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Watch the Woodchopper, Wait for the Fire: Hayden on Yugoslav Workers' Courts

Published online by Cambridge University Press:  27 December 2018

Carol J. Greenhouse
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Type
Review Essay
Information
Law & Social Inquiry , Volume 19 , Issue 1 , Winter 1994 , pp. 223 - 242
Copyright
Copyright © American Bar Foundation, 1994 

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References

1 Max Weber, 1 Economy and Society, ed. Guenther Roth & Claus Wittich (Berkeley: University of California Press, 1978).Google Scholar

2 Id. at 8–9. Readers might recognize here the stark harbinger of Geertz's much later illustration of the ambiguities that confound understanding and observation: the ambiguity— to an observer—between a wink and a twitch. Clifford Geertz, “Thick Description,” in The Interpretation of Cultures (New York: Basic Books, 1973).Google Scholar

3 Markovits, Inga, “Law or Order—Constitutionalism and Legality in Eastern Europe,” 34 Stan. L. Rev. 513 (1982). Hayden draws on Markovits's figures for the contrast with Yugoslavia, which was, in retrospect, considerably farther along a trajectory that Markovits saw emerging in the late 1970s and early 1980s Markovits observes (at 514) that in the 1970s, all East European countries radically modified or passed new constitutions (including Yugoslavia in 1974) and that these constitutions expanded the role of law and legality. The socialist constitutions, she says, deal in citizens' well-being, not their autonomy or their rights, and as such are “enforcers of commands” and “socialist labor morality” (e.g., providing an apartment in return for good work discipline) (at 520–25, 541–43). This ideology of courts was challenged by the uses petitioners made of courts, in their demands for protections of individual autonomy and “the fruits of one's bargains” (at 574–75). This “unorthodox view of socialist legality” was, in Markovits' view, a potential harbinger of profound change (at 575): The new way of thinking about law could justify the rejection of state goals in the name of individual fairness; it could legitimize criticism beyond the supportive criticism now tolerated in socialist societies; it could question the legitimacy of law as a mere tool of social engineering. This view of legality, should it spread, would introduce a threatening and potentially explosive element into socialist legal systems. She then asks, “Is it likely to spread?” and answers in the affirmative.CrossRefGoogle Scholar

4 Hayden describes his study at 22 and 77–82; he reviews methodological issues in a separate chapter. In brief, over the course of 14 or 15 months, he observed more than 400 hours in the CAL and more than 240 cases involving 14 judges. He observed each case type at a minimum of two panels each. He spent about 100 hours observing regular courts. In addition, he interviewed lawyers, judges, and staff; he was not able to interview litigants. The study also had important archival and “popular culture” components, as indicated in the text above.Google Scholar

5 While this line of reasoning is plausible, it is not one that Hayden himself pursues at length. To do so, he would have needed interviews with complainants, who, for various reasons, were not accessible to him. For this same reason, his finding that complainants “obtain satisfaction” in the CALs must be a statistical observation rather than a characterization of workers' assessments of the process. In 1981, 30% of the plaintiffs' proposals were accepted fully by the CAL, and an additional 10% partially. Of the others, 37% of the plaintiffs' proposals were rejected, 9% withdrawn, and 13%“resolved in another manner.” It would be interesting to know how these rates of success compare to rates in the regular courts, and/or to the complainants' perceptions of regular court users' experience.Google Scholar

6 See David M. Engel, “The Oven-Bird's Song: Insiders, Outsiders,” 18 Law & Soc'y Rev. 101 (1984); Sally Engle Merry, Getting Justice ad Getting Even (Chicago: University of Chicago Press, 1990); Barbara Yngvesson, “Making Law at the Doorway: The Clerk, the Court, and the Construction of Community in a New England Town,” 22 Law & Soc'y Rev. 409 (1988); and Carol J. Greenhouse, Barbara Yngvesson, & David M. Engel, Law and Community in Three American Towns (Ithaca, N.Y.: Cornell University Press, 1994 (forthcoming)).Google Scholar

