Article

Presuming Scale, Making Diversity

On the Mischiefs of Measurement and the Global: Local Metonym in Theories of Law and Culture
Sari Wastell
St Johns College, University of Cambridge

Abstract

The new essentialism in both cultural and legal theory is the tendency to treat diversity as a monolithic concept which exists logically prior to law or cultures efforts to engage or reconcile it. By using analogies of scale and measurement, and borrowing from Luhmanns theory of self-referential social systems, 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 presupposition which underpins certain systems way of imagining the world and not an observation available from an inaccessible Gods-eye view. Contrary to popular mythology, the article seeks to understand the law as yet another conjurer of difference rather than its great leveller, and to understand the way different legal paradigms might conceptualize diversity in very distinct ways. Keywords customary law diversity (concept of) ethnicity legal pluralism scale, globalism/localism

In exploring the relationship between scale and diversity and how this coupling manifests itself in theories of law and culture alike, I expected quite a different article to emerge. This began as an article about different 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 different kinds of measurements, but also a critique of the overly facile way in which these different relativities are presumed to present insurmountable problems for communication between themselves. I wanted to say, for example, that global and local perspectives need not be antagonists, that there is an intercommunication and relationship here not captured by the language of assimilation, colonization and compromise (in the pejorative sense). The work was meant to be a challenge to the all-or-nothing attitude which insists that universal claims and unied theories distort the realities of culturally
Vol 21(2) 185210 [0308-275X(200106)21:2; 185210;017929] Copyright 2001 SAGE Publications (London, Thousand Oaks, CA and New Delhi)

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specic contexts and the particularisms of practice. Instead, it became apparent that I needed to step behind my own starting line. Somewhere in the works 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 a given scale or even about different scales, but also when and how the presence or absence of scale itself became a consideration.1 The presence or absence of scale is important because when one talks about, for example, global as opposed to local, the scale is already in place. Nothing is particularly local unless it is measured against something bigger, less local than itself and here so many prejudices ee from analytical view, local so often eliding notions of that which is smaller, more particular, 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 specic and atomistic than the impersonal and all-encompassing global. The scale insists that we accept each manifestation of a local context as a constituent element of a global whole, each local perspective as a subjective position in an objective reality. And it is precisely because global is presumed to be empirically evident, albeit from an inaccessible Gods-eye view, that we can measure against it. What I object to in the premise of this global:local scale is the transparency imputed to diversity from that Gods-eye view. As with the entirety of the hermeneutic project, the popular notion of global versus local suffers from an internal contradiction, a celebration of multiplicity only made possible by the presumption of an overarching monism. It is as if to say, We may all be constructing our own particular realities based on the horizons to which we orient ourselves, but out of our sight, behind our backs, in our blind spots, some greater reality falls outside of our apprehension. It the Gods-eye view can apprehend us, but not the other way around. So, rst of all, my baseline claim is that there is no such thing as a diversity 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 through the estimation, 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 apart 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 put, the impulse to measure, and perhaps understanding when this impulse entered into the equation would tell us quite a lot about the parameters into which diversity could be congured. However, equally, we need to think about that point before the starting

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line of measurement. 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 from which differentiation, 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 Luhmann and his explication of social systems theory (in particular his text Social Systems, 1996). Differentiation is integral to a social systems boundary maintenance. It is through the ongoing construction of its environment by differentiating between what belongs to the system and what exists outside itself that a system is able to both manage and elaborate its own complexity. The ongoing process of differentiation involves a streamlining, whereby the systems version of the world outside itself is pared down in accordance with the systems operational imperatives that is, relative to the communications the system exists to create such that the environment can be said to be the creation of the system, a selective output of its own imaginings. There is a proportionate relationship here, between a systems reduction in the detail of that which is deemed external to the system 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 this limited notion of relativity. However, this sense of relativity, a judgement as to whether something belongs inside or outside the boundaries of a system, is not the same thing as an act of measurement. Scales are not binary; they turn on interims, degrees and grades. So when I speak of the presence or absence of scale as a consideration from the systems point of view, I am referring not to that basic project of differentiation which allows for self/other distinctions, but rather to a systems predisposition towards, for example, grading the distance 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 accounts for the systems existence or whether scale features only after-the-fact, as a re-integration of information from the systems environment through its cognitive openness or even as a oating signier created by the bifurcation of systems inter-communication.6 Briey, let us consider the rst two possibilities in turn. 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 differentiates, but as a matter of course measures 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 put, measuring is part and parcel of the raison dtre of the system. As will be argued below, the Rule of Law paradigm falls into this category.

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In other cases, however, it may be that scale enters 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 systems construction of its environment in such a way that scale becomes implicated at the very limits of the systems horizon. 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 recognizes it, because systems are only cognitively open insofar as they realize a version of the world that correlates to their own operational imperatives. Thus, communications are ltered and re-constituted in a systems knowing such that a communication pregnant with scale from the issuers 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, evocations or capacities which are made superuous at the edges of the systems boundary. Such is the case, it will be argued, with the customary legal paradigm, where diversity production is not the intention nor predisposition of the system, but a by-product of the systems 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 manifest 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 actualization 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 this 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 which scale enters into these scenarios might signal different conceptualizations of diversity itself.

