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.
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For an earlier rendition of the ‘three globalizations of law’ argument, see Kennedy (2003).
In modern usage, the term ‘Central Asia’ normally refers to the five former Soviet republics of Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan.
My understanding of the concepts of doxa and illusion is based on the work of Pierre Bourdieu (1990).
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).
Compare the account offered in Dezalay and Garth (2002).
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’).
My understanding of the concept of Orientalism is based on Edward Said’s work (Said 1978).
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).
For a concise analysis of the various ruses and guises of Orientalism in comparativist literature, see Berman (1997).
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’).
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).
‘[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).
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’).
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’).
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.
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”.’
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).
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.
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.
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.
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).
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.’
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.)
I borrow the concept of ‘self-Orientalism’ here from Scott Newton.
‘[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).
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.’
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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.
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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
- Central Asian law
- Critical comparative law
- Law as imperialism
- Legal consciousness
- Legal globalization
- Marxist critique of transnational legal processes
- Post-Soviet legal history