presuming scale, making diversity

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Presuming Scale, Making

Diversity

On the Mischiefs of Measurement and the

Global: Local Metonym in Theories of Law and

Culture

Sari Wastell

St John’s College, University of Cambridge

Abstract The ‘new essentialism’ in bo th cultural and legal theor y is the ten-dency to treat ‘diversity’ as a monolithic con cept which exists logically pr ior tolaw or culture’s efforts to en gage or reconcile it. By using analogies of scale andmeasurement, and bor rowing from Luhm ann ’s theor y of self-referen tial socialsystems, the article argues that there is no such thing as a diversity which does

not emanate from an ‘impulse to measure’. Thus, ‘global:local’ is a presupposi-tion which underpins certain systems’ way of imagining the world and not anobservation available from an inaccessible God ’s-eye view. Con trar y to popu larmythology, the article seeks to understand the law as yet another conjurer of differen ce rather th an its great leveller, and to un derstand the way differen t legalparad igms might conceptualize diversity in ver y distinct ways.Keywords customar y law diversity (concept of) ethnicity legal pluralism scale, globalism/ localism

In exploring the relationship between scale and diversity and how this cou-

pling manifests itself in theories of law and culture alike, I expected quitea different article to emerge. This began as an article about differen t scales,about levels of discourse or imagining that seemed to borrow from one

another despite their alleged incommensurability. It was to be an article

about the relativities of perspective which might allow for d ifferen t kinds of

measurements, but also a critique of the overly facile way in which these

differen t relativities are presumed to present insur mountable problems forcommunication between themselves. I wanted to say, for example, that

‘global’ and ‘local’ perspectives need not be antagonists, that there is an

intercommunication and relationship h ere n ot captured by the language

of assimilation, colonization and compromise ( in th e pejorative sense). The

work was meant to be a challenge to th e all-or-noth ing attitude which insiststhat un iversal claims and un ified theor ies distort the ‘realities’ of culturally

Article

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Copyright 2001 © SAGE Publications

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specific contexts and the particularisms of practice. Instead, it became

apparen t that I needed to step behind my own starting line. Somewhere inthe work’s adolescence (and it still has a long way to go before reaching

maturity) I found that the issue was not only about different points on agiven scale or even about different scales, but also when and how the pres-

ence or absence of scale itself became a consideration.1

The presence or absence of scale is impor tant because when one talksabout, for example, ‘global’ as opposed to ‘local’, the scale is already in

place. Noth ing is par ticularly ‘local’ unless it is measured against someth ing

‘bigger’, less ‘local’ than itself – and here so many prejudices flee from ana-

lytical view, ‘local’ so often eliding notions of that which is smaller, more

par ticular, concrete rather than abstract, substantial rather than ideational.The scale global:local depends upon a certain presumed but impossible

metaposition which tells us that local really is more specific and atomistic

than the impersonal and all-encompassing global. The scale insists that we

accept each manifestation of a local context as a constituen t elemen t of a

global whole, each local perspective as a subjective position in an objectivereality. And it is precisely because ‘global’ is presumed to be empirically

evident, albeit from an inaccessible God’s-eye view, that we can measure

against it.

What I object to in the premise of this global:local scale is the trans-

parency imputed to diversity from that God’s-eye view. As with the entirety

of the hermen eutic project, the popu lar n otion of global versus local suffersfrom an internal contradiction, a celebration of multiplicity only made

possible by the p resum ption of an overarching monism. It is as if to say, ‘We

may all be constructing our own par ticular realities based on the horizons

to which we or ient ourselves, but out of our sight, behind our backs, in our

blind spots, some greater reality falls outside of our apprehension.’ ‘It’ –the God’s-eye view – can apprehend us, but not the oth er way around.

So, first of all, my baseline claim is that there is no such thing as a diver-

sity that does not emanate from a project of measurement. Or perhaps

better put, diversity is not something that is ‘already out there’, waiting to

be described and ordered . It is made by systems which operate th rough th eestimation, valuation and proportion of entities – as apprehended by the

system itself.2 Moreover, to measure in this way requires a scale which is

taken to precede, to exist logically apar t from that which is measured, even

when this separation of ‘given’ (scale) and ‘variable’ (that which is

measured) is ultimately a contrived one.3 Diversity is something conjured4

into being when measured, when a perspective gathers constituents

together, pulls them into view and casts them into form to be measured.

Thus, diversity can be seen as a product of scale, or better pu t, the impulse

to measure, and perh aps understand ing when this impu lse en tered into the

equation would tell us quite a lot about th e parameters into which diversitycould be configured.

However, equally, we n eed to th ink about that point before the starting

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Critique of Anthropology 21(2)



line of measurem ent. Where is the vantage-point from which scale is simply

absent or a non-issue? If I have already said that diversity is a product of

scale, and now suggest that there are perspectives in which scale might be

absent, then it would seem that I am suggesting there exists a vantage fromwhich differen tiation , or relativity, might also be absent. This is not the case

and demands some explication of my theoretical underpinnings.

I take as my starting point for much of this article my readings5 of the

work of Niklas Luh man n and his explication of social systems theor y ( in

par ticular h is text Social Systems, 1996) . Differentiation is integral to a socialsystem’s boundar y mainten ance. It is through the ongoing construction of

its environment by differen tiating between what belongs to the system and

what exists outside itself that a system is able to both man age and elaborate

its own complexity. The ongoing process of differentiation involves a

streamlining, whereby the system’s version of the world outside itself ispared down in accordance with th e system’s operational imperatives – that

is, relative to the communications the system exists to create – such th at the

environmen t can be said to be the creation of the system, a selective ou tpu t

of its own imaginings. There is a propor tionate relationship h ere, between

a system’s reduction in the detail of that which is deemed external to thesystem and the expansion of complexity involved with all that is internal.

So differentiation is fundamental to system survival and growth, and it

would be wrong to suggest that a system position could exist that did not

include th is limited notion of relativity.However, this sense of relativity, a judgem ent as to whether someth ing

belongs inside or outside the boun daries of a system, is not the same thingas an act of measuremen t. Scales are n ot binar y; they turn on interims,

degrees and grades. So when I speak of the presence or absence of scale as

a consideration from the system’s point of view, I am referring not to that

basic project of differentiation which allows for self/ ‘oth er’ distinctions,

but rather to a system’s predisposition towards, for example, grading thedistance between the ‘otherness’ of an entity and the ‘self’ that is the

system. What is at issue, then, is whether scale – measuring – is integral to

that purpose which accoun ts for the system’s existence or whether scale fea-tures only after-the-fact, as a re-integration of ‘information’ from the

system’s environment through its cognitive openness or even as a floatingsignifier created by the bifurcation of systems’ inter-‘communication’.6

Briefly, let us consider the first two possibilities in tur n.

Some systems will necessarily include scale as part of the functions

which fashion its communications. As with the example given above, this

would mean that a system not only differen tiates, but as a matter of coursemeasures or evaluates in the act of making said differentiation. In these

instances, the impulse to measure cannot be extricated from what it is the

system exists to do – or , better pu t, measur ing is par t and parcel of the raison

d’être of the system. As will be argued below, the Rule of Law paradigm falls

into th is categor y.

