an unbearable wound.” And, “If you attack innocent Americans, we will follow you to the end of earth!” He concluded by once again using the word justice. “Hunt him down to bring him to justice” and “justice was done,” noting that bravery resides in the heart of President Obama. Others also used the word justice. The former 9/11 Mayor of New York Rudy Giuliani noted, “Sometimes justice takes a while.” Senator John McCain said, “Justice has been done.” and Vice President Dick Cheney— “If you attack the United States, we will find you and bring you to justice.” Thus both constitutionally trained lawyers and political figures not so trained agreed that the killing of bin Laden was an act of justice. Vengeance, as used here, recall, is a single killing as retaliation for a wrong done. Vendetta involves multiple killings and protracted conflict. What happened to the rule of law and everybody’s day in court? And from whose point of view is this either a single killing or a protracted conflict?

The Transformation of Law from Barbarism to Civilization In 1881, Oliver Wendell Holmes Jr. put it this way: “It is commonly known that the early forms of legal procedure were grounded in vengeance … the starting-point of the system … an instructive example of the mode in which the law has grown, without a break, from barbarism to civilization.” Yet throughout his argument, it is clear that Holmes does not think that vengeance has disappeared: “It has never ceased to be one object of punishment to satisfy the desire for vengeance.” (Holmes [1881] 1909, p. 40) Others have argued that “every man … is entitled to a trial and an impartial hearing … the cornerstone of civilized government” (Arnold 1935, pp. 134–35). Yet from any overview of law in both preliterate and literate societies, without or with state structure, it appears that vengeance or vendetta are present and part of the human condition writ large. There is no general distinction between barbarism and civilization on this point—we are all barbarians. However, to think otherwise is dangerous because, as in the case of bin Laden and al Qaeda, we may think of his killing as a finality, but those impacted may think of it as a vendetta. Or they may think it an injustice— targeted assassination of an unarmed individual who not only never had

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his day in court but was not allowed a burial since his body was dumped at sea. And there are no state or international structures able to deal with such unpredictable events as when Pakistani sovereignty is violated, in the case of the murder of bin Laden. The problem is further exacerbated when accompanied by exceptionalism and normative blindness, which prevents our fellow countrymen in the United States from asking or understanding “Why do they hate us?” When the Navy SEAL Mark Owen (2012) published the story of the bin Laden killing, No Easy Day, the Department of Defense was upset because the book was not submitted for review before publication, contrary to Defense Department directives. Vengeance without transparency. In conclusion, unlike the situation in preliterate and prestate societies, contemporary examples are not run along any ritualistic lines but are selective and being invented as we go along. Retaliation on the part of the other is called terrorism, and the players terrorists. Unfortunately, to avoid escalation, punishment inflicted in return for an injury must have agreed-upon rules for vengeance killing, something prestate peoples have invented, but not the “civilized” who pretend otherwise. In reality, we are all potential barbarians with or without political organizations or judicial authorities.

NOTE This chapter was originally published as: Laura Nader, “Vengeance, Barbarism and Osama Bin Laden—Full Circle” from Anthropologia Dell a Vendetta (Anthropology of Revenge), G. Lorini and M. Masia, eds. Edicione Scienlifuche Italiano (2012).

REFERENCES Agamben, Giorgio. 2005. State of Exception. Chicago: University of Chicago Press. Arnold, Thurmond. 1935. The Symbols of Government. New Haven: Yale University Press. Boehm, Christopher. 1984. Blood Revenge: The Anthropology of Feuding in Montenegro and Other Tribal Societies. Lawrence: University Press of Kansas. Holmes, Oliver Wendell, Jr. (1881) 1909. The Common Law. Boston: Little, Brown, and Co. Koch, Klaus-Friedrich. 1974. War and Peace in Jalemo: The Management of Conflict in Highland New Guinea. Cambridge, MA: Harvard University Press. Lundsgaarde, Henry 1977. Murder in Space City: A Cultural Analysis of Houston Homicide Patterns. New York: Oxford University Press. Mattei, Ugo, and Laura Nader. 2008. Plunder: When the Rule of Law is Illegal. Oxford: Blackwell Publishing. Owen, Mark. 2012. No Easy Day. New York: Dutton, Penguin Group. Webster’s Third New International Dictionary. 1986. Springfield, MA: MerriamWebster. EBSCOhost - printed on 2/19/2021 12:59 AM via MCGILL UNIV. All use subject to https://www.ebsco.com/terms-of-use

E c ha p te r 2 6

Three Jihads Islamic, Christian, and Jewish

T

he current attention to Islamic jihad made headlines with the onset of the Islamic State referred to as ISIS. More specifically, the mass media reported on the covert recruitment of foreign jihadists from Europe and North America, which in turn promoted fear of terrorist acts upon the return of these predominantly young men to their home countries. In April 2014, a British parliamentary report outlined new counterterrorism approaches toward British Muslims fighting in Syria, Afghanistan, and Somalia. The British Foreign Enlistment Act of 1870 criminalizes British citizens who serve in the armed forces of another country. The media attention to Islamic jihad invited comparison of similar jihadists among Christians and Jews. All three religions emanated from an area of the world referred to today as the Middle East, thereby resulting in shared origins and referred to as People of the Book—all three being monotheistic. The Arabic word “jihad,” translated as holy war, has been associated with Islam and is commonly used and misused in contemporary EuroAmerican society. The word “crusade” is associated with Christianity and is commonly thought of in the past tense. As for Judaism, I am unaware of any comparable Hebrew terms referring to holy wars. Nevertheless, it is possible that acts of religious war might be associated with all three religions regardless of specific word referents. What we may be experiencing in the last half of the twentieth century and early in the twenty-first century are religious wars posing as secular for Christians and Jews while represented for Islam as jihad or holy war. It behooves the anthropologist to use critical comparisons to unveil the contemporary scene, which has been appropriated by politicians, political pundits, journalists, and even orientalists, because these terms have enormous weight in the world today, leading to massive killing and destruction. In his magnum opus A History of the Arab Peoples, historian Albert Hourani (1991) separated

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the concept of jihad from the five pillars of Islam. Jihad, or war against those who threatened the community, was considered an obligation of the community. Hourani notes that after the expansion of Islam and with the beginnings of the counterattack from Western Europe, jihad was seen primarily in terms of defense rather than expansion. Yet another sense of jihad is “spiritual striving.” For Christians, the word “crusade” has been used instead of jihad, and Webster’s dictionary defines “Crusades” as “any of the seven (or nine) military expeditions that Christian powers in the 11th, 12th, and 13th centuries undertook to recover the Holy Land from the Moslems.” In the Anglo-American West today, the word may be used by evangelical Christians moved by religious fervor. On 17 September 2001, President George W. Bush made reference to a “crusade” against terrorism, which raised fears in Europe that such language could spark a “clash of civilizations,” thereby sparking hatred and mistrust between Christians and Muslims. One French foreign minister said, “One has to avoid falling into this … monstrous trap.” The Grand Mufti of the mosque in Marseille, France, said such language recalled “the barbarous and unjust military operations against the Muslim world” by Christian knights over the course of several hundred years. Others argued that such black-and-white language used by President George W. Bush to rally Americans risked splitting the international coalition he was trying to build. A Taliban warned fellow Afghans to prepare for jihad against America, if U.S. forces attacked Afghanistan. A former fundamentalist Christian leader in the United States authored a book titled Christian Jihad: Neo-Fundamentalists and the Polarization of America, in which he exposes the building of a jihadist mindset and culturewar Armageddon. The author, Colonel V. Doner (2012), argued for mutual respect rather than mutual demonization and conflict. Secularists rushed to remove “the word” from further political usage in reference to the Iraq war. Nevertheless, every country in the Middle East has been invaded by the United States, whether with boots on the ground or drones from above, whose sovereignty has been violated, has been Islamic. Not using “the word” may have soothed the conscience of Western invaders, but those being attacked by Euro-Americans may well fear that this is a repeat performance of the Crusades or colonial history. For Judaism, a single term does not exist, or at least not in the mass media and not until the recent birth of the state of Israel. But the fingerpointing toward young Moslem men from Europe and the Americas who traveled to fight with the ISIS Caliphate has elicited some attention to Jewish jihad. The idea of Europeans and Americans serving in the Israeli army has been so since before the creation of the state of Israel. The Zionist movement recruited thousands, and included both men and

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women. The process was known as Mahal, the term for volunteers from abroad who took part in Zionist military operations during the British Mandate for Palestine. In the 1948 war, by some estimates there were as many as four thousand World War II veterans from Europe, the United States, and Canada involved in military operations against Palestinians, bringing their experience in World War II warfare to the Zionist cause. Mahal recruitment continues to this day. Thousands of volunteers, from dozens of countries, presently go to Israel to serve in mainly combat units of the Israeli military. The online Mahal recruitment program declares its purpose is to strengthen frontline combat units with non-Israeli nationals of Jewish descent for up to and beyond an eighteen-month duty. By one count, today around one hundred British nationals are serving in the Israeli army, supported by British mothers proud to have a child serving in the Israeli military. However, the April 2014 report of the British report on counterterrorism does not include as threat the indoctrinated British citizens returning home from service in the Israeli military since the U.K. is already an ally to Israel. The Mahal network of jihadists was taking part in the Israeli ground offense in the Gaza Strip last summer, which resulted in the death of so many innocent Palestinian civilians. Recruitment policies span the globe today, and approximately five thousand Jews carry the title “Lone Soldier,” used to refer to those who become immigrants. Such recruits receive special financial assistance to live in Israel or to visit family abroad. Although very little about these recruits is reported in the Western media, we do hear of the Birthright visits, a Zionist project that recruits youngsters to visit a fantasy Israel where they receive instruction on Zionism and the Israeli military. According to some studies of these birthing trips, the visitors learn to hate the enemy, the Palestinians, and accept Israel, along with the duty to defend it. The selectivity of the media that turns a blind eye to Israeli’s Western recruits fuels the notions of Islamic jihad as defense against the Jewish jihad’s continued expansion in the occupied territories, and Israel’s military assets beyond, to other Arab countries. In response to documentation of Jewish jihad there has been a renouncing of Jewish jihad. A media specialist in the area, Michael Brown, notes that the difference between Jewish jihad and Islamic jihad is that only in Islam is jihad a legitimate expression of the faith. He summarizes acts of religious Jews, especially the ultra-Orthodox rabbis who justify killing children in the name of Jewish law. In his op-ed Brown concludes that the difference between such orthodox positions of Judaism and orthodox expressions of Islam is that murderous expressions are rare exceptions in Judaism. Brown asks, “How many rabbinic texts (in comparison with Koranic texts) can legitimately be used to justify the murder

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of innocent people in the name of the holy war?” On the BBC TV program Newsnight, a report by Katya Adler deals with “The Rise of the Military Rabbis,” who are changing the face of the once proudly secular Israeli army, filling its ranks with those who believe Israel’s wars are “God’s wars.” According to this program, military rabbis played a prominent role during Israel’s invasion of Gaza earlier this year, side by side with civilian rabbis, thereby, they argue, making the war holier, making the army better—“more moral.” Some reserve military think this change is dangerous because once it is holy war, “there are no limits.” Clarifying jihads in the plural is easier than explaining the internal fighting between Muslim sects. In European Christianity, there were the Catholics and the Protestants who warred with each other. In Iraq and Syria today, we have ISIS, an Islamic Sunni group, at war with Syria’s president Bashar al-Assad and the Iraqi Shia-controlled government. Ethnic and sectarian cleansing seems to be the norm in both Syria and Iraq. But is this jihad? For secular Muslims, fighting Assad is one thing. For those dying fighting with ISIS, their death may be divine, a place in paradise. The sectarian Shia militias do not distinguish between ISIS and the rest of the Sunni population, and the United States administration wants to “degrade and destroy” the Islamic State along with its coalition of Sunni powers. When trying to put the pieces together, the bloggers are saying this is all “clear as mud.” Perhaps, on the other hand, foreign divide-and-conquer strategies are at the core of this modern crusade against Islam. The movement toward Islamic fundamentalisms, whether Sunni or Shia, has been linked to perceived injustice, that is, a Western beachhead in the Middle East—for example, the Israeli occupation of Palestine; the humiliation of the 1967 war with Israel, which marked the demise of Arab nationalism; the spread of neoliberalism; and the Western destruction of secular states—Iraq, Libya, and now Syria. In Christianity, the invasion of Middle Eastern lands is justified as self-defense or in terms of national security after the terrorist threat of 9/11. Contrary explanations, such as energy and other resource wars, have not been the highlighted. For Judaism, extremism is justified as a result of the Nazi holocaust and assorted problems of anti-Jewish Semitism, and the right of return. Ameliorative movements such as human rights have sometimes been part of the problem when they only see through one prism. War exhaustion is overwhelmed by the international arms industry, mainly Western. Whatever the possible solutions to war, it appears that all three monotheisms have entertained the concept of holy war but in different ways. Islamic jihad has some contemporary parallels in Judaism, which have

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consequences. For example, foreign military volunteers in Israel are not criminalized. There are double standards, and serious implications when Western and Israeli armies are perceived as neocrusaders. Anthropologists are well equipped as comparativists to use such methods as ethical practice.

NOTE Laura Nader, “Three Jihads: Islamic, Jewish, and Christian,” pp. 1–2 from Anthropology Today 31:2 (April 2015). Copyright © 2015, Wiley- Blackwell. All rights reserved. Used by permission of Wiley-Blackwell.

REFERENCES Adler, Katya. 2009. “The Rise of Israel’s Military Rabbis.” Video report. Newsnight, BBC, 8 September. Ben-Dror, Yemeni. 2014. “Yemini Jewish Jihad Developing within Us.” Op-ed. Israel News, 4 July, Accessed 4 July 2014 .Ynetnews.com. Brown, Michael. 2014. “Renouncing Jewish Jihad.” The Christian Post, 7 July. Doner, Colonel V. 2012. Christian Jihad: Neo-Fundamentalism and the Polarization of America. Colorado: Sanizdat Creative Publishers. Ford, Peter. 2001. “Europe Cringes at Bush ‘Crusade’ against Terrorists.” The Christian Science Monitor, 19 September. Hassan, Hanino. 2014. “Fighting Jihad for Israel.” Al-Jazeera, 22 July. Hourani, Albert. 1991. A History of the Arab Peoples. Cambridge: Belknap Press of Harvard University Press. Nader, Laura. 1994. “Comparative Consciousness,” in Assessing Cultural Anthropology, ed. R. Borofsky, 84–96. New York: McGraw-Hill.

