This Symposium issue of the Review is a satisfying conclusion for my three years as general editor. In her Introduction, Symposium editor Beth Mertz examines the long genealogy in law and society research of the central problem that the Symposium's contributors address, law and the constituting of communities. Community is a dual concept in law and society studies. First, it is a term that is used to refer to an empirical domain within which some research is situated, the boundaries of which simplify the task of description or analysis. Second, it is a normative concept associated with authority and, often, with meaningful action. Particularly in this second sense, community has been an important focus of recent thought and research, both as a foil for critical analysis of legal authority and its constitutive properties and as an element of work on the constitution and reconstitution of action and identity. This Symposium is intended to draw attention to the importance of continuing work on the group concepts that frame, with varying degrees of explicitness, law and society studies of action and identity—race, gender, class, and, overlapping all, community.

Community has been a central concept of political and legal philosophy since its beginning. It has often served as a frame of reference even when not explored as such. From the well-known opening of Aristotle's Politics to the French constitution of 1958, community has served to designate the human group with which politics and law are concerned and to which all the characteristic phenomena of political life, power, authority, law, and the rest must be referred.

—Friedrich 1959:3

The community myth is that there is now, or ever has been, a “community” in the sense of groups of like-minded individuals, living in urban areas, who share a common heritage, have similar values and norms, and share a common perception of social order… . [T]he idea of community contains many implications of the environment encompassed by the myth. Geographically and ethnically identifiable groups become “neighborhoods,” or moral entities characterized by a sense of belonging, a sense of common goals, involvement in community affairs, and a sense of wholeness.

—Crank 1994:336–37

There exists out there, somewhere, “the black community.” It once was a place where people both lived and worked. Now it is more of an idea, or an ideal, than a reality. It is like the mythical maroon colony of the Isle des Chevaliers (for those of you who have read Toni Morrison's Tar Baby), or like Brigadoon (for those of you who are culturally deprived). “The black community” of which I write is partly the manifestation of a nostalgic longing for a time when blacks were clearly distinguishable from whites and concern about the welfare of the poor was more natural than our hairdos.

—Austin 1992:1769

More than 80% of the people of Antigua and Barbuda are born out of wedlock. In 1986 Antigua's Parliament passed new family laws to enable men to acknowledge legally their illegitimate children, to prevent discrimination against children whose parents have not wed, and to allow acknowledged children to inherit from their fathers' estates. How is the Status of Children Act, the keystone of the new measures, being interpreted and applied by legal professionals? To what degree can legal proclamations and judicial processes alter people's commonsense understanding of family? To what extent do social norms and everyday practices remake the meaning and practice of law? I explore law's role in the construction of personal and group identity and in relation to gender hierarchy. I find that Antigua's new kinship codes are both emblematic of a distinctly postcolonial kinship order and indicative of new tensions between certain powerful institutions—schools and churches—which previously enjoyed ideological support from the state.

A question intimated by some contemporary scholarship (but not yet fully explored) is how cultural practices that law both enables and limits might be related to new styles of politics and redefinitions of community. This query is first explored in the context of Queer Nation's response to the decision in Bowers v. Hardwick (1986), which reduced homosexual identity to a single behavior. Queers' subsequent embrace of a cultural politics of “direct address” suggests that the transformation of identities and communities must be built from social and cultural practices that seek to redefine citizens' affiliations. While “turning away from the law” is one strategy for redefining political practice, the case of Karen Ulane—a transsexual who was fired after having sex reassignment surgery—suggests another: The articulation of a queer notion of “nonidentity” within the legal field may afford possibilities for destabilizing dominant legal classifications such as “sex” and “gender.”

The author examines the images of community that lie behind the Environmental Protection Agency's decision not to extend proactive, uniform regulation of the Clean Air Act to the problem of local industrial odor. Under this decision, the regulation of such odors remains dependent on complaints and local initiatives rather than on proactive governmental intervention. The legitimacy and economic logic of the reactive structures the agency endorsed rely on two assumptions: (1) industrial odors are an aesthetic annoyance rather than a toxic threat; and (2) local environmental conditions reflect conscious decisionmaking by homogenous local communities as to trade-offs, and preferences for environmental quality will differ among these communities. The author uses three case studies to cast doubt on the validity of these assumptions; they demonstrate in particular the mythical character of the “community” posited by the EPA as a foundation for viable reactive enforcement. Indeed, to trigger enforcement, it has been necessary to undertake heroic organizational efforts and to create novel forms of social groupings hardly characterizable as “communities.”