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Wastell: Presuming Scale, Making Diversity



In other cases, however, it may be th at scale en ters into the picture via

a more indirect route. Here I am thinking of those instances in which a

communication from another system is incorporated into the system’s con-

struction of its environment in such a way that scale becomes implicated atthe ver y limits of the system’s hor izon . Systems do not so much ‘receive’communications from other systems as they re-constitute them. That is to

say that a communication will never have the same meaning for both the

system which issues it and a system which recogn izes it, because systems are

on ly cognitively open insofar as they ‘realize’ a version of the world that cor-

relates to their own operational imperatives. Thus, comm un ications are fil-tered and re-constituted in a system’s ‘knowing’ such that a commun ication

pregnant with scale from the issuer’s point of view may be accorded a

meaning completely devoid of scale by another system. However, and this is

important, in according meaning to a communication, a system points to

those possibilities made redundant – to the unactualized patterns, evoca-tions or capacities which are made super fluous at the edges of the system’s

boun dar y. Such is the case, it will be argued, with th e customar y legal par-

adigm, where diversity production is not the intention nor predisposition

of the system, but a by-product of the system’s successful reconciliation of

its own circularity – or ‘genesis crisis’.Whereas the system which concerns itself with scale makes diversity in

its animation of a communication, the system which does not may also

man ifest diversity but by pointing to that which is not animated. The former makes plurality visible by presuming a monism against which diversity can be

measured. The latter works in reverse, reaching for source, singularity – the actual-

ization of one meaning against a myriad of redundant possibilities – and, ironically,

ultimately pointing to a diversity denied rather than made visible. The system in

which scale is a predisposition makes diversity and shows it. The system in

which th is predisposition is absent will ultimately point to what is not shown.

In either event, diversity does not exist before the workings of scale, and

the question this then poses is whether the different moments at whichscale enters into these scenarios might signal different conceptualizations

of diversity itself.

Global versus local, state law versus non-state law: theprejudices of scale, the dilemmas of legal pluralism

It is a curiosity of legal studies which focus on postcolonial, legally plural

states ( i.e. those which maintain both customar y and received legal codes),

that they generally fail to ded icate rigorous theoretical atten tion to the ways

in which customar y law constitutes a d istinct form

of law. In many of theseworks, customar y law is identified as a for m of law by virtue of what it does

in society, and the central concern then is the political tension generated

by two systems, each pu rpor ting to deliver ‘justice’ and each legitimized in

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the context of competing forms of governance. Legal anthropology’s

concern for processes has ensured that rules are not privileged to the

exclusion of rule generation (and as Falk Moore stresses, rule-negotiation

[1978]), but, nonetheless, the political exigencies of colonial and post-colonial contexts have tended to seduce scholarship away from any pro-found consideration of the paradigms which undergird the customar y and

received codes respectively. In shor t, the work is often jur idical but exh ibit-

ing scant concern for jurisprudence.7

In the case of Africa, certainly, the paucity of theoretical atten tion given

to custom as an alternative form of law derives largely from the fact thatmost scholars recognize that what came to be codified as African custom-

ar y law was as much a product of the colonial endeavour and the strategies

of local elites vying to entrench their power in a new political hierarchy as

a formalization of any long-stand ing practice or custom per se ( Channock,

1985; Rober ts and Mann , 1991; Rwezaura, 1985; Snyder, 1981). The insin-uation here is that customar y law-as-alternative-legal-form has already been

lost, cor rupted by the for m imposed by colon ial administrators through the

ver y acts of ‘codification’ and ‘formalization’. And while it may be true that

African customar y law was co-opted as an instrum ent of colonial coercion ,

it seems that scholars focused on these societies may be exercising a p reju-dice more widespread and damaging than one might anticipate at first

glance. The ver y language of ‘codification ’, ‘formalization’ and ‘official

versus un official’ throughou t these works infor ms the reader th at they areproceeding from the baseline of a scale which serves as the unspoken frame-

work into which legal pluralism must be fitted. The scale is dictated by the

rubric of Western state law and the pluralism allowed for is already overde-termined by that monism against which it is measured.

So the effect of the presumption of scale results in two obfuscations.

There is an overdeter mination of both what diversity might ‘look like’ and

a parallel overdetermination of the unity against which the diversity is

measured. Let us consider each of these pitfalls in turn .

Diversity ‘found’ and ‘lost’The presupposition of a ‘state-law scale’ allows for any number of prejudices

regarding the ‘purity’, ‘authen ticity’ and viability of non -state legal for ms.

Alternative legal forms – and custom in particular – are measured againstWestern, cephalous state law in order to gauge their level of ‘difference’.

Or perhaps, better pu t, the ver y fact that they are recognized as ‘altern a-

tives’ to Western state law depends upon a centrist model which deter mines

just ‘how alternative’ these forms of legal pluralism might be by reckoning

the ‘distance’ of these alternative practices from the practices of state law.

Following on from this is the p resumption th at these alternative forms mustthen pose a challenge to state law’s monopoly over justice distribution and,

as such , the alternatives must themselves be under constant threat of assimi-

lation back into the overarching state law.

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With reference to custom, this is a long-standing tradition in the

scholarship, whereby the transformation of custom into mon istic law is typi-

cally seen to involve a domination of the state over the local, of the gen eral

over th e par ticular, in a way that sets up custom as a metaph or for colonial-ism itself. Custom as the impetus for law, it seems, is inherently unstable, alocal and varied impulse destined for assimilation into a more generalized

and uniform form. Indeed, Peter Goodrich articulates this position nicely

when he writes:

Contrar y to th e prevalent view of law as the per fection and inheritor of custom[. . .] it is probably a more accurate generalisation to see law or ‘legal order’ asa destructive force, as the assassin rather than the pinnacle of non-legal orcustomar y ord ers. (1986: 63)

From this sense of state law’s cor rup tive capacity much of the scholar-

ship on legal pluralism has grown. Admirably, it should be said, thesestudies are dedicated to a search for an ar ray of differen t centres of law pro-

duction which are local, specific and often informal or in direct compe-

tition with state law. In an early but formative article in the legal pluralist

tradition, Sally Falk Moore introduced the notion of semi-autonomous

fields, or social domains, which are both value- and rule-generating, butexist in dialectic with state law (1978). This sort of legal pluralism, known

as deep legal pluralism, has garnered the lion’s share of the attention in the

scholarship since it presents the intriguing possibility that ‘legal’ systemsexist in a variety of social domains and that the law need not be defined

within the narrow constraints of the Western centralist, positivist model.

However, the constant reference to the dialectic between official and unof-ficial law, state law and non-state law, and, more importantly, the impli-

cation that state law inevitably encompasses these alternative fields of

rule-generation, should tell us that something is amiss.

Indeed, Falk Moore’s ‘semi-autonomous social fields’ provide an inter -

esting case in point. The intense promise of Falk Moore’s methodologicalprescription lies in the possibility not on ly that a variety of social domains

may be r ule- and custom-generating, but ( at least equally) in the notion thatstate law’s own nor mative declarations may have d isparate meanings when

viewed from within the semi-autonomous social field.8 The inn ovation of

such a framework in many ways anticipates some of the most productiveaspects of social systems theor y.9 Semi-autonomous social fields, described

in terms of their capacity to self-referen tially generate rules and values and

their simultaneous sensitivity to the rules and values that derive from

outside th emselves, closely app roximate the claims of ‘operational closure’

and ‘cognitive open-ness’ which Luhmann would make on behalf of social

systems. And, insofar as Falk Moore’s case studies explore how state law ismanipulated and negotiated when viewed from the point of view of a semi-

auton omous social field, the work remains in the vanguard.

From the perspective of the present critique, however, a single paradox

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might justify scrutiny. Why does Falk Moore frame her methodological

object in terms of ‘autonomy’? When she writes that ‘theoretically, one

could postulate a series of possibilities: complete autonomy in a social

field, semi-autonomy or a total absence of autonomy ( i.e. complete domi-nation)’ (1978: 78, emphasis mine), it draws attention to the extent towhich even the semi-autonomous social field labours under th e weight of

a scalar prejudice. State law encompasses the semi-autonomous social

field, leaves it ‘vulnerable to rules and decisions and other forces ema-

nating from the larger world by which it is surrounded ’ (1978: 55, emphasis

mine). The semi-autonomous social field is a unit of a type, an interim‘between the body politic and the individual’ (1978: 56), that is, between

either pole of a single scale of measurement. So, while her own analyses

ver y often succeed in un dermining re lations of size, gravity and en com-

passment between state and n on -state law, and p resent a huge in tellectual

resource to direct such endeavours as the current one, some of Falk Moore’s more gen eral theoretical statements belie a por tion of the work’s

potential and point towards a more common ailment in studies of legal

pluralism.