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E c ha p te r 2 7

The Anthropologist, the State, the Empire and the “Tribe” New Dimensions from Akbar Ahmed’s The Thistle and the Drone: How America’s War on Terror Became a Global War on Tribal Islam (Brookings Institution Press, 2013)

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ver the past century, a number of anthropologists and related social scientists have written about the formation of state societies and their relation to peripheral peoples who find themselves bounded by states, usually without their consent. Very often, such “peripheral” peoples come to our attention in relation to wars, usually not of their own making. What I want to do in this review of Akbar Ahmed’s amazing book The Thistle and the Drone is to indicate that Ahmed’s scholarship, while in no way perfect, has opened new dimensions for understanding the relations between state and peripheral groups that allows for “connecting the dots”—something that is not possible if, as in earlier studies, one is writing an ethnography of a particular group. Anthropologists have focused either on the peripheral peoples or on the state, rarely on the dynamics of colonialism. Thus, missing from our attention has been simultaneous coverage of state and periphery, and, especially now, empire and the horrific uses made of killer drone technology. Nor have we assessed global swathes of such activities from inside Europe to Asia and the Americas. The separation of interests, possibly due to specialization plus the narrow range of anthropologists’ experience, has limited our analysis. New dimensions from Akbar Ahmed’s book—the third in a trilogy—not only combines ethnographic analysis with history and comparison, but utilizes his wide-ranging experience, including his work as a Pakistani government

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agent and later as ambassador to Waziristan. Ahmed is also a poet, playwright, and coordinator of a team at the American University in Washington, D.C., where he occupies the Ibn Khaldun Chair for Islamic Studies. Ahmed is an inexhaustible speaker at universities and in the media, and a film producer. In other words, he has a combination of talents that are used far beyond what anthropologists and other social scientists usually include when approaching the topic of state and periphery—until now. The organization of the book reflects the structure of this timely and important contribution. In chapter 1, Ahmed explains his framework for the “thistle” and the “drone,” or the tribal hill peoples and the U.S. empire. Chapter 2 on Waziristan, subtitled “The Most Dangerous Place in the World,” outlines his ideal model: tribal elders, the religious leader, and the political agent representing the central government—a model that basically holds in all his forty case studies and in which the drone is considered dishonorable, an apocalypse within the American narrative of the “clash of civilizations.” Chapter 3 is “Bin Laden’s Dilemma,” in which tribal identity, not Islamic identity, defined actions in which 9/11 was organized like an Asiri raiding party. Chapter 4, “Musharraf’s Dilemma,” examines center/ Muslim periphery problems which began with European colonization and continued through postcolonial nation-building: the periphery became attached to or annexed by modern states that gave them few rights. Chapter 5, “Obama’s Dilemma,” examines center/periphery dynamics shifting from state/ tribe to America/tribal Islam, justified by national security issues. Finally a conclusion—“How to Win the War on Terror”—by a diplomat, an ambassador, even an applied anthropologist, argues that U.S. intervention exacerbates existing tensions. Thus the solution: there should be a federal government of autonomous tribal areas, a promotion of tribal cultures, and access to opportunities. The organization of the book reveals an anthropologist studying up, down, and sideways in ways that were not the centerpiece of works by authors prior to Ahmed. Thus the new dimensions: history, ethnography, comparison, and multisited. Appendix A of Ahmed’s book, “Of Tears and Nightmares,” deals with the anthropologist’s dilemma and might have been better placed as a final chapter. The dilemma here is empathy, wanting to fix the pain, be relevant even. Contrast Ahmed with Sir Edmund Leach, who studied the Burmese people in 1939 and wrote of hill tribes in relation to lowland groups and the processes of change from gumlao to gumsa over a seventy-year cycle. In his now classic The Political Systems of Highland Burma: A Study of Kachin Social Structure (1954), one of my favorite ethnographies, Leach covers exactly what his title suggests. In ten chapters, Leach takes us deep into the ecological background of Kachin society and the unstable

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categories of Shan and Kachin, the variabilities leading to the conclusion that the Kachin Hills area is not culturally uniform, since the ecology varies, while rituals are more relatively uniform. They are not a society in equilibrium, nor do they represent characteristics of any “tribal” entities. In his critique titled “Tribal Ethnography: Past, Present, Future” (1989), Leach noted, “The word ‘tribe’ and ‘tribal’ are now seldom used. … the word tribe … is now seen as derogatory.” He continues to note that European traders, Christian missionaries, and colonial administrations were seen as having a destructive impact on tribal society, whereas Indian and Chinese traders, or Buddhist or Islamic missionaries, were not usually accorded this status. While Christian missionaries comprised the earliest British administrators among the Burmese Kachin, Leach discovered there were no tribal boundaries, although much reference to tribes. The colonial government encouraged agents of detribalization as taking the path to “progress.” For Leach, there can be no future for tribal ethnography of a purportedly objective kind, since history only begins with literacy. The publication of Akbar Ahmed’s The Thistle and the Drone reflects paradigm changes in the twenty-first century. Looking backwards in time, Ahmed uses history to move the argument to a contemporary analysis of the state and the empire—as well as “the tribe”—as living examples of what Leach had dismissed due to their derogatory connotations. Harold Barclay published People without Government (1982), which draws on several generations of anthropologists who have documented stateless and governmentless societies throughout the world and through time. His point is that the absence of government does not necessarily imply disorder or anarchy, thereby decrying the myth of the necessity of the state. He centers instead on how order is maintained in “anarchic politics.” Stateless political organizations have been documented for the Hopi of northern Arizona, where governance was achieved through a balance of ritual groups. The Bushmen of the Kalahari Desert, Aboriginal Australians, the Comanche and the Basin Shoshone are also examples of political organizations based on the extended family, and the Tiv of Nigeria, based on unilineal descent groups. Early on, Africanists Evans-Pritchard and Fortes stated that it is possible to have a stable, enduring political system, working efficiently, without the organization known as “the state.” Political orders and the state are not synonymous. In Africa there were states such as the Ashanti or Swazi as well as stateless societies like the Tiv. But the colonizers and postcolonial states were not included in the works of early Africanists. In writing about this, Paul Bohannan (1963, p. 282) noted, “Multicentred power systems are … the political nemesis of our age.” Yet he adds that “modern political thinkers may discover that there are stabilizers in non-

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national, multicentred authorities which can solve some of the problems that seem to battle the nationalistic unicentric authority systems of the 20th century,” like those that “beset the United Nations today” (Bohannan 1963, p. 282). In The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia, James Scott (2009), a political scientist and anthropologist, asks the question, how do ordinary people deal with a predatory state? He was speaking about hill peoples, not predatory empires. Scott’s analysis focuses on Zomia1—a mountainous region in South Asia comprised of parts of Burma, Cambodia, China, India, Laos, Vietnam, and Thailand, with a population of one hundred million people. The major contribution of Scott’s book is to view the people of Zomia not as primitive leftovers of the prestate period. Those living in the highlands consciously choose to avoid the reach of the state due to the possibility of being subject to predatory behavior by states through conscription, slavery, taxes, forced labor, and war. Geography is a strategic resource used by such people to avoid the predatory actions of the state—a safe haven, or so they might think. For Scott, the state is not synonymous with order; rather, states are harbingers of disorder and chaos. However, Scott believes that technological improvements will increase the reach of the state, making avoidance increasingly difficult. Scott’s previous book, Seeing Like a State (1999), led him to be skeptical about the ability of governments to effectively improve the human condition through planning and intervention, sometimes referred to as “development.” Historians mark the nineteenth century as the era of “nationalisms” because it witnessed the emergence of the nation-state, organized around the themes of consolidation of new political identities and territories that signified the formation of geographically-defined markets and currencies. Richard Griggs (1992) states that “France’s claim to being a nation, or even a nation-state, was preOrwellian double speak.” For Griggs, the now popular, though erroneous, formula of nation-state was initiated when Louis XVI began retitling the royal departments of France. The distinction between a state, which binds its citizens by legal and military means, and a nation, which is the product of cultural evolution as a region, was not obscured until the period of the French Revolution. Nations were defined in cultural terms, as distinct peoples with a common history, common territory, common language, and often a shared religion. The cultural annihilation of historic nations is often portrayed as “modernization,” “economic development,” or “land reform.” National resistance to state expansion is now called “terrorism”; nations are forcefully incorporated into states, which maintain a distinct political culture but are not internationally recognized, while the state as we know it today is characterized as a single center of power.

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Studies of people with order but no government are referred to as borderland studies, not area studies. Akbar Ahmed’s book is a study of borderlands, in this case Islamic hill tribes. His work is part of a larger collaborative project with multiple goals, to include ethnographic, comparative, and historical, along with humanitarian and diplomatic goals. The former ambassador to Waziristan looks to develop a theory of relationships that have deteriorated with the onset of state and empire—perhaps an Islamic anthropology, in contrast to Judeo-Christian anthropology. The book discusses forty examples of peripheral groups and their relations with state authorities to illustrate the relationship between center and periphery, from Waziristan to Yemen, across North Africa to Indonesia and the Philippines. The tribal groups discussed are characterized by egalitarianism and a commitment to freedom, a strong sense of hospitality, relations defined by common ancestors, and a tribal lineage system, as well as a strong sense of justice connected to a highly developed code of honor and revenge—all present with “thistle-like” characteristics. Tribal Islam is grounded in pre-Islamic and non-Islamic customs merged with a veneration of orthodox Islam and as such is one of the many variants of Islam. We learn for example, that Bin Laden was descended from the Saudi province of Asir, which lay between the Saudis and Yemen and was annexed by Saudi Arabia in 1934 after bitter fighting and massacres. Yemen was also the ethnic affiliation of most of the 9/11 attackers on the United States. Akbar Ahmed is very clear in pointing out that Bin Laden’s actions were diametrically opposed to Islamic beliefs when aligned with tribal customs, although seeking to balance tribal and Islamic identity. And, according to Ahmed, America’s war on terror is in reality more tribal than Islamic, with hill people becoming the targets of American killer drone technology. Tribal reactions respond to the socially destabilizing effects of globalization and the concomitant loss of cultural identity. Ahmed argues that the U.S. has conflated the struggles between tribal Islam and oppressive central governments with “terrorism” or radical fundamentalist Islamists who want to destroy America. For Ahmed, the way out is to reconstruct traditional forms of society based on the lineage systems at work within these structures and the values in tribal codes, and to grant them a degree of cultural autonomy and political participation. If violence can be displaced into culture, it can be particularized and dealt with; if associated with religion it is an unsolvable problem, according to Ahmed. He speaks not of a “clash of civilizations,” but rather of that between central governments and tribal peripheries. Ahmed indicates that center/Muslim periphery problems started with European colonization as part of postcolonial nation-building and the drawing of disruptive borders—as with Waziristan the border was drawn in part between Pakistan

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and Afghanistan. Old oppressive colonial governments were replaced by new oppressive national governments. The American tendency to perceive threats is seen by Ahmed as at odds with its founding ideologies, and American overreactions in the “war on terror” have exacerbated preexisting center/periphery conflicts in other modern states. Centre/periphery dynamics have shifted from state/tribe to America/tribal Islam from Waziristan to Kurdistan, Yemen, Somalia and beyond. Drones and cruel central government invasions will not work, given the indication that brutal revenge attacks will continue from the periphery. Experts on terrorism ignore both culture and historical context. We are reminded that revenge is a system of dispute resolution: “The aim of revenge in a traditional society is to provide a measured response aimed at correcting an injustice and ensuring stability,” governance without government (Ahmed 2013, p. 25). Thus Ahmed’s recommendation for a federal government of autonomous tribal areas, promotion of tribal culture, access to opportunities, and efforts at reconciliation; drone wars are cruel and counterproductive. Drones kill innocent men, women, and children. For Ahmed, the question of relevance means moral. But using our talents to contradict the power of the state and empires poses the problem or dilemma as one of maintaining objectivity. For me, Ahmed is speaking about professional ethics: there is no such thing as objectivity, which I see as a mechanism controlling ethnographic content. Justice Cardozo had it right when he said that we may try to be objective, but we see with our own eyes (Cardozo 1921). The pain and suffering that Ahmed and his team have both recorded and witnessed is real, and he argues for compassion and kindness as a moral duty; through knowledge and research we can learn to coexist and have mutual respect—we are all humans. Actually, anthropologists have always been relevant, depending on what the power structure wants. In dealing with the periphery, whether Native Americans or the hill peoples of Waziristan, whether dealing with World War II or the Vietnam War, when we serve the power structure we may indeed be considered relevant. A good negative example is the Canadian anthropologist Diamond Jenness, who was complicit in the service of the state and its Canadian Indian Policy, but not in the service of Native peoples (Kulchyski 1993). When dealing with the periphery, we have supported assimilation, the creation of reservations, and sometimes even closed our eyes to mass killings. Thus the dynamics Ahmed is interrogating—the colonized wished to civilize the center and the periphery, followed by independent states who continue the same trajectory of control and civilizing of the periphery after borders were drawn. However, the challenge now is the attack on both the state and the periphery from global corporate capitalism in the guise of the International Mon-

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etary Fund, the World Bank, and international trade deals. In this light, Ahmed’s The Thistle and the Drone, his journeys to the United States and Europe, and his comparisons that cut across geographic areas may be an antidote for the dilemmas of both the periphery and the state. However, the problems of corporations controlling the world’s resources is on the front burner as well—thus the question of who would truly benefit through such dynamics—the next dimension in studying the pathways to power. A must read.

NOTES Originally published as: Laura Nader, “The Anthropologist, the State, the Empire and the ‘Tribe’,” pp. 19–21 from Anthropology Today 31:4 (Aug. 2015). Copyright © 2015 Wiley-Blackwell. All rights reserved. Used by permission of Wiley-Blackwell.   1. Zomia, “derived from zomi, a term for highlander in a number of Chin-MizoKuki languages spoken in Uunna, India and Bangladesh” (van Schendel 2005, p. 282).

