From Festschrift for Carol Greenhouse
Riaz Tejani
A protestor waves an American flag with the words “Black Lives Matter” painted on it during a Juneteenth rally at Cadman Plaza on June 19, 2020 in the Brooklyn Borough of New York City. – The US marks the end of slavery by celebrating Juneteenth, with the annual unofficial holiday taking on renewed significance as millions of Americans confront the nation’s living legacy of racial injustice. Photo by ANGELA WEISS/AFP via Getty Images.
Many have experienced Trump’s America as a rupture from earlier visions of the country, but careful readings of Carol Greenhouse reveal it to be the product of longstanding forces and relationships in US politics, law, and society. Her writings foreshadowed key aspects of the present—the religious basis for moral legitimacy in government, the changing relevance of “the social” and those who study it, and the time-structuring role of state self-legitimation and personal creditworthiness. These themes are layered throughout the body of her work, organizing a coherent theoretical and analytical approach that accurately—and almost presciently—helps to explain contemporary political, legal, and social relations in the US. These dynamics gave us, by and by, Trump’s America—a scene characterized by populist support for child separations among refugees, public beatings of journalists at political rallies, and expressions of state violence in the face of peaceful collective action. All of these appear supported by hardening us/them sentiments, but they are also instructive about human “nature” as it has been construed in Western politics.
The “state of nature” was a trope of classic political theory that gave writers[1] a canvas on which to project visions of life without political society. Classic political ethnography[2] challenged some assumptions made by those theorists, but in doing so embraced a racialized evolutionist equation between us/then and them/now. Those early ethnographies at least began to assert the ingenuity and durability of human tendencies toward social ordering across cultures and “stages” of development. Rereading their observations about order outside modern government almost gives a sense that the tumultuous “state of nature” never could have been.
Almost.
“And comes now this hopeless, vicious buffoon, and the audience of equally hopeless and vicious buffoons who laughed and cheered …” (Pierce, 2018). So reads a prominent depiction of the current US president joking at a “rally” about a psychology professor who, as a young woman, had been sexually assaulted by his Supreme Court nominee, and who had mustered the courage to testify under oath at a televised Senate confirmation hearing. The president and his jeering—sometimes armed—supporters have often stirred echoes of Arendt (1973), who found the roots of totalitarianism not in bureaucratic control of daily life but in the fiery mob and the leader who mistakes it for “the people.” Yet, equally important are the writers who see the mob before it assembles.
For her distinguished career reflecting on religion, politics, and law in the contemporary US, Carol Greenhouse is clearly one such writer. Her works glimpse the social in law and politics before it becomes broadly actualized. This results in part from deep revisitations of classic social theory. In 2018, for example, she described the influence of Durkheim on her thinking:
I have found that I need Durkheim for his ability to see society from two sides at once. On one side is the intellectual and ethical validation of organic solidarity as evidence—were the world a better place—of the social justice on which it (that is, organic solidarity) is contingent. On the other side is the image of a hollowed out polity in which people who are disconnected from each other by their separate “economic functions” are convinced by their leaders that the moral order depends on homogeneity, rules, and repressive punishments. (2018b, 674; emphasis added; notes omitted)
“See[ing] society from two sides at once” has lent itself to a life humanely studying spaces (and times) between religious devotion, political organization, and everyday law. Greenhouse’s work honors a relationship between political theory and ethnography that has been quietly under development since the classic thinkers began speculating about pre-political humanity as a foil for liberal government and law.
We learn from that work how especially important precarity is to political and legal culture. There, the brutality of so-called “nature” is not at risk of returning, as in classic renderings, because it never left. This has direct bearing on the dilemma of contemporary populism, and begs a question: is it is a failure or a success of liberalism? Greenhouse enables us to see this as a false choice: liberalism makes necessary both political order and the “state of nature”—the one we are meant to feel safe from. Procedural justice and identitarian belonging occupy the same frames, and whether we see this says more about our faculties for observation than about whether liberalism is “succeeding.” For Greenhouse, this oneness derives substantially from Division of Labor in Society, where, she says, “[M]echanical and organic solidarity ‘are really one.’”
