Moving Beyond Institutional Differences: Towards a Critical Anthropology of Law Beyond the Doctrine of Separation of Powers

By Insa Koch

Emergent Conversation 14

This essay is part of Reflective Conversation: Revisiting and Revitalizing Ethnographies of Legislatures

In her critical review essay, Ilana Gershon (2011) starts from a central premise: while legal anthropologists have long been interested in the study of cultural pluralism in the courts, less attention has been paid to the study of law in other branches of government—notably, the legislature. And yet, the latter calls for an analysis in its own right. This is not least because as people engage with laws in judicial and legislative contexts, they do so “under two different evaluative rubrics:” while in the former, people apply laws and hence move “from general rules to specific contexts,” in the latter, people make laws and hence “move from a set of contexts that appear to create a need for remediation to a general rule addressing that need” (154).

While Gershon is clear that she is interested in both similarities as well as differences—or, as she puts it, in asking “which insights on ethnographies of courts are specific to courts as institutions and which insights can be transferred to legislatures” (156-157)—much of her analysis is, in fact, focused on key differences between the courts and the legislature. Indeed, such are the differences between the two settings that in her conclusion, she recommends that “scholars of cultural pluralism [should] take more seriously the institutional vantage point shaping their object of inquiry” (170). This means, she concludes, shifting their sets of questions depending on where their fieldsites are located on “how laws are linked to contexts, how law and social unities are interwoven, and how to locate social change” (170).

There is much in Gershon’s analysis that rings true, not only to the legal anthropologist who has thought about these issues in much depth but, I suspect, to a general “Western” audience trained to think about the different branches of government in terms of a neat doctrine of separation of powers. According to this doctrine, the legislature makes the laws, the judiciary or the courts apply them, and, for completion’s sake, the executive enforces them. And yet, we also know that the separation of powers doctrine is a fiction, both in terms of the actual workings of Anglo-American law (which Gershon takes to be her case study) and, perhaps more sociologically, in terms of how power operates in contemporary Western democracies. Acknowledging these two points does not take us away from the analysis of legislatures in the manner proposed by Gershon. It does, however, push the anthropologist towards an analysis of legislation that continues to include courts as a central element of law-making processes. At least, this shall be my argument here.

Questioning the Separation of Powers Doctrine: Law Making in the Judiciary

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LONDON, ENGLAND – OCTOBER 01: Supreme Court Judges sit in Westminster Abbey during the annual service to mark the start of the legal year, on October 1, 2018 in London, England. The service, conducted by the Dean of Westminster, The Very Reverend Dr John Hall dates back to the Middle Ages and is attended by over 700 Judges and Senior Judicial figures. Photo by Dan Kitwood/Getty Images.

The idea that courts and legislatures should be studied as two conceptually separate analytical and ethnographic fields of inquiries rests upon the idea of a neat separation of powers. This doctrine, deeply embedded in the Western tradition, holds that the principal institutions of the state—the executive, legislature and judiciary—should be clearly divided in order to respect democracy and the “rule of law.” And yet, the separation of powers doctrine is a fiction, at least in the U.K. context, where it falls short of its own logic in various ways. Public lawyers often cite the example of the House of Lords, the name formerly given to the highest court, which until 2009 also sat in an unelected capacity in the second chamber of Parliament. But even if this blurring of boundaries has now been officially reformed (with the constitution of a separate “Supreme Court”), the courts remain intrinsically linked to law-making functions: unlike its civilian law neighbors, the Anglo-Saxon system is a common law system. This means that the higher courts have a precedent setting function. Or, to put it differently, the courts do not just apply laws but rather they have, within limits, the capacity and indeed the mandate, to make new law.

If the precedent-setting function of the higher courts vis-à-vis the lower courts is often presented as an intrinsic part of the U.K. common law system, then nonetheless this has important implications. It means that many of the features that Gershon identifies as being analytically distinct between the legislature and the courts potentially cross-fertilize or blur into one another. For example, her point that “contexts are made cultural” in the legislature using “demographic imagination,” whereas in courts this only provides “one technique among many leading to dispute resolution,” is true only to an extent: the Supreme Court regularly engages in an exercise of “demographic imagination” in passing precedent-setting judgements (170). Likewise, her argument that in legislatures, laws are always a “compromise” whereas in courts, “agonism at the law is hidden” is also weakened by the fact that in precedent-setting judgements, dissenting opinions both give the space for disagreement and are given due weight in subsequent judicial and legal analyses (170).

Understanding the Workings of Power: The Courts and the Legislature as a Shared Social Field

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LONDON, ENGLAND – OCTOBER 01: Supreme Court Judges, High Court Judges and Circuit judges gather in Westminster Abbey ahead of the annual service to mark the start of the legal year, on October 1, 2018 in London, England. The service, conducted by the Dean of Westminster, The Very Reverend Dr John Hall dates back to the Middle Ages and is attended by over 700 Judges and Senior Judicial figures. Photo by Dan Kitwood/Getty Images.