REFERENCES Ahmed, A. 2013. The Thistle and the Drone: How America’s War on Terror Became a Global War on Tribal Islam. Washington, DC: Brookings Institution Press. Aronowitz, S., and H. Gautney, eds. 2013. Implicating Empire: Globalization and Resistance in the Twenty-first Century World Order. New York: Basic Books. Cardozo, B. 1921. “Lecture I. Introduction. The Method of Philosophy,” in The Nature of the Judicial Process. New Haven: Yale University Press. Barclay, H. 1982. People without Government. London: Kahn & Averill with Cieferon Press. Bohannan, P. 1963. Social Anthropology. New York: Holt, Rinehardt & Winston, Inc. Griggs, R. 1992. “The Meaning of ‘Nation’ and ‘State’ in the Fourth World.” Occasional paper No. 18., Center for World Indigenous Studies, Cape Town, South Africa. Kulchyski, P. 1993. “Anthropology in the Service of the State: Diamond Jenness and Canadian Policy.” Journal of Canadian Studies 28 (2): 21–50. Leach, E. 1954. Political Systems of Highland Burma. London: Athlone Press. ———. 1989. “Tribal Ethnography: Past, Present, Future.” In History and Ethnicity, ed. E. Tonkin, M. McDonald, and M. Chapman, 34–47. London: Routledge.

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Michaud, J. 2010. Editorial. “Zomia and Beyond.” Journal of Global History 5 (2): 187–214. Nader, L. 2015. “Vendetta, barbarie e Osama bin Laden. Al punto di partenza.” In Antropologia della vendetta, ed. G. Lorini and M. Masia, 3–10. Naples: Edizioni Scientifiche Italiane. Scott, J. 1999. Seeing Like a State. New Haven, CT: Yale University Press. ———. 2009. The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia. New Haven, CT: Yale University Press. van Schendel, W. 2005. “Geographies of Knowing, Geographies of Ignorance: Jumping Scale in Southeast Asia.” In Locating Southeast Asia: Geographies of Knowledge and Politics of Space, ed. Paul H. Kratoska, Remco Raben, Henrik Schulte Nordholt, 275–308. Singapore: Singapore University Press.

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E c ha p te r 2 8

Whose Comparative Law? A Global Perspective

Introduction Distinguished anthropologists of the nineteenth century were almost all lawyers and comparativists, a time when anthropology was still forming as a discipline. Law, on the other hand, had had disciplinary status for centuries. Among the most distinguished of these law/anthropologist comparativists and historians were Sir Henry Maine and Louis Henry Morgan, of England and the United States respectively. And there were others: J. F. McLennan, a Scotsman, and Johann Bachofen from Switzerland, and others on the European continent who were part of the historical schools of jurisprudence. During the nineteenth century, there were not yet divisions between lawyers and anthropologists. Both schools were developed around historical and social evolutionary issues, a situation that began to change rather quickly, with European colonialism spreading worldwide and with the United States completion of takeover of Indian lands. Anthropologists still read the nineteenth-century lawyer/anthropologists in part because they asked big questions about law embedded in society. These lawyer anthropologists covered the globe in all the variation that was known to them at that time. Sir Henry Maine, using historical materials from Europe and India, wanted to know how and why legal systems change, especially legal systems stemming from common origins (Feaver 1969; Starr and Collier 1989). Louis Henry Morgan, a firsthand observer of indigenous people, was interested in decent systems and their connections to economic systems more generally (Resek 1960). Both Morgan and Maine were also interested in gender and the evolution of gender status in law, and both used categories derived from law. The world was their sample (such as it was in their time), and their work was

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cast either as history or science. Both were locked in opposing camps of interpretation of the “real” as opposed to speculative. Since the latter part of the nineteenth century, legal scholarship has become more technical, more cautious about using narrowly defined subject matter, more Eurocentric in some ways, and certainly less global in the sense of using a world sample, or including all cultures and societies cross-culturally, whether nationwide or centralized in states. Some distinguished legal scholars accepted as fact a unilineal evolutionary model that argued that law has developed from savagery to barbarism to civilization, for the most part ignoring the dark side of the law and its imperial uses. The evolutionists used stages of social development to make generalizations, and to feel good about social progress. They might argue that as humans moved from hunting and gathering to agricultural and civilizational societies, the move was from self-help to negotiation to mediation and then to courts, or as with Emile Durkheim ([1893] 1964), who postulated the evolutionary move from punitive to restitutive sanctions, ignoring the place of prisons in his own time. The development of law was messier that any social evolutionist dreamed. In twentieth-century United States law schools, comparative law was taught as the differences between the common law of Anglo-American countries and the civil law of the European continent, perhaps allocating one lecture to Chinese law and another to Islamic law. In 1999 John Merryman noted that the dominant tradition of comparative law–teaching was trapped in a cramped and arid nineteenth-century paradigm. He advocated for a culturally broader and historically richer approach. Ugo Mattei (1997) classified these as the “rule of professional law,” the “rule of political law,” and the “rule of traditional law”—an eastern legal tradition does not separate the law from religion. This was of course especially true during the colonial period when native peoples were perceived as lacking law—and prior to the construction of state systems of the European model worldwide after colonization. Lawyer and anthropological academics were increasingly divergent.

Fieldwork The errors in such evolutionary and cross-cultural formulations were recognized as soon as anthropologists began to study particular societies. Branislaw Malinowski’s ethnography Crime and Custom in a Savage Society appeared in 1926, an example of how order is achieved in societies lacking central authority, codes, and constables. Malinowski pushed the boundaries of law to include more than formal rules used in more juris-

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prudential approaches that posited the argument that not all societies had law. For Malinowski, law was defined as the processes of social control by which any society maintains order and discourages disorder, such that all societies can be said to have law and be considered “civilized.” He argues against mainstream ideas about “primitive” behaviors being automatic, and nonspontaneous behavior of “collective consciousness.” On the other hand, Locke and Hobbes (Nader 2011a) (and some anthropologists such as Radcliffe-Brown)argued that there can be no law without a state political organization. The Malinowskian position was taken up by some lawyers, such as Karl Llewellyn, a leader in the school of legal realism. Llewellyn worked with anthropologist E. A. Hoebel, and together they wrote The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (1941), using “trouble cases” as their basic unit, a technique of the American case lawyers. “Where there are no books, there is only law in action.” Their focus was on the Cheyenne procedures and the modes of dealing with conflicts covering a period of sixty years, ignoring conquest effects of Anglo-American displacement. Nevertheless, they illustrated that unlike the legal formalists, law cannot be separated from the everyday lives of Native Americans, which are less specialized or narrow than legal professionals. Particularly well known is the adjudication of a case of horse theft. The chief declared, “Now we shall make a new rule. There shall be no more borrowing of horses without asking. If any man takes another’s goods without asking, we will go over and get them back for him. More than that, if the taker tries to keep them we will give him a whipping” (Llewellyn and Hoebel 1941, p. 128). As there was no legal profession among the Cheyenne, there was hardly any mention of fixed rules of law. But the Cheyenne could innovate and under new circumstances could create new law—an example that certainty and form need not be satisfied to achieve flexible justice. The notion of justice is key. Laws stem from community life, not from the elaboration of doctrine, whereas the lawyer is primarily interested in lawbreaking. Malinowski was primarily interested in the maintenance of order. The trouble-free cases become a check on the trouble case. Certainly for purposes of legal engineering, an examination of the whole living body of “law” is a necessity. The Cheyenne Way (1941) refutes Emile Durkheim’s theory (1893) that law moves from punitive sanction to restitutive. For the legal realists, the work was a blow to traditional legal education and a critique of American judges and the inability of our system to flex with the dynamics of a changing world. Llewellyn and Hoebel (1941) looked at modern and “primitive” law in relation to the other. That was 1941, a prelude to the critical legal studies move to understand law as cultural hegemony some forty years later (Kairys [1982] 1998). Ethnography

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gradually replaced social evolutionary perspectives and encouraged researchers to stay within one society, to see horizontally, for instance, how law “moves” (Maine 1861 from status to contract, and if it does, or how law adapts to the needs of the whole society, a functionalist approach omitted discussion of colonizers and external powers, but focused on the internal politics of law as practice. In debates about how “law” worked in societies with contrasting social organizations, Max Gluckman and Paul Bohannan (Nader 1969c, pp. 349–73; pp. 401–18) debated over whether to use indigenous or Western categories of law in the pursuit of understanding law in real terms. Now anthropologists are generally unlikely to look to the majority of legal comparativists for insights or stimulation, not because anthropologists are not interested in comparison and not because they are not interested in comparative law. It is because decontextualized facts or broad observations about different Euro-American legal systems are not usable by most anthropologists, and anthropologists whose fieldwork leads to interest in diversity are not usually interested in creating uniform legal systems, or one-size-fits-all ideologies. But they too had become localized in isolated and bounded ethnographies (Nader 1965), at a time when ever-expanding globalization processes were becoming manifest in Western legal paradigms from local to global, necessitating paradigm changes. While during the middle of the twentieth century, mainstream science paradigms favored a positivist model in which in the anthropological study of the law there would be control for variables, such as population composition or subsistence methods, in order to ask questions like “why do some peoples develop courts or third-party mechanisms while others do not,” or “why do couples in one village use courts for marital problems while others do not.” By the late 1970s, positivism was being increasingly scrutinized and thought to have a sterilizing effect on meaningful understanding and discovery. Research slowly moved from generalization to interpretation and diffusion of idea systems in law, and indeed the evolution of idea systems. Some anthropologists used all of it—comparison, history, interpretation, and generalization, and comparative research once again became broad-gauged. Comparing adversarial legal models with nonadversarial or harmony legal models involved expanding the boundaries of research to understand the trajectory of European colonialisms and the place of Christian missionaries in acculturating indigenous peoples (Nader 2000). With the creation of new states after independence, problems of centralizing diverse ethnicities and even languages brought anthropologists together with legal modernizers, who asked what effect did colonial hegemonies have on different parts of colonial territory after independence? Is customary law invented (Chanock

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1985)? Do some legal transplants from colonial power to newly independent states transplant with the same results? How does diffusion work? Imperialism, the centralized states, the peripheries of such new states, and the globalizing phenomena initiated by legal development missionaries make clear that the question “Whose comparative law?” initiates the beginning of a discovery process that takes us to new dimensions for understanding comparative law in its complexity.

Modernization Movements and Village Law What happens when the state gains a monopoly on the law of a region whose boundaries were drawn by colonial powers? Although crimes, from the Western perspective, are violations of the law, violations of the law from the cross-cultural perspective are not necessarily crimes (Nader and Parnell 1983). Societies without criminal populations are those that prevent individuals from obtaining criminal status through their behavior, not those that prevent violations of the “law.” The concept of crime, an idea related to the development of the state, becomes problematic when applied indiscriminately in societies with little or no central governments. Thus, most anthropologists working in such territories do not define crime, nor do they attempt to impose such distinctions as those between crime, tort, delict, and sin on their data, in societies without the prison complex. They report data without attempting to categorize them in terms of Western legal thought. They use native categories. In other words, they eschew attempts to define crime in a universal manner. Crime is a sociocultural construct (Nader 2001). For over fifty years, the Berkeley Village Law Project examined isolated instances of customary law or non-state law in fifteen societies as they interact with nation-state law and elaborated on the coexistence possibilities of customary, religious, and state law worldwide. What will the lives of these small communities be like if they were increasingly integrated into state and interactional frameworks? Two early examples illustrate differences in logic from one another and from the states in which they are embedded (Nader and Todd 1978). Sardinia is a place where state law functions as the legitimate law. Alongside this, however, is a working system of de facto law of the Sard shepherds. According to Julio Ruffini (1978, p. 209), the Italians view the shepherds as lawless. The shepherds see state law as foreign and unresponsive, and see their own law as stemming from the local environment, whereas state law is arbitrary, expensive, and time-consuming. For the Sards, stealing cattle is a redistribution of cattle wealth, not regarded as a crime but a dispute to

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be settled locally. Another illustration is taken from Zambia, where Richard Canter (Nader and Todd 1978, p. 247) studied cattle rustling cases among the Lenje. Since the country’s independence, cattle rustling cases are heard by state instead of local courts and punitive sanctions were put in place. The state becomes the plaintiff; the real plaintiff becomes a victim, a powerless role. Civil cases, however, were left in local courts. The Lenje-speaking people do not recognize the civil/criminal categories. For them, compensation was what they wanted in the cattle rustling cases, not state sanctions and jail sentences following a unified criminal code originally imposed by the British. The locals demanded a return to customary expectations that cattle rustling cases be returned to the local court for trial. There were riots and disruptions of a violent sort (in Nader and Todd 1978). Riots are the language of the unheard. To reiterate, most local non-Western legal systems do not recognize the distinction between civil and criminal law, a legacy of a specific Western tradition. Compensation was what the locals want; it does them no good to have the culprits spend seven to fifteen years in jail. In both examples, the modern state assumed the plaintiff role, thereby supplanting the authority and intentions of the real plaintiff. In present day Indonesia and Papua New Guinea, the result is even worse. Defendants are plentiful. Both states allow foreign investors access to plunder natural resources. The locals now take up arms to protect their cultural and ancestral homelands. David Hyndman (1994) describes economic development as invasion, yet the locals are prosecuted as criminal defendants. The corporations who plunder benefit themselves and the states that allow them access, whereas those who resist are prosecuted as criminals under state laws that favor foreign investors. Some critics refer to this as internal colonialism. In now independent countries, such as Morocco, Algeria, or Tunisia— once colonized by the French—the unified notion of legal power, inherent in the Western notion of the state, remains intact after the colonial period in the independent states. Centralized law appears, on the surface at least, to have maintained the upper hand over both Islamic law and customary law across the Middle East. “On the surface” because at another moment this interrelated characteristic of Middle Eastern law is not static, and reassertion of one or another sphere can be seen in Sudan or Yemen (Mayer 1985). One need only follow the daily news in twentyfirst-century Afghanistan as witness to reassertion of either customary or Islamic law. In Egypt, judges are expected to understand the contours of state, customary, and Islamic laws since citizens of all groups are likely to appear before them as participants in law and order. Islam, the religion which stems from desert regions, accords great importance to water. Habib Attia (1985) writes of “Water-Sharing Rights

