Part I - Entangling State Law

2 Denial, Deferral and Translation Dynamics of Entangling and Disentangling State and Non-state Law in Postcolonial Spaces

Tobias Berger

2.1 Introduction

Legal entanglements unfold in a curious space. They emerge in-between different sets of norms, which are neither fully integrated nor kept entirely apart.¹ This position in-between various sets of norms is inherently unstable, so that legal entanglements need ardent work of creation, maintenance and constant renewal. Entanglements thus need to be made and unmade by specific actors who are situated in historically shaped yet malleable contexts where different sets of norms overlap and coincide. This chapter focuses on the ways in which different actors entangle international, state and non-state law in postcolonial societies. While undoubtedly a very heterogeneous category that unavoidably escapes reductionist attempts at homogenization, I argue that those places where colonial powers institutionalized plural legal orders as explicit strategies for the consolidation of their rule constitute a privileged site for the investigation of entangled legalities. It is from these sites that systemic images of law, as they have been problematized in Chapter 1, have been forcefully attacked. As Renisa Mawani argues, ‘Law, in all of its plurality – including Western, customary, and personal law – is conventionally viewed as geographically situated and territorially bound to national and imperial polities. What the comparative and transnational turn has revealed is that law was also itinerant, moving with imperial authorities and colonial subjects, and connecting imperial jurisdictions in the process.’² Itinerant laws have thus produced historically grown legal entanglements affecting socio-legal dynamics in most of the world today. Yet laws hardly ever travel by themselves.

This chapter consequently analyses (some of) the actors that make law move and the dynamics in which they seek to make and unmake certain legal connections. Focusing on judges and activists of non-governmental organizations (NGOs), it identifies three modes in which dynamics of distancing and approximation between different sets of norms can unfold: denial, deferral and translation. Whereas denial refers to a state where empirically existing entanglements are acknowledged but their legal as well as normative validity is denied, deferral denotes a situation of precarious balance in which a given relationship between interwoven sets of norms cannot be altered, as this would leave one or more of the involved parties deeply dissatisfied. Thriving on imprecision and ambiguity, the politics of deferral thus denotes a strategy of leaving the final arrangements between different bodies of norms open and unsettled. Finally, rather than aiming to unmake entanglements, as in the case of denial, or postponing conclusive settlements between competing sets of norms, as in the case of deferral, translation refers to the proactive transformation of norms that occurs as they move back and forth between different contexts. In all three modes – denial, deferral and translation – multiple normativities do not merely coexist but are brought to life and are related to each other through the ardent work of individual actors. They are the main protagonists of this chapter.

After having discussed the ways in which colonial legacies have historically shaped and continue to strongly affect entanglements between international, state and non-state law in postcolonial spaces (Section 2.2), I turn to the discussion of denial, deferral and translation as three distinct modes through which actors seek to navigate highly complex entangled legal landscapes (Section 2.3). The remainder of the chapter then turns to the analysis of the dynamics in which legalities become entangled in Bangladesh as a postcolonial space par excellence (Section 2.4). More precisely, I focus on three instances to illustrate these dynamics: first, the Supreme Court’s attempt to ban Islamic fatwas in 2001 (denial); second, the violent protests this has triggered and the subsequent decision of the Appellate Division of the Supreme Court to stay the verdict for over a decade (deferral); and third, the work of local activists who, regardless of constitutional developments, seek to carve out emancipatory spaces for marginalized people by simultaneously drawing on multiple normative registers, including Islamic and international human rights norms (translation).

