“The Agonism at the Heart of a Law”: Engaging with Ilana Gerson while Researching Legislative Drafters

By Emily Grabham

Emergent Conversation 14

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

120913_113852_417. Using Code from the book Generative Design. Code available here: http://www.openprocessing.org/sketch/60980. By Justin Lincoln. CC BY SA 2.0.

Neil Kaplan-Kelly has invited us to reflect on Ilana Gershon’s fascinating 2011 essay “Studying Cultural Pluralism in Courts versus Legislatures” (Gershon 2011). This isn’t too hard, because the piece has been a valued companion and prompt to my own research. But Neil has also asked us to consider two big questions: (1) Why hasn’t anthropology taken legislation more seriously as an ethnographic subject? and (2) How should anthropologists take up legislation in our work? I am grateful to be part of this conversation.

I have been working on a study of legislative drafting—and drafters—for around five years now, with moments of rapid progress interspersed with months and sometimes years of apparent stasis. Gershon’s insights have proven immensely rewarding to this work, helping me to move forward when I have become stuck. My study sits slightly at an angle to the question of how to approach legislation and legislatures, exploring instead the process of drafting legislation and thereby aiming to understand a little better who drafters are, how they work, and how statutory text is formed. Along the way, I have been surprised at how little anthropological research focuses on the legislative text itself and on the craft, expertise, and daily life of drafters, who, after all, create the text of legislation as law. This is in comparison to myriad studies of people who draft legal documents in other contexts: treaties and conventions, for example; studies of documentation of many forms (Morsink 1999; Riles 2006, 2001); and studies of other kinds of legal actors—too numerous to cite.

It’s not obvious to me why anthropology has paid so little attention to legislative drafting. It could be to do with the difficulties that scholars commonly face in analyzing legal doctrine, which many feel is particularly closed to anthropological and sociological exploration, in comparison with enquiries into legal ideas and practices in their wider social context (Cloatre and Cowan 2020; Cotterrell 1998; Nelken 1998). In overlooking the study of statutes, anthropologists are perhaps still befuddled by similar concerns that have accompanied debates in the sociology of law, namely about whether legal doctrine really helps us explain the social world. This would be strange, given that anthropologists have been at the forefront of attempts to defamiliarize legal technicalities (Riles 2005; Sylvestre et al. 2015; Valverde 2009). Yet my hunch is that the lack of attention to legislation could also be something to do with the apparently mute mundanity of legislative text; its collapsing of challenging political differences into highly technical language; the particularity of its form (in terms of structure, grammar, syntax and law); and the tendency for drafters, in the United Kingdom at least, to disavow any creative input into the legislation they produce, preferring instead to remain “in the shadows,” as Alain Pottage has put it (Pottage 2020). The drafters that I and others have interviewed often (although not always) argue that substantive decisions have been made by the executive and that they are merely putting those ideas into statutory language (Page 2009). Yet Thom Giddens has noted that in going along with the idea of legal (and here I add—statutory) text as merely a “pragmatic container of meaning,” lawyers and scholars risk creating an assumption that legal text merely carries the law instead of contributing to its meaning and power (Giddens 2020, 104).

Engaging with Annelise Riles’s (2005) adoption of Roy Wagner’s work on “symbolic obviation” (1022), I have recently begun to question what happens when drafters and others assume that statutes merely “contain” or “carry” the substance of law, instead of embodying or instantiating it in more complex ways. Does legislative text merely “represent” law? What work are drafters and others doing to construct and split object (statutory text) from concept (law) in these scenarios? How might it be possible to get to grips with the construction and power of statutory text?

This task is all the more difficult because of drafters’ interest in intelligibility and clarity. The United Kingdom Office of the Parliament Counsel’s Drafting Guidance, for example, begins with a relatively long section on “Clarity,” which includes sections on “telling the story,” “syntax,” and “vocabulary” (Office of the Parliamentary Counsel 2020). Thornton’s Legislative Drafting, the leading title used by drafters and legislative counsel, refers to the “unremitting pursuit of clarity” that is needed to achieve intelligibility:

The obligation to be intelligible, to convey the intended meaning so that it is comprehensible and easily understood, in other words to communicate successfully, requires the unremitting pursuit of clarity by drafters (Xanthaki 2013, 55).