In sum, legal pluralism often tries in vain to find difference, but only

recognizes difference when measured against the state law it seeks to de-centre. Carol Greenhouse’s critique of legal pluralism’s self-imposed circu-

larity is apt:

Legal pluralism as a field of anth ropological inquir y inevitably remains tied tolegal cen trism for its key ter ms so lon g as it main tains the assumption that officialand unofficial law are organised by the same map that organises culturallydifferen tiated social fields. (1996: 58)

Or, recasting Greenhouse’s observation from the vantage-point of the

present work’s preoccupations, Falk Moore’s semi-autonomous fields can

never be fruitfully excavated for alternative legalities so long as state lawremains the ubiquitous measure – the ceiling to the scale – against which

all rule-generating systems can be evaluated.

The dilemma is most clearly in evidence in John Griffiths’s seminalarticle ‘What is Legal Pluralism?’ (1986). The article outlined the par-

ameters of the legal pluralist project, differentiating between deep legal

pluralism (or ‘strong’ pluralism) and state law pluralism (or ‘weak’ legalpluralism). State law pluralism, or the sort of pluralism one sees in dual

legal systems like those which obtain in postcolonial African states, is, from

this point of view, not really pluralist at all. As with Goodrich’s argument

above, in which legal incorporation heralds the demise of ‘true custom’,

th is brand of legal pluralism den ies the possibility that disparate legal codes,assimilated un der th e rubric of a single legal system, can actually be p lural.

As Tamanaha explains, ‘according to Griffiths, weak legal pluralism is just

another for m of legal cen trism because its implicit message is that all other

laws should be organised in a h ierarchy ben eath state law’ (1993: 202). As

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I have tried to demonstrate, it is not en tirely clear th at deep legal pluralism

is any less implicated in a state-law-induced hierarchy, bu t th is line of argu-

men t does not prove ver y popular amongst the staunch advocates of legal

pluralism. The bottom line from either side of the debate, however, is thatthe universalist authority of the state is presumed to be incompatible withthe particularism of custom, and the relationship between the two must

always be one of dialectic, perhaps followed by the inevitability of assimi-

lation and corruption.

There are certain fundamental tendencies in all of this which should

be drawn out. First of all, it is clear that there is a valorization of the par-ticular at work in much of the th eor y which un derp ins legal pluralist writ-

ings. Global discourses rendered familiar to local contexts are implicitly

endorsed, while the converse, local customs inflated to the level of all-

enveloping rule systems, is seen as a corruption. Second, when discussing

customar y law, there is a clear unspoken presumption that the latter ten-dency is the province of Western social (and particularly legal) impulses

while the former is more com monly associated with ‘Third World’ indigen-

ous traditions.10 When custom travels upwards, the force of custom is lost

or rendered impotent. When abstract systems of rule-formation travel

downwards, the custom is chan ged but en ergized with efficacy. Finally, not

only is no effort made to describe those mechanisms or conceptualelements which allow these ongoing battles of inflation and reduction,

globalization and vernacularization to be effected, but the relevance of scale, its meaning and resonance from both the perspective of the global

viewpoint and the local, from the vantage of state-law and non-state law, is

taken for granted. The argument here is that were one to consider thesalience of scale from the ‘local’ or ‘non-state law’ perspective, the scale

itself would be called into question and the boundaries of investigation

changed beyond recognition.

The unity of the measure and its interims

On e intr iguing point from the perspective of th is article is the ver y fact that

Western scholars might view vernacularization so un critically. It is likely thatth is tendency derives from th e ascendency of disciplines like social anthro-

pology whose adherence to doctrines of relativism and whose methodo-

logical preoccupation with the exigencies of locally collected data have,ironically, translated into a universal code of ethics. This ethical relativism

deems all difference equally valid (if only subjectively valued ) and is the

liberal doctrine of multiculturalism which encapsulates ‘diversity’ within a

Western frame of action and ‘manageable oth ern ess’.

While not overly sympathetic with positivism of any stripe, I am equally

suspicious of the app lauding of all for ms of particularism. The idea that themore specific – the more individual – the ‘truer’, again seems to point to

the mystifications and mischief afforded by the tacit workings of scale.

Specificity, particularism and individuality all bleed into one another from

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the perspective of a scale on which ‘global’ equates to the impersonal needs

of nation-states (as in international law) and so in turn presumes ‘local’

must cater to the distinct needs of individuals or ver y attenuated ( often kin-

based) groups within small commun ities (as with customar y law) . However,from the so-called ‘local’ perspective, this elision makes little sense, especi-ally with respect to customar y law where th e in terim unit ‘individual’ would

simply never equate with a particularism focused on communitarian prin-

ciples.11 From this so-called ‘local’ perspective (or to be more rigorous in

my own theoretical ter ms – from this system position ) , the scale simply does

not hold.Perhaps the recent skepticism over the promise of a ‘global justice’

actually speaks to the shor tcomings of the scale which frames the ver y ends

being sought and, in particular, its depen dence on the notion of the indi-

vidual as the irreducible unit of measure. (And here one anticipates the

great body of literature on the appropriateness or otherwise of humanrigh ts law across cultu res: cf., Cohen , 1989; Dembour, 1996; Donnelly, 1989;

Pollis and Schwab, 1980; Schmale, 1993; Wilson, 1997 for a varied over-

view.) Th is ver y Western and uniquely modern scale imagines the indi-

vidual as a coherent and isolable whole which is fragmented into discrete

role iden tities only as s/ he passes through various social systems. Despitethe fact that the Western academe seems to have embraced fragmentation ,

de-centring and hybridity in its analysis of those systems which comprise its

version of the social universe, the allure of this scale leaves scholars unableor unwilling to effect such a radical critique of the West’s metaphysical

sacred cow, the ‘transcendent individual’.12

This essentialized and holistic individual is the starting point of thescale of social measurement which works upward through various aggre-

gates (i.e. community to society) until it arrives at the global. And while

much work has been done to question the integrity and boundedness of

those aggregate un its, the scale itself has remained in p lace, confounding

any deconstruction of the conceptualization of diversity which it presentsas monolithic. Put another way, while culture has been de-essentialized by

the invocation of non -measurability, alterity excavated from overly hegem-on ic read ings of society, and ind ividuals made to listen to the cacoph ony of

polyvocality, the concept of diversity has become the repositor y for the ver y

essen tializing tendencies of which the social sciences have been tr ying torid themselves. All of the vocabular y we have for p luralism – heteroglossia,

polyvocality, mu lticulturalism and the like – derives from a single language,

a grammar of presumptions borne of the confusing fictions of this

omn ipresent scale.

Part of the project of the present work, then, is to consider the way in

which d iscourses (and here I mean modalities of thought embedded in setmatrices of presumptions), deriving from different scales (i.e. where the

focus is add ressed to a m ore or less expan sive or limited horizon ), give r ise

to a variety of essen tialisms upon which much legal and social theor y is

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predicated. The essentialisms are the inevitable product of scale insofar as

any act of measuremen t requires propor tionality and ratio. In th e social sci-

ences, this results in recurring ‘unities’ whereby social fields take on

equivalent value magnitudes. In other words, just as the ultimate referentmust be consummate in order to measure against it, so too must the inter-ims exhibit such integrity, the only difference being their proportionate

relationship to the referent of measure. So it is that Falk Moore’s semi-

auton omous fields purpor t to have the same unity – the same monism – as

the legal system outside of which they operate. They comprise an imagined

mapping of mutually exclusive, sometimes interacting normative systems,all of which legal pluralists have labeled ‘legal’ by virtue of the fact that they

order th e social world (and thus belong to the same scale of things) . What

is the state and what is non -state must be imagined as a un ified type in order

to locate other similar types elsewhere in the world, an irony best summed

up by Tamanaha’s frustration when he writes:

[The legal pluralist] locates the criteria for law by extracting or emulating thoseelements which appear to be essential to state law, then subtracting all thetrapp ings of the state. [. . .] Th us, the state law mod el inescapably provides thekern el of the concept of non -state ‘law’. (1993: 201)

Typing through essentializations is the mode through which pluralism isidentified, here on a scale bracketed by the state.