Global versus local, state law versus non-state law: the prejudices 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 customary and received legal codes), that they generally fail to dedicate rigorous theoretical attention to the ways in which customary law constitutes a distinct form of law. In many of these works, customary law is identied as a form of law by virtue of what it does in society, and the central concern then is the political tension generated by two systems, each purporting to deliver justice and each legitimized in

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the context of competing forms of governance. Legal anthropologys 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 postcolonial contexts have tended to seduce scholarship away from any profound consideration of the paradigms which undergird the customary and received codes respectively. In short, the work is often juridical but exhibiting scant concern for jurisprudence.7 In the case of Africa, certainly, the paucity of theoretical attention given to custom as an alternative form of law derives largely from the fact that most scholars recognize that what came to be codied as African customary 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-standing practice or custom per se (Channock, 1985; Roberts and Mann, 1991; Rwezaura, 1985; Snyder, 1981). The insinuation here is that customary law-as-alternative-legal-form has already been lost, corrupted by the form imposed by colonial administrators through the very acts of codication and formalization. And while it may be true that African customary law was co-opted as an instrument of colonial coercion, it seems that scholars focused on these societies may be exercising a prejudice more widespread and damaging than one might anticipate at rst glance. The very language of codication, formalization and ofcial versus unofcial throughout these works informs the reader that they are proceeding from the baseline of a scale which serves as the unspoken framework into which legal pluralism must be tted. The scale is dictated by the rubric of Western state law and the pluralism allowed for is already overdetermined by that monism against which it is measured. So the effect of the presumption of scale results in two obfuscations. There is an overdetermination 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, authenticity and viability of non-state legal forms. Alternative legal forms and custom in particular are measured against Western, cephalous state law in order to gauge their level of difference. Or perhaps, better put, the very fact that they are recognized as alternatives to Western state law depends upon a centrist model which determines 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 presumption that these alternative forms must then pose a challenge to state laws monopoly over justice distribution and, as such, the alternatives must themselves be under constant threat of assimilation 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 monistic law is typically seen to involve a domination of the state over the local, of the general over the particular, in a way that sets up custom as a metaphor for colonialism itself. Custom as the impetus for law, it seems, is inherently unstable, a local and varied impulse destined for assimilation into a more generalized and uniform form. Indeed, Peter Goodrich articulates this position nicely when he writes:
Contrary to the prevalent view of law as the perfection and inheritor of custom [. . .] it is probably a more accurate generalisation to see law or legal order as a destructive force, as the assassin rather than the pinnacle of non-legal or customary orders. (1986: 63)

From this sense of state laws corruptive capacity much of the scholarship on legal pluralism has grown. Admirably, it should be said, these studies are dedicated to a search for an array of different centres of law production which are local, specic and often informal or in direct competition with state law. In an early but formative article in the legal pluralist tradition, Sally Falk Moore introduced the notion of semi-autonomous elds, or social domains, which are both value- and rule-generating, but exist in dialectic with state law (1978). This sort of legal pluralism, known as deep legal pluralism, has garnered the lions share of the attention in the scholarship since it presents the intriguing possibility that legal systems exist in a variety of social domains and that the law need not be dened within the narrow constraints of the Western centralist, positivist model. However, the constant reference to the dialectic between ofcial and unofcial law, state law and non-state law, and, more importantly, the implication that state law inevitably encompasses these alternative elds of rule-generation, should tell us that something is amiss. Indeed, Falk Moores semi-autonomous social elds provide an interesting case in point. The intense promise of Falk Moores methodological prescription lies in the possibility not only that a variety of social domains may be rule- and custom-generating, but (at least equally) in the notion that state laws own normative declarations may have disparate meanings when viewed from within the semi-autonomous social eld.8 The innovation of such a framework in many ways anticipates some of the most productive aspects of social systems theory.9 Semi-autonomous social elds, described in terms of their capacity to self-referentially generate rules and values and their simultaneous sensitivity to the rules and values that derive from outside themselves, closely approximate the claims of operational closure and cognitive open-ness which Luhmann would make on behalf of social systems. And, insofar as Falk Moores case studies explore how state law is manipulated and negotiated when viewed from the point of view of a semiautonomous social eld, 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 domination) (1978: 78, emphasis mine), it draws attention to the extent to which even the semi-autonomous social field labours under the weight of a scalar prejudice. State law encompasses the semi-autonomous social field, leaves it vulnerable to rules and decisions and other forces emanating 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 undermining relations of size, gravity and encompassment between state and non-state law, and present a huge intellectual resource to direct such endeavours as the current one, some of Falk Moores more general theoretical statements belie a portion of the works potential and point towards a more common ailment in studies of legal pluralism. In sum, legal pluralism often tries in vain to nd difference, but only recognizes difference when measured against the state law it seeks to decentre. Carol Greenhouses critique of legal pluralisms self-imposed circularity is apt:
Legal pluralism as a eld of anthropological inquiry inevitably remains tied to legal centrism for its key terms so long as it maintains the assumption that ofcial and unofcial law are organised by the same map that organises culturally differentiated social elds. (1996: 58)