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in the Jerid Cases of Tunisia.” While there are different laws regarding water—whatever the divergences that separate the schools of law in the Muslim world, almost all Muslims agree that since water may be individually appropriated, it may be shared or sold. His story covers over one hundred years during which, under colonial practice, courts were manipulated in order to destroy the traditional rights of ownership and management of water and bring the ownership of water under state control—basically the transfer of hydraulic wealth to groups linked with the capitalist mode of production. However, it was with independence that the new state deprived the old oasis society of all customary rights to water. The breakdown of millennial water uses in the oasis broke down, and the scarcity of water brought impending crises for Tunisian oases. Surviving preliterate societies are increasingly being encapsulated by the modern bureaucratic state, a process that, while it began primarily under colonial governments, has developed further under conditions of independence or invasions. One might argue that creating central administrations has had a pervasive influence on local communities, sometimes by acting as a brake on inter-village hostilities. On the other hand, political encapsulation brings into contact different systems of right and wrong, different ideas about authority, and different processes for treating wrongdoers. Among the Maya Indians of Guatemala, an encroachment of the Guatemalan state system has been associated with the disintegration of village leadership and with increased resort to homicide by both locals and the state for the management of problems and disputes in the community. Alternatives to, and controls over, the use of physical violence results from the nature of contact between the two types of systems—centralized state and local village. In southwest Ethiopia, the Sidamo have increasingly neglected procedural rules of community law, and developed a preference for revenge, having refused to accept traditional sanctions. The increased agency of national courts underlies many of these changes. Variations are many, as all contacts between indigenous and state systems produce similar results. Some mountain Zapotec have developed counterhegemonic ways of settling disputes, and political strategies that effectively control the amount and impact of state judicial involvement (Nader 1990). It is considered a serious offense against the Zapotec village to aid the state in gaining control over the processing of a dispute, and most villages have been able to maintain control over their customary boundaries of authority by maintaining effective mechanisms for local dispute settlements. Indeed, indigenous communities may not define the state system of law as “legal” in their logic when the state actively participates in those disputes that villagers wish to settle among them-

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selves. Some village authorities refer to relations with federal and state authorities as “relaciones exteriores,” as if the villages were city-states. A more current example of hegemony is the current situation in Mozambique, where “customary law” is being used to justify neoliberal types of governance and to decentralize state power, which has been a protective force for native peoples; so the relationship between “state” and “custom” is ever dynamic (Obarrio 2010, 2014). “Whose comparative law?,” then, in the work of anthropologists, is a question that compares indigenous, customary, or local justice with that of the state, without making judgments such as “underdeveloped” or “sites in need of legal ‘development.’” In a comprehensive work on Mexico and Guatemala (Justicias Indigenas y Estado, edited by Sierra, Hernandez, and Sieder [2013]), the contributors write about the transformation of the state in relation to its indigenous communities, in which neoliberal states expand the juridical realm to manage indigenes. Similar issues are raised by anthropologist Steven Caton (2005), working as far away from Central America as Yemen, and even more deliberately in Akbar Ahmed’s (2013) The Thistle and the Drone, research that highlights what are referred to as tribes or hill people and examines collisions inside state boundaries to which they have been assigned. Waziristan is divided between Pakistan and Afghanistan. Both works expand the domain of control to include drone attacks of the American Empire on citizens classified as “terrorists,” along with centralized state powers. Legal reforms or legal development often result in violence between the state and the periphery, and, under such conditions, the customary governance by the periphery moves to raw violence and the result is hardly good development or progress. Perhaps it is perceived as self-defense.

Imperialism and Dissatisfaction with State Law In sum, the reasons for people’s disaffection with state law are multiple: the intolerance of social and cultural differences in Westernized imperial law, unequal power (which becomes ever more pronounced in differentiated and stratified states), professionalism (which alters patterns of access to major dispute resolution mechanisms), and general problems of legal competence, corruption, and/or delayed prosecutions. Sometimes these matters are rolled into one cluster of variables—the distribution of technological power, although cast in language as separate from society and politically neutral. In Afghanistan, Thomas Barfield (2002, 2010) predicted correctly that the international community was going to have a difficult time building

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rule of law in Afghanistan because the Afghans already had a well-developed structure of law or morality and of justice, but it follows a different logic than our own. People in the international community are not used to dealing with highly developed pluralistic laws that allow for running a society without state structures—something that anthropologists have repeatedly documented across the globe, especially since state societies are only recently ubiquitous globally. In 2001, as a result of an international meeting in Germany, provisional arrangements were made for legal reform in Afghanistan. Italy assumed the role for judicial reform and in February 2004 presented a complete criminal code to the new Afghan government. As with past colonial arrangements, a unified legal system would standardize state law in Afghanistan and abolish customary and Islamic law, the consequences of which commonly lead to violence, now termed “terrorism” (Ahmed 2005; De Lauri 2013). Barfield’s point is that centralization distorts the stable relationships among the different parts— nomads, agriculturalists, different language groups. All attempts of twentieth-century leaders for centralized powers and legitimacy have resulted in failure, including indigenous responses to foreign interventions. The arrival of the U.S. war machine is the fourth time in 160 years that a foreign power put troops in the country, also restoring a Kabul-centered government run by a Kabul-based government elite. The weakness of this model should have been apparent because of its failed past. The Washington Post (21 April 2011) reported in “Seeking Justice, Trusting Tradition,” noting, After the U.S.-led invasion of Afghanistan that helped topple the Taliban in 2001, Western powers attempted to create a more modern justice system, building courthouses and training judges, prosecutors, police and defense lawyers. But the efforts, which cost billions of dollars, have yielded a system that many Afghans deride as corrupt, arbitrary and subject to political interference. Now the United States and other international donors have begun to spend millions of dollars on projects that aim to better understand and legitimize Afghanistan’s traditional justice system, known as “informal justice.”

Anthropologists such as the present president of Afghanistan, Ashraf Ghani, could have saved them the money, as Ghani (1983) had already written scholarly papers on the decentralized system of justice that Barfield speaks about. Now he must deal with the disorder created by the American invasion. Such imperialistic patterns keep being repeated, whether by centralized states or foreign imperialists (Mattei and Nader 2008). After the invasion of Iraq in 2003 by American and British forces, a non-elected Paul

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Bremmer III and the Committee of the Iraqi Governing Council passed edicts, closed newspapers under the “rule of law,” and backed his moves by a military force that allowed the total disorganization of competing legal controls in Iraq—customary, Islamic, and the state. The first months of occupation of Iraq were ostensibly about bringing the rule of law to Iraq as part of democracy-promotion measures. The experience of trying to shape the other inevitably shapes us as well. Early on after the invasion of Iraq, Islamic scholar Khaled Abou El Fadl (2003) wrote an opinion piece for the Wall Street Journal in which he maintains that Iraq had a rich and long jurisprudential tradition long before Saddam Hussein came to power: “The Iraqi Civil Code of 1953 was one of the most innovative and meticulously systematic codes of the Middle East. … [I]n 1959 Iraq promulgated the Code of Personal Status, which on issues of family and testamentary law was at the time the most progressive Muslim code of law. … [T]his code merged elements of Sunni and Shiite law to grant women greater rights in marriage, divorce, and inheritance.” None of this touched the plans for bringing rule of law to Iraq, as Paul Bremmer demonstrated by issuing his 100 Orders as the minimal reform necessary for the unfolding of a neoliberal market. Bremmer’s Orders gave preference to U.S. corporations over the development of Iraqi economy intended to change Iraq from a centrally planned economy to a market economy. Weberian legal orientalism about the absence of formal rationality in Islamic law remains entrenched, in spite of empirical research to the contrary. Idealizations of an idea, a universal rule of law, is an impediment to understanding how law works and with what consequences if we work with state models and/or with highly differentiated societies such as Iraq, Afghanistan, or Yemen, or the United States.

The Anti-Law Movement Research on procedural varieties of law elsewhere became pertinent to understanding the dramatic changes taking place in the American civil justice system following the civil rights cases of the 1960s, sometimes referred to as an anti-law movement. As a number of anthropologists turned their primary attention to the United States, they found common ground with legal scholars in the critical legal studies movement—lawyers who were interested in legal hegemonies, the politics in which law is enmeshed. Once again, these new directions expanded the scope of the research, which focused on The Politics of Law (Kairys [1982] 1998), and also Gunter Frakenberg (1985) on rethinking comparative law. When legal scholars or practicing lawyers speak publically of law, they commonly

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refer to the purposeful functions of the law—a process for facilitating and protecting voluntary arrangements or as a process for resolving acute social conflicts, or as a process necessary for orderly continuities. The notso-nice functions of the law are adumbrated in the research on European colonialism, work on legal orientalism, the work on law and development, or domestically on states of exception, as in the “War on Terror,” or the U.S. Patriot Act. Scholars in critical legal studies noted early on that changing the questions asked in criminology changes the paradigm from the social control paradigm to the cultural control paradigm. The question asked by traditional criminologists, “Why is it that some people commit crime while others do not?,” changed after the 1960s civil rights demonstrations and the blatant criminality by giant corporations and political leaders to “Why are some acts defined by law as criminal while others are not?.” In critical legal studies, scholars examined the control functions of law—as it socializes law students to an ideology of law as neutral, objective, and quasi-scientific while training them for hierarchy (Kennedy 1982). In this manner, law as ideology becomes a vehicle for the justification of existing social and power relations. Ideologies seem to be increasingly used in modern industrial society because they are less vulnerable to abrupt change since they are not dependent on particular people or dynasties. They are efficient mechanisms of control to maintain structural continuity. In John Conley and William O’Barr’s ([1997] 2005) examination of languages of law, the subject turns from legal discourse to the language in which the legal subjects themselves speak about their encounters—equality for all, fairness, justice—not the specialized language of the law. Lay discussions of social justice often include mention of injustice. Although much of the literature on the subject of justice and injustice is addressed by philosophers, social scientists, or psychologists, there seems to be general agreement that justice beliefs and behaviors and the justice motive are universal phenomena, although meanings of justice will vary with different social and cultural settings even within one country (Lerner and Whitehead 1980). Such variations have been part of general discussions since Plato and Aristotle. Korean lawyers such as Hahm Pyong-Choon (1967, p. 148) realized that with the growth of state power and state law, the question of justice becomes one less concerned with the maintenance of the traditional and more concerned with “each individual getting a fair share of life in the first place than in preventing him from upsetting the established social order.” It was with the development of the nation-states that the demand for social justice is heard, and Hahm saw modernization as endeavors to realize ever-increasing degrees of

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social justice. He was realizing that, different from justice conceptions in non-Western societies, Western jurisprudence is characterized by a stress on individualism, and in the concept of law we see the best illustrations. Central to Western law is the idea that all people are equal, ideally of course. In Korea, for example, a judge did not “judge his case according to formal rules, but wanted to take into consideration all the particular qualities of the parties; the best he could do was arbitrate or mediate rather than judge.” The stress on order was also manifest in the Chinese justice system of the time. Jacques Gernet (1970, p. 107) reports that the Chinese administrative system was based on one principle: that order must reign. “In short, it was a system of justice apparently designed to discourage people from acquiring a taste for legal proceedings.” While Gernet was writing about daily life in China in the thirteenth century, he notes that the aim of the official cult, Confucianism, in the eyes of the bureaucrats was “to ensure the preservation of a universal order which was nothing other than the counterpart, on the supernatural level, of the political order imposed upon the world by the Emperor and his officials” (p. 203). Such behaviors, designed to discourage people from acquiring a taste for legal proceedings, are found not only in contemporary China but in other state sites as well. Thus the consumer crying out in the United States that “there’s gotta be some justice somewhere” is symbolic of similar voices in a variety of contexts worldwide where there is, as I titled a book, No Access to Law (Nader 1980). How do the dynamics of power work in global contexts? And do the conditions suggested by Roscoe Pound’s 1909 Report to the American Bar Association on “the causes of popular dissatisfaction with the administration of justice” still exist? And perhaps the view of traditional Chinese law can be elaborated (Hansen 1995).

Controlling Processes: Lack, Rule of Law, ADR, and Corporate Power The term “controlling processes” is about processes of control that emphasize the importance of ideas as dynamic components of power. It encompasses knowledge of how central dogmas are made and how they work. A concern with controlling processes focuses on power as means to control by means of hegemony or counterhegemony. The notion of hegemony, as developed by Antonio Gramsci (1971), implies that such systems of thought develop over time and that they reflect the interests of certain classes or groups who manage to universalize their own beliefs and values. These beliefs serve to reinforce control as they are produced

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and reproduced through the work of intellectual elites, or in the context of counterhegemony created by subordinates exercising agency. In the contemporary period of nation-state dominance, the concept of lack (Nader 2005) has been used as a key mechanism for policies of legal development and, along with lack, the concept of rule of law, and alternative dispute resolution (ADR) or harmony ideology. All three of these concepts—lack, rule of law, and ADR as pacification—have a long history, often contradictory histories that become clear with the spread of centralized states. Thus, it is ironic that as the legal development movement sent idealistic American lawyers to Asia and Africa in the 1950s, and Latin America in the 1960s, to spread American legal practices, in the United States there was a burgeoning anti-law movement in the 1970s, spearheaded by the chief justice of the U.S. Supreme Court—Warren Burger. Burger’s speeches were full of undocumented comparisons: the United States was a litigious society, and what was needed were more harmonious, less adversarial models of justice, “civilized” models that were free from the restraints of the civil justice systems (Nader 1989). The tort “reform” movement was born, and caps were placed on tort law in many states. Corporate power was weighing in. Interestingly, the movement for harmony did not include the criminal justice system, which increased prison rates to among the highest in the world. Nevertheless the alternative dispute resolution movement, a medley of mediation, arbitration, and negotiation, was created and spread more quickly than even the originators had expected. By the turn of the twentieth century, the ADR movement had dramatically diminished the U.S. civil justice system, and the civil rights cases: consumer and environmental cases were publically referred to as “the garbage cases.” At a time when the legal development movement was still and is still impacting many “developing” countries, American ADR went international, functioning as an antidote to the international court of justice. In international river disputes (Nader 1995), whether between Spain and Portugal, or Bangladesh and India, and in case after case, such as the upper Danube River countries with the lower Danube, the weaker power each time preferred the International Criminal Court while the more powerful parties gave preference to unelected international negotiators. At the same time, as we saw with the Afghanistan case and Bremmer’s edicts for Iraq, the rule of law ideology also went international wherever the theory of lack could be applied for the benefit of powerful interests, of plunder of natural resources such as oil, land, or water. Although contemporary rule of law cases indicate “When the Rule of Law is Illegal” (Mattei and Nader 2008), its history as plunder goes back centuries to the beginning of Euro-American expansions. Indeed, philosophers such as John