The fundamental problem is that these (non-state, alternative, semi-auton omous) nor mative systems are imagined from an objective metaposi-

tion which can attribute to them a coherence and integrity which simply

does not obtain in practice. Or perhaps more to the point, the un ity wouldonly obtain from a position inside the (‘alternative’) system itself, but the

workings of scale demand that we gaze from a metaposition which insists

the unity is somehow ‘objectively true’. Thus, the ‘alternative’ social fields

are formulated as ideal types from the God’s-eye view of the scale which

apprehends them.As intimated at the beginning of the article, this God’s-eye view is also

accorded a unity, indeed the paramount unity which serves as the meta-ph ysics under which all diversity is encapsulated. Whatever the u ltimate ref-

erent of the scale – be it the ‘global’, the ‘state’ or ‘modernity’,13 – its

integrity is portrayed as both given and yet so extensive and complex thatit cannot be appreh ended all at once. What this description should remind

us of is the proportionate relationship of a system’s complexity to its stream-

lining of its constructed en vironmen t. This paramount un ity is the conceit

of any system position , and as such is neither ‘true’ nor ‘false’, but on ly par-

ticularly relevant from a position inter nal to one given system. From outside

the system (and from a system perspective which is not oriented towardsmeasurement), the unity would not obtain, an observation echoed by

authors in other terms when writing about the unity imported to the state

law referen t. For example, Woodman has noted that Griffiths’s position re

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state law pluralism presumed that ‘state laws in Africa [ . . .] purpor t to be

single legal orders with a single source’, which they patently are not ( 1996:

159). And Greenhouse has suggested that ‘casting the debate on legal

pluralism in terms of the polarity of official law and plural social fieldswithin states overestimates the extent to which even official law serves as astable vantage point in terms of which to conceptualise difference’ (1996:

59, emphasis mine) .

Finding the prejudices of scale in contemporary social theory

The salient feature of these formulations of overarching monisms anddiverse interims is that the impulse to measure which generates such formu-

lations also demands an unmarked space as the standard. So it is that what

is the state also ‘provides the kernel’ of what is non-state, that multi-

culturalism refers, in p ractice, to those minor ities one can measure against

national majorities,14 and ethnicity becomes that which marks an identityas being something other than (the presumed) state citizen.15 What is

measured here is the distance from the centre, the torque of centrifugal

force which can conjure heteroglossia, diversity, in such a way that it fits

into the schema of a scale which is already in p lace.

We know what th is scale looks like, for so much atten tion has gone intothe critique of its alleged omniscience under the mantle of postcolonial

stud ies. As Rosemar y Coombe so eloquently pu ts it, the scale denotes ‘a par -

ticular social position – a space where one’s par ticularities can be occludedin the proposition of a paradigmatic subjectivity’ (1995: 600). Only

suddenly, this scale has found new names for its poles; ‘global’ belies the

particularities of its perspective just as ‘local’ denies a certain breadth of vision. As Jorn Rusen noted in h is discussion of the h istoricization of human

rights, the term ‘universalization’ might better read ‘Europeanization’ in

so many instances (1993).

So the present work is left with a twofold objective. First, it hopes to

elucidate the relationship between discourses un derpinn ed by scale on theone hand and the conjuring of diversity on the other. Second, having

argued for a structural coupling of scale and diversity, I want to th ink aboutthose systems or modalities in which scale is not an issue – that is, the p res-

ence or absence of scale in th e impulse that either is or becom es law – with

the hope that this may suggest ‘a particular kind a bifurcation [whereby]how the system develops will depend neither on the autonomy of two sep-

arate trajectories [ i.e. one in which scale is an over riding factor and one in

which a system is oblivious to scale change], nor on a dialectical relation

between them, but on a dimension somewhere in between – on the conditions

which made each the starting point for the form the other took ’ (Strathern, 1996–7:

3, emphasis mine) .Global/ local, international public law/ customar y law – so man y scales

we take for granted. The final part of this article will look for evidence of

th is ‘other d imension’ – a place ou tside of any system position in my ter ms

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– in that form of typing known as ethn icity. Salien t at the local level, invidi-

ous in its colonizing of international discourses like human rights, ethnic-

ity seems to be ever ywhere and have come from nowhere. More to the

point, it does not seem to have a single ‘place’ on any scale.

Custom and ethnicity: shared ‘circular logics’ and theinappropriate application of scale

In reading about the problems of theorizing custom as a ‘source’ of law, aliterature which, interestingly, is largely entered into at present by inter-

national legal scholars, one is struck by the similarities between the circu-

larity of custom as law and those fields of theorizing involving ethnicity. For

most scholars, custom as law implicates two stages of acceptance, the usus,

or repetition of something as habit, and the opinio juris, or th e psychologicaldisposition that binds the ind ividual to the habit as a matter of normative

rather than merely habitual action. The issue here is the mechanisms

and/ or moments which transform the norm into the normative, a jurispru-

den tial theme already well elaborated elsewhere and nicely summed up by

Maluwa when he writes:

the classical accounts of the required content of the opinio juris are openlyparadoxical and involve a certain degree of circularity of logic, for they

propose, by and large, that a customar y no rm can come into existence ( i.e.become authoritative) on ly by virtue of th e n ecessar y er ron eous belief that itis already in existence (i.e. authoritative). Kunz demonstrated this circularityof logic when he observed that custom is creative of new law and not declara-tor y of existing law, and also th at it requires to be accompanied by a belief thatthe conduct in qu estion is already law. (1994: 392)

This logical teleology is reminiscent of the conundr ums presented by

other social ph enomena, and here I have in mind ethnicity in par ticular. A

propos of our cur rent setting,16 let us consider two examples from th e litera-ture on Basque ethnic iden tity, both of which evidence a peculiar similarity

between their revisionist, con structivist perspectives and those essentializedaccoun ts they seek to displace. Now it is true that on e might intuitively be

suspicious of renderings of Basque ethnicity which describe it as the

product of an autochthonous, primordial people living in a rural Basquearcadia, but it seems our ‘modern’ preoccupations with flux and social

change, the invention of tradition and the agency and self-consciousness

with which people are capable of for mulating and articulating social iden -

tities has left us in an equally feverish thrall. For these revisionists, Basque

ethnic iden tity is a ver y recent construction , the origins and causes of which

provide ample grist for an academic mill set on deconstructing naïvenotions such as the association of ‘authenticity’ with ‘trad ition ’. So it is that

scholars such as Davydd Greenwood and Marianne Heiberg are able to

offer such elegant analyses of the relationship between a nascent Basque

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ethnicity and the political exigencies that gave birth to it (Greenwood,

1977; Heiberg, 1985, 1989). Green wood tells us that:

Basque ethnic iden tity is a product of the histor y of Basque interactions withthe central government. The Basque identity originated in the concept of collective nobility, which summarised a set of political rights given to Basquesby the early mon archies of Spain in retur n for services. [. . .] Th us, what o rig-inated as grants soon became the cornerstone of an ethnic identity that washeld to p redate all grants. (1977: 101, emphasis mine)

And Heiberg explains that the current:

Ascription of Basque status corresponds to Basque cultural content only bycoinciden ce. In general, Basqueness has become a political categor y. Basquenationalism, an urban product, created ethn icity and defin ed the rules for

membership, and Basque ethnicity has created a new boundary based on thesymbols of an old cu lture. (1980: 52)

While such works no doubt present powerful and intriguing expla-

nations for the current ethno-political geography of ‘Basqueness’ and its

considerable complexity, I suspect they do less to ‘cor rect’ the essen tialist

view of the Basques than one might imagine. For implicit in accounts dia-

metrically opposed to essentialism, there is all too often the shadowy

imprint – an unspoken acceptance – of that which is being criticized. Essen-tialism and constructivism are mutually contingent. Greenwood fails to

acknowledge the irony that Basque ethnic identity (which is relatively new)is, in h is model, the result of ‘Basques’ (who as yet h ave no shared iden tity)

interacting with the central government. It is a teleological argument.

