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Norms in the Margins and Margins of the Norm

The Social Construction of Illegality

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Abstracts Panel 2

Panel organizers: Filippo Zerilli (University of Cagliari, Italy) and Alan Smart (University of Calgary, Canada).

Extra-Legal Practices in Socialist and Postsocialist States

In scholarly literature the former Soviet Union and Eastern European postsocialist countries, African postsocialisms, and market oriented socialist states such as the People’s Republic of China or the Socialist Republic of Vietnam are commonly approached as three separate research objects, sometimes as distinct cultural areas. However, despite their profound diversity, socialist and postsocialist states share a number of features that should be compared more frequently (and not necessarily in opposition to ‘capitalism’). They are all undergoing significant socio-legal transformations to promote or secure social processes conventionally described as ‘privatization’, ‘marketization’, and ‘democratization’ (again not necessarily in opposition to how such processes develop(ed) in ‘established’ capitalist free market democracies). Since the capitalist neoliberal turn, market reforms, international trade agreements, structural adjustment programs, the emergence of the international regime of human rights, only to name a few powerful global dynamics, have widely influenced politics and public policies, production, and consumption practices affecting the daily life of a growing number of citizens in socialist and postsocialist states. At the same time socialist (and perhaps postsocialist) states offer a vantage point to observe the articulation of the public and private divide beyond State vs. Market oppositions, a space where alternative legal paradigms exist or might develop, possibly based on a renewed concept of ‘the Commons’ (beyond their tragedy).
In this panel we wish to explore the current complex assemblage of legal, illegal and extra-legal orderings and re-orderings in and of socialist and postsocialist states, and ask how these intersect with ‘socialist’ (and in some cases communist) institutions, practices, values and ideologies. On the one hand we suggest expanding the conventional analysis of postsocialist transformations in term of socialist legacies including how ‘socialism’ (past and prospective) may  be a source for political, legal, illegal and extra-legal action. On the other hand, we would like to move beyond the traditionally accepted state-centric view of the Law (a system made of legality and illegality as defined by nation-state sovereignties) by exploring extra-legal practices and mechanisms (e.g. the informal, the illicit, the a-legal, the not-yet-illegal, the no-longer-legal, the ‘soft’ or the not-legally binding, etc.) as well as ‘global’ and ‘alternative legalities’, such as those promoted by social transnational movements and institutions, NGO’s, civic associations, and grassroots initiatives explicitly challenging state law and authority. In early reform China, for example, not-yet-legal and illegal practices were of great importance to the rapid growth of export-oriented manufacturing and economic growth more generally. Experimentation with not-yet-legal practices often provided models for later legislation and regulation. In other contexts, post-socialism made previously normatively accepted practices illegal in order to harmonize with western rules.

The papers in this panel will ethnographically address a number of issues and questions arising from the broad issues raised above.   How do market logics and practices articulate with social justice principles like the quest for a more equitable distribution of resources within and across nation states? Do persisting norms of equality undermine certain kinds of legal practices or vice versa? Through which formal and informal instruments, for example labour rights hotlines in China, do supranational institutions and corporate actors intervene to influence legal change? How are the principles of conditionality settled by financial international agencies assumed, evaded, rejected or perverted in actual practice? What is the role of currency regimes in these transformations? What conceptions and practices of labour currently emerge in countries in which socialism plays or has played a significant role? Who is the owner and the benefiter of labour and its products there? How are (new) standard labour rights are established or challenged, and by whom? How state elites and ordinary citizens draw a line between illegal practices such as bribe-giving and the ‘gift economy’ within the transparency global rhetoric framework? What ideologies and mechanisms secure the ‘transfer’ of the hegemonic regime of legality (the Western rule of law) worldwide? How it is countered or assembled with different existing or emerging legal regimes? How do informal and face to face relations operate in developing ‘international legal cooperation’ programs between nation states?   These papers, ,  particularly concern themselves with the interpersonal interactions through which illegal and extralegal practices operate in the emerging and transforming institutions, and in various ways contribute to these transformations.