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Locke ([1698] 2003) or Emmerich de Vattel ([1797] 2005) were justifying plunder by after-the-fact legitimation. In the Law of Nations, de Vattel ([1797] 2005) introduced the notion of terra nullius—empty lands that are not empty—used to justify the take even in the contemporary period. Ugo Mattei and Laura Nader (2008) discuss the mechanisms of appropriation through which the transnational rule of law has led incrementally to global plunder; although initiated by the expansion of Euro-American societies worldwide, mechanisms of appropriation now continue through nations’ trade deals, such as NAFTA for Latin America or FAST TRACK in the Pacific, and national corporations independent of explicit political or military colonialism. Dominant hegemonies support the haves against the have-nots, creating increasing inequalities and consumption worldwide. With the increase of consumerism worldwide, No Access to Law (Nader 1980) is now a serious worldwide phenomenon for potential plaintiffs, who are also operating in a face-to-faceless environment. The first use of the term “controlling processes” appeared in the 1980 work on No Access to Law. In order to understand why economic grievances have resulted in so few solutions throughout the period of United States industrialization, one needs to understand and examine the ideology of law. The concept of caveat emptor (buyer beware), for example, is based on an ideology of equality between buyer and seller; protection of confidentiality is connected with the personalization of the corporate entity and contributes to a reliance on the custom handling of complaints; handling judicial cases one by one, rather than by class actions, encourages the belief that public rights should be in government hands. Such clusters of ideologies are interrelated in various ways, forming an opaque net; together such ideologies reinforce marginal use of and a marginal array in the courts, made worse by marginal funding of courts. Is the same paradigm thus applied to other civilizations? We hear repeatedly that China lacks law or is averse to law even though China boasts dynastic legal codes going back to the Tang dynasty (Ruskola 2014). Today China is introducing Western legal forms and assimilating new laws and procedures in a Chinese context (Kroncke 2012, 2016). The task then, Ruskola (2014) argues, may be to “provincialize Europe,” and by doing so renew European traditions “from and for the margins.” Unlike state law, Islamic law has a flexibility that historically tolerates and includes pluralities of law, including mixtures of Western codes in their state law. Likewise, a large land mass such as China or Afghanistan must allow for difference. Both states have a multiplicity of both formal and informal systems. Interesting as well is India—not discussed in terms of lack. But then after independence, India retained the common law form of the English colonies.

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Paradigm Changes With the end of European empires and formal decolonization after the Second World War, more than fifty new states with new names, borders, and government apparatus appeared on the scene. Today there are 195 self-declared nations in the world. That nation-state as a European idea did not matter at the time, although in consideration of the question “Whose comparative law?,” it matters a great deal. States may be called nation-states (including European countries), when in actual fact they are centralized states encompassing a variety of nations—people who see themselves as having their own modes of governance, which centralized states will seek to manage. Some of the consequences have already been mentioned: the demise of the real plaintiff when distinctions are drawn between civil and criminal law; the loss of self-governance and values associated with it; taxation, slave labor, plunder of resources, all of which together create instability and violence that extend decades after initial contact. In Europe, in Spain and England, contemporary movements for independence should not surprise. The periphery becomes an underclass, and law becomes lawlessness from the periphery’s view. In the rich countries, when harmony is traded for justice, when the best tort system in the world is disabled, when class-actions are made difficult by individuating cases, when litigating becomes disturbance of civility, and when the Big Boys get delayed prosecutions as the Little Guy increasingly gets put in prison for much lesser crimes—then as well the law is perceived as lawless. The need to examine the law from the point of view of the “Other” is critical since the law is what “rational” people hold between themselves and the onslaught of fascism. “Whose comparative law—the haves or the have-nots?” brings us closer to reality checks on the law and order problems everywhere. A New York Times editorial (26 December 2014) was headlined “The Best Lawyers Money Can Buy,” concluding, “The biggest cost of all may fall on regular Americans, for whom justice at the highest court in the land becomes less accessible every day.” On the other hand, Teng Biao, a human rights lawyer and a visiting fellow at the Harvard Law School, published an editorial in the Washington Post (29 December 2014) headlined “China’s Empty Promise of Rule by Law,” in which he notes, “The rule of law that the Communist Party talks about is nothing more than a tool to further control society.” Teng Biao is writing about legal rhetoric, something that appears worldwide, a rhetoric Ugo Mattei and Laura Nader (2008) document in Plunder: When the Rule of Law is Illegal, arguing the need to examine both the dark side of the rule of law as well as its good. The “selective blindness” that Biao speaks about applies globally and in general results in short-

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sighted policies in dealing with others in our own and other countries. It is past time for paradigm changes in comparative law, paradigms that are more culturally inclusive, connecting states with their peripheries and as well moving into engagement with international human rights and the role of the state in responding to violence and war, and peace and justice issues. As globalization continues to expand, lawyers and anthropologists will need to track the multilayered flow of power and legal forms across cultures and societies. NOTE This chapter was previous published as: Laura Nader, “Whose Comparative Law? A global perspective”, pp. 28–42 in Comparative Law and Anthropology, James A.R. Nafziger, ed. Edward Elgar Publishers, 2017. Reprinted with permission from James Nafziger.

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De Lauri, A. 2013. “Law in Afghanistan: A Critique of Post-2001 Reconstruction.” Journal of Critical Globalization Studies 6. de Vattel, E. (1797) 2005. The Law of Nations. Clarke, NJ: Law Book Exchange Ltd. Durkheim, E. (1893) 1964. The Division of Labor in Society. New York: Macmillan. El Fadl, Khaled Abou. 2003. “Rebuilding the Law.” Wall Street Journal Online, 21 April. Accessed 21 April 2011. http://www.scholarofthehouse.org/rlaopwast joa.html. Feaver, G. 1969. From Status to Contract: A Biography of Sir Henry Maine, 1822– 1888. London: Longmans. Frakenberg, G. 1985. “Critical Comparisons: Re-thinking Comparative Law.” Harvard International Law Journal 26 (2): 411–56. Gernet, J. 1970. Daily Life in China (On the Eve of the Mongol Invasion 1250–1276). Stanford: Stanford University Press. Ghani, A. 1983. “Disputes in a Court of Sharia, Kunar Valley, Afghanistan, 1885– 1890.” International Journal of Middle East Studies 15 (3): 353–67. Gramsci, A. 1971. Selections from the Prison Notebooks of Antonio Gramsci. New York: International Publishers. Hansen, V. 1995. Negotiating Daily Life in Traditional China: How Ordinary People Used Contracts, 600–1400. New Haven: Yale University Press. Hyndman, D. 1994. Ancestral Rain Forests and the Mountain of Gold: Indigenous Peoples and Mining in New Guinea. Boulder, CO: Westview Press. Kairys, D., ed. (1982) 1998. The Politics of Law: A Progressive Critique. 3d ed. New York: Basic Books, 1998. Kennedy, D. 1982. “Legal Education as Training for Hierarchy.” In The Politics of Law: A Progressive Critique, ed. D. Kairys, 40–61. New York: Pantheon Press. Kroncke, J. 2012. “Law & Development as Anti-Comparative Law.” Vanderbilt Journal of Transnational Law 45, pp. 477. ———. 2016. The Futility of Law and Development: China and the Dangers of Exporting American Law. New York: Oxford University Press Kuper, A. 1985. “Ancestors: Henry Maine and the Constitution of Primitive Society.” Historical Anthropology 1: 265–86. Lerner, M. J.. and L. A. Whitehead. 1980. “Procedural Justice Viewed in the Context of the Justice Motive Theory.” In Justice and Social Interaction, ed. G. M. Mikula, 219–56. New York: Springer-Verlag. Llewellyn, K. N., and E. A. Hoebel. 1941. The Cheyenne War: Conflict and Case Law in Primitive Jurisprudence. Norman: University of Oklahoma Press. Locke, J. (1698) 2003. Two Treatises of Government. In Two Treatises of Government and A Letter Concerning Toleration, ed I. Shapiro. New Haven: Yale University Press, 2003. Maine, H. (1861) 2002. Ancient Law. New Brunswick, NJ: Transaction Publishers. Malinowski, B. 1926. Crime and Custom in Savage Society. London: K. Paul, Trench, Trubner & Co. Mattei, U. 1997. “Three Patterns of Law: Taxonomy and Change in the World’s Legal System.” American Journal of Comparative Law 45 (1): 5–46.

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472

CONTRARIAN ANTHROPOLOGY

Mattei, U., and L. Nader. 2008. Plunder: When the Rule of Law is Illegal. Malden, MA: Blackwell Publishing. Mayer, A. E., ed. 1985. Property, Social Structure, and Law in the Modern Middle East. Albany: State University of New York Press. Merryman, J. H. 1999. The Loneliness of the Comparative Lawyer and Other Essays in Foreign and Comparative Law. The Hague: Kluwer Law International. Nader, L. 1965. “Choices in Legal Procedure: Shia Moslem and Mexican Zapotec.” American Anthropologist 67 (2): 394–99. ———. 1969. Law in Culture and Society. Laura Nader, ed., Chicago: Aldine Publishing Company, 454 pp. ———. 1989. “The ADR Explosion: The Implications of Rhetoric in Legal Reform.” Windsor Yearbook of Access to Justice, vol. xiii, 8: 269–91. ———. 1990. Harmony Ideology: Justice and Control in a Mountain Zapotec Village. Stanford: Stanford University Press. ———. 1995. “Civilization and Its Negotiators.” In Understanding Disputes, ed. P. Caplan, 39–63. Oxford: Berg Publishers. ———. 1997. “Controlling Processes: Tracing the Dynamic Components of Power.” Current Anthropology 38 (5): 711–37. ———. 2001. “Crime as a Category.” Windsor Yearbook of Access to Justice 19 (special issue): 326–40. ———. 2005. “Law and the Theory of Lack.” Hastings International and Comparative Law Review 28(2): 191–204. Nader, L., ed. 1980. No Access to Law: Alternatives to the American Judicial System. New York: Academic Press. Nader, L., and P. Parnell. 1983. “Comparative Criminal Law and Enforcement: Preliterate Societies.” In Encyclopedia of Crime and Justice, vol. 1, ed. S. Kadish, 200–7. New York: Free Press. Nader, L., and H. Todd, eds. 1978. The Disputing Process: Law in Ten Societies. New York: Columbia University Press. Obarrio, J. 2010. “Remains: To be Seen. Third Encounter between State and ‘Customary’ in Northern Mozambique.” Cultural Anthropology 25 (2): 263–300. Obarrio, J. 2014. The Spirit of the Laws in Mozambique. Chicago: University of Chicago Press. Pyong-Choon, H. 1967. The Korean Political Tradition and Law: Essays in Korean Law and Legal History. Seoul: Hollym Corporation. Resek, C. 1960. Lewis Henry Morgan: American Scholar. Chicago: University of Chicago Press. Ruffini, J. 1978. “Disputing over Livestock in Sardinia.” In The Disputing Process: Law in Ten Societies, ed. L. Nader and H. Todd, 209–46. New York: Columbia University Press. Ruskola, T. 2002. “Legal Orientalism.” Michigan Law Review 101: 179–234. ———. 2013. Legal Orientalism: China, United States and Modern Law. Cambridge: Harvard University Press. Sierra, M. T., R. A. Hernandez, and R. Sieder, eds. 2013. Justicias Indígenas y Estado: Violencias contemporáneas. Mexico City: Flacso-Ciesas. Starr, J., and J. F. Collier, eds. 1989. History and Power in the Study of Law. Ithaca: Cornell University Press. EBSCOhost - printed on 2/19/2021 12:59 AM via MCGILL UNIV. All use subject to https://www.ebsco.com/terms-of-use

E INDEX

A American Anthropological Association (AAA), 226, 236–241, 252–254 Abel, Richard, 64–65, 87, 89, 97, 98 Abraham, Nabeel, 372 Abu–Lughod, Janet, 146, 348 academic freedom, 225, 227–30, 247, 251 Adams, Richard, N., 286 Adler, Katya, 445 Alternative Dispute Resolution, 86, 96, 97, 101–105 ADR Movement, 162–163, 196 professionals, 173 ideology, 199 International negotiation, 197 River disputes, 196–198, 190 advertising, 22–23, 165, 282–284, 298, 306, 314, 318, 320, 346 Afghanistan colonization, 8, 452 gender, 6 Human Rights, 430 Kabul, 463 law, 404–406, 462, 464. 467, 468 Local Knowledge, 400, 401 Jihad, 442, 443 war, 172, 310, 342, 372–374 age segregation, 47 agriculture, 246 Ahmed, Akbar, 8, 447–449, 451–453, 462, 463 Ahmed, Faiz, 400

air bags, 362 Alford, William, 389 Algeria, 460 Colonialism, 150–152 Gender, 244 Law, 405 War, 236 Al-Hussein, Queen Nor, 377 Al-Jabarti, Abd al-Rahman, 415–417 Al-Shawa, Lila, 340, 341 American Chemical Society, 34 American Indian rights, 88, 336 (see Native Americans) Ames, Michael, 49, 279. See Museology Anderson, James, 226, 227 Anderson, W.T., 187 Angell, Marcia, 318 anger, 13, 59, 116, 123, 163, 165, 196, 273, 306, 318, 330, 354, 372, 427 anthropology, 1, 13, 18, 72, 109, 112, 118, 125 Cold War Area Studies, 231–235 Arab Historians, 131, 377, 415, 417, 442, 443 Stereotyping, 139, 378 Women, 6, 110, 131–134, 150– 157, 184, 315, 339, 340, 341, 344, 368–369, 372– 379, 387, 390, 403, 415, 442, 444, 445 Arebi, Saddeka, 143–145, 151, 155, 158 Arnold, Thurman, 67, 440