Inspired by this, my suggestion in this piece is that we combine the “conceptual unity” (2018b, 672) between these forms with a fresh look at the liberal projection of “nature.” To do that, I examine three recurring themes in Greenhouse’s work that illustrate, in different ways, observance of this unity. Those themes include, among other things, legitimacy, relevance, and time. The organizing principle behind all three is a reflexivity about the precarity of life—be it social, spiritual, or biological. This precarity is an ongoing reminder that “nature” remains in the experiential frame, often allowing it to seem as if procedural justice is doing the work of its substantive other. This points, in turn, to an under-analyzed slippage between law and society. Whereas we often tend to view these as inherently “mutually constitutive” (Tejani 2019), our most contemporary era may actually be one of disjuncture between them. Our omission of this might even result from expert (for example, lawyerly) reassurances that where there is law there must be society. The following highlights just some of the ways in which Greenhouse shows this to be false. In her rendering, law is not the evidence of society, justice is.
Legitimacy
To be legitimate is to have value, and to merit ongoing existence. It is a living concept; pure institutionalism cannot overcome illegitimacy. In the common law, for instance, there are many examples of formal institutions that outlive their social legitimacy. “Heart balm” statutes enabling tort claims for “alienation of affections” and “criminal conversation” are one such example. The idea of a legal remedy for having your heart broken prevailed under English common law for centuries before people fell out of love with it in the last few decades. The legitimacy of law and politics must come from beyond their own institutions.
Greenhouse addressed some of this in a 2006 law review article comparing French and American religious freedoms. France had recently debated and passed its infamous rule extending a 1901 national law on laïcité separating church and state. The 2004 law would ban the wearing of “ostentatious” religious signs from public facilities—particularly in schools where Arabo-muslim young women would be in attendance.[3] For France, the 1901 law—not the constitution—is the legal authority on separation. It followed the Dreyfus Affair, responding to the anti-Semitism of that national spectacle by attempting to undo the erstwhile central role played by the Catholic Church in government affairs. The strict interpretation of separation, Greenhouse pointed out, is necessary to the French government’s legitimacy after Dreyfus. It was the extension of Rousseau’s “civil religion” invoked elsewhere in her work (1986, 38).
In the US, meanwhile, public understandings of the separation doctrine do not justify this strictness. Indeed, many, especially evangelical Christians, were incredulous that a group might be barred from expressing religious piety—especially in public where it “matters” most. And yet, the separation of church and state in the US is not the result of federal statutory law. It is inscribed in the First Amendment of the Constitution—the highest authority as common law goes. Why then, Greenhouse asked, do we have no direct translation of laïcité in this country? It is, she says, because the national government in the United States—a pluralistic country without a strong republican form of citizenship—needs a shadow source for moral legitimacy among its people. This insight comes from her early work among Southern Baptists. Her informants found the absence of religion in politics and law to be illegitimate. There, “Justice is God’s alone to know and accomplish. Civil law is perhaps mandated by the frailty of human nature, but it is not legitimated by it” (1986, 39; emphasis added).
As a lawyer, anthropologist, and teacher of applied ethics, I have found this incredibly useful. This notion of a shadow source for moral legitimacy is good to think with across different social fields, but the specific case of a stealth American religious constitutionalism has grown more and more apparent in the decades since Greenhouse’s early fieldwork. We need look no further than “The Family,” the secretive organization behind the US National Prayer Breakfast (where elected officials, business leaders, and world luminaries are invited to pray and confer together), C-Street (a one-time bipartisan Christian boardinghouse for members of congress including disgraced Congressman John Ensign), and The Cedars (a mansion in Arlington, VA used for lobbyist meetings as well as Bible study) (Moss 2019). In France, as in much of the Western world, these church-state entanglements would be laughable. In the US, to most successful campaigns for elected office, they are de rigeur.
