Central Asia and the Globalisation of the Contemporary Legal Consciousness

Abstract

What is the logic which governs the processes of legal globalization? How does the transnational proliferation of legal forms operate in the contemporary geo-juridical space? What are the main defining characteristics of the currently dominant mode of transnational legal consciousness and how can the concept of legal consciousness help us understand better the historical ebb and flow of the Western-led projects of good governance promotion in regions like Central Asia after the fall of the Soviet Union? Using Duncan Kennedy’s seminal essay Three Globalizations of Law and Legal Thought as its starting platform, this essay seeks to explore these and a series of other related questions, while also drawing on the work of the Greek Marxist lawyer-philosopher Nicos Poulantzas to help elucidate some latent analytical stress-points in Kennedy’s broader theoretical framework. Reacting against the neo-Orientalist tone adopted across much of the contemporary field of Central Asian studies, it develops an alternative account of the internal history of the legal-globalizational encounter between the Western-based reform entrepreneurs and the national legal-political elites in Central Asia in the post-1991 period, complementing it with a detailed description of the general institutional and discursive structures within which this encounter took place.

This is a preview of subscription content, access via your institution.

Notes

  1. 1.

    For an earlier rendition of the ‘three globalizations of law’ argument, see Kennedy (2003).

  2. 2.

    In modern usage, the term ‘Central Asia’ normally refers to the five former Soviet republics of Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan.

  3. 3.

    My understanding of the concepts of doxa and illusion is based on the work of Pierre Bourdieu (1990).

  4. 4.

    For a representative sample of texts, both scholarly works and expert reports, that exhibit, in varying degrees, the general pattern described in this section, consider (in no particular order): Gleason (2003), Brill Olcott (2005), Wooden and Stefes (2009), Jones Luong (2002), International Crisis Group (2013), International Crisis Group (2009), Human Rights Watch (2008), Human Rights Watch (2004), Blackmon (2011), Cooley (2012), Sievers (2003a, b), Johnson (2007), Cummings (2005), Menon and Spruyt (1999), Bakker (2006), Ishiyama (2002), An-Naim (2000), Parakhonsky (2000), Dave (2007).

  5. 5.

    Compare the account offered in Dezalay and Garth (2002).

  6. 6.

    For typical illustrations of this narrative pattern, see Cummings (2005) (the themes of comeback and co-optation of the young are particularly prominent) and Jones Luong (2002) (lamenting the ‘enduring strength of the Soviet system’ but noting—in line with the logic of the revanchism argument as opposed to, say, the ‘simple’ ‘Soviet conservation’ thesis—that ‘old formulas [repeatedly] produced new institutions’).

  7. 7.

    My understanding of the concept of Orientalism is based on Edward Said’s work (Said 1978).

  8. 8.

    In a not unusual terminological turn, Ishiyama, for example, proposes to categorise all Central Asian states as ‘neopatrimonial authoritarian states’, with strongly pronounced rentier elements, organised around ‘personalist regimes’, in which ‘personal loyalty and dependence permeate all political structures, and individuals occupy offices more for self-enrichment than to perform public services’ (Ishiyama 2002, p. 43.) Unsurprisingly, it is this fact and none other which explains why any process of ‘democratic transition’ in the region should be expected to be ‘particularly problematic [and] paniful’ and will likely be unsuccessful (Ibid., pp. 47–48). Writing in the same volume, Cummings and Ochs propose a different taxonomic rubric: ‘sultanistic regimes’, including under it the notions of ‘corruption’, ‘venality’, ‘personality cult’, and (again) ‘patrimonialism’. Interestingly, the account they offer of the Turkmen ‘case’ proceeds then to rely both on the more classical Orientalist repertoire of tropes and on the Soviet revanchism version. See, generally, Cummings and Ochs (2002).

  9. 9.

    My understanding of the theory of emplotment and the encoding of historical narratives more generally derives for the most part from White (1978, pp. 81–100), but also Booker (2004).

  10. 10.

    For a concise analysis of the various ruses and guises of Orientalism in comparativist literature, see Berman (1997).

  11. 11.

    The idea of the lowering of the speed of transformation, indeed, is one of the major themes at the core of the ‘aborted journey’ tradition. See, e.g., Smith (2013) (‘Change seems to come slowly to Central Asia. … I think we’ve gotten used to [this idea]. The conversations I have with others of you who watch the region are peppered with how little [change we can] expect’).

  12. 12.

    In a telling anecdote from his early days as a Western reform entrepreneur, Sievers describes how, when administering grants under human rights programmes, Western donors and international institutions in the region would routinely ‘thr[o]w out applications of any applicants over 40 on the explicit assumption that they were “too set in their ways” [and] prefer a 20-year old student with no discernible commitment to a 45-year old dissident who had continued human rights work in the Soviet era despite repression.’ (Sievers 2003a, p. 210).