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474 art, 78, 115, 117, 206, 276–277, 340, 341, 372 Asad, Talal, 155, 252, 286 assault and battery, 355, 357, 358, 360 atomic bombs, 253 Atomic Energy Commission, 262 Attia, Habib, 460 Auerbach, Jerold, 87, 96, 272, 273, 425 Australians, 449 authority, 93, 101, 132, 150, 169, 181, 193, 240, 272, 403 auto industry, 16, 361 avoidance, 62, 101, 104, 122, 211, 266, 273, 288, 450 B baby foods, 53 Bachofen, Johann, 455 Baker, Paul, 53, 261 Baltzell, Digby, 25 Baluchis, 250 Bangladesh, 184–186, 200, 201, 329, 453, 467 Banias River, 184 Barclay, Harold, 449 Barfield, Thomas, 401, 462, 463 Bartolomé, Miguel Alberto, 291, 311 Bascom, William, 243 Bay Area Air Pollution Control Agency, 20 Bay of Pigs. See Cuba BBC TV, 445 Beals, Ralph, 233, 238 Beatrice Foods Company, 355 Beauty-industrial complex, 276 Beeman, William, 372 Begum, Khurshida, 180, 184, 185, 201 Bendix, Rheinhard, 44, 47, 112 Benedict, Ruth, 13, 153, 230, 283 Berkeley Village Law Project, 327, 328, 399, 401, 459

INDEX

Berreman, Gerald, 226, 239–242, 246 Bianchi, Rinaldo, 177–180, 186, 199 Biden, Joe, 440 Big Boys, 469 Bilateral negotiation, 179, 182–185, 199–200 Bill of Rights, 334, 335, 379, 381, 384, 395 bin Laden, Osama, 8, 437, 439–441 Bin Talal, King Hussein, 377 Blair, Tony, 378 Blok, Anton, 236 Boas, Franz, 230, 264, 283, 301 Bodley, John H., 293, 311, 313, 423 body mutilation, 275 Boehm, Christopher, 438 Bohannan, Paul, 117, 260, 449, 458 Bork, Robert, 90, 91 Bourgois, Phillipe, 260 Bourrienne, Louis de, 417 Brave New World, 57, 194, 253, 282, 284 breast implants, 276, 277, 289, 314, 318, 346, 347 Breeder reactor, 38, 220, 312 Bremmer III, Paul, 464, 467 Committee of the Iraqi Governing Council edicts, 464 Bristol Myers Corporation, 64 Brookhaven Laboratory, 249 Brown, Chris, 430 Brown, Governor Jerry, 330 Brown, Michael, 444 Bruner, Jerome, 229 building codes, 16, 40 Bumsted, M. Pamela, 260 Bureau of Indian Affairs, 17, 250 Bureaucracy, 5, 20, 98, 216, 218, 220, 248 Burger, Chief Justice Warren, 9, 61, 93–8, 162, 165, 173, 174, 272, 273, 306, 317, 328, 398, 467 Burma, 448, 450 Bush, George Sr., 347, 377

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INDEX

Bush, George W, 430, 443 Bushmen, 449 Byrd, Senator Robert, 376 C Central American Free Trade Agreement (CAFTA), 410 Cahn, Edmond, 88, 421, 424, 426– 431, 433, 43 California Consumer’s Legal Remedies Act, 66 California Department of Insurance, 21 California Insurance Commission, 13 Cambodia, 450 Camelot Project, 225 Canada, 444 Aboriginal Peoples, 232, 233, 362, 244, 362 Cold War, 226 Canter, Richard, 402, 460 Capitalism, 46, 71, 72, 73, 136, 139, 146, 264, 277, 279, 290, 300, 309, 310, 313, 314, 409, 452 Cardozo, Justice Benjamin N., 452 Carnegie Corporation, 229, 231 Carsten, Peter, 241 Carter, Jimmy, 174, 175, 198, 273, 308, 347 Castile, 191 Catholic, 191, 418 Caton, Steve, 462 cattle rustling, 402, 460 Caveat Emptor, 66, 67, 468 censorship, 5, 214, 220–230, 235, 253, 258, 288, 310, 370 Center for Disease Control and Prevention, 355 Chambliss, William, 284, 351, 352, 353 Chanock, Martin, 88, 123, 163, 192, 271, 317, 397, 398, 399, 458 chemicals, 52, 357, 362, 363 Allied Chemicals, 48

475

cacogenic chemical, flameretardent, 52 Cheyenne, 317, 457 Chicago School, 313 Chile kinship and gender, 78 neocolonialism, 233 China gender, 315 law, 105 body modification, 278 Chinantec, 250 Chomsky, Noam, 258, 310–313, 371 Choucair, Saloua Raouda, 340 Christianity, 97, 101, 122–124, 195, 273, 308, 314, 373, 374, 391, 442, 445 Central Intelligence Agency (CIA), 172, 225, 229, 231, 233, 234, 238, 250, 251, 260 citizenship, 6, 7, 15, 19, 20, 22–24, 26, 59, 113, 164, 239, 247, 263, 311, 338, 378, 422, 424, 434 civil action, 7, 364 civil rights, 3, 13, 56, 88, 137, 162, 193, 210, 211, 226, 237, 264, 271, 284, 351, 422, 464, 467. See movements class action, 66 Clean Air Act, 90, 357 Clemmer, Richard, 246 Clinton, Hillary, 273, 308, 341, 440 Clinton, President William (Bill), 195 cluster bombs, 433, 434 Coal, 34, 209, 211, 212, 217, 280, 410 Coco, Linda, 276, 277, 278, 316, 346, 362, 363, 366 coexist, 404, 452 collective rights, 65, 335, 336, 409 Colorado River, 179, 180, 183, 199 Colson, Elizabeth, 19, 29, 116, 158, 211, 226, 229, 247, 260, 284 Comanche, 449 Comaroff, Jean, 304, 320

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476

INDEX

Comaroff, John, 304, 320 common law, 68, 92, 313, 358, 364, 410, 456, 468 communism, 73, 240, 409 comparison, 72–74, 99, 121, 130–141, 147, 154, 183, 193, 262, 308, 327, 338, 359, 378, 382, 394, 395, 416, 431, 442, 447, 448, 458 compensation, 59, 100, 158, 402, 410, 439, 460 complainants, 62, 328 Conant, James B., 222, 227, 228, 229 conflict managers, 163 conferences, 272, 336, 384, 421, 434 environmental, 195 solar, 42 Women’s Issues, 82, 136 conformity, 100, 139, 192, 222, 228, 253, 284, 288, 310, 315, 426 confrontation, 74, 88, 96, 193, 194, 236, 274, 296, 308, 313, 330, 429 Conley, John, 320, 465 conquest, 122, 191, 280, 285, 291, 320, 329, 380, 383, 457 consensus, 273, 294, 307 coercive consensus, 272, 282, 294, 297 conservation, 38, 41, 42, 219 controlling processes, 143–145, 176, 268–269, 275, 277, 281– 283, 288– 296, 301–303, 306, 311, 313–316, 320, 425, 466, 468 Coolidge, Calvin, 172 Coon, Carlton, 260, 264, 265, 368, 414 Corporations, 15, 25, 53, 68, 97, 102, 153, 202, 233, 234, 235, 269, 277, 284, 294, 313, 345, 351, 355, 357, 358, 360–362, 403, 453, 460, 464, 465, 468 Corrective justice, 353, 423 Coser, Lewis, 23 Cosmetics, 14, 151, 269 Counterculture, 245

Counterhegemony, 296, 320, 466, 467 Couples, 47, 145, 458 Criminal Court, 467 Critical legal studies, 457, 464, 465 Crone, Patricia, 387 Crow (Native American), 17 Crusades, 373, 377, 443 Cuba, 226, 236, 243, 261, 339 Bay of Pigs, 233 cultures of power, 286 Cunnison, Ian, 232 Currie, Elliott, 352 D Dan River, 184 Danube river, 177, 180, 318 Daubert principle, 365 de Vattel, Emmerich, 382, 468 De Vore, Irven, 264 decentralization, 98, 219 deforestation, 250, 408 Dellapenna, Joseph, 181, 182, 183, 200 democracy, 17, 20, 57, 65, 95, 96, 171, 296, 313, 378, 384, 389, 395, 406, 428 Department of injustice, 424, 425 Department of Insurance, 21 Desaparecidos, 261 Desensitization, 372 development anthropological theory, 111 colonialism, development of law, 393, 403 economic, 73–78, 82, 129, 130, 135, 150, 231, 232 law, 383, 406, 456 state, 459 Dewey, Alice, 230 Diethylstilbesterol (DES), 49 diplomacy, 337, 379 divination, 211 division of labor, 46, 119, 145

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INDEX

Department of Defense (DOD), 234, 238, 245, 25, 441 dogmas, 3, 8, 112, 129– 131, 150, 152, 269, 287, 290, 368, 466 Dolhinow, Phyllis, 264 Dominican Republic, 233 Doner, Colonel V., 443 double standard, 26, 139, 374, 377 double-talk, 247, 373, 378. See language drink radioactive, 54 Drucker-Brown, Susan, 298, 310, 311 Durkheim, Emile, 112 E East Bengal, 184, 185, 200 East India Company, 193, 415 eclecticism, 114 efficiency, 34, 87, 88, 91, 92, 102, 103, 165, 176, 179, 193, 194, 203, 210, 271, 317, 364, 385, 399, 401, 403 Efflatoun, Inji, 340 Egypt, 151, 244, 344, 369, 370, 415, 416, 417, 460 Cairo, 135, 137, 139, 379 Einstein, Albert, 213, 214 Eisenhower, President Dwight, 306, 373, 378 El Fadl, Khaled, 389, 390, 464 el Guindi, Fadwa, 140 Eleanor Roosevelt, 334, 335 elites Eastern and Western, 129, 372 civilized, 174 (see ADR) economic, 293, 294 ethnography, 321, 398 intellectual, 130, 286, 467 scientific, 307 emotion, 2, 5, 96, 100, 111, 119, 165, 434 empire, 235, 397, 430, 447, 449, 451 en loco parentis, 149

477

endogamous, 191 energy, 1, 6, 33–37, 39–42, 180, 199, 209–212– 214, 217–221, 312, 315, 391, 445 censorship, 215 National Academy of Sciences Committee on Nuclear Alternative Systems, 5, 34, 37, 38, 39, 41, 209, 210, 219 nuclear, 247 engineers, 5, 33, 37, 39, 40, 209, 212, 216, 218–220, 383, 384, 385, 394, 404 England, 229, 417, 469 law, 64, 351 London, 28, 157, 370, 391, 415 environment, 79, 88, 162, 177, 182, 193, 199, 218, 220, 260, 271, 330, 357, 358, 363, 364, 408, 428, 467 Environmental Protection Agency (EPA), 356 Environmental rights, 193 Epstein, A.L., 232 equity, 183, 209, 222, 397, 400, 408 ethics, 24–27, 101–114, 226, 230– 236, 237– 241, 246, 253, 260, 303, 403, 431, 452 ethnocentrism, 385, 393, 395, 421, 430 ethnography, 7, 9, 30, 54, 109–117, 120, 124, 152, 225, 247, 259, 288, 370, 371, 438, 447, 448, 456 eugenics, 242 Evangelical, 96, 123, 192, 443 Evans Pritchard, Edward, 231 evolutionary social theorists, 274 Exxon, 357. See corporations

F Falk, Richard, 336, 394 Fallers, Tom, 234 families, 27, 44–47, 50–53, 75–79, 83, 137, 149, 263, 355–357, 360, 380

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478

INDEX

children, 44–53, 70–83, 138–349, 339–345, 355, 357, 374, 439–452 conciliation, 9, 95, 122, 164, 271 daughters, 49, 144, 145, 148, 149 nuclear family, 83, 144, 147 status, 46, 71–76, 81, 112, 129, 136, 159, 390 Farakka Barrage, 185, 200 dams, 250 Farmer, Paul, 248, 285 fascism, 310, 469 fear, 24, 25, 63, 183, 219, 220, 225, 227, 230, 232, 252, 438, 442, 443 Federal Trade Commission, 52 feuding, 439 Feyerabend, Paul, 221 Findley, Paul, 370 Fisher, Jack, 243 Food and Drug Administration, 62 Ford Foundation, 230, 234, 235 formulaics, 272 Forrestal Secretary of Defense, 378 Fortes, Meyer, 320 Foster, George, 239, 241 Foucault, Michel, 3, 130, 131, 155, 268, 275, 287, 299, 305, 307 France French Revolution, 450 River Disputes, 177, 178, 181 Napoleon, 416, 417 free will, 276, 287 Fried, Morton, 235 Fulbright, Senator J. William, 377 Fuller, Lon, 164, 177, 179 Furner, Mary, 119, 316 G Galanter, Marc, 98, 425 Gandhi, 377 Ganges River, 184, 185, 200 Gardner, James, 383, 384, 394, 406 General Agreement on Tariffs and Trade (GATT), 201, 202, 329

Gaventa, John, 286 gays, 374 Geertz, Clifford, 111, 115, 230, 237, 248 Geertz, Hildred, 230 Gellner, Ernest, 371 genocide, 233, 250, 259, 285, 291, 347, 374, 423 geographic information systems (GIS), 249, 250, 259 Ghana, 328, 338 Ghani, Ashraf, 155, 158, 235, 373, 463 ghetto, 16, 17, 50, 53, 195 Gilb, Corrine Lathrop, 317 Giuliani, Rudy, 440 Gladwin, Thomas, 240 Gluckman, Max, 232, 237, 320, 458 Golan Heights, 184 Goldhaber, Michael, 397 Goldschmidt, Walter, 246 Gong, Gerrit W., 169 Goodenough, Ward, 230 Gough, Kathleen, 229, 239, 241 Greaves, Thomas C., 253 Greenhouse, Carol, 9, 101, 124, 163, 195, 273, 308 grievances, 15, 61, 62, 63, 166, 399 Griggs, Richard, 450 Grillo, Trina, 164, 318 Gross National Product (GNP), 14, 35, 36, 212 Guarani and Ache, 407 Guatemala, 286, 462 cultures of power, 286 Maya, 222, 461 neocolonialism, 233 Gulliver, Philip, 169, 202, 275 Gusterson, Hugh, 299, 312, 314, 315, 319, 321 H Haeffele, Wolf, 38 Hamburg Court, 186, 201