Our current moment screams for collective reflection on the legitimacy of democratic institutions. Legitimacy, Greenhouse observes more subtly than most, depends on shadow sources external to institutions themselves. But institutions must, by definition, resist overtly acknowledging this. And so the evidence for moral legitimacy becomes a ripe object for ethnographic discovery. This comes after a long period in which anthropology has been unsure of its place in the urban, policy-obsessed western world. It leads, in turn, to a second key theme.
Relevance
After textualism, neighboring fields began to view ethnographic writings as a variant of literature. Academic lawyers in particular, thanks in part to “empirical legal studies,” grew accustomed to viewing trans-disciplinary empirical research normatively as a “consumable”—valued primarily to the extent it was useful in doctrinal legal research and argumentation. Ethnography could not easily be consumed in that sense. Some have since gone further to apply US federal standards of evidence to ethnographic material and declared swaths of it invalid on this account (Lubet 2017). This reaction among legal scholars was prompted by “scandals” in the ethnography of law where researchers claimed to have participated in sensational criminal acts with informants such as gang members, but were later discredited (Campos 2015).
Greenhouse’s work used similar challenges to say something novel about macro-social change and ethnographic perceptions of it. In The Paradox of Relevance (2011) she takes up the relevance problem as it hardened with the rise of neoliberalism in the 1990s. She rereads US community ethnographies from the period finding in them a conception of culture resistant to the pejorative one used by federal lawmakers during these years to create remedial policies for things like the “culture of poverty” or “culture of crime.” These policies, we see, are the same that would reduce public welfare benefits, restrict immigration, and individualize disability rights (2011, 31). “In this context,” she says, “its keyword taken and its most immediate public audience on the wane, anthropology was caught ‘beside itself’” (32).
The drama Greenhouse depicts here could have been narratively unwieldy. Its main characters include a federal government with parsimonious social policy, minority communities multiply victimized by discrimination and punitive policies, and a research discipline nearly sidelined by its introspection and meta-introspection (but meriting little sympathy due to complicity in colonial projects). And yet, the whole drama is elegantly summarized in devastating passages like this one:
The fact that relevance was presented as a mediating path in relation to anthropology’s internal debates implied that anthropologists had only themselves to blame if the public overwhelmingly communicated through other channels. In retrospect this accusation misses the mark. It was politics that abandoned society as social—the basis of social security—and failed the people with whom anthropologists most readily identified, that is, minority communities at the social margins. (2011, 34; emphasis in original)
This echoes the way Locke—in his “Second Treatise”—was not concerned with politics per se but with “political society” (1988). For him the state of nature is not a state without politics—it is a state in which the goal of political behavior is identitarian self- and group interest rather than a unique, non-summative social body. The neoliberal turn in Greenhouse’s description is a turn toward politics without political society—albeit one with the ongoing specious promise of procedural due process. In this moment, readers see the disconnect between society’s relationships to procedural and substantive forms of justice—between the “chance to be heard” and the “restoration of a moral balance.” After neoliberalism, substantive justice grows murky and relative, while procedural justice grows more fixed and definitive. With Durkheim, scholars may read this as evidence of an absence because, as Greenhouse puts it, “collectivity remains theoretically an idea of the public that is the ethical warrant of justice” (2019, 169).
Focusing this perspective, she takes on Citizens United v. FEC, the U.S. Supreme Court case validating expenditures of private corporate money in American election campaigns as a form of constitutionally protected “free speech” (2019). In an era when the civil liberties of individual legal subjects appeared to be up for reconsideration, Citizens United marked a broadening of First Amendment liberty to the “corporate person”; it also tipped the balance of political clout further away from the average citizen and toward financial centers of gravity—especially the corporation. This came at a moment when “social responsibility” projects were increasingly left to publicly traded corporate organizations, and when average citizens were increasingly being asked (in the form of 401k retirement plans, for instance) to participate in corporate profit seeking. Democracy, accordingly, further became a privilege of market citizenship.
Greenhouse also uses the occasion to highlight the relevance of the United States Supreme Court to public understandings of legal authority in a way that reinvokes the “case method” of classic legal ethnography. “Anthropologists,” she says, “have amply recognized the importance of legal contests before high courts, but there is more to explore regarding the interpretive relevance of high courts in relation to the production and circulation of power in public and private life” (2018a, 556).