  13. 13.

    ‘[In administering all Global Environment Facility projects,] UNDP takes [a] $146,000 [cut]. Assuming that most such projects are roughly $750,000 (and cannot be more than one million), UNDP’s fee is slightly under 20 %. For projects under $750,000, UNDP’s take would still be $146,000’ (Ibid., p. 234).

  14. 14.

    See Cummings and Ochs (2002, p. 128): ‘The [experience of] Central Asian regimes … demonstrate[s] how the higher density of international exchanges, the emergence of a transnational civil society, and the end of the Cold War, are still insufficient to counter the emergence of nondemocratic regimes.’ Cf. Smith (2013) (most policy engagements by the West with Central Asian regimes are now ‘futile’ since the local elites consider the ‘lack of political progress desirable’).

  15. 15.

    Thus, as early as 2003, the question ‘who lost Central Asia?’ became one of the main tropes around which the transitologist discourses of the Age of Resentment began realigning. See, eg, Sievers (2003b), Blackmon (2011, pp. 1–3). Cf. Foust (2012) (it was the ‘Western elites’ that failed ‘to come to grips with Central Asia on its own terms’, the outcome of which was Central Asian governments’ turning to ‘bad policy and missing choices’).

  16. 16.

    A different way to explain the idea of legal consciousness would be to describe it in terms of the juristic outlook of the legal profession. Unlike those aspects of the world outlook held by the members of the legal profession which relate to non-juridical matters, the concept of legal consciousness, on this view, would cover only those dimensions of this outlook in which assumptions ‘about law’ play the defining role.

  17. 17.

    Compare, e.g., accounts offered in Kennedy (2006a, pp. 63–71), Kennedy (2006b, pp. xiv–xxxviii), and Kennedy (2008, pp. 196–204).

  18. 18.

    Cf. Kennedy (2011, p. 189): ‘In this genre, we study not “transplants” of particular legal rules or even of a whole body of law, but the dissemination of the discursive practices of actors who are producing law … or, in the phrase of the Sacco school, the “circulation of models”.’

  19. 19.

    The spread of the balancing/proportionalist sensibility represents one of the most important and yet entirely under-theorised episodes in the history of ‘juridical technologies’ over the last one 100 years. For Kennedy’s understanding of this episode, see more generally Kennedy (2011).

  20. 20.

    I base this part of my argument on my own personal experience in the region as well as the various reflected impressions I got over nearly two decades of continuous interactions with colleagues, peers, government officials, and international policy reform experts. Inasmuch as this inevitably gives my account a certain subjective bias, I have no choice but to acknowledge that.

  21. 21.

    Given the stakes involved, it seems it would also be of value to note who was not on the list of the dramatis personae or who, relatively speaking, significantly under-contributed to the application of the diffusionary pressure: China; non-European regional organizations (with the possible exception, in later years, of the Asian Bank of Development); emigrant communities and national diasporas. Again, the general signature seems to fit Kennedy’s prediction.

  22. 22.

    Interestingly, as every experienced local lawyer would know, the practical reality of the legal-institutional dynamics in Central Asia is almost exclusively determined at the level of podzakonnye akty (decrees and edicts by the executive branch and various administrative agencies) and the role of the judiciary even in criminal trials has never been particularly significant.

  23. 23.

    While the monist tradition has had many champions in international legal theory, none has left as prominent an impact on the discipline’s imaginary as Kelsen. On Kelsen and monism in international law, see generally Malanczuk (1997, pp. 63–64).

  24. 24.

    Cf. Sievers (2003a, p. 162): ‘European donors, like OSCE, actively push the Aarhus Convention because its appearance coincided with their general realization that [their] democracy and rule of law [projects] are on the decline in Central Asia. The Aarhus Convention operates now, as a result of this realization of development failure, often as more of a synecdoche for the need for Westernization than as a vehicle for sustainable development.’

  25. 25.

    A revealing pattern can be observed in this regard in the regular admonitions by various international human rights NGOs directed to regional governments. In the light of Kennedy’s argument about the langue, it is difficult, for example, not to see the grim irony in the following lamentation: ‘At the UN and in bilateral negotiations, [this Central Asian] government has used habeas corpus and other so-called reforms as public relations tools, often to deflect criticism and as a substitute for substantive responses to specific queries and concerns’ (Human Rights Watch 2013, p. 2). Unsurprisingly, the solutions and recommendations section that follows it reads in large part as a litany of legislative initiatives: ‘ratify the optional protocol to the convention against torture’, ‘amend the criminal procedure code’, ‘implement recommendations of international bodies’, etc. (Ibid., pp. 14–15.)

  26. 26.

    I borrow the concept of ‘self-Orientalism’ here from Scott Newton.