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INDEX

Hammel, Eugene, 83, 239 Haraway, Donna, 248, 263 harmony coercive harmony, 329 harmony ideology, 86–89, 99, 104–105, 121, 163–165, 123–5 trade Ideology and harmony Ideology, 201–3 Harr, Jonathan, 7, 355, 356, 363 Harris, Jack, 229 Hart, H.L., 388 Hasbani River, 184 Hatch Act of 1887, 62 Hatoum, Mona, 340 Hayes, Douglas, 183 hegemony, 99, 104, 105, 125, 130, 131, 153, 154, 171, 177, 191, 199, 203, 279, 283– 291, 302, 305, 311, 320, 329, 388, 457, 462, 466 Heisenberg, Werner Karl, 214 Heizer, Robert, 258, 312, 423 Heraclitus, 420, 426 Hertz, Ellen, 301, 319 Heyman, Michael, 319 Hezbollah, 432 Higginbotham, Judge Leo, 91 Hobbes, Thomas, 457 Hoebel, E.A., 17, 168, 196, 228, 273, 317, 457 Holdren, John, 37 Holmes, Oliver Wendell, 9, 363, 437, 440 homicide, 361, 461 homogeneity, 89, 101, 105, 162, 194, 317, 401 Hopi, 449. See Native Americans Hourani, Albert, 442, 443 Houston, 348, 438, 439 The House Un-American Activities Committee (HUAC), 227, 228 Human Relations Area Files (HRAF), 225, 234, 238 Hurst, Willard, 60, 363, 364

479

Hussein, Saddam, 339, 377, 390, 403, 464 Huxley, Aldous, 253, 284 Hymes, Dell, 3, 29, 112, 245, 246, 286, 288, 301 Hyndman, David, 354, 403, 460 hypertrophy, 276, 346 hypocrisy, 347, 418 I Iatrogenic epidemic, 345 Ibn Fadlan, Ahmad, 414 ideologies, 2, 56, 60, 62–67, 86–89, 102–105, 121–125, 270–217, 316–318 immigration, 24, 281 imperialism, 4, 6, 232, 233, 235, 241, 246, 251, 279, 331, 345, 369, 374, 380, 381, 388, 397, 405 In loco parentis, 53 incarceration, 113, 352 Indian Policy, 452 Indochina, 231 Indonesia, 230, 233, 248, 354, 403, 451, 460 Industrialization, 41, 62, 71, 78, 80, 82, 129, 152, 157, 252, 281, 282, 285, 317, 406, 468 inequality, 89, 96, 142, 194, 226, 272, 296, 298, 339, 352, 364, 423 inevitability syndrome, 311 informal justice, 63 injustice, 7, 8, 91, 163, 176, 198, 306, 318, 339, 353, 420–34, 441, 445, 452, 465 insanity plea, 422 insurance, 13, 21 insurgency, 227, 234, 236, 238, 240, 242 internal colonialism, 460 internal migration, 144 International Bill of Rights, 335 International Council for Women in the Arts, 339, 372

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480

INDEX

International Court of Justice, 168, 171–173, 176, 182, 183, 197, 202, 274, 329 International disputes, 168, 172, 176, 197, 274. See River Disputes International Monetary Fund, 311, 338 Iraq Baghdad, 315, 339, 341, 376, 414 casualties, 370 children, 374 Iran-Iraq conflict, 172 invasion, 376, 377, 378 Ireland, 210 irrationality, 117, 216, 217, 221, 396 I-Sha’rawi, Shaykh, 137 Islam, 8, 105, 134–139, 150, 156, 157, 308, 334, 370, 373, 374, 379, 386–389, 391, 395, 400, 414, 415, 442–448, 451, 452, 460 fundamentalisms, 445 Jihad, 8, 442, 443, 444, 445 jurisprudence, 177, 354, 386, 395, 396, 455, 466 Shia Moslem, 327 Sunni, 390, 445, 464 women, 6, 7, 45–6, 48–54, 59, 61, 70, 74, 78, 82, 88, 112–3, 121, 129, 130, 159, 162, 166, 174, 193, 215, 271, 275, 278, 289, 298, 300, 304, 307, 314– 5, 328, 333, 390, 406, 414–6, 422, 429, 430, 432, 439, 444, 452, 464 Islamic State of Iraq and Syria (ISIS), 442–445 Israel, 329, 339, 341, 369, 370, 374, 377, 443, 444–446 Arab-Israeli Conflict, 184 water, 183, 184, 200 Italy, 99, 180, 308, 400, 463 International Trade Organization (ITO), 202, 329

General Agreement on Tariffs and Trade, 329 J Japan, 10, 96, 99, 169, 197, 230, 262, 304, 379, 382, 397, 415 war relocation camps, 230 Jay, Bob (Robert), 230 Jenness, Diamond, 452 Johnson, President, Lyndon, 238 Jordan River, 183, 184, 200, 329 Jorgenson, Joe, 240 Judaism, 374, 442, 443–445 jury trial, 91 justice, 7–9, 23, 57, 61–63, 68, 86–90 K Kachin, 448–449 kadi, 386, 387 Khan, Mirza Abu Taleb, 415, 416 Kawash, Leila, 341 Kayapo, 409 Keith Highet, 186 Kennan, Goerge, 381 Keyes, Charles, 239 Kirkham, Francis, 90, 91 Kleinman, Arthur, 372 Kluckhohn, Clyde, 2, 111, 229 Knowledge, 15, 24, 27, 110, 131, 207, 208, 217, 315, 331, 348, 373, 400, 421, 434 Knudsen, Dean, 142–143 Koch-Klaus, Friedrick, 438 Korea, 228, 466 Kremenyuk, Victor, 175, 176 Kroeber, A.L., 2, 4, 111, 222, 312 Kroncke, Jedidiah, 386, 396 Kuhn, Thomas, 3, 5 Kurds, 345, 377 Kuwait, 377 L L. Ury, William, 173

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INDEX

language, 93, 99, 113, 120, 175, 194, 201, 271, 373, 418, 428-30, 443, 460, 465 law and making of history, 420 double-edged, 430 injustice, 431 words we use, 420, 430, 431 law, 1, 3 adjudication, 99, 103, 105, 173, 178, 179, 180, 181, 184, 189, 190, 192, 197, 199, 210–7, 288, 290 administrative law, 173 adversary legal model, 87 advocacy, 103, 121, 302, 353 aggregate solutions, 66, 176, 210 alternative dispute resolutions, 203, 208 American judicial system, 424 American legal models, 419, 420 arbitration, 67, 91, 98, 99, 100, 101, 109, 110, 131, 169, 178, 179, 181, 189, 190, 194, 207, 210, 212, 213, 217, 286, 288, 290 block solutions for classes, 64 caps, 499 cases, 9 civil, 3, 7, 8, 9, 13, 20, 56, 89, 95, 103, 105, 107, 137 complaining, 61, 63, 66, 169 court cases, 40, 76, 344, 383 criminal, 65, 98, 242, 284, 351–365 cultural and biological theft, 331. See lawyers customary law, 89, 205, 407, 424, 434. See Zambia discourse, 89, 96, 121, 137, 138, 139, 158, 179, 207 dispute resolution, 9, 56, 61, 63, 68, 87, 91, 95, 101, 107, 170, 171, 173, 176, 193, 207, 208, 209, 288

481

distributive justice discourse, 371 drift of law, 64 ethnocentrism, 407, 417, 420, 450, 461 imperialism, 4, 6, 247, 248, 250, 256, 261, 266, 295, 349, 363, 390, 395, 401, 402, 412, 423, 434 lawlessness, 408, 469 lawyers, 9, 56, 61, 65, 68, 87, 92, 94, 96, 163, 169, 193, 194, 329, 381–384, 397, 433, 439, 440, 455, 465, 469 liability, 14, 68, 105, 209, 387, 468, 469 litigiousness, 100, 110, 112, 171 local courts, 59, 430, 491 laboratories, 5, 213, 222, 241, 247, 248, 259 Lawrence Berkeley Laboratory, 40, 249 Lake Lanoux case, 177, 178, 179, 181, 184 Lancaster, Jane, 264 Laos, 450 Lasch, Christopher, 44, 283 Lasker, Gabriel, 261, 265 Law of the Sea, 186, 201 Laylin, John G., 177 Leach, E.R., 5, 118, 208, 221, 284, 351, 353, 448, 449 Lebanon, 43 art, 340 comparison, 327, 328, 432–444 conflict, 374 ethnography, 370 water, 183, 184, 200 Ledewitz, Bruce, 427, 428 Lee, Dorothy, 248, 254, 284 Lee, Richard, 264 legislation, 68 legitimacy, 58, 59, 82, 156, 292, 293, 370, 409, 410, 418, 419, 425, 463

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482

INDEX

Lenje, 402, 460 letters, 5, 49, 53, 216, 217, 220, 312, 344 Leukemia, 355 Levant, 368, 370 Levi-Strauss, Claude, 111, 118 Lewis, Oscar, 27 Libaaya, 431–433 Liberties, 210, 334, 416 Libya, 151, 186, 244, 374, 445 litigation. See law Llewellyn, Karl, 17, 317, 457 lobbying, 24, 62, 68, 352, 361 Lock, Margaret, 275, 303, 304, 311–313, 315 Locke, John, 334, 382, 383, 457, 468 Los Alamos, 260 losing Knowledge, 2 Loven, Amory, 39 loyalty oath, 225, 226, 228, 242 Lucknow, 415 Lutz, Catherine, 369, 373 Lysenko, Trofim, 261 M MacArthur, General Douglas, 379 macho, 38, 216, 312 Macmillan, Hugh, 232, 320 magic, 5, 206–208, 221, 279, 437 Mahal, 444 Mahdi, Mushin, 140 Maine, Sir Henry, 455, 458 Mair, Lucy, 231 Makhlouf, Carla, 148, 151 male domination cultural domination, 191, 229, 231, 269, 283, 284, 289, 293, 295, 299, 303, 305, 320, 340 feminism, 70, 73, 77, 81 ideological control/ idealized, 72, 75, 78 political, 82 positional superiority, 70, 82, 135 Malik, Charles, 340

Malinowski, Bronislaw, 5, 110, 113, 206–208, 221, 284, 289, 292, 354, 456, 457 Mandelbaum, David, 239 Mann, Jonathan, 342 Marcus, Abraham, 152 Marcus, Goerge E., 72, 114–6, 141, 152, 156, 245–7, 256, 279, 301 marketing, 16, 284, 287, 310, 346 Marks, Jonathan, 264 Marshall, Chief Justice John, 381 Marxism, 115, 232, 279, 310 Masco, Joseph, 260 Massachusetts v. Hersh, 357 Massell, Gregory, 143 Mattei, Ugo, 10, 426, 438, 456, 463, 467–469 McCain, John, 440 McCarthyites, 228 Mead, Margaret, 47, 136, 237, 240, 253, 301, 409 mediation, 89, 95, 96, 100–104, 162– medicine, 10, 58, 166, 269, 275, 292, 305, 306, 317, 318, 331, 377 Merryman, John, 456 methodology, 24, 28, 29, 211, 269, 303, 306, 312, 416 Mexico, 298, 328, 329, 422, 426, 431 Chiapas, 250, 327, 338 gender, 79, 81 kinship, 80 Oaxaca, 2, 8, 23, 122, 191, 250, 270, 290, 291, 327, 360, 431, 432, 433 Paploapan Commission, 432 Popular Assembly of the Peoples of Oaxaca (APPO), 432 River disputes/water, 179–183, 199, 200 (see River Disputes) Tepoztecan, 338 Valle de Mexicali, 182, 200 Zapotec, 2, 8, 23, 58, 112, 120, 124, 270 Micronesia, 192, 234, 271

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INDEX

migration, 150, 406 mindsets, 1, 5, 43, 50, 112, 143, 251, 443 mines, 232, 354, 403 minorities, 112, 296, 337 Mintz, Sidney, 4, 49, 268–270, 286–289, 296, 303, 305, 308, 316 missionaries, 87, 88, 123, 124, 191, 192, 243, 288, 294, 329, 383–385, 394, 395, 415, 449, 458 Mitchell, Clyde, 17 Mo cell line, 347 modeling, 39, 211 modernization, 134, 135, 143, 146, 149, 152, 237, 243, 279, 285, 304, 336, 381, 397, 401, 450, 465 Moerman, Michael, 239 Molella, Arthur, 280 money, 17, 34, 39, 41, 59, 98, 150, 152, 195, 213, 214, 231, 234, 236, 238, 244, 346, 359, 408, 463 monotheisms, 445 Montenegro, 438 Monterey, 33 Mooney, James, 288, 295 Moosa, Ebrahim, 387 Morgan, Louis Henry, 13, 455 Morocco, 140, 368, 405, 460 movements consumer rights, 88, 193, 271, 422 dispute resolution, 56 economic, 153 Free Speech, 3 independence, 469 Islamic, 129, 134, 151 (see Islam) popular justice, 425 rights movements, 162, 173, 190, 273, 317 women’s, 82 Mozambique, 462 Mokhiber, Russell, 361 Multi-Door Dispute Resolution Centers, 93

483

multinationals, 47 murder, 38, 439. See also homicide museology, 269, 278, 281, 289–305, 307 myths, 73, 206, 218, 304, 374, 434 N Nadel, Siegried, 118, 208, 286 NAFTA, 9, 202, 399, 410, 432, 468 Nagasaki/Hiroshima, 371 Nagel, Thomas, 431 Native American Graves Protection and Repatriation Act (NAGPRA), 266 National Aeronautics and Space Administration (NASA), 33 Nash, June, 71, 73, 74, 81, 135, 282, 286, 305, 312, 314 nationalism, 154, 260, 279, 445 Nation-building, 234, 238, 383, 448, 451 Native Americans, 17, 225, 242, 278, 288, 336, 337, 381, 383, 452 natural law, 427, 428 naturalizing process, 310 Nature Conservancy, 408 Naven, 109–111 Nazis, 261, 374 neighborhood justice, 425 neocolonialism, 151, 233 neoconservatism, 310 New Deal, 41, 227, 335 New Guinea, 25, 42, 88, 109, 110, 123, 124, 192, 229, 232, 328, 354, 398, 403, 438, 460 New York Times, 7, 94, 102, 337, 344, 372, 389, 469 New Zealand, 99, 172, 197, 210, 223 nongovernmental organizations (NGOs), 10, 405 Fundación Moises Bertoni, 408 Niati, Houria, 340 Nicaragua, 172, 197, 274 Nixon, President Richard, 9