Or, recasting Greenhouses observation from the vantage-point of the present works preoccupations, Falk Moores semi-autonomous elds can never be fruitfully excavated for alternative legalities so long as state law remains 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 Grifthss seminal article What is Legal Pluralism? (1986). The article outlined the parameters of the legal pluralist project, differentiating between deep legal pluralism (or strong pluralism) and state law pluralism (or weak legal pluralism). 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 Goodrichs argument above, in which legal incorporation heralds the demise of true custom, this brand of legal pluralism denies the possibility that disparate legal codes, assimilated under the rubric of a single legal system, can actually be plural. As Tamanaha explains, according to Grifths, weak legal pluralism is just another form of legal centrism because its implicit message is that all other laws should be organised in a hierarchy beneath state law (1993: 202). As

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I have tried to demonstrate, it is not entirely clear that deep legal pluralism is any less implicated in a state-law-induced hierarchy, but this line of argument does not prove very popular amongst the staunch advocates of legal pluralism. The bottom line from either side of the debate, however, is that the universalist authority of the state is presumed to be incompatible with the particularism of custom, and the relationship between the two must always be one of dialectic, perhaps followed by the inevitability of assimilation 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 particular at work in much of the theory which underpins legal pluralist writings. Global discourses rendered familiar to local contexts are implicitly endorsed, while the converse, local customs inated to the level of allenveloping rule systems, is seen as a corruption. Second, when discussing customary law, there is a clear unspoken presumption that the latter tendency is the province of Western social (and particularly legal) impulses while the former is more commonly associated with Third World indigenous 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 changed but energized with efcacy. Finally, not only is no effort made to describe those mechanisms or conceptual elements which allow these ongoing battles of ination 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 the salience 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 One intriguing point from the perspective of this article is the very fact that Western scholars might view vernacularization so uncritically. It is likely that this tendency derives from the ascendency of disciplines like social anthropology whose adherence to doctrines of relativism and whose methodological 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 otherness. While not overly sympathetic with positivism of any stripe, I am equally suspicious of the applauding of all forms of particularism. The idea that the more specic the more individual the truer, again seems to point to the mystications and mischief afforded by the tacit workings of scale. Specicity, 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 very attenuated (often kinbased) groups within small communities (as with customary law). However, from the so-called local perspective, this elision makes little sense, especially with respect to customary law where the interim unit individual would simply never equate with a particularism focused on communitarian principles.11 From this so-called local perspective (or to be more rigorous in my own theoretical terms 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 shortcomings of the scale which frames the very ends being sought and, in particular, its dependence on the notion of the individual as the irreducible unit of measure. (And here one anticipates the great body of literature on the appropriateness or otherwise of human rights law across cultures: cf., Cohen, 1989; Dembour, 1996; Donnelly, 1989; Pollis and Schwab, 1980; Schmale, 1993; Wilson, 1997 for a varied overview.) This very Western and uniquely modern scale imagines the individual as a coherent and isolable whole which is fragmented into discrete role identities only as s/he passes through various social systems. Despite the 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 unable or unwilling to effect such a radical critique of the Wests metaphysical sacred cow, the transcendent individual.12 This essentialized and holistic individual is the starting point of the scale of social measurement which works upward through various aggregates (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 units, the scale itself has remained in place, confounding any deconstruction of the conceptualization of diversity which it presents as monolithic. Put another way, while culture has been de-essentialized by the invocation of non-measurability, alterity excavated from overly hegemonic readings of society, and individuals made to listen to the cacophony of polyvocality, the concept of diversity has become the repository for the very essentializing tendencies of which the social sciences have been trying to rid themselves. All of the vocabulary we have for pluralism heteroglossia, polyvocality, multiculturalism and the like derives from a single language, a grammar of presumptions borne of the confusing ctions of this omnipresent scale. Part of the project of the present work, then, is to consider the way in which discourses (and here I mean modalities of thought embedded in set matrices of presumptions), deriving from different scales (i.e. where the focus is addressed to a more or less expansive or limited horizon), give rise to a variety of essentialisms upon which much legal and social theory is

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predicated. The essentialisms are the inevitable product of scale insofar as any act of measurement requires proportionality and ratio. In the social sciences, this results in recurring unities whereby social elds take on equivalent value magnitudes. In other words, just as the ultimate referent must be consummate in order to measure against it, so too must the interims exhibit such integrity, the only difference being their proportionate relationship to the referent of measure. So it is that Falk Moores semiautonomous elds purport 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 the 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 unied type in order to locate other similar types elsewhere in the world, an irony best summed up by Tamanahas frustration when he writes:
[The legal pluralist] locates the criteria for law by extracting or emulating those elements which appear to be essential to state law, then subtracting all the trappings of the state. [. . .] Thus, the state law model inescapably provides the kernel of the concept of non-state law. (1993: 201)

Typing through essentializations is the mode through which pluralism is identied, here on a scale bracketed by the state. The fundamental problem is that these (non-state, alternative, semiautonomous) normative systems are imagined from an objective metaposition which can attribute to them a coherence and integrity which simply does not obtain in practice. Or perhaps more to the point, the unity would only 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 elds are formulated as ideal types from the Gods-eye view of the scale which apprehends them. As intimated at the beginning of the article, this Gods-eye view is also accorded a unity, indeed the paramount unity which serves as the metaphysics under which all diversity is encapsulated. Whatever the ultimate referent 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 that it cannot be apprehended all at once. What this description should remind us of is the proportionate relationship of a systems complexity to its streamlining of its constructed environment. This paramount unity is the conceit of any system position, and as such is neither true nor false, but only particularly relevant from a position internal to one given system. From outside the system (and from a system perspective which is not oriented towards measurement), the unity would not obtain, an observation echoed by authors in other terms when writing about the unity imported to the state law referent. For example, Woodman has noted that Grifthss position re