  27. 27.

    ‘[T]he system of wage labour is a system of slavery, and indeed of a slavery which becomes more severe in proportion as the social productive forces of labour develop, whether the worker receives better or worse payment’ (Marx 1875, Part II).

  28. 28.

    See Kennedy (2006a, p. 23): ‘[In] the process of geographic diffusion of [legal consciousness,] we can identify locales of “production” of a new transnational mode, contrasting locales where what happens is reception with only minimal dialectical counterinfluence on the transnational mode, and cases in between. German legal thought was in this sense hegemonic between 1850 and 1900, French legal thought between 1900 and some time in the 1930s, and Unitedstatesean legal thought after 1950.’

References

  1. Alekseev, S.S. 1973. Problemy teorii prava v 2 tomakh. Sverdlovsk: Sverldovskiy Yuridicheskiy Institute.

    Google Scholar 

  2. Althusser, Louis. 1969. For Marx (trans: Ben Brewster). London: Verso.

  3. An-Naim, Abdullahi. 2000. Human rights and Islamic identity in France and Uzbekistan: Mediation of the local and global. Human Rights Quarterly 22(4): 906–941.

    Article  Google Scholar 

  4. Bakker, Edwin. 2006. Repression, political violence and terrorism: The case of Uzbekistan. Helsinki Monitor 17(2): 108–118.

    Article  Google Scholar 

  5. Berman, Nathaniel. 1997. Aftershocks: Exoticization, normalization, and the hermeneutic compulsion. Utah Law Review 1997(2): 281–286.

    Google Scholar 

  6. Blackmon, Pamela (ed.). 2011. In the shadow of Russia: Reform in Kazakhstan and Uzbekistan. East Lansing: MU Press.

    Google Scholar 

  7. Booker, Chistopher. 2004. The seven basic plots. London: Continuum.

    Google Scholar 

  8. Bourdieu, Pierre. 1990. The logic of practice. (trans: Richard Nice) London: Polity.

  9. Brill Olcott, Martha. 2005. Central Asia’s second chance. Washington: Carnegie Endowment.

    Google Scholar 

  10. Cooley, Alexander. 2012. Great games, local rules. New York: Oxford University Press.

    Book  Google Scholar 

  11. Cummings, Sally. 2005. Kazakhstan: Power and the elite. London: IB Taurus.

    Google Scholar 

  12. Cummings, Sally, and Michael Ochs. 2002. Turkmenistan: Saparmurat Niyazov’s inglorious isolation. In Power and change in Central Asia, ed. S. Cummings, 115–129. London: Routledge.

    Google Scholar 

  13. Dave, Bhavna. 2007. Kazakhstan—Ethnicity, language and power. London: Routledge.

    Google Scholar 

  14. Dezalay, Yves, and Bryant Garth. 2002. The internationalization of palace wars: Lawyers, economists, and the contest to transform Latin American states. Chicago: University of Chicago Press.

    Book  Google Scholar 

  15. Foust, Joashua. 2012. The economist’s Kyrgyz condescension. http://registan.net/2012/09/05/the-economists-kyrgyz-condescension/.

  16. Gleason, Gregory. 2003. Markets and politics in Central Asia. New York: Routledge.

    Google Scholar 

  17. Horwitz, Morton. 1992. The transformation of American law: 1870–1960. New York: Oxford University Press.

    Google Scholar 

  18. Human Rights Watch. 2004. Political freedoms in Kazakhstan. http://www.hrw.org/reports/2004/04/05/political-freedoms-kazakhstan.

  19. Human Rights Watch. 2008. An atmosphere of quiet repression. http://www.hrw.org/reports/2008/12/01/atmosphere-quiet-repression.

  20. Human Rights Watch. 2013. Submission to the UN Committee against torture. http://www.hrw.org/news/2013/10/28/human-rights-watch-submission-united-nations-committee-against-torture-uzbekistan.

  21. International Crisis Group. 2009. Tajikistan: On the road to failure. http://www.crisisgroup.org/~/media/Files/asia/central-asia/tajikistan/162_tajikistan___on_the_road_to_failure.pdf.

  22. International Crisis Group. 2013. Kazakhstan: Waiting for change. http://www.crisisgroup.org/~/media/Files/asia/central-asia/kazakhstan/250-kazakhstan-waiting-for-change.pdf.

  23. Ishiyama, John. 2002. Neopatrimonialism and the prospects for democratization in the Central Asia Republics. In Power and change in Central Asia, ed. S. Cummings, 42–58. London: Routledge.

    Google Scholar 

  24. Johnson, Rob. 2007. Oil, Islam and conflict: Central Asia since 1945. Chicago: The University of Chicago Press.

    Google Scholar 

  25. Jones Luong, Pauline. 2002. Institutional change and political continuity in Post-Soviet Central Asia. Cambridge: Cambridge University Press.