Basque identity evolves amongst a group of people who, not surprisingly,‘are Basque’ to start off with. Likewise, Heiberg’s suggestion that contem-

porar y Basque iden tity is based on the ‘symbols of an old culture’ makes

explicit her underlying desire for (and hypostatization of) a more authen-

tic, integral version of Basque culture which the new political categor y has

come to replace.Like the problem with custom as a source of law, ethnicity seems a

resource whose imaginative power is restricted to those who somehowalready have its essential elements in their toolbox of resources (i.e. these

people are Basque by habit which enables their Basqueness to become n or-

mative) . Weber referred to th is as the ‘ar tificial origin’ inheren t in e thn icconstructions (1978) , a strange sleight of hand whereby what one can see

manifested in the here and now forever seems to derive from a past or a

point slightly outside the reach of visibility.

Here, too, we have a scale at work, a scale of time, which defeats any

logical resolution to the analysis of custom-as-law or the ‘origins’ of ethnic-

ity. The scale is based on linear progression ( itself a master trope of Westernculture), and cannot digest the logical circling back involved in the ‘con-

struction’ of either of the two phenomena. The ver y language of essential-

ism and constructivism points to an intractable temporal mapping.

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Constructivist accounts proceed from the essentialist. There is a replacement

involved which only ‘works’ (in as far as it can be said to offer a satisfying

solution at all) if the question is first couched in terms of chronology.

However, the problem is not so much one of ‘timing’ per se and th e solu-tion does not lie in the fantasy of finding a better chronology. Rather , whatneeds to be thrown into question is the stability of the scale which frames

the analysis in th e first place.

What if we tried to view custom and ethnicity neither as phenomena

moving forward from a single genesis moment, nor particularly locatable

in time at all, but simply existing through discrete discourses of meaning-,value- and rule-generation in which time does not figure. (One can then

re-map th e ph enomena in ter ms of simultaneity, but the point here is that

time is better left a non-issue.) Perhaps the absence of custom as nor mative

action and ethnicity as the successor to p rimordial sentiments points to the

fact that th ese concepts are being produced on differen t levels of discoursewhere timescales simply do not inhere. And finally, what if this apparent

‘absence of time’ in the analysis of specific cases meant that the phenom-

ena – as somehow out-of-time – appeared to come from elsewhere, from an

invisible and mostly speculative past?17

What I have tried to sketch out here is a re-working of the well-rehearsed

‘genesis crisis’ question presented by custom’s circularity and its parallelswith other social ph enomena. My goal in doing so has been to highlight the

way in which presumptions of scale can serve to confuse the ver y object of investigation, such that it is not th e inadequacy of our answers that must dis-

appoint, but the futility of our questions. As with th e state law/ non-state law

cul-de-sac entered into by the legal pluralists, the preoccupation with the‘problem’ of circularity points not to a productive, if perplexing, line of

enquir y but to the inadequacy of the ( temporal) measures which frame the

exercise in the first place. Or perh aps better pu t, in the case of both custom

and ethnicity, the inappropriate app lication of scale conceals the ver y possi-

bility that measuremen t need not feature at all in the analysis.So in this instance, I have suggested that scale misdirects the atten tion,

mistaking the push towards source and singularity for a temporal issue, andin so doing presuming that time must fight against a diversity which is taken

to be ‘natural’ and already in evidence. What is germane to my argument

is that in the app lication of a temporal scale to th e analysis, a par ticular sor tof diversity emerges, a pluralism which at first seems to flourish from an

initial point of origin and later is said to diminish with its reorganization

into the normative. Customs proliferate, law delimits. Primordial attach-

ments reproduce and extend relations, ethnicity demarcates the limits of

identity membership. And this is what ‘progress’ looks like – a dangerous

diversity identified, managed and tamed. However, in actuality, the diver-sity is on ly already ‘out th ere’ insofar as the scale which precedes the analy-

sis creates it as a pre-imposition of the study. It is a particular model of

diversity, and it derives from the workings of a particular type of scale.

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Before suggesting a new direction for the analysis of custom and eth-

nicity in th e conclusion (and in so doing, tentatively offering differen t con-

ceptualizations of diversity itself), it only remains to flag an associated

problem with th e p resumption of scale. Whereas I have argued that scalein th e above instances has presented a monolithic version of diversity whichis inappropriate, I now want to consider those cases in which ‘new’ con-

ceptualizations of diversity on closer examination prove only to be reitera-

tions of old models transposed to n ew positions within a given scale whose

polarities have been extended. Even in those instances where the ‘types’

and ‘meanings’ of plurality seem to be under revision, all too often we areonly re-visiting a familiar scale writ larger for the revisionist project.

Critiquing essentialisms or reproducing them on differentscales: when measurement yields the illusion of transcendence

In th e penultimate section of this ar ticle, I want to engage in a re-read ing

of two works, each of which begins their discussion from a scale whichappears incommensurable with the departure point of the other. In

Comaroff and Roberts’s groundbreaking account of dispute processes inTswana law, they set out to model th e d ialectical relationship between indi-

vidual experiences and their interactions with the sociocultural order in

the form of law (1981) . Theirs is a ver y Geer tzian app roach (1983) ,emphasizing the import of individual actors’ agency even while circum-

scribing said agency within given templates of mean ing-construction – cul-

tural nets in which the individual is constantly caught. By reconciling thepu ll between these two imperatives, Comaroff and Rober ts hope that they

can explain why legal outcomes can at times be h ighly predictable and at

others prove completely counter-intuitive.18 They tell the reader that

‘within these ch iefdoms, dispu tes range between what are ostensibly nor m-

governed “legal” cases and others that appear to be interest-motivated“political” confrontations’ (1981: 244) and impor tantly, that these two are

systemically related.However, Comaroff and Roberts have created their own obstacles. In

order to illustrate how individual pursuits are fashioned through ‘trans-

formations of a single logic’ (1981: 244, emphasis mine), they necessarilyhave to rely on two reductive presumptions. First, ‘culture’ must be reduced

to a coherent system of logic into which the wild variety of individual

motives – the diversity of the personal – must be articulated. Second, they

must accept this baseline diversity of individual perspectives as their start-

ing point, or rather, attribute to the ind ividual a system position somehow

equivalent to that of the cultural system in order to ‘explain’ how thetension between these two systems ( the ind ividual versus society/ the per-

sonal versus the collective) can be mediated. The diversity of individual

experience is presupposed such that a system of a larger scale has call to

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step in an d order – or here read essentialize19 – through abstract ru le app li-

cation. As the authors write:

In or der to illuminate the n ature of dispute and the relationship between ru leand process, we have elaborated a model to account for diverse modes of confrontation and have attempted to locate this within the logic of a socio-cultural system. (1981: 248)

What is of note is the coheren ce accorded to both the individual’s ‘modes

of confron tation’ and the sociocultural system. In Comaroff and Roberts’s

account, both are called upon to manage an intense level of complexitywithout fracturing the unity of their subject positions. It begs the question

as to whether the individual and the social have not already been essen-

tialized in order to facilitate an analysis of their systemic relation to one

another, or whether either cou ld actually suppor t the level of unity attrib-

uted to them.Now in Annelise Riles’s analysis of inter national law and its essen tializ-

ing tendencies, we seem to move to yet an other scale, bu t, in man y ways, we

see th e same foun dational presuppositions at work. When Riles concludes

that ‘a critique of the international lawyer’s vision of the relationship of law

to cultural con text suggests that international law is but on e more languagein the cacophony of a pervasively multicultural world’ (1993: 740), she is

signaling that the diversity of cultures is already ‘out there’ and that the

issue that presents itself is why international law need reduce this messy‘cacophony’ into n eat cultural units.