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state law pluralism presumed that state laws in Africa [. . .] purport 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 ofcial law and plural social elds within states overestimates the extent to which even ofcial law serves as a stable 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 and diverse interims is that the impulse to measure which generates such formulations 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 multiculturalism refers, in practice, to those minorities one can measure against national majorities,14 and ethnicity becomes that which marks an identity as 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 ts into the schema of a scale which is already in place. We know what this scale looks like, for so much attention has gone into the critique of its alleged omniscience under the mantle of postcolonial studies. As Rosemary Coombe so eloquently puts it, the scale denotes a particular social position a space where ones particularities can be occluded in 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 his discussion of the historicization 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 underpinned by scale on the one hand and the conjuring of diversity on the other. Second, having argued for a structural coupling of scale and diversity, I want to think about those systems or modalities in which scale is not an issue that is, the presence or absence of scale in the impulse that either is or becomes 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 separate trajectories [i.e. one in which scale is an overriding 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, 19967: 3, emphasis mine). Global/local, international public law/customary law so many scales we take for granted. The nal part of this article will look for evidence of this other dimension a place outside of any system position in my terms

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in that form of typing known as ethnicity. Salient at the local level, invidious in its colonizing of international discourses like human rights, ethnicity seems to be everywhere 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 the inappropriate application of scale
In reading about the problems of theorizing custom as a source of law, a literature which, interestingly, is largely entered into at present by international legal scholars, one is struck by the similarities between the circularity of custom as law and those elds 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 the psychological disposition that binds the individual 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 jurisprudential 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 openly paradoxical and involve a certain degree of circularity of logic, for they propose, by and large, that a customary norm can come into existence (i.e. become authoritative) only by virtue of the necessary erroneous belief that it is already in existence (i.e. authoritative). Kunz demonstrated this circularity of logic when he observed that custom is creative of new law and not declaratory of existing law, and also that it requires to be accompanied by a belief that the conduct in question is already law. (1994: 392)

This logical teleology is reminiscent of the conundrums presented by other social phenomena, and here I have in mind ethnicity in particular. A propos of our current setting,16 let us consider two examples from the literature on Basque ethnic identity, both of which evidence a peculiar similarity between their revisionist, constructivist perspectives and those essentialized accounts they seek to displace. Now it is true that one might intuitively be suspicious of renderings of Basque ethnicity which describe it as the product of an autochthonous, primordial people living in a rural Basque arcadia, but it seems our modern preoccupations with ux and social change, the invention of tradition and the agency and self-consciousness with which people are capable of formulating and articulating social identities has left us in an equally feverish thrall. For these revisionists, Basque ethnic identity is a very recent construction, the origins and causes of which provide ample grist for an academic mill set on deconstructing nave notions such as the association of authenticity with tradition. 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). Greenwood tells us that:
Basque ethnic identity is a product of the history of Basque interactions with the central government. The Basque identity originated in the concept of collective nobility, which summarised a set of political rights given to Basques by the early monarchies of Spain in return for services. [. . .] Thus, what originated as grants soon became the cornerstone of an ethnic identity that was held to predate all grants. (1977: 101, emphasis mine)

And Heiberg explains that the current:

Ascription of Basque status corresponds to Basque cultural content only by coincidence. In general, Basqueness has become a political category. Basque nationalism, an urban product, created ethnicity and dened the rules for membership, and Basque ethnicity has created a new boundary based on the symbols of an old culture. (1980: 52)

While such works no doubt present powerful and intriguing explanations for the current ethno-political geography of Basqueness and its considerable complexity, I suspect they do less to correct the essentialist view of the Basques than one might imagine. For implicit in accounts diametrically opposed to essentialism, there is all too often the shadowy imprint an unspoken acceptance of that which is being criticized. Essentialism and constructivism are mutually contingent. Greenwood fails to acknowledge the irony that Basque ethnic identity (which is relatively new) is, in his model, the result of Basques (who as yet have no shared identity) 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, Heibergs suggestion that contemporary Basque identity is based on the symbols of an old culture makes explicit her underlying desire for (and hypostatization of) a more authentic, integral version of Basque culture which the new political category 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 somehow already have its essential elements in their toolbox of resources (i.e. these people are Basque by habit which enables their Basqueness to become normative). Weber referred to this as the articial origin inherent in ethnic constructions (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 ethnicity. The scale is based on linear progression (itself a master trope of Western culture), and cannot digest the logical circling back involved in the construction of either of the two phenomena. The very language of essentialism 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 rst couched in terms of chronology. However, the problem is not so much one of timing per se and the solution does not lie in the fantasy of nding a better chronology. Rather, what needs to be thrown into question is the stability of the scale which frames the analysis in the rst 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 gure. (One can then re-map the phenomena in terms of simultaneity, but the point here is that time is better left a non-issue.) Perhaps the absence of custom as normative action and ethnicity as the successor to primordial sentiments points to the fact that these concepts are being produced on different levels of discourse where timescales simply do not inhere. And nally, what if this apparent absence of time in the analysis of specic cases meant that the phenomena 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 customs circularity and its parallels with other social phenomena. My goal in doing so has been to highlight the way in which presumptions of scale can serve to confuse the very object of investigation, such that it is not the inadequacy of our answers that must disappoint, but the futility of our questions. As with the 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 enquiry but to the inadequacy of the (temporal) measures which frame the exercise in the rst place. Or perhaps better put, in the case of both custom and ethnicity, the inappropriate application of scale conceals the very possibility that measurement need not feature at all in the analysis. So in this instance, I have suggested that scale misdirects the attention, mistaking the push towards source and singularity for a temporal issue, and in so doing presuming that time must ght against a diversity which is taken to be natural and already in evidence. What is germane to my argument is that in the application of a temporal scale to the analysis, a particular sort of diversity emerges, a pluralism which at rst seems to ourish from an initial point of origin and later is said to diminish with its reorganization into the normative. Customs proliferate, law delimits. Primordial attachments reproduce and extend relations, ethnicity demarcates the limits of identity membership. And this is what progress looks like a dangerous diversity identied, managed and tamed. However, in actuality, the diversity is only already out there insofar as the scale which precedes the analysis 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.