Finally, the dilemma of relevance emerges between “facts” and “social facts” in our current moment (Greenhouse 2019, 167). She calls their relationship one of “mutual relevance,” referring back to Durkheim’s unique sense of social facts as “evidence of collectivity,” which I interpret to mean both evidence of belonging to society and evidence of there being society (168). This resists a purely individual conception of facts as truth—a tendency she suggests which begets our current crisis of “alternative facts” in which evidence is subject to market competition or consumption. A final key strand, which Greenhouse further derives from social facts, is “social time.”
Time
People watch as the Stonewall Jackson statue is removed from Monument Avenue in Richmond, Virginia on July 1, 2020. – Workers in Richmond, Virginia, removed a statue of Thomas “Stonewall” Jackson, a Confederate general, after the city’s mayor ordered the “immediate removal” of Confederate monuments. Photo by RYAN M. KELLY/AFP via Getty Images.
In A Moment’s Notice (1996), Greenhouse writes that social time is not merely an acknowledgement about the relativity of time, but also an invitation to understand the important role of time in the legitimation of state authority and law.[4] This also permits commentary on the struggle of anthropology to properly study time and its relation to disciplinary relevance.[5] Time and its passage evoke, sometimes explicitly and sometimes implicitly, finality. Death, ultimately a constant across human experience, gives time a seemingly universal quality. Its inevitability, and our tacit resistance to this, underlie quests for social control and order. This inevitable finality therefore helps legitimate political authorities. “Death,” Greenhouse says, “is the West’s master metaphor of control and power; it is the law that presses against the seeming relativities of time in particular situations” (1996, 4).
In addition to the ever-present reminder of time through finality, time is also implicit in her observations about credit in its senses of enduring reputational value and trustworthiness over time. Like legitimacy and institutions, creditworthiness and belonging are mutually twined.
In Greenhouse’s comments about Weber’s work on US protestants, credit can be seen as an important driver of religious belonging. There, church belonging during early industrialization served as a source for transferable, reputational worth. This worth was already a prerequisite to “good faith and fair dealing,” an implied covenant in Western contract law going back generations. But creditworthiness became disrupted by global migration. Once people started moving—especially across the Atlantic—the basis for this implied covenant could have become shaky but for the role played by community churches in the early United States.
Church membership followed not just a profession of faith, but also a process of qualification, and, in Weber’s view, it was through qualification that church membership came to represent an individual’s social worth in a way that simultaneously affirmed his economic credit worthiness. Membership was especially important for a mobile society, since “moving one’s letter” (i.e., transferring membership to another congregation) allowed for a transfer of social value in the new community. (Greenhouse 2006, 497)
This “mobile society,” so important to industrial modernity, is not just about space. It is also about life before and after the move. Any of us who are the product of immigration know this well: there is a time before and a time after. “Back home” in the stories of our parents is a time as much as it is a place. Present tense visits “home” never fully make it there. And so, reputational worth from before must have a way to express itself in the afterwards. This comparative “before and after” characteristic of migration resonates with contemporary assessments of financial creditworthiness. You qualify for a loan, or a lower interest rate today because of your debt management practices yesterday. And disqualification from new credit today, as many of our students now know too well, results from past choices—our own as well as our legal predecessors’.
The themes of legitimacy, relevance, and time are variants of precarity; and precarity appears to be a widespread feature of liberalism that gets amplified and muted through different political projects. Whereas the primordial brutality of Locke’s or Rousseau’s “state of nature” might not seem to have any real presence in recent decades, the subdued background risks of precarity in the above forms is a reminder that the protections of liberalism are fragile and susceptible to decay. Coexisting as these features do alongside the institutions of politics and law, they appear to mirror the “oneness” of the mechanical and organic solidarities that Greenhouse signaled. As she also said, organic solidarity is premised upon a tacit commitment to social justice. Many will recognize the dilemma this raises about liberalism: for Carl Schmitt, liberalism is characterized by a kind of nominal proceduralism that appears to recognize differences and reach compromise, but often leaves the powerless without a voice and political minorities falling quietly in step with majorities (Schmitt 2007). Procedural justice displaces substantive justice, and “social justice” becomes a false promise.