What Riles addresses nicely is the issue of why essentialized constructsof difference cannot help but create hierarchies. That is to say, different

units, once concretized and imagined as discrete, bounded entities, must

necessarily be perceived as better or worse, more or less valuable, domi-

nating or in n eed or domination. These are the requisites of scale. Measur-

ing is never simply noting difference, because the difference is not ‘outthere’ to be noticed. Rather, difference is called into being by the opera-

tional imperatives of social systems via scale, meaning the difference will

always be compared, organ ized and sometimes mobilized to a pre-imaginedend. In Riles’s work, this is a result of the fact that international legal dis-

course is inheren tly embedded in the cultural context of the West, a con text

which presumes the cognitive dissonance of other ness. Thus, intern ationallaw’s ability simultaneously to bridge the chasm of otherness, even as it

reified the distance between un like cultural units and arranged th em h ier-

archically, was the epistemological work the d iscourse did in the service of

colonialism.

But what interests me here is the curious fact that Riles’s analysis mustbegin where Comaroff and Roberts left off. Like Comaroff and Roberts,

she must start from the presumption that the distinctness of cultures is

already out there: it is simply the case that, for her, these cultures do not

comprise the tidy subjects that international law would like to shape them

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into. But they do take on the characteristics of consummate social systems

– individual logics (albeit even for Comaroff and Rober ts less coherent than

they would have them be). And as with Comaroff and Roberts, there is a

constitutive tension, this time not between the personal and the collective,but between these assorted collectivities and an overarching legal logicwhich seeks to order them. What we are hearing is largely the same argu-

ment transposed onto a much larger scale.

My complaint with both of these fine accounts is that, in critiquing

essen tialism, in Comaroff and Rober ts’s case the essentialism attributed to

monistic rule systems in the face of their divergent processes in practice,and in Riles’s instance the essentialization of cultural contexts imposed by

the d iscourse of international law, all the authors per form an essentializa-

tion of their own. They essen tialize th e ver y nature of diversity to explain

what it is the law must do. As with the discussion of ethnicity above, diver-

sity is someth ing that is presumed as given , someth ing which can be elabor -ated or reduced, ordered or left to its own devices. The p rimar y differen ce

between the two accounts is that the diversity which can be seen is differ-

ent due to the inflated or contracted ‘portion’ of the scale on which the

authors are operating.

Put another way, one could say that what was presumed in bothaccoun ts is a notion of a par ticular scale of social measurement, of measures

and h ierarch ies which insist on differen t un its of a single type, the on tology

of which can be read backwards into the canon of 20th centur y socialtheor y. It goes like this: individuals constitute a diversity organized by the

templates of collectivities or ‘culture’. And more recently, ‘cultures’ are

seen to constitute a diversity increasingly organized by the phenomenonknown as ‘globalization’. In these accoun ts there is on ly one ‘type’ of diver-

sity available, and it is broken down into graduated units, each experienc-

ing a similar ten sion with the unit at one remove, or on the ‘next level up’.

Importantly, each unit represents not the sum of its substantive content,

but rather an ideational construct. Hence, our ultimate dissatisfaction whenwe tr y to locate these constructs ‘on the ground’.

Both of the an alyses discussed above p roceed from this scale, inevitablypresuming the abstract ‘global’ as the ultimate referent – or as the God’s-

eye view which can capture the totality of the ‘empirical reality’ which

encompasses the un its un der consideration. Comaroff and Rober ts restricttheir analysis to a lower por tion of the scale, taking ‘sociocultural systems’20

as their largest unit of concern while Riles, on the other hand, begins with

cultural units and works upwards to a un it which, despite its preten sions to

global representation, is understood as still lying somewhere below the

scale’s ceiling. The failure to quer y the scale itself is the enabling factor

which allows Riles both eloquen tly to critique th e essen tialization of culturewhile still falling shy of any thoroughgoing critique of the notion that ‘the

diversity of cultures’ can be said to have an empirical reality at all. The

project such an article as Riles’s leaves unfinished is the more ‘nuanced’

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appreciation of interim un its such as ‘culture’ (through a consideration of

their ‘hybridity’? the fluidity of their boundaries?. . .) as if ‘culture’ could

still be said to have a repertoire of qualities anthropologists must struggle

to grasp.21 The project, of course, is a contradictor y one and not destinedfor an y great success. For these critiques of essentialization s will never makemuch improvemen t on what they are critiquing so long as they presume an

ultimate reality for diversity, albeit one they would rather not have essen-

tialized. And this presumption of diversity is a product of presuming scale.

It seems that just as we make custom into law by presuming it was always

law to begin with, we make d iversity into social reality by typing it and accord-ing it cer tain characteristics which somehow require ordering and reconcil-

iation. Given th is, it might be well-advised to think of law instead in ter ms of

its utility as a mechanism for concretizing such diversity even in its absence.

Squaring th e judicial circle demands we accept law not as the reconciler of

diversity, but as its conjurer, as the system which anticipates the variety of dispu te possibilities which exist across a huge landscape of scale long before

conflict – the clash of different perspectives – ever actually exists.

And this returns us to the question of what precedes scale, of what

advantage could be gained from consider ing what the d ifference might be

between a legal system whose impetus presumes scale and one whoseimpetus does not. In either event, scale will factor into the equation at some

point since law, if it is anything, is surely a social measure. But what I want

to consider in these concluding remarks is the possibility that abstract anduniversal rule systems like the Rule of Law, which I will argue necessarily

presumes scale before there is substantive content to m easure, and custom,

which finds scale in itself after-the-fact, are separate trajectories which areneither incommen surate nor complementar y. Rather, as suggested earlier,

each may prove the starting point for the form the other can take – a possi-

bility left unexplored if one presumes that one trajectory must ultimately

assimilate the other.

Pluralism by intent and pluralism by default: locating scaleand diversity in two legal perspectives and excavating theartefact of ethnicity – a conclusion

The Rule of Law brought us the notion of universal justice – the promise

that a pure form, if properly engineered, could be the measure of human

activity whereas the sum of the actual activities could not. These are two ver y

distinct sources of law, and each correlates to an anthropological under-

standing of culture (as outlined by Strathern when she asks when it is that

scale matters and when does it not). In the first sense, culture is thatmeasure of human activity which demands a sense of scale as its starting

point. In the second sense, ‘culture lies in the repetition and replication of

ideas [ . . .] the differen t jun ctures at which specific values or relations are

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repeated and thus recognised or encoun tered over and again’ (Strathern ,

1996–7: 6).

With respect to law, the first sense represents a disembedding of the

scale from that which it measures. We saw this in Riles’s discussion of inter-national legal discourse and the par ticularities of its cultural con text of pro-duction as opposed to the universal claims it makes; we see this over and

over again in the discussions of human rights law, which is recognized as a

Euro-American product (cf. essays in Schmale, 1993), deploying specific

cultural resources (Merr y, 1997), which are linked to an ideology of indi-

vidualism and the presumption of the modern nation-state (Dembour,1996: 24), even to the extent that some would see it as a new form of

imperialism (Pollis and Schwab, 1980); and we recall it in Coombe’s ar ticu-

late criticism of that ‘paradigmatic subjectivity’ which can deny its own

specific place and par ticular h istor y to assume an un marked space from

which ‘to make one’s claims simply in the name of the human’ (1995: 600).In each of these examples, scale is the star ting point from which a un iversal

claim can be m ade, because, ultimately, any un iversal claim must be m ade

against an imagined pluralism in order to be explicitly and self-consciously

un iversal. So the scale purpor ts to witness a diversity which, needs be, the

claim will negate or transcend. Yet th e diversity itself is in fact a product of the scale which allows for a universal proposition. This is how we measure

the incursions of ‘culture’ into th e ontic of ‘nature’, ‘our’ impact on what

is already given, and, for some here in the West, these ideas still hold con-siderable allure.