199 Wastell: Presuming Scale, Making Diversity

Before suggesting a new direction for the analysis of custom and ethnicity in the conclusion (and in so doing, tentatively offering different conceptualizations of diversity itself), it only remains to ag an associated problem with the presumption of scale. Whereas I have argued that scale in the above instances has presented a monolithic version of diversity which is inappropriate, I now want to consider those cases in which new conceptualizations of diversity on closer examination prove only to be reiterations of old models transposed to new 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 are only re-visiting a familiar scale writ larger for the revisionist project.

Critiquing essentialisms or reproducing them on different scales: when measurement yields the illusion of transcendence
In the penultimate section of this article, I want to engage in a re-reading of two works, each of which begins their discussion from a scale which appears incommensurable with the departure point of the other. In Comaroff and Robertss groundbreaking account of dispute processes in Tswana law, they set out to model the dialectical relationship between individual experiences and their interactions with the sociocultural order in the form of law (1981). Theirs is a very Geertzian approach (1983), emphasizing the import of individual actors agency even while circumscribing said agency within given templates of meaning-construction cultural nets in which the individual is constantly caught. By reconciling the pull between these two imperatives, Comaroff and Roberts hope that they can explain why legal outcomes can at times be highly predictable and at others prove completely counter-intuitive.18 They tell the reader that within these chiefdoms, disputes range between what are ostensibly normgoverned legal cases and others that appear to be interest-motivated political confrontations (1981: 244) and importantly, 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 transformations of a single logic (1981: 244, emphasis mine), they necessarily have 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 starting point, or rather, attribute to the individual a system position somehow equivalent to that of the cultural system in order to explain how the tension between these two systems (the individual versus society/the personal 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 and order or here read essentialize19 through abstract rule application. As the authors write:
In order to illuminate the nature of dispute and the relationship between rule and process, we have elaborated a model to account for diverse modes of confrontation and have attempted to locate this within the logic of a sociocultural system. (1981: 248)

What is of note is the coherence accorded to both the individuals modes of confrontation and the sociocultural system. In Comaroff and Robertss account, both are called upon to manage an intense level of complexity without fracturing the unity of their subject positions. It begs the question as to whether the individual and the social have not already been essentialized in order to facilitate an analysis of their systemic relation to one another, or whether either could actually support the level of unity attributed to them. Now in Annelise Riless analysis of international law and its essentializing tendencies, we seem to move to yet another scale, but, in many ways, we see the same foundational presuppositions at work. When Riles concludes that a critique of the international lawyers vision of the relationship of law to cultural context suggests that international law is but one more language in 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 neat cultural units. What Riles addresses nicely is the issue of why essentialized constructs of 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, dominating or in need or domination. These are the requisites of scale. Measuring is never simply noting difference, because the difference is not out there to be noticed. Rather, difference is called into being by the operational imperatives of social systems via scale, meaning the difference will always be compared, organized and sometimes mobilized to a pre-imagined end. In Riless work, this is a result of the fact that international legal discourse is inherently embedded in the cultural context of the West, a context which presumes the cognitive dissonance of otherness. Thus, international laws ability simultaneously to bridge the chasm of otherness, even as it reied the distance between unlike cultural units and arranged them hierarchically, was the epistemological work the discourse did in the service of colonialism. But what interests me here is the curious fact that Riless analysis must begin 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