7 Hayden, Robert M., “Constitutional Nationalism in the Formerly Yugoslav Republics,” 51 (4) Slavic Review 654, 673 (1992); for a broader discussion of the cultural realm, see Bakic-Hayden, Milica & Hayden, Robert M., “Orientalist Variations on the Theme ‘Balkans’: Symbolic Geography in Recent Yugoslav Cultural Politics,” 51 (1) Slavic Rev. 1 (1992).CrossRefGoogle Scholar

8 A small point for the next edition: Readers who make the effort to trace Hayden's debt to Weber and Dumont will be frustrated by the absence of any reference to Weber in the bibliography, and errors in the references to Dumont. Louis Dumont, From Mandeville to Marx (Chicago: University of Chicago Press), was published in 1977 (not 1975, as Hayden's text and references indicate). Dumont's Essays on Individualism: Modern ideology in Anthropological Perspective (Chicago: University of Chicago Press) (“Dumont, Individualism”) appeared in 1986, not 1985. Dumont 1978 is mentioned in the text, but there is no corresponding entry in the references.Google Scholar

9 Jane F. Collier, Marriage and Inequality in Classless Societies xii (Stanford, Cal.: Stanford University Press, 1988).Google Scholar

10 Id. at xii-xiii.Google Scholar

11 This issue receives substantially less attention than the others. Except for two pages (at 7–9) on “the unpopularity of regular courts” in “modem America,” readers should not expect to find a detailed discussion of ADR in the United States, although there is somewhat more discussion of other non-Yugoslav contexts. Hayden (at 139) seems to assume that most of his readers will already be familiar with the U.S. side of the comparison.Google Scholar

12 Harrington, Christine B. and Yngvesson, Barbara (“Interpretive Sociolegal Research,” 15 Law & Soc. Inquiry 135 (1990)); Villmoare, Adelaide H. (“Politics and Research: Epistemological Moments,” 15 Law & Soc. Inquiry 149 (1990)); Sarat, Austin (“Off to Meet the Wizard: Beyond Validity and Reliability in the Search for a Post-empiricist Sociology of Law,” 15 Law & Soc. Inquiry 155 (1990)); and Esser and Trubek's reply (John P. Esser & David M. Trubek, “From ‘Scientism without Determinism’ to ‘Interpretation without Politics’: A Reply to Sarat, Harrington and Yngvesson,” 15 Law & Soc. Inquiry 171 (1990)). See also Silbey, Susan & Sarat, Austin, “Critical Traditions in Law & Society Research,” 21 Law & Soc'y Rev. 165 (1987).Google Scholar

13 Sunstein, Cass R., “Interest Groups in American Public Law,” 38 Stan. L. Rev. 29, 30–31 (1985).CrossRefGoogle Scholar

14 Id. at 31–32.Google Scholar

15 Hayden does not advocate republicanism as such (at 148). Indeed, in a subsequent work, Hayden credits the republican constitutions of Yugoslavia with directly precipitating civil war; see Hayden, 51 Slavic Rev. at 673 n.63.Google Scholar

16 Michelman, Frank I., “Foreword: Traces of Self-Government,” 100 Harv. L. Rev. 4 (1986).Google Scholar

17 Id. at 32.Google Scholar

18 Id. at 32–33; emphasis in original.Google Scholar

19 Some of the other classic Comparative approaches that have influenced the anthropology of law include processual analysis (analysis of the social relations of ritual in time; e.g., Victor W. Turner, The Ritual Process (Harmondsworth: Penguin Books, 1969), and structural analysis (the comparative analysis of myth as symbolic models of social structures; e.g., Claude Lévi-Strauss, The Raw and the Cooked: Introduction to a Science of Mythology I, trans. J. & D. Weightman (New York: Harper Torchbooks, 1969). These approaches have influenced sociolegal studies, but I do not discuss them further, since Hayden's methodological debt lies elsewhere.Google Scholar