Conclusion
Children pose for a photo during a Black Lives Matter protest at Parliament Square on June 06, 2020 in London, United Kingdom. The death of an African-American man, George Floyd, while in the custody of Minneapolis police has sparked protests across the United States, as well as demonstrations of solidarity in many countries around the world. Photo by Alex Pantling/Getty Images.
In certain select cases, we can see clearly the processes by which this all takes place on the ground. I sought to capture one of these in my book, Law Mart: Justice, Access and For-Profit Law Schools (2017). The aspiring lawyers in that fieldwork were largely first-generation, minority, and working class students. Somewhere in their lives they had learned of the promises of American law as an equalizer, as a tool for social engineering, and as a pathway for upward mobility. The “fourth-tier” law school that had accepted them did so in most cases when no one else would. It charged a premium in annual tuition, but it openly declared its role as one of “serving the underserved”—in other words as one of social justice. Last but not least, it sent a substantial fraction of the profits it drew from student indebtedness to offsite private equity investors who had financed the parent company. It was, in brief, selling the promises of social justice for profit.
My fieldwork did not reveal that these schools were a “bad deal” for aspiring legal professionals. Quantitative data alone from US News or Law School Transparency already showed that. Inspired by Greenhouse, I gathered evidence to help me understand why so many participants took part in this bad deal. The answer was about the specious promise of law and legal professional membership to social justice in our society. Greenhouse’s work made me more aware that these conditions are emblematic of a longstanding dilemma in liberalism that promises procedural justice—participation or membership—because it cannot often deliver substantive social justice.
Greenhouse’s own writings encourage a kind of thick reflexivity about the precarity of life under contemporary law and politics. To the people in her writings, political order is a privilege that could disintegrate without religious morality. The intellectual approach of ethnography—even when it finds periodic relevance to affect a better world—is never far from losing that relevance. And the “natural” flow of time is susceptible to interruption, but capable of restoration from outside itself. Little is taken for granted, so the labor going into things—conceptually, emotionally, physically—is appreciated. By drawing attention to people’s experiences living with the perennial risk of loss, she suggests a political theory rooted in precarity and the care people take to manage it. It is, as Greenhouse has herself called it, “to see society’s heart in its mind” (1986, 31).
Riaz Tejani is Associate Professor of Business Ethics at the University of Redlands. His first book, Law Mart: Justice, Access, and For-Profit Law Schools (Stanford, 2017), is an ethnographic account of for- profit legal education during and after the 2008 financial crisis. His second, Law and Society Today (UC Press, 2019), uses a constructivist approach to survey themes in socio-legal studies after law and economics. These works have been cited or reviewed in venues from the Harvard Law Review, Yale Law Journal Forum, American Ethnologist and the Annual Review of Law and Social Science, to The Nation, Huffington Post, PBS, and NPR. Riaz holds a PhD in social anthropology from Princeton University and a JD from the USC Gould School of Law, where he was a Fellow at the Center for Law, History, and Culture. He has been the recipient of multiple university awards for excellence in both research and teaching.
References
Arendt, Hannah. 1973. The Origins of Totalitarianism. New York: Harcourt Brace.
Bateson, Gregory. 1958. Naven: A Survey of the Problems Suggested by a Composite Picture of the Culture of a New Guinea Tribe. Stanford: Stanford University Press.
Campos, Paul. 2015. “Alice Goffman’s Implausible Ethnography.” The Chronicle of Higher Education, August 21, 2015. https://www.chronicle.com/article/Alice-Goffman-s-Implausible/232491.
Evans-Prichard, E.E. 1969. The Nuer: A Description of the Modes of Livelihood and Political Institutions of a Nilotic People. Oxford: Oxford University Press.