Panelists:

  • Jane Guyer (Johns Hopkins University, USA) and Kabiru Salami (University of Ibadan, Nigeria)
    Gaps, Innovations and Casuistic Reasoning in Currency Dynamics: Nigeria, Eastern Europe, North Korea and their Connections

    The 1990s were revolutionary in several respects at once: globalization of trade, formal democratization of governance, extension of IMF-managed economic governance, and the financialization of assets with unprecedented pace and originality. This regime only lasted twenty years between 1989 and the Crisis of 2008. Currency was at issue in every one of these respects: as a means of trade, the mode of payment for new taxes, subject to re-valuation by the IMF, as store of wealth in the new finance and unit of account in new ways (for example, the euro established in 1995, and an international unit of account since 1999). Law and implementation cannot keep up with such rapidity of change. This paper examines gaps that emerged in currency regimes, with special attention to Nigeria, eastern Europe (I hope to work on Albania) and the links between the two.

 

  • Ellen Hertz & Marylène Lieber (University of Neuchâtel, Switzerland)
    Technologies of Selving and Rights Consciousness in Transnational Chinese Enterprises

    NGOs, international organizations and the media have increasingly drawn attention to the quasi-illegal conditions under which much of industrial production is taking place in contemporary China, producing goods that are in large part destined for consumers in the West. Workers labor illegally long and underpaid hours in factory settings that violate many of China’s and most international norms of health and safety. International norms of freedom of association and speech are systematically violated, even as China asserts an increasingly muscular position in international organizations such as the ILO.
    In response to this bad press, many Western and Japanese brands have signed on to voluntary “corporate codes of conduct” (CCC) destined to hold their suppliers to international norms of human and labor rights throughout their supply chains. They have also engaged in a number of “capacity building programs” destined to inform workers in China of their rights and to build their “capacity” to exercise them.

    One of the most popular of these programs consists in installing hotlines (rexian) that workers can call in order to lodge complaints or discuss difficult situations. These hotlines are generally designed and operated by local “civil society” NGOs hired by enterprises at the bequest of their Western buyers but in cooperation with local management. Indeed, many local NGOs are increasingly creating an economic niche for themselves in a new industry of hotline management services, peddling a blend of rights and confidence-building rhetorics with infrastructural and human resource expertise that we could call “technologies of selving”.
    This paper will attempt to describe this emerging service industry and its purported relation to the questions of legality and illegality raised by working conditions in China’s export-oriented industries. Based on ethnographic interviewing with a number of NGOs and transnational firms active in the area of corporate social responsibility in southern China, we will examine the design and implementation of a variety of hotlines, and analyze what they can tell us about the ways in which “rights consciousness”, “confidence” and “capacity building” are articulated in the contemporary industrial setting. We will specifically try to theorize (in a loosely foucauldian perspective) the ways in which hotlines as socio-technical networks set an alternative scenario for the exercise of legality/illegality: individual workers telephoning in confidential, anonymous communication to external “counselors” charged with resolving conflicts and/or improving worker happiness.

  • Janine Wedel (George Mason University, USA)
    Financial Legerdemain: What the Informal Practices of Post-Communism Reveal about Wall Street Today

    This paper explores extra-legal financial practices in post-communist Russia, with an eye toward how these practices have found parallels in and can inform the practice of high finance on Wall Street and reveal some of the causes of today’s financial crises.  The following tenets of financial practice will be examined. First, a focus on short-term profits. In Russia, well-placed players pursued big profits all-out, amid fleeting and frequently short-lived opportunities and often with little regard for rules and regulations that were ambiguous, nonexistent, unenforced, or simply inconvenient.  Second, “all firms keep double books” (Ledeneva, 2006, p. 117) and things are not what they appear to be.  With a solid legacy in ochkovtiratel’stvo (to pull the wool over someone’s eyes or to fool the observer or tax collector), this Soviet practice has continued unabated (Millar 1996) and led to numerous schemes and forms such as the shell companies detailed by Ledeneva, Klebnikov (2000), and others.  Third, players are loyal to their associates with whom they collude, but not to the institutions with which they are affiliated, be they state or corporate.  And to decode a scheme, one has to establish the true identities of the players involved, as Ledeneva writes.  Fourth, the intertwining of state and private power.  Players cannot succeed without inside information and the power and resources of the state.
    Today extra-legal practices characterized by these tenets proliferate widely amid such developments as the breakdown of bureaucratic and professional authority and new information technologies. (It is also the case that some high-finance “innovations” of Western economists in the name of reform in 1990s Russia traveled back to Wall Street and the City of London, and with some of the same Western players and entities at the forefront). Whether we are talking about the “partnerships” created by top players at Enron to disguise the company’s losses (and enrich the players at great expense to the company and shareholders), or financial instruments such as derivatives, high finance incentivizes short-term performance and success—or the appearance thereof. Players and financial products, neither tracked nor clearly quantifiable, and invented ad hoc and shape-shifted to the needs of their tailors, are often not what they seem to be.  Players are loyal not to their institutions, but to their inside associates, and must ensure the continuation of their schemes through agreements with government officials.
     