Beyond this institutional blurring of the respective “evaluative rubrics” (154) of courts and the legislature, there is also a deeper point of convergence that Gershon does not pay much attention to: the “sociological fact” of a shared set of power relations that cuts across the British courts and the judiciary. In Britain, the respective make-up of the judiciary and that of the legislature, especially in its second chamber, are remarkably similar: both represent the “old boys networks” (Blackwell 2017) of the same privately educated graduates of Oxford and Cambridge, namely the British white male ruling elite. This means that even if in theory, different roles and functions are ascribed to the legislature and the judiciary, in practice, the substantive decisions that each institution makes speaks to the other in surprisingly harmonious ways. There is, in other words, a “politics of the judiciary” (Griffiths 1977) which corresponds—if not in intention and design then often in effect—to the politics of ‘the Lords in Parliament’ in Britain (Crewe 2005).

Let me turn to an example from my own on-going ethnographic fieldwork on the making of “modern slavery.” In 2015, the Modern Slavery Act came into force, an unprecedented piece of legislation that provides both a prosecution tool and a defense for this form of evil “discovered” by the British state. In the lead up to the legislation, parliamentary debates often invoked highly orientalizing tropes that focused on the figure of the “foreign others” who had been trafficked across national borders. In subsequent years, however, British courts have come to apply the legislation by transposing the figure of evil onto the “internal other:” British working class young Black men involved in the illicit street economy of drugs find themselves prosecuted for human trafficking offences today (Koch, forthcoming). While on their face departing from the “spirit” of parliamentary debates, these court decisions do, in fact, reveal a deeper consistency: both parliament and the courts are engaged in a particularly pernicious politics of post-colonial governance, one which distances the British state as a whole from its involvement in transatlantic slavery and its classed and racialized legacies by reinventing slavery as a contemporary threat (Koch, forthcoming).

Towards an Anthropology of Law across Institutional Realms

The analysis offered in this essay leads me to a perhaps ironic conclusion: if Gershon worried that legal anthropologists have focused too much on the courts, leading her to advocate for an anthropology of legislation beyond the judiciary, then my analysis could be seen to be taking us back to the doorsteps of the court. This is because courts are also law-making places, at least in the Anglo-Saxon model where the higher courts make law through their precedent-setting functions. But more importantly, it is also because courts and legislatures do not constitute separate social fields: as anthropologists, we know that people matter just as much, if not more, than institutional fictions. And in the history of British democracy (as in many other histories across the globe), the same demographics of privileged citizens who have populated parliament have also set judicial functions. Power relations then cut across both the legislation and the judiciary, and their respective personnel and decision-making processes speak to one another in multiple ways.

Of course, this does not mean that we should focus less on legislatures, or even return to the pre-eminence of court-based ethnography at the expense of other ethnographic inquiries. Rather, my point is that it does not have to be an “either/or” situation (nor is this what Gershon would have intended for herself). Far from working in silos, anthropologists of legislation should consider both the courts and parliament (as well as, we can add, the executive, and indeed, informal or extra-state spaces of law making) as their fields of inquiry, looking both for institutional idiosyncrasies and for a blurring or breakdown of these differences. Put differently, institutional differences matter, but if we focus solely on differences then we risk paying lip service to the fiction of the separation of powers doctrine. It is only by paying attention to institutional contingencies and to structural convergences that we can gain a better understanding of the workings of privilege, hierarchy and power as well as to start looking for places of resistance—both within and outside the institutional framework of legislatures and courts.

Insa Koch is Associate Professor in Law and Anthropology at the London School of Economics. Trained as both an anthropologist and a lawyer, Insa is interested in questions of inequality, injustices and the state. She is author of Personalizing the State: an Anthropology of Law, Politics and Welfare in Austerity Britain (OUP, 2018).

Works Cited

Blackwell, Michael. 2017. “Starting Out on a Judicial Career: Gender, Diversity and the Appointment of Recorders, Circuit Judges and Deputy High Court Judges 1997-2016.” Journal of Law and Society 44(4): 586-619.

Crewe, Emma. 2005. Lords of Parliament: Manners, Rituals and Politics. Manchester: Manchester University Press.

Gershon, Ilana. 2011. “Critical Review Essay: Studying Cultural Pluralism in Courts Versus Legislatures.” POLAR: Political and Legal Anthropology Review 34(1): 155-174.

Griffiths, J.A.G. 1977. The Politics of the Judiciary. Manchester: Manchester University Press.

Koch, Insa. Forthcoming. “From Criminals to Slaves: ‘Modern’ Slavery, Drugs Trafficking, and the Cultural Politics of Victimhood in Postcolonial Britain.” Current Anthropology.

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