201 Wastell: Presuming Scale, Making Diversity

into. But they do take on the characteristics of consummate social systems individual logics (albeit even for Comaroff and Roberts 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 logic which seeks to order them. What we are hearing is largely the same argument transposed onto a much larger scale. My complaint with both of these ne accounts is that, in critiquing essentialism, in Comaroff and Robertss case the essentialism attributed to monistic rule systems in the face of their divergent processes in practice, and in Riless instance the essentialization of cultural contexts imposed by the discourse of international law, all the authors perform an essentialization of their own. They essentialize the very nature of diversity to explain what it is the law must do. As with the discussion of ethnicity above, diversity is something that is presumed as given, something which can be elaborated or reduced, ordered or left to its own devices. The primary difference between the two accounts is that the diversity which can be seen is different due to the inated or contracted portion of the scale on which the authors are operating. Put another way, one could say that what was presumed in both accounts is a notion of a particular scale of social measurement, of measures and hierarchies which insist on different units of a single type, the ontology of which can be read backwards into the canon of 20th century social theory. 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 phenomenon known as globalization. In these accounts there is only one type of diversity available, and it is broken down into graduated units, each experiencing a similar tension 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 when we try to locate these constructs on the ground. Both of the analyses discussed above proceed from this scale, inevitably presuming the abstract global as the ultimate referent or as the Godseye view which can capture the totality of the empirical reality which encompasses the units under consideration. Comaroff and Roberts restrict their analysis to a lower portion of the scale, taking sociocultural systems20 as their largest unit of concern while Riles, on the other hand, begins with cultural units and works upwards to a unit which, despite its pretensions to global representation, is understood as still lying somewhere below the scales ceiling. The failure to query the scale itself is the enabling factor which allows Riles both eloquently to critique the essentialization of culture while 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 Riless leaves unnished is the more nuanced

202 Critique of Anthropology 21(2)

appreciation of interim units such as culture (through a consideration of their hybridity? the uidity 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 contradictory one and not destined for any great success. For these critiques of essentializations will never make much improvement on what they are critiquing so long as they presume an ultimate reality for diversity, albeit one they would rather not have essentialized. 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 diversity into social reality by typing it and according it certain characteristics which somehow require ordering and reconciliation. Given this, it might be well-advised to think of law instead in terms of its utility as a mechanism for concretizing such diversity even in its absence. Squaring the judicial circle demands we accept law not as the reconciler of diversity, but as its conjurer, as the system which anticipates the variety of dispute possibilities which exist across a huge landscape of scale long before conict 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 considering what the difference might be between a legal system whose impetus presumes scale and one whose impetus 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 and universal rule systems like the Rule of Law, which I will argue necessarily presumes scale before there is substantive content to measure, and custom, which nds scale in itself after-the-fact, are separate trajectories which are neither incommensurate nor complementary. Rather, as suggested earlier, each may prove the starting point for the form the other can take a possibility left unexplored if one presumes that one trajectory must ultimately assimilate the other.

Pluralism by intent and pluralism by default: locating scale and diversity in two legal perspectives and excavating the artefact 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 very distinct sources of law, and each correlates to an anthropological understanding of culture (as outlined by Strathern when she asks when it is that scale matters and when does it not). In the rst sense, culture is that measure 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 different junctures at which specic values or relations are

203 Wastell: Presuming Scale, Making Diversity

repeated and thus recognised or encountered over and again (Strathern, 19967: 6). With respect to law, the rst sense represents a disembedding of the scale from that which it measures. We saw this in Riless discussion of international legal discourse and the particularities of its cultural context of production 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 specic cultural resources (Merry, 1997), which are linked to an ideology of individualism 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 Coombes articulate criticism of that paradigmatic subjectivity which can deny its own specic place and particular history to assume an unmarked space from which to make ones claims simply in the name of the human (1995: 600). In each of these examples, scale is the starting point from which a universal claim can be made, because, ultimately, any universal claim must be made against an imagined pluralism in order to be explicitly and self-consciously universal. So the scale purports to witness a diversity which, needs be, the claim will negate or transcend. Yet the 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 the ontic of nature, our impact on what is already given, and, for some here in the West, these ideas still hold considerable 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 the point that it is recognized as ethos (norm to normative), and this correlates with the idea of custom as a source for law. Here, scale enters in when it is read back into that which already exists. Where the Rule of Law proceeds from form, customary law works in the other direction, teasing form out from substance, pulling to the fore a recognizable pattern. Here we have scale again, for the identication of one pattern over possible others is an act of measurement. But the scale and the diversity usus or custom conjures is rather different. In isolating a series of repetitions, gathering them together and making them visible, custom also points to what is not shown. The diversity is not a series of pre-existing categories into which substance can be formulated and measured, but is hinted at in what is not foregrounded, the multiplicity of (unactualized) patterns made redundant as non-pattern. The difference between these two types of law seems to be in the 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 the fore. 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.

204 Critique of Anthropology 21(2)

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 retrieve some conceptual artefact from that dimension-in-between these two trajectories of law, something which neither trajectory could claim to have generated but which both systems evidence in their disparate workings something perhaps like ethnicity. In customary law, ethnicity imitates custom, doubling back on itself, nding its form in substance which never purported to be of an ethnic nature before. In universal claims and abstract rule systems, ethnicity mimics its host by traveling in the other direction, providing rigid categories 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 only in the bifurcation of the two systems trajectories that one can reasonably expect to trace the space in which it operates.22 This is a very different project from one which would try to understand why ethnicity emerges as a salient means 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 epistemological paradigms. I do not suggest that this replaces the import of social history as a vehicle for situating such discourses emergence in particular ethnographic studies. I only suggest that the efcacy of historical analyses has been asked to do work beyond its explanatory capacity work best done in tandem with a theory of ethnicity that is neither essentialist nor constructivist. And I submit for consideration that such a theory might need, in the rst 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, monolithic and uncompromising concept itself. I am interested in the distinct ways in which a social system like law conjures diversity in accordance with its individual needs, its presumptions about scale and, ultimately, the extent to which such forms of diversity synchronize or fall out of phase with imaginings of diversity deriving from other social systems. The possibility that different systems might create different types of pluralism seems to me 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 analytic tool, gives powerful support to the idea that not only are different social systems producing different versions of diversity, but that the conuence and bifurcation of their trajectories may have intense creative power in and of itself.