Against such a source of law where scale is pre-eminent, we have that

second sense of culture – usus, repetition, the aggregation of habit to thepoint that it is recognized as ethos (nor m to nor mative) , and th is correlates

with the idea of custom as a ‘source’ for law. Here, scale en ters in when it

is read back into th at which already exists. Where the Rule of Law proceeds

from form, customar y law works in the oth er d irection, teasing form out

from substance, pulling to the fore a recognizable pattern. Here we havescale again, for the identification of one pattern over possible others is an

act of measurement. But the scale and the diversity ‘usus’ or custom con- jures is rather different. In isolating a series of repetitions, gathering them

togeth er an d making them visible, custom also points to what is not shown.

The diversity is not a series of pre-existing categories into which substancecan be formulated and measured, but is hinted at in what is not fore-

grounded, the multiplicity of (unactualized) patterns made redundant as

non-pattern. The difference between these two types of law seems to be in

th e initial presence or absence of scale, since there is thus something in the

aggregate of habit which exists logically prior to scale, even if its elements

remain in an undifferentiated ‘background’ until scale pulls them to thefore. The various forms which pluralism can take would appear, by and

large, to be a product of this initial presence or absence of the impulse to

measure.

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The point is not that these two types of law can be contrasted; there is

nothing particularly new or intriguing in that observation. However, what

I want to suggest as a truly productive object of study is that we retr ieve some

conceptual artefact from th at ‘dimension-in-between ’ these two trajectoriesof law, someth ing which n either trajector y could claim to have generatedbut which both systems evidence in their disparate workings – something

perhaps like ethnicity. In customar y law, ethnicity imitates custom, doubling

back on itself, finding its form in substance which never purpor ted to be of

an ‘ethnic’ nature before. In universal claims and abstract ru le systems, eth-

nicity mimics its host by traveling in th e other direction, providing r igid cat-egories through which diversity can then be articulated or realized,

overridden and transcended. But neither system alone seems able to

account for where ethnicity came from, leaving one to speculate that it is

on ly in the bifurcation of the two systems’ trajectories that on e can reason-

ably expect to trace the space in which it operates.22

This is a ver y differen t project from one which would tr y to under-

stand why ethnicity emerges as a salien t mean s through which to talk about

other things (culture, politics, justice) at any given moment. Rather, the

sort of analysis I am advocating would endeavour to grasp the nature of

ethnicity as an object of discourse in the context of prevailing epistemo-logical paradigms. I do not suggest that th is rep laces the impor t of social

histor y as a veh icle for situating such discourses’ emergence in par ticular

ethnographic studies. I only suggest that the efficacy of historical analyseshas been asked to do work beyond its explanator y capacity – work best

done in tandem with a theor y of ethn icity that is neither essen tialist nor

constructivist. And I submit for con sideration that such a theor y mightneed, in the first instance, to disentangle itself from the presumptions of

temporal scales.

In this article I have tried to get beyond the overly simplistic way in

which the social sciences presuppose diversity, as if ‘diversity’ were a single,

mon olithic and un compromising concept itself. I am interested in th e d is-tinct ways in which a social system like law con jures diversity in accordance

with its individual n eeds, its presumption s about scale and, u ltimately, theexten t to which such for ms of diversity synchron ize or fall out of phase with

imaginings of d iversity deriving from oth er social systems. The possibility

that different systems might create different types of pluralism seems tome intuitively closer to the way we experience diversity than the models

the social sciences have put forward to date. Indeed, the simultaneous

salience of ethnicity on the ground, as compared with its vacuity as an ana-

lytic tool, gives powerful support to the idea that not only are different

social systems producing different versions of diversity, but that the con-

fluence and bifurcation of their trajectories may have intense creativepower in and of itself.

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Notes

This article was originally prepared for the Law and Culture con ference h eld at the

International Institute for the Sociology of Law in Oñati, September 1998, whereall the workshop participants contributed to its development ‘immeasurably’ withastute and enthusiastic critique both inside and outside our formal gatherings.Special thanks, however, must go to Beverly Brown for her detailed review of theart icle and the ongoing encouragemen t she has lent during its various rewrites, andto Marilyn Strathern for posing questions which never allow for easy or immediateanswers. Additionally, an anonymous reviewer for Critique of Anthropology gave thework a ver y close read ing indeed and offered comments both challenging andstimulating. My on going work would also not be possible were it not for th e generos-ity of both St John’s College, Cambridge and the Economic and Social ResearchCouncil, both of whom h ave lent fin ancial suppor t to th is research.

1 The question was first posed by Marilyn Strathern when she asked, ‘is there anymileage to be gained from thinking abou t the relationship between the system-atic effects of scale change on the one hand and on the other the capacity of systems to retain their features across different orders of scale?’ (1996–7: 3).While Strathern’s topic seems at first glance unrelated (she discusses shellexchange and compensation in Papua New Guinea) , her quer y has been theimpetus for much of the present work. See also ‘Puzzles of Scale’ (Strathern,1999: Chap ter 10).

2 There are two points of note here, both of which bring us prematurely into therealm of social systems theor y. First, I am saying th at diversity comes into being

when it is measured – i.e. when a system includes measurement as part of itsoperational imperatives. (More complexly, the measuremen t can either be thecommu nication created by the system or a comm un icative effect re-incorpo r-ated in the system’s constant and ongoing constru ction of its environm ent, butthat will be d iscussed below.) Second, I am under lining here the system’s han din app reh ending th at which is measured. Fundamen tal to social systems theor yis the notion that systems create a version of the world which both constitutesthe system’s environ ment as well as cor relates to th e system’s own operationalimperatives. What a system ‘sees’ as the world outside its boundaries has ever y-thing to do with what it is the system exists to do. So my second point here isthat in addition to th e scale of measuremen t der iving from th e system perspec-

tive, so too does the corpus of that which the scale measures. The diversityrealized in measurement is thu s a product of the creative potent ial of a doublerelativity, one which deter mines the n ature o f the scale and simultaneou sly thenature of whatever it is that the scale exists to measure.

3 As indicated in note 2, it would be impossible to imagine th e scale of measure-men t as something distinct, in origin, from that which is measured. It neitherder ives from the object it measures nor exists pr ior to th e app reh ension of saidobject. To a large exten t (while not theor ized in ter ms of ‘social systems’) , thissimple observation was at the heart of much social thinking in the late 20thcentur y. Postcolonial studies, for example, h ave ap tly shown how the positivist– God’s-eye view – sup position s of 20th centur y scholarship were often littlemore than an extrapolation of one particular local context, issuing from thegaze of the ‘modern’ West. In legal theor y, a similar shift in critical thinkingtook hold under the auspices of the Critical Legal Studies Movement, whichexposed how the abstract form of the Rule of Law could be shown to derive

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from one particular (read – substantive) subject position. Such a position, itwas argued , could hardly therefore claim to be a metaposition from which toreconcile the problems posed by an aggregate of many (equally substantive)

positions, nor reasonably be understood to be little more than an ideationalframework devoid of moral or cultural content. In both cases, the critiqueinvolved an elucidation of how a matrix of valuation, deemed separate fromwhat it evaluated and capable of apprehending the objects of evaluation in away in which the objects themselves could not apprehend one another, oncloser examination proved con tingen t in a multiplicity of ways. In other words,the m atrices themselves were actually ‘little stor ies’ aggran dized to th e status of metanarratives.