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484 Nobel Laureates, 5, 280 Non-Western legal systems, 393, 460 normative blindness, 336, 394, 400, 441 North Korean, 227 North Yemen, 148 National Science Foundation (NSF), 229, 234, 238 Nuer, 231 O O’Barr, William M., 465 Oakland California, 14, 22, 330 Obama, Barrack, 439, 440 Occidentalism, 6, 83, 132, 133, 155, 132 Office of Strategic Services (OSS), 225, 260 Ogbu, John, 45 Oil, 34, 35, 144, 209, 210, 250, 357, 374, 377, 379, 467 Orientalism, 6, 83, 129–133, 155, 372, 374, 385, 386, 396, 414, 415 Ortner, Sherry, 116 oscillations, 202 Oxford University AMS (Accelerator Mass Spectrometry) facility, 249 P pacification, 86, 97, 104, 105, 123, 124, 163, 173, 177, 190–9, 269, 270, 329, 425, 467. See also harmony Pakistan, 8, 185, 200, 250, 451, 462 Palestine, 340, 341, 370, 434, 444, 445 Panama Canal Treaty, 174, 198 panchayat justice, 124 Papua New Guinea, 123, 403 paradigms, 8, 10, 41, 112–115, 139, 209, 245, 251, 278, 302, 306, 327, 385, 388, 458, 470 Paraguay, 407, 408

INDEX

paranoia, 313 Parsons, Talcott, 229 participant observation, 26–28 Patriarchy, 75, 148, 150, 152, 165, 346, 371, 372 Patriot Act, 378, 389, 465 patriotism, 13, 228, 234, 252 peasants, 16, 146, 150, 234, 236, 238, 340, 351 Pentagon, 16, 239, 253, 377 Persian Gulf War, 342. See also war Perspectives on Justice in the Future, 89, 193 Peru, 236, 238, 248, 289 Peteet, Julie, 370 pharmaceutical industry, 314 biopiracy, 409 Phillips, Herbert, 226, 239 philosophy, 39, 40, 74, 164, 218, 333, 334, 338, 340, 383, 409, 415, 426, 428–431 physics, 5, 115, 212–215, 319, 340 Pinxten, Rik, 310 Plaintiff, 7, 56–63, 67, 68, 100, 356, 365, 393, 400–403, 410, 460, 469 plastic surgeon, 276, 346 plural marriage, 415 Poland, 180, 261 Polanyi, Karl, 235, 236 pollution in China, 434 Portugal, 181, 182, 200, 329, 467 positional superiority, 74, 80–83, 130, 131, 134–137, 143, 150, 154, 156, 158, 171, 197, 288, 311, 336, 341, 381, 393, 394 positivism, 118, 120, 225, 458 potential barbarians, 441 potential plaintiffs, 56, 468 Pound Conference, 9, 89–92, 102, 193, 194, 328, 329 Powdermaker, Hortense, 27 Power equalizer, 187, 201, 406 Powerlessness, 74, 124, 140

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INDEX

predatory, 298, 450 prevention, 164, 282, 344, 345, 425 Price, David, 4, 253, 260 primates, 262 Princeton Testing Service, 5 privatization. See corporate economy, 405 injustice, 318 Iraq Economy, 390 (see Bremmer III, Paul) justice, 95, 101, 173, 181, 198, 274 (see alternative dispute resolution) prisons, 352 United States Courts, 390 (see Burger, Chief Justice Warren) Project Camelot, 234, 237, 238, 261 Project Troy, 229 propaganda, 233, 287, 310, 312, 346, 372, 417 property, 59, 60, 137, 145, 152, 157, 330, 331, 336, 343, 354, 381–383, 403, 404, 407, 417, 439 prosecution, 357, 361, 399, 462, 469 Protestant converts, 191 protests, 185, 231, 242, 273, 284, 351, 378 psychology, 173, 175, 197, 274, 277 psychotherapy, 166, 193, 196, 197, 272, 274, 310 Public Broadcasting, 328, 422 public interest, 20, 56, 65, 93, 113, 114, 425 punishment, 59, 98, 214, 352, 353, 423, 429, 437, 439, 440, 441 Q quality of life, 12, 35, 36, 43, 210, 211, 212, 219, 276 R Rabi, Isidor I, 213 Rabinow, Paul, 115, 226, 247, 319

485

racism, 132, 134, 232, 248, 260, 264, 265, 290, 373, 374, 378 Radin, Paul, 229 radioactive waste, 260 Rawls, John, 430–434 Reagan, Governor, 172, 173, 241, 242, 308 realism, 396, 419, 427, 457 Reay, Marie, 123, 192 reciprocity, 19, 24, 123, 164, 284 reconciliation, 42, 60, 92, 187, 194, 452 recreation program, 283 Red China, 227 red scares, 265 Reed, Richard, 407 reform movement, 90, 397 reforms, 67, 92, 162, 194, 383, 394, 462 refugees, 370 regulation Alternative Dispute Resolution, 196 (see ADR) economic, 88, 98, 101-105, 163, 166, 174, 195-203, 269, 270, 354, 363, 399, 406, 460, 468 legal, 313 military, 227 property, 404, 407 self-regulation, 15 toxics, 363 reliance, 41, 67, 86, 94, 210, 273, 468 remedies, 56, 59, 60, 66, 68, 88, 94, 124, 193, 271 remote sensing, 249, 259 Reynolds, Dwight, 372 Reynolds, Earle, 261 Rifkind, Simon, 91 rituals of reconciliation, 42 river disputes, 177, 178, 190, 196, 199, 201, 270, 274, 275, 329, 467 Rockefeller Foundation, 231 Rockefeller, Terry Kay, 422

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486

INDEX

Roscoe Pound, Nathan, 89–91, 317, 354, 466 Rosen, Lawrence, 387 Ross, Edward Alsworth, 281 Rubella, 50 Ruffini, Julio, 29, 402, 459 rule of law, 66, 87, 90, 105, 171, 178, 182, 202, 317, 380–382. See also law Ruskola, Teemu, 385, 386, 391, 395, 468 Russia, 236, 261, 310, 414 Russian Research Center, 229, 230, 239 S sabotage, 39, 226 safety, 48, 49, 51, 52 Said, Edward, 70, 131, 197, 274, 311, 336, 371, 372, 393 sanctions, 142, 251, 298, 360–362, 371, 376, 402, 460, 461 Sahlins, Marshall, 231 Sapir, Edward, 283, 286, 301, 302 Sarawak, 250 Sardinia, 328, 398, 401, 459 Saul, John Ralston, 310 Scandinavian traders, 414 Schacht, Joseph, 387 Scheper-Hughes, Nancy, 73, 115, 120, 126, 149, 345, 350 Schieffelin, Edward, 88, 123, 192 Schluchter, Wolfgang, 387 Schneider, David, 75, 111, 243 Scholte, Bob, 246 science National Laboratory, 213 pseudoscience, 2, 208 scientists, 213, 215 values, 217, 220 weapons labs, 225 Scott, James, 157, 158, 269, 320, 450 Seaborg, 38 secrecy, 25, 64

sex, 38, 59, 139, 142, 149, 153, 339 sexual mutilation, 344, 346 circumcision, 275, 277, 341, 343–346 cliterodectomy, 343 Shack, William, 239 Shahrani, M. Nazif, 320 Sharon, Ariel, 377 Sharp, Lauriston, 239 Shepherds, 401, 402, 459 Shivji, Issa G., 405, 418 Shklar, Judith, 388, 396 Shoshone, 449 Sierra Blanca, 347 silicone-gel breast implants, 276, 346 Simon Fraser University, 241 Sioux, 288 Smith, Gavin, 247 Smithsonian Institution, 278, 307 social control, 69, 281, 423 socialism, 73, 150, 152, 265, 288, 334 solar, 34, 36, 39–42, 209, 210, 212, 215, 217, 219, 220, 312 South Africa, 172, 174, 197, 232, 352 Southeast Asia, 243 Soviet Union, 172, 180, 197, 227, 243, 422 Spain, 99, 177, 178, 181, 182, 192, 200, 329, 467, 469 specialization, 10, 217, 220, 266, 371, 447 Spradley, James, 51, 113, 254 drunkenness, 113, 360, 422 standardized, 37, 57, 68, 269, 284, 291, 319, 346 statelessness, 45, 449 states of exception, 381, 465 Status, 142, 143, 158, 390, 464 Stauder, Jack, 231–235 Stephens, Thomas, 386, 395 stereotyping, 79, 139, 378 Stouffer, Sam, 229 structural adjustments, 399

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INDEX

structuralism, 111, 115, 305 Sudan female circumcision, 275, 277, 278 first woman Law Professor, 140 law, 460 University Area Studies, 231 supply, 35, 98, 179, 182, 209, 210, 220, 357, 374 Sutherland, Edwin H., 23 Swadesh, Maurice, 229 Swedenburg, Ted, 369 Syria Aleppo, 152 ISIS, 442, 445 Jordan River, 183, 200 Szanton, David, 226, 242, 244 university area studies, 244 water, use of, 184 T taboos, 175, 218, 253 Taliban, 342, 369, 401, 443 Tanzania, 415 Tarahumara, 250 Tax, Sol, 28 technology drone, 447, 451 efficiency, 34 (see efficiency) energy, 217 industry, 218 scientists, 216 Teller, Edward, 241 terra nullius—empty lands, 468 terrorism, 210, 433, 441, 443, 450–452, 463 Thai affair, 225, 237, 261 Thailand, 226, 234, 236, 239, 240, 242, 262, 450 thalidomide, 49 therapeutic culture, 425 thought control, 132 Tiv of Nigeria, 449 tort cases, 355, 360

487

trade, 63, 187, 201–203, 249, 250, 331, 391, 414, 415, 417, 453, 468 transplant, 395, 459 transplants, 459 Traweek, Sharon, 319 Trobriand, 5, 207, 284 trustanoia, 313 Tswana, 286 Turkey, 328, 368, 369, 397 Turner, Bryan, 387 U U.S. Civil Justice System, 467 U.S. Patriot Act., 465 UN Declaration, 334, 336 Uniform Product Liability Act, 68 unilineal evolution, 382, 437 Unions, 120, 203, 306, 328, 432 United Nations, 129, 171, 172, 173, 184, 185, 186, 187, 201, 202, 263, 333, 334, 450 United States Congress, 19, 68, 171, 370, 3796, 379, 424 universal human nature, 263 universities Boalt Hall Law School, 7, 337 censorship, 22 Harvard University, 112, 155, 157, 227 national laboratories, 213 (see science) University of California, 7, 39, 105, 112, 141, 149, 155–158, 209, 228, 238, 239, 247, 337, 347, 368, 428, 434, 227 Uranium mines, 232 user, 57, 59, 63, 66–68, 328, 363 USS Cole, 377 USS Liberty, 377 Utopias, 430, 431 V vagrancy, 351

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488

INDEX

Veblen, Thorstein, 248, 254 vengeance, 437–441 vertical slice, 18, 23, 50, 54, 112, 287 victims, 13, 19, 23, 68, 71, 92, 95, 136, 151, 298, 312, 330, 344, 355, 362, 397, 416, 424, 433, 439 village government, 432 Volga, 414 W Wall Street Journal, 389, 390, 464 war antiwar movement, 3, 273 Afghanistan, 430 Civil War, 101 Cold War, 4, 226, 227, 231, 232, 245, 249–253, 258, 259–266, 310, 334, 369, 430 drone wars, 452 Gulf war, 341, 368, 370 religious wars, 8, 308, 444 militarization, 264, 321, 373, 378 peasant wars, 236 Vietnam, 162, 172, 195, 225, 226, 231, 233, 236–239, 273, 310, 351, 362, 366, 368, 376, 450, 452 war on injustice, 434 war on terror, 434, 451, 452, 448, 452, 465 World War II, 4, 13, 28, 34, 171, 201, 230, 243 Gulf War, 310, 339, 341, 342, 345, 368, 369, 370–73, 377, 379, 390, 428 Washburn, Sherwood, 226, 248, 262–264 Waziristan, 8, 448, 451, 452, 462 Weber, Max, 112, 386–388, 391, 395, 396, 404 welfare programs, 283 Weltfish, Gene, 228 West Bank, 184, 368 Wiebe, Robert H., 319

Wilcken, Patrick, 370, 371 Willis, William, 246 Wilson, Woodrow, 381 witchcraft, 116 Wittfogel, Karl August, 235 Woburn, Massachusetts, 7, 355 Wolf, Eric, 4, 121, 155, 236, 239, 240, 308, 316, 373 women feminism, 78–82 154, 252 ideological control, 78 Latin American women, 74, 78–80 political and hegemonic, 99, 130, 135, 136, 151, 156 (see alternative dispute resolution) motherhood, 70, 77–81 Western women, 73 women’s rights, 88, 406 work environments, 48 World Bank, 8, 135, 250, 311, 338, 396, 400, 407, 453 World Court Alternative dispute resolution, 169–173 (see alternative dispute resolution) control, 183 international negotiations, 197–202 Lake Lanoux Case, 178, 179 World history, 284, 286, 319 Worsley, Peter, 229 Wrongs specialists, 424 World Trade Organization, 399, 404, 410 Y Yarmouk River, 184 Yellen, John, 262 Yemen, 244, 368, 451, 452, 460, 462, 464 kinship, 151 legal system, 405 Young, William, 369

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INDEX

Yugoslavia ethnic cleansing, 309 vengeance, 439 Z Zambia Local Law, 317 Berkeley Village Law Project, 328 theft, 402 Zapotec, 2, 9, 191, 306, 327, 329, 421, 432

489

access to law, 59–60, 65 dispute resolution, 124, 289, 294, 298, 461 legal system, 23, 270, 271 (see Mexico) theft, 359, 360 Zeleznick, Scott, 262 Zimmerman, Carle, 44 Zionist, 373, 443, 444 Zulu Nation, 232

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