  • Alan Smart (University of Calgary, Canada)
    Extralegality in China: Socialist Norms, Capitalist Practices and the Consequences of Corruption


    In previous work, I have suggested that the ambiguous status of emerging capitalist practices in early reform China resulted in less negative distributional consequences than have the clearer property rights in place since accession to the World Trade Organization. Persisting socialist norms helped to place limits on the corruption of many local officials, whose extra-legal actions were generally seen as more legitimate if they contributed to the greater prosperity of the locality. It seems that the uncertainty of the “not-yet-legal” may impose certain restraints that clearer legality may not, but neither is this the result in all circumstances. Drawing on my research on illegality and extralegality in both China and Hong Kong, supplemented by comparative discussion in other postsocialist contexts, I will attempt to explore the conditions under which extralegality might have more positive consequences than clearly delineated legal systems. Although Hong Kong has never been socialist, the comparison may be relevant since it can be seen as having “tamed” the Chinese practice of guanxi by constraining it to (mostly) legal networking, with considerable success in reducing corruption.  Whether this trajectory will develop in China as well remains to be seen.
  • Filippo Zerilli (University of Cagliari, Italy)
    Building the Rule of Law through Extra-Legal Practices: Ethnographic Explorations within the International Legal Cooperation in Post-Socialist Europe

    While a certain amount of permeability between “socialist” and “capitalist” legal systems has always existed, the end of the cold war has increasingly intensified the diffusion of western legal models in both socialist and post-socialist states. In eastern and central european countries such process was fostered by international agreements and treaties established under the pressure of supra-national institutions (such as the Council of Europe and the EU) as well as financial organizations (notably the IMF and the World Bank) justified by the purpose of creating democracy and efficient market economy. Since then, the world-hegemonic and originally western legal regime (aka the rule of law), has guided privatization, marketization and democratization, a complex process brightly albeit shortly identified as “benevolent” or “crypto” colonialism. Twenty years later, while the EU has consistently enlarged its membership, the international legal cooperation appears as a florid industry, a system of global and local actors and tools involved in drafting, monitoring, implementing, and enforcing EU standards, notably in the judicial system, according to Brussels a critical area especially for the newly accessed member-states, Bulgaria and Romania.
    Drawing on fieldwork within legal cooperation projects between a German semi-private foundation and the Romanian government, this paper explores tensions, misunderstandings, contradictions, negotiations and social arrangements between “foreign” legal experts and “local” state representatives, as emerged while developing EU sponsored “twinning projects” in diverse field of law. While on the one hand the paper will highlight different attitudes towards the quasi circular logics of monitoring and reporting under the audit regime established by the Cooperation Verification Mechanism (a soft law instrument specifically designed to assess “progresses” made by Romania and Bulgaria after their accession in 2007), on the other hand it will scrutinize how personal relations, informal and extra-legal arrangements between the project management and state officials delineate the project’s success or failure. Both aspects, the collaborative drafting of documents and reports and what remains hidden or unsaid about the project (dis-)functioning itself, help producing insights into a social space that is neither entirely domestic nor international, a vantage point to explore how “legalities” and the various forms it may take are locally experienced and produced under neoliberalism


Discussant: José Carlos Aguiar (University of Leiden, Leiden, The Netherlands)

 

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