205 Wastell: Presuming Scale, Making Diversity

Notes
This article was originally prepared for the Law and Culture conference held at the International Institute for the Sociology of Law in Oati, September 1998, where all the workshop participants contributed to its development immeasurably with astute and enthusiastic critique both inside and outside our formal gatherings. Special thanks, however, must go to Beverly Brown for her detailed review of the article and the ongoing encouragement she has lent during its various rewrites, and to Marilyn Strathern for posing questions which never allow for easy or immediate answers. Additionally, an anonymous reviewer for Critique of Anthropology gave the work a very close reading indeed and offered comments both challenging and stimulating. My ongoing work would also not be possible were it not for the generosity of both St Johns College, Cambridge and the Economic and Social Research Council, both of whom have lent nancial support to this research. 1 The question was rst posed by Marilyn Strathern when she asked, is there any mileage to be gained from thinking about the relationship between the systematic 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? (19967: 3). While Stratherns topic seems at rst glance unrelated (she discusses shell exchange and compensation in Papua New Guinea), her query has been the impetus for much of the present work. See also Puzzles of Scale (Strathern, 1999: Chapter 10). 2 There are two points of note here, both of which bring us prematurely into the realm of social systems theory. First, I am saying that diversity comes into being when it is measured i.e. when a system includes measurement as part of its operational imperatives. (More complexly, the measurement can either be the communication created by the system or a communicative effect re-incorporated in the systems constant and ongoing construction of its environment, but that will be discussed below.) Second, I am underlining here the systems hand in apprehending that which is measured. Fundamental to social systems theory is the notion that systems create a version of the world which both constitutes the systems environment as well as correlates to the systems own operational imperatives. What a system sees as the world outside its boundaries has everything to do with what it is the system exists to do. So my second point here is that in addition to the scale of measurement deriving from the system perspective, so too does the corpus of that which the scale measures. The diversity realized in measurement is thus a product of the creative potential of a double relativity, one which determines the nature of the scale and simultaneously the nature of whatever it is that the scale exists to measure. 3 As indicated in note 2, it would be impossible to imagine the scale of measurement as something distinct, in origin, from that which is measured. It neither derives from the object it measures nor exists prior to the apprehension of said object. To a large extent (while not theorized in terms of social systems), this simple observation was at the heart of much social thinking in the late 20th century. Postcolonial studies, for example, have aptly shown how the positivist Gods-eye view suppositions of 20th century scholarship were often little more than an extrapolation of one particular local context, issuing from the gaze of the modern West. In legal theory, a similar shift in critical thinking took hold under the auspices of the Critical Legal Studies Movement, which exposed how the abstract form of the Rule of Law could be shown to derive

206 Critique of Anthropology 21(2) from one particular (read substantive) subject position. Such a position, it was argued, could hardly therefore claim to be a metaposition from which to reconcile the problems posed by an aggregate of many (equally substantive) positions, nor reasonably be understood to be little more than an ideational framework devoid of moral or cultural content. In both cases, the critique involved an elucidation of how a matrix of valuation, deemed separate from what it evaluated and capable of apprehending the objects of evaluation in a way in which the objects themselves could not apprehend one another, on closer examination proved contingent in a multiplicity of ways. In other words, the matrices themselves were actually little stories aggrandized to the status of metanarratives. I lean towards the word conjure here for more than just the colour it affords. It is true that most of the highly constructivist theories of postmodernism (that non-name for a non-category of thinking which only serves to obfuscate any actual advances made from the positivist/relativist or structuralist/interpretive impasse) tend to employ terms like construct, create and make, largely I imagine for ease of understanding. However, all of these verbs seem to reiterate the commonplace presumptions that the theories themselves are trying to transcend. One constructs using elements building blocks which are already there, which have integral qualities and a consummate, empirical existence that either lends to or confounds the project of construction. The notion of conjuring, on the other hand, conveys the sense of indeterminacy which I understand both the constituent elements and the product of a constructivist project to exhibit. Those in the presence of a conjurer know neither the nal form 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 whimsical moments, I sometimes refer to the double relativity discussed in note 1 as the legerdemain of system constructivism. It speaks to the innite circularity whereby the system determines both the scale which measures and the shape of that which is measured (the paradox of operational closure and cognitive openness at play), and the irony and counter-intuitiveness of how such indeterminacy ultimately gives rise to the conservation of nitude and system stability. I intentionally ag the extent to which my presentation of social systems theory here is both a selective and limited reading, a crude overview which does not aspire to serve as a general introduction for those unfamiliar with Luhmanns work. Rather, my intention is only to provide a sufcient baseline for the reader so as to elucidate my own application of some of Luhmanns ideas in the present piece. This last possibility will be left only partially addressed in the conclusion to the article, as the present work hopes only to suggest this avenue as a fruitful direction for future research and to build the foundation from which such an endeavour might proceed. Indeed, as intimated above, much of the most interesting scholarship in legal anthropology distinguishes between rules-as-norms and the practice of rulenegotiation, a phenomenon which Falk Moore describes as the complex of action (1978). While an important corrective to studies which took reglementary processes at face value, pitting a compliance/deviance approach against the colourful hurly-burly of social life and the dynamic logic it has for the 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