Intelligibility evokes a desire for effective communication, but more than that, it promises the potential success of being understood, of bridging a knowledge gap, and in some senses of achieving the performance of the legal rule. Resonant with legal anthropologists’ insights into the epistemologies and effects of transparency (Ballestero 2012; Sharma 2013) and accountability (Strathern 2000), intelligibility and clarity could be seen to bring with them thickly intertwined clusters of values and valuing, knowledge-creation, professional ethics, cultural meaning, and institutional rationales, which could open up fresh insights for the study of legal expertise and law-making.

Yet we might also ponder the role that routines and ideologies of intelligibility play in the effacement of drafters’ work against the apparently separate substance of law. What role does intelligibility play in narratives about the distance between drafting and law’s meaning and content, and in drafters’ concern with social efficacy?  Could this ontological distance survive without intelligibility? Writing in a different context, Michael Shapiro has observed that “intelligibility is an ambiguous achievement” (Shapiro 2019, 6). Shapiro’s reflections on intelligibility arise from a project focusing on the possibilities of artistic practices that work to contest conventional narratives by supporting “oppositional communities of sense” (Shapiro 2019, 2). In emphasizing ambiguity, Shapiro refers to critiques of “ready-made thought” that come with attempts to participate in dominant structures of intelligibility:

Learning to participate in the reigning structures of intelligibility enables one to share information, that is, to communicate effectively. Those who can merely communicate, however, are (in the words of Gilles Deleuze and Félix Guattari) “functionaries” able only to manage “ready-made thought” (2).

This leads to further questions. Are drafters “merely” communicating? Are they “functionaries” of “ready-made thought”, or is their work capable of a less orthodox creativity?

In her 2011 essay, Gershon suggested a thought exercise to assist with researching legislation and legislatures. In courts, Gershon observed, “people grapple with applying laws to cases to produce what they hope will be accepted as objective justice” (Gershon 2011, 156). Legislatures are very different, she argued. They create laws “anticipating that others will evaluate their actions in terms of whether they are providing accountable representation; they move from a set of contexts that appear to create a need for remediation to a general rule addressing that need” (Gershon 2011, 156). Gershon outlined distinctions in law-makers’ evaluative frameworks across courts and legislatures, differences in how context is understood and mobilized, and differences in how we might approach epistemologies of justice and representation (Gershon 2011, 157). She focused on how contexts and people become understood as cultural in both spheres, and how law-makers understand pluralism. And she concluded that:

When shifting to legislatures, ethnographers’ analytical toolkits need to be re-fashioned, without discarding the insights that scholars of cultural pluralism in courts can provide (Gershon 2011, 170).

Gershon’s insights provoke new questions and methodological concerns for those who come into contact with legislatures or legislation in the course of our research. Perhaps most tellingly, Gershon observes that:

… in legislatures, laws are always a compromise, and thus overtly embody tensions inherent in the context to which they purportedly respond. When laws travel out of legislatures and into courts, the agonism at the heart of a law is hidden, and the law tends to be perceived as acontextual and neutral (Gershon 2011, 170).

In pointing to the processes by which agonism becomes hidden, Gershon’s analysis resonates with, and advances, my focus on symbolic obviation. How, then, to reveal again the agonism at the heart of a legislative text and what does it have to say about intelligibility? Furthermore, how does the material and symbolic form of statutes contribute to their freshly acontextual appearance when they leave the legislature? Unpacking these questions requires an engagement with material culture, new technologies of publishing and circulation, and ideologies of communication that are attached to statute-writing. It means pondering how drafters’ approaches to statutes themselves ensue from the publishing, print, and software cultures of which they are a part (Pottage 2020) and it requires fresh analysis of apparently mundane and widespread practices of drafting, such as revision (Sullivan 2013). As I begin to tackle these challenges I remain indebted to Gershon’s careful analysis and provocative thinking.