20 For foundational statements, see Karl Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941), Laura Nader, “The Anthropological Study of Law,” 67 Am. Anthropologist 3 (1965); see also id., Harmony Ideology: Justice and Control in a Zapotec Mountain Village (Stanford, Cal.: Stanford University Press, 1992).Google Scholar

21 See John Comaroff & Simon Roberts, Rules and Processes: The Cultural Logic of Dispute in an African Context (Chicago: University of Chicago Press, 1981).Google Scholar

22 Dumont, , Essays on Individualism 2 (cited in note 8).Google Scholar

23 The phrase is Bourdieu's. See Pierre Bourdieu, Ourline of a Theory of Practice, trans. R. Nice (Cambridge: Cambridge University Press, 1977).Google Scholar

24 See, e.g., Pierre Bourdieu, In Other Words: Essays Toward a Reflexive Sociology, trans. Matthew Adamson 32–33 (Stanford, Cal.: Stanford University Press, 1990).Google Scholar

25 James A. Boon, Other Tribes, Other Scribes ix (Cambridge: Cambridge University Press, 1982).Google Scholar

26 In spite of his own claims on behalf of comparative studies of this sort, and his own identification with controlled comparison, Hayden's closing arguments suggest a comparative project of another sort. In his conclusion, Hayden asks us as scholars to accept that there is “no place outside” (Boon's phrase)—i.e., no escape into pure theory or ethnocentrism—yet he does not consider the implications of this engagement for comparative studies. Given this appeal, which is also the central appeal of what is often called postmodern ethnography, Hayden's dismissal of “postmodernist” anthropology strikes me as somewhat paradoxical.Google Scholar

27 Dumont, Individualism 2 (cited in note 8).Google Scholar

28 Dvora Yanow, “American Ethnogenesis, Policy Judgment, and Administrative Action” (1993; manuscript on file with author).Google Scholar

29 Betsalel, Kenneth Aaron, “The Limit(s) of Commitment: Journal Reflections on the Mariel Cuban Repatriation Panel Review Hearings,” 17 Dialectical Anthropology 85 (1992).Google Scholar

30 Chock, Phyllis, ‘“Illegal Aliens’ and ‘Opportunity’: Mythmaking in Congressional Testimony,” 18 Am. Ethnologist 279 (1993).CrossRefGoogle Scholar

31 James Clifford, The Predicament of Culture: Twentieth-Century Ethnography, Literature, und Art (Cambridge, Mass.: Harvard University Press, 1988).CrossRefGoogle Scholar

32 Huntington, Samuel P., “The Clash of Civilizations 72 (3) Foreign Affairs 22 (1993). (Huntington 1993).CrossRefGoogle Scholar

33 John Comaroff & Jean Comaroff, Ethnography and the Historical Imagination ix (Boulder, Col.: Westview Press, 1992) (“Comaroff & Comaroff, Ethnography”).Google Scholar

34 For an example of a comparative study that develops the theme of culture as a contested domain over time, see Elizabeth Mertz, “The Uses of History: Language, Ideology, and Law in the United States and South Africa,” 22 Law & Soc'y Rev. 661 (1988). esp. at 682 on the relationship between ideologies of history and social change. For a comparative study that takes a ideal-type approach, see Jane F. Collier, Marriage and Inequality in Classless Societies (Stanford, Cal.: Stanford University Press, 1988). More generally, see Comaroff & Comaroff, Ethnography, for a discussion of historical anthropology, and David D. Laitin, Hegemony and Culture: Politics and Religious Change among the Yoruba (Chicago: University of Chicago Press, 1986), on culture and hegemony as bases for comparative studies. See also Brinkley Messick, “Kissing Hands and Knees: Hegemony and Hierarchy in Shari'a Discourse,” 22 Law & Soc'y Rev. 637 (1988), esp. at 639, on the relationship between culture and ideology in legal anthropology.Google Scholar