207 Wastell: Presuming Scale, Making Diversity represented by rules to practices of normative behaviour as manifested in rulenegotiation seemed to involve a shift of attention from jurisprudential questions to sociological ones as if the two were theoretically exclusive and could be kept at arms length from one another. One of Falk Moores case studies involves the garment industry, where she describes a system of ctive friendship involving prestations made between various actors from the jobbers, contractors and union sides of this social eld. She aptly demonstrates how state law, in the form of enforceable rules about working hours and wages or the timely payment of contracts, are imbued with new and disparate meanings inside the social eld, such that the failure to invoke the law inspires the price of allocation [. . .] symbolically represented as an unsolicited gift, the fruit of friendship (1978: 63). She also notes that such prestations when seen from outside of the logic of the semi-autonomous social eld would likely be seen as mere bribery. Falk Moore, for example, writes that a semi-autonomous social eld is dened not by its structure, but by a processual characteristic or what it makes in terms of rule-generation (1978: 57). In this way, the contours of the object or unit of study which she is advocating fairly resemble the social system, which is dened by the kinds of communications it exists to create. This is the legacy of the Wests tradition of legal mythologizing in the form of the Rule of Law. The idea of a value-free framework, whereby the system rather than its substantive content could guarantee justice, is the ultimate product of the Enlightenments rationalist project. That the ideology of the Rule of Law has proven an impossibility in legal practice (as elaborated in the critiques of the American Legal Realists, the Critical Legal Studies Movement and Feminist Jurisprudence) should suggest that the gulf between the abstract and the concrete is never crossed from one side to the other but negotiated from either side of the chasm towards the middle, perhaps in varying ways, by all legal traditions. For a particularly erudite case study along these lines, see Bennett (1997), which considers the tension between the rights of the child as enshrined in the UN convention on the Rights of the Child and the customary practices extant in much of South Africa. (See also Nhlapo, 1995 on the same topic.) The term is borrowed from Rapports book of the same name (1997), an extreme version of this sort of philosophy, but by no means alone in its fundamental precepts. Here I am thinking very explicitly of Carol Greenhouses work on time politics (1996), much of which seems to speak to a similar phenomenon but through a different theoretical frame. In particular, her writings on the alleged objective reality of linear time against which anthropologists measure the relativity of social time and the way in which eternity signals not the absence of time, but Gods ownership of time, i.e. the inaccessible but accepted wholeness of (Gods) time against which the plurality of intervals in (human) linear time can be measured (1996: 1949), has suggested exciting parallels to me and new directions for future research. Essential Differences: National Homogeneity and Cultural Representation in Four Recent Works on Greek Macedonia (2000). It is a curiosity of Equal Opportunities monitoring forms (which has never been satisfactorily addressed to my mind) that one is obligated both to have an ethnicity and, if one is caucasian, to refer to said ethnicity as being white. To my knowledge, under no other circumstances would one consider white to be

10

11

12 13

14 15

208 Critique of Anthropology 21(2) an ethnic afliation, and so it seems that ethnicity is something that they have while we do not. The paper was originally prepared for a conference in Oati, in the Basque province of Gipuzkoa. Marilyn Strathern must be thanked and credited for directing my thinking on this point. Even here we see measurements at work which tell us something about the scales that underpin the analysis and yet remain above the level of debate. I equate this to an act of essentialization insofar as laws alleged leveling of diverse claims inspired by diverse motivations has to proceed from a presumption that these individual positions are not, in themselves, fragmented, contradictory or internally incoherent. The individuals position qua system position overestimates the stability of the diverse perspectives the law seeks to reconcile and I, in turn, take that to be a form of essentialization par excellence. I am leaving to one side, for the time being, the interesting point that social and cultural are here conated where contemporary debate would suggest to me that they might better be understood as distinct units which serve as interims on distinct scales. This is not unlike the fantasy of a better chronology with which to capture the circularity of customs genesis. One of the foremost interests of my ongoing research is the possibility that ethnicitys lack of analytical utility and its reductive qualities stem from the fact that it is not, in itself, a system position, but rather is always part of another systems imagined environment a sort of oating signier attened and overdetermined because it always exists in relation to some other systems operational imperatives. This line of enquiry remains outside the scope of the present work and must therefore await exploration in forthcoming publications.

16 17 18 19

20

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Sari Wastell completed her MA in social anthropology at the University of Edinburgh in 1996. After taking a year out to tutor in both the law faculty and the social anthropology department at Edinburgh, she began her PhD at the University of Cambridge in 1997. Having recently returned from 13 months of eldwork in Swaziland, where she focused on the Swazi dual systems of law and governance, she is currently writing up her thesis. Address: Department of Social Anthropology, University of Cambridge, Free School Lane, Cambridge CB2 3RF, UK. [email: sw233@hermes.cam.ac.uk]