    Book  Google Scholar 

  26. Kennedy, David. 2004. The dark sides of virtue: Reassessing international humanitarianism. Princeton: Princeton University Press.

    Google Scholar 

  27. Kennedy, Duncan. 2001. A semiotics of critique. Cardozo Law Review 22(3–4): 1147–1189.

    Google Scholar 

  28. Kennedy, Duncan. 2003. Two globalizations of law & legal thought: 1850–1968. Suffolk University Law Review 36(3): 631–679.

    Google Scholar 

  29. Kennedy, Duncan. 2006a. Three globalizations of law and legal thought: 1850–2000. In The new law and economic development: A critical appraisal, ed. D.M. Trubek, and A. Santos, 19–73. Cambridge: Cambridge University Press.

    Google Scholar 

  30. Kennedy, Duncan. 2006b. The rise and fall of classical legal thought. Washington: Beard Books.

    Google Scholar 

  31. Kennedy, Duncan. 2008. Legal reasoning: Collected essays. Aurora, CO: The Davies Group Publishers.

    Google Scholar 

  32. Kennedy, Duncan. 2011. A transnational genealogy of proportionality in private law. In The foundations of European private law, ed. R. Brownsword, et al., 185–220. Oxford: Hart.

    Google Scholar 

  33. Lukacs, Georg. 1971. History and class consciousness. (trans: Rodney Livingstone). London: Merlin.

  34. Malanczuk, Peter (ed.). 1997. Akehurst’s modern introduction to international law, 7th ed. London: Routledge.

    Google Scholar 

  35. Mal’ko, A.V. 1996. Ekzamen po teorii gosudarstva i prava. Moskva: Gardarika.

    Google Scholar 

  36. Marx, Karl. 1875 [1970]. Critique of the Gotha programme. Moscow: Progress Publishers. http://www.marxists.org/archive/marx/works/1875/gotha/index.htm.

  37. Menon, Rajan, and Hendrik Spruyt. 1999. The limits of neorealism: Understanding security in Central Asia. Review of International Studies 25(1): 87–105.

    Article  Google Scholar 

  38. Parakhonsky, Boris. 2000. Central Asia: Geostrategic survey. http://www.ca-c.org/dataeng/parakhonsk.shtml.

  39. Poulantzas, Nicos. 2008. Internationalization of capitalist relations and the nation-state. In The Poulantzas reader: Marxism, law, and the state, ed. J. Martin, 220–257 (trans: Elizabeth Hindess). London: Verso.

  40. Said, Edward. 1978. Orientalism. London: Routledge.

    Google Scholar 

  41. Sievers, Eric. 2003a. The post-Soviet decline of Central Asia: Sustainable development and comprehensive capital. London: Routledge.

    Google Scholar 

  42. Sievers, Eric. 2003b. Modern regression: Central Asian markets, democracy, and spoils system. Harvard Asia Quarterly 7(1): 43–52.

    Google Scholar 

  43. Slaughter, Anne-Marie. 2003. Global government networks, global information agencies, and disaggregated democracy. Michigan Journal of International Law 24(4): 1041–1075.

    Google Scholar 

  44. Smith, Myles. 2013. Central Asia in 2013: What not to look for. http://registan.net/2013/01/19/central-asia-in-2013-what-not-to-look-for/.

  45. Uspensky, B.A., and Y.M. Lotman. 1978. On the semiotic mechanism of culture. New Literary History 9(2): 211–232.

    Article  Google Scholar 

  46. White, Hayden. 1978. Tropics of discourse. Baltimore: The Johns Hopkins University Press.

    Google Scholar 

  47. Wooden, Amanda, and Christoph Stefes (eds.). 2009. The politics of transition in Central Asia and Caucasus. London: Routledge.

    Google Scholar 

Download references

Acknowledgments

The writing of this essay has benefited from conversations and exchanges with Arnulf Becker Lorca, Michelle Burgis-Kasthala, Justin Desautels-Stein, Duncan Kennedy, Scott Newton, Djakhongir Saidov, and Eric Sievers. All mistakes and omissions are mine and mine alone.

Author information

Affiliations

Authors

Corresponding author

Correspondence to Akbar Rasulov.

Rights and permissions

Reprints and Permissions

About this article

Cite this article

Rasulov, A. Central Asia and the Globalisation of the Contemporary Legal Consciousness. Law Critique 25, 163–185 (2014). https://doi.org/10.1007/s10978-014-9132-x

Download citation

Keywords

  • Central Asian law
  • Critical comparative law
  • Law as imperialism
  • Legal consciousness
  • Legal globalization
  • Marxist critique of transnational legal processes
  • Post-Soviet legal history