Goldwin, Robert A. 1976. “Locke’s State of Nature in Political Society.” The Western Political Quarterly 29, no. 1 (March): 126–35.
Greenhouse, Carol J. 1986. Praying for Justice: Faith, Order, and Community in an American Town. Ithaca: Cornell University Press.
Greenhouse, Carol J. 1996. A Moment’s Notice: Time Politics Across Cultures. Ithaca: Cornell University Press.
Greenhouse, Carol J. 2006. “Separation of Church and State in the United States: Lost in Translation.” Indiana Journal of Global Legal Studies 13, no. 2 (Winter): 493–502.
Greenhouse, Carol J. 2011. The Paradox of Relevance. Philadelphia: University of Pennsylvania Press.
Greenhouse, Carol J. 2018a. “Citizens United, Citizens Divided: Democracy and Economy in a Corporate Key.” American Ethnologist 45, no. 4 (November): 546–560.
Greenhouse, Carol J. 2018b. “Reading Durkheim in Darkness.” Journal of Law and Society 45, no. 4 (December): 664–678.
Greenhouse, Carol J. 2019. “‘This is Not Normal’: Are Social Facts Finished?” American Anthropologist 121, no. 1 (March): 167–171.
Hobbes, Thomas. 2003. On the Citizen. Edited by Richard Tuck and Michael Silverthorne. Cambridge: Cambridge University Press.
Locke, John. 1988. Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press.
Lubet, Steven. 2017. Interrogating Ethnography: Why Evidence Matters. Oxford: Oxford University Press.
Malinowski, Bronislaw. 2014. Argonauts of the Western Pacific. Oxford: Benediction Classics.
Moss, Jesse. 2019. The Family. Directed by Jesse Moss. Los Gatos: Netflix. Film.
Pearce, Charles P. 2018. “This Vicious Buffoon Is a Vessel for All the Worst Elements of the American Condition.” Esquire, October 3, 2018. https://www.esquire.com/news-politics/politics/a23579738/donald-trump-mock-christine-blasey-ford-sexual-assault/.
Rawls, John. 1971. A Theory of Justice. Cambridge: Belknap Press.
Rousseau, Jean-Jacques. 1985. A Discourse on Inequality. London: Penguin Classics.
Schmitt, Carl. 2007. The Concept of the Political. Chicago: University of Chicago Press.
Tejani, Riaz. 2015. “A Logic of Camps: French Antiracism as Competitive Nationalism.” PoLAR: Political and Legal Anthropology Review 38, no. 1 (May): 108–128.
Tejani, Riaz. 2019. Law and Society Today. Berkeley: University of California Press.
Tejani, Riaz. 2017. Law Mart: Justice, Access, and For-Profit Law Schools. Stanford: Stanford University Press.
Notes
[1] See, for example, Hobbes (2003), Locke (1988), Rousseau (1985), and Rawls (1971).
[2] See for example Bateson (1958), Evans-Pritchard (1969), and Malinowski (2014).
[3] A result of demographic and geopolitical developments, thousands of young girls across France had begun attending public schools over the preceding years giving rise to a “moral panic” about domestic gender repression and anti-republican values. See also Tejani (2014).
[4] “Overall, I maintain that the paradox of social time is the artifact of a durable and multidimensional ethnocentrism in the anthropological treatment of time and that the template for this ethnocentrism is in the cultural conventions of political self-legitimation in modern nation-states.” (Greenhouse 1996, 1–2)
[5] “The logical and methodological muddles surrounding the anthropology of time are interesting in themselves, but they are also compelling because so much is at stake in them in terms of the theoretical vitality, of the discipline and its relevance in a world where, as Clifford Geertz put it over twenty years ago, no one is ever going to let anyone else alone ever again. The muddles mean that we are currently in a position to answer both yes and no to the question that has always been at the root of anthropology’s scientific, practical, and ethical relevance: Are all cultural practices and epistemologies ultimately commensurate.” (Greenhouse 1996, 3; notes omitted)
PoLAR: Political and Legal Anthropology Review 