In the Maluku Islands of Eastern Indonesia, a center of global diversity in coral reef systems and the historic center of trade in cloves and other spices, tenure practices known as sasi have flourished for at least a century. This article analyzes changes in the ways Dutch colonial officials, Indonesian government officials, and environmental NGOs have interpreted Moluccan customary law and local institutions. Dutch colonial accounts of sasi, a generic name for a historic family of institutions, laws, and ritual practices that regulated access to fields, reefs, and rivers, suggest that sasi was a synthetic, highly variable body of practices linked to religious beliefs and local cultural ideas of nature. During the past two decades, as international and national conservation discourses have proliferated and a movement has developed to support indigenous Indonesian cultural communities, Indonesian NGOs and the Ministry of the Environment have promoted, and largely created, images of sasi as an environmental institution and body of customary law promoting sustainable development, conservation, and social equity. This article focuses on how sasi has been continuously reinterpreted by a variety of actors, following the trajectory of changing institutional interests and images.

Law has influenced the shape of Indian group life by providing economic or political incentives for groups to organize along particular lines, by forcing groups into closer proximity with one another or separating them, and by creating an official vocabulary for the discussion of group life. The most striking effect of law has been to focus the expression of Indian political identity at the level of the “tribe.” Although largely a construct of non-Indian legal forces, the tribe has become a powerful vehicle for assertions of Indian autonomy, even when it has not always been the traditional locus of political legitimacy. Modern Indian identity and community thus reflect conflicts over and distinctive ways of appropriating the institution of the tribe. A second effect of law has been the developing support among tribal members for a supratribal Native American political community. Significantly, however, most tribal members view their support for such a community as a means of strengthening tribal units.

In representing the interests of a group, law may simultaneously construct the subject holding those interests. When groups question the implications of an imposed subjectivity, the politics of identity may become a forum for resistance. I examine law's potential to shape identity, based on a controversial decision affecting Yavapai residents of the Fort McDowell Reservation in Arizona. A proposed dam threatened to move the Yavapai from their ancestral land. To develop the Environmental Impact Statement required by the National Environmental Policy Act of 1969, the U.S. Bureau of Reclamation adopted a rational decision framework that some Yavapai believed misrepresented them. Their resistance stimulated a reinterpretation of their collective identity, a defense of their distinctiveness, and a reassertion of their right to represent themselves. The effect of this reappraisal was a new appreciation and articulateness about Yavapai distinctiveness, an invigorated sense of their own history and, most important, their enhanced empowerment.

While Native American treaty rights are one of the strongest instances of legally protected rights to social and cultural particularity in the United States and internationally, treaties and treaty litigation are also deeply racializing forms of legal discourse. This essay explores the dynamics between law and culture in the United States and the contradictory role played by federal Indian law in the transformation of indigenous identities by examining a current treaty rights case: United States v. Oregon, Confederated Tribes of the Colville Reservation, Plaintiff-Intervenor. The essay sets the Colvilles' litigation into its historical and legal context through an analysis of the relationship between the group names, of legal and nonlegal origin, by which Colvilles identify themselves and about which this litigation is centrally concerned. The Colville Tribes have consistently layered their social identities onto a map of permanent places through intra- and intergenerational naming formulas that are used to establish identity and to negotiate historical change and colonization. Federal Indian law has consistently constructed identity in its naming of indigenous groups by decontextualizing and remapping identity to a fixed map of race. Thus, federal legal discourse precludes a consideration of the very aspects of Colville identity that are central to the recognition of the claims put forth in their current litigation.

This commentary responds to the essays by Espeland and Gooding as ethnographic studies of the cultural construction of identity with a discussion of the concept of “cultural construction.” Sophocles' Antigone provides an extended illustrative example of how the poetics of identity are tied to the materiality of power. In the world of events, the concept of cultural construction is useful—as Espeland's and Gooding's essays show—as an alternative (and remedy) for the overuse of the concept of “choice.” To refer to identities as “cultural constructions” focuses attention on how powerful institutions and subjectivities are mutually implicated, without implying that people's needs and world-views are commensurable—or that the outcomes of their contests are fated.

In this essay I make a case for what I call a “moderate” and also an “empirically grounded” social constructionist approach, which I conceptualize as a further development of numerous strands of a longstanding and rich tradition. I argue that this approach, one I see as emergent now in cross-disciplinary work like that presented in this Symposium, can help to move scholarly discourse past the impasses posed by dichotomous, either/or thinking about law, society, and epistemology. To orient those unfamiliar with the pertinent scholarship, I begin with a sketch of the intellectual traditions and issues involved.