Emily Grabham is Professor of Law at the University of Kent, UK. Emily’s research focuses on time and temporalities, labour regulation, and feminist legal theory. Her monograph – Brewing Legal Times: Things, Form and the Enactment of Law (University of Toronto Press, 2016) – was awarded the 2017 Socio-Legal Studies Association Legal Theory and History prize. With Dr Sian Beynon-Jones (sociology, York, UK) she led an interdisciplinary research network on the relationship between law and time between 2015-2017, funded by the UK Arts & Humanities Research Council. Their co-edited collection, Law and Time, was published by Routledge in 2019.

Works Cited

Ballestero, Andrea. 2012. “Transparency in Triads.” PoLAR: Political and Legal Anthropology Review 35(2): 160–166

Cloatre, Emilie, Cowan, Dave. 2020. “‘Indefensible and Irresponsible’: Interdisciplinarity, truth and #reviewer2.” In Routledge Handbook of Socio-Legal Theory and Methods, edited by Naomi Creutzfeldt, Marc Mason, and Kirsten McConnachie. Pp. 97–109. Oxfordshire: Routledge.

Cotterrell, Roger. 1998. “Why Must Legal Ideas Be Interpreted Sociologically?” Journal of Law and Society 25(2): 171–192.

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

Morsink, Johannes. 1999. The Universal Declaration of Human Rights: Origins, Drafting, and Intent. Philadelphia: University of Pennsylvania Press.

Nelken, David. 1998. “Blinding Insights? The Limits of a Reflexive Sociology of Law.” Journal of Law and Society 25(3): 407–426.

Office of the Parliamentary Counsel. 2020. Drafting Guidance. London: Cabinet Office and Office of the Parliamentary Counsel.

Page, Edward C. 2009. “Their Word is Law: Parliamentary Counsel and Creative Policy Analysis.” Public Law (October): 790–811.

Pottage, Alain. 2020. “Response to ‘Exploring the Textual Alchemy of Legal Gender.’feminists@law 10(2).

Riles, Annelise. 2006. Documents: Artifacts of Modern Knowledge. Ann Arbor: University of Michigan Press.

—. 2005. “A New Agenda for the Cultural Study of Law: Taking on the Technicalities.” Buffalo Law Review 53: 973–1033.

‚—. 2001. The Network Inside Out. Ann Arbor: University of Michigan Press.

Shapiro, Michael J. 2019. Punctuations: How the Arts Think the Political. Durham and London: Duke University Press.

Sharma, Anu. 2013. “State Transparency after the Neoliberal Turn: The Politics, Limits, and Paradoxes of India’s Right to Information Law.” PoLAR: Political and Legal Anthropology Review 36(2): 308–325.

Strathern, Marilyn, ed. 2000. Audit Cultures: Anthropological Studies in Accountability, Ethics and the Academy. Oxfordshire: Routledge.

Sullivan, Hannah. 2013. The Work of Revision. Cambridge, MA:  Harvard University Press.

Sylvestre, Marie-Eve, Damon, William, Blomley, Nicholas, Bellot, Céline. 2015. “Spatial Tactics in Criminal Courts and the Politics of Legal Technicalities.” Antipode 47(5): 1346–1366.

Valverde, Mariana. 2009. “Jurisdiction and Scale: Legal `Technicalities’ as Resources for Theory.” Social and Legal Studies 18(2): 139–157.

Xanthaki, Helen. 2013. Thornton’s Legislative Drafting. London: Bloomsbury.

 

 

 

 

About Jennifer Curtis

Jennifer Curtis is an Honorary Fellow in Social Anthropology at the University of Edinburgh: http://www.sps.ed.ac.uk/staff/social_anthropology/curtis_jennifer.

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