4 I lean towards the word ‘conjure’ here for more th an just the colour it affords.It is tru e th at most of the h ighly constructivist th eories of postmod ern ism ( thatnon -name for a n on -categor y of thinking which only ser ves to obfuscate any

actual advances made from the positivist/ relativist or stru cturalist/ interp retiveimpasse) tend to employ terms like ‘construct’, ‘create’ and ‘make’, largely Iimagine for ease of un derstand ing. However, all of these verbs seem to reiteratethe commonplace presumptions that the theories themselves are trying totranscend . On e constru cts using e lements – building b locks – which are alreadythere, which have integral qualities and a consumm ate, emp irical existence thateither lends to or confounds the project of construction. The notion of conjuring, on the other hand, conveys the sense of indeterminacy which Iun derstand both the con stituen t elements and the p roduct of a ‘constructivistproject’ to exhibit. Those in the presence of a conjurer know ne ither th e finalform the result will take nor understand fully the nature or essence of those

entities from which the result derives. For this reason, in my more whimsicalmoments, I sometimes refer to the ‘double relativity’ discussed in note 1 as the‘legerdemain of system constructivism’. It speaks to the infinite circularitywher eby the system deter mines both the scale which measures and the shapeof that which is measured (the paradox of operational closure and cognitiveopen ness at p lay) , and the irony and counter-intuitiveness of how such inde-terminacy ultimately gives rise to the conservation of finitude and systemstability.

5 I intentionally flag the extent to which my presentation of social systems theor yhere is both a selective and limited reading, a crude overview which does notaspire to serve as a general introduction for those unfamiliar with Luh mann’swork. Rather , my intention is on ly to provide a sufficien t baseline for the read erso as to elucidate my own application of some of Luhmann’s ideas in thepresent piece.

6 This last possibility will be left on ly par tially addressed in the conclusion to thearticle, as the present work hopes only to suggest this avenue as a fruitfuldirection for future research and to build the foundation from which such anendeavour might proceed.

7 Indeed, as intimated above, much of the most interesting scholarship in legalanthropology distinguishes between rules-as-norms and the practice of rule-negotiation, a phenomenon which Falk Moore describes as ‘the complex of action’ (1978). While an important corrective to studies which took regle-men tar y processes at face value, pitting a ‘comp liance/ deviance approach’against ‘the colou r ful hur ly-burly of social life an d the dynamic logic it has forthe actors’ (1978: 3) is a framework laden with its own set of (problematic)presumptions. In any event, the turn from models of normative behaviour as

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represented by ru les to practices of nor mative beh aviour as manifested in r ule-negotiation seemed to involve a shift of attention from jurisprudentialquestions to sociological ones as if the two were theoretically exclusive and

could be kept at arm’s length from one another.8 On e of Falk Moore’s case stud ies involves the garmen t industr y, wher e shedescribes a system of ‘fictive friendship’ involving prestations made betweenvarious actors from the ‘jobbers’, ‘contractors’ and union sides of this socialfield. She aptly demonstrates how state law, in the form of enforceable rulesabout working h ours and wages or the timely paymen t of contracts, are imbu edwith n ew and disparate mean ings inside the social field, such that the failure toinvoke th e law inspires ‘“the pr ice of allocation” [. . .] symbolically rep resentedas an unsolicited gift, the fruit of friendship’ (1978: 63). She also notes thatsuch prestations when seen from outside of the logic of the semi-auton omoussocial field would likely be seen as mere ‘briber y’.

9 Falk Moore, for example, writes that a semi-auton omous social field is defin ednot by its structure, bu t ‘by a processual char acteristic’ or what it makes in ter msof ru le-generation ( 1978: 57). In this way, the contou rs of the ob ject or un it of study which she is advocatin g fairly resemble the social system, which is defin edby the kinds of communications it exists to create.

10 This is the legacy of the West’s tradition of legal mythologizing in th e form of the Rule of Law. The idea of a value-free fram ework, whereby the system rath erthan its substantive content could guaran tee justice, is the ultimate product of the Enlightenm ent’s rationalist p roject. That th e ideology of the Rule of Lawhas proven an impossibility in legal practice (as elaborated in the critiques of the American Legal Realists, the Critical Legal Stud ies Movemen t an d Feminist

Jurisprudence) should suggest that the gulf between the abstract and theconcrete is never crossed from one side to th e other bu t negotiated from eitherside o f the chasm towards the middle, perh aps in varying ways, by all legaltraditions.

11 For a particularly erud ite case study along these lines, see Benn ett (1997),which con siders the ten sion be tween the rights of the child as enshr ined in theUN convention on the Rights of the Child and the customar y practices extantin much of South Africa. (See also Nhlapo, 1995 on the same topic.)

12 The term is borrowed from Rapport’s book of the same name ( 1997), anextreme version of this sor t of ph ilosoph y, but by no mean s alone in its funda-mental precepts.

13 Here I am th inking ver y explicitly of Carol Greenhou se’s work on time politics(1996), much of which seems to speak to a similar phenomenon but througha differen t th eoret ical frame. In par ticular, her writings on the alleged objectivereality of linear time against which anthropologists measure the relativity of social time and the way in which eternity signals not the absence of time, butGod’s ownership of time, i.e. the inaccessible but accepted wholeness of (God’s) time against which th e p lurality of intervals in ( hu man) linear time canbe measured (1996: 19–49), has suggested exciting parallels to me and newdirections for futur e research.

14 ‘Essential Differences: National H omogeneity and Cultural Representation inFour Recent Works on Greek Macedon ia’ (2000).

15 It is a curiosity of Equal Oppor tun ities mon itoring forms (which has never beensatisfactorily addressed to my mind) that one is obligated both to have aneth nicity and, if one is caucasian, to refer to said eth nicity as being ‘white’. Tomy knowledge, under no other circumstances would one consider ‘white’ to be

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an e thnic affiliation , and so it seems that eth nicity is someth ing that ‘they’ havewhile ‘we’ do not.

16 The paper was originally prepared for a conference in O ñati, in the Basque

province of Gipuzkoa.17 Marilyn Strathern must be thanked and credited for directing my thinking onthis point.

18 Even h ere we see measuremen ts at work which tell us something about thescales that underpin the analysis and yet remain above the level of debate.

19 I equate th is to an act of essen tialization insofar as law’s alleged leveling of diverse claims inspired by diverse mo tivations has to proceed from a presump -tion that these individual positions are not, in themselves, fragmented, con-trad ictor y or in ternally incoheren t. The individual’s position – qua systemposition – overestimates the stability of th e ‘diverse perspectives’ the law seeksto reconcile and I, in turn, take that to be a form of essentialization par

excellence.20 I am leaving to one side, for the time being, the interesting point th at ‘social’and ‘cultural’ are h ere conflated where con temporar y debate would suggest tome that they might better be understood as distinct units which serve asinterims on distinct scales.

21 This is not unlike the fantasy of a better chron ology with which to capture thecircularity of custom’s genesis.

22 On e of the foremost interests of my ongoing research is the p ossibility thateth nicity’s lack of analytical utility and its reductive qualities stem from the factthat it is not, in itself, a system position, but rather is always part of anothersystem’s imagined environment – a sort of floating signifier flattened and

overdetermined because it always ‘exists’ in relation to some other system’soper ational imperatives. This line of en quir y remains outside the scope of thepresent work and must therefore await exploration in forthcoming publi-cations.

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Sari Wastell completed her MA in social anthropology at the University of Edin-burgh in 1996. After taking a year out to tutor in bo th the law faculty and th e socialanthropology department at Edinburgh, she began her PhD at the University of Cambr idge in 1997. Having recen tly re tur ned from 13 mon ths of fieldwork in Swazi-land , where she focused on the Swazi dual systems of law and governance, she is cur-ren tly writing up her th esis. Address: Depar tment of Social Anthropology, University

of Cambr idge, Free School Lane, Cambridge CB2 3RF, UK.[email: [email protected]]

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presuming scale, making diversity

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