2.2 Colonial Entanglements

Today’s legal entanglements unfold in long historical trajectories in which colonial encounters have played a decisive role.³ On the one hand, law was a key instrument of colonial rule. It was, in the words of Martin Chanock, ‘the cutting edge of colonialism, an instrument of the power of an alien state and part of the process of coercion’.⁴ As an instrument of coercion, law was crucial for the facilitation of the extraction of land, labour and mineral resources from the colonized as well as for the organization of highly unequal trade networks and market exchanges.⁵ Yet beyond its function as a tool for domination, Sally Engle Marry has argued that law also had constitutive effects; it not only enabled extraction but also ‘transformed conceptions of time, space, property, work, marriage, and the state’.⁶ Embedded in broader systems of domination, colonial laws thus significantly altered not only the material infrastructures of colonized societies but also deeply transformed diverse systems of knowledge deployed to navigate various aspects of everyday life. While colonial projects varied significantly across time and space, as well as between different colonizing empires, most, if not all, European colonial projects operated through the making and unmaking of legal entanglements whose shape and direction were frequently the subjects of intense debate in both the colonies and the metropoles. In these debates, arguments ranged from the wholesale transfer of metropolitan laws to the wide-ranging reliance on seemingly indigenous laws in systems of indirect rule. Yet even in the latter case, colonialism’s legal entanglements had far-reaching effects on colonized societies. Rather than simply relying on pre-existing ‘traditional’ or ‘customary’ authority, colonial projects operating through various forms of indirect rule strongly altered Indigenous legal forums. Importantly, the kind of legal pluralism that emerged and continues to significantly shape legal dynamics in most of the world today was thus not a factual state of affairs but a project to be realized. As Lauren Benton argues, ‘colonial powers sought simultaneously to establish limited jurisdiction and to reinforce – and in some cases create – Indigenous legal forums. As with indirect rule, legal pluralism as a colonial project often required the creation of “traditional” authority and the reification of legal practices and sources of law that had existed formerly only as fluid elements of a flexible legal process.’⁷

While the constitutive effects of colonial laws on colonized societies have been carefully documented, recursive effects on the colonizing societies have received less attention. In the legal histories of Western Europe and North America, narratives of autonomous legal evolutions still predominate. Yet the constitutive effects of colonial encounters cut both ways. Although highly unequal, these encounters did not merely constitute the unilateral imposition of legal templates. Instead, recent scholarship has shown how even core aspects of European legal systems remain poorly understood if conceptualized without the transnational entanglements in which they emerged. Rather than being only peripheral to legal developments in Europe, colonies frequently had to serve as laboratories for legal innovation and new regulatory techniques. As John Comaroff has argued, ‘the terrain of the colonized became a testing ground from which emanated new lawfare, new technologies of order and regulation. These sometimes confined themselves to the colonial frontier itself. But sometimes they were taken back to the metropole, there to alter its social lineaments.’⁸ At times, the alterations that resulted from the retransfer of legal innovation to the metropole were far-reaching. One example is the legal institution of property as a cornerstone of liberal social and political orders developing in Western Europe. As Brenna Bhandar has shown, the emergence and current shape of modern property laws in the United Kingdom are inseparable from colonial expansions since the eighteenth century.⁹ In her account, the validation of formal ownership via the registration of land titles in state-regulated regimes institutionally emerged in the colonies of South Australia and British Colombia, long before a similar regime became implemented in the United Kingdom on a national scale.¹⁰ Perhaps ironically, the subsequent prevalence of private property as a formally sanctioned, state-recognized institution became a key marker of civilizational achievements while, conversely, its absence turned into a key justificatory trope for colonial settlements.¹¹ The ensuing ‘racial regimes of ownership’, as Bhandar aptly calls them, fundamentally shaped processes of social and political transformation in both the colonies and the metropoles. At an equally fundamental level, Nasser Hussain has shown how notions of the rule of law, and exceptions to this rule of law in terms of emergency powers, were at the heart of nineteenth-century colonial governance in India and Jamaica, which, in turn, decisively ‘affected the development of Western legality’.¹² These accounts of the entangled legalities in which modern notions of property as well as ‘the rule of law’ as cornerstones of legal systems emerged powerfully undermine inward-looking narratives of teleological (legal) development in either the Global North or the Global South.

2.3 Dynamics: Denial, Deferral and Translation

Those places where colonial powers institutionalized plural legal orders as explicit strategies for the consolidation of their rule constitute privileged sites for the investigation of entangled legalities. Here, both state and non-state law have not developed in isolation but invariably bear the traces of the transnational entanglements in which they emerged. Significantly shaping different sets of legal norms as well as the respective relationships between them, the effects of these transnational entanglements have been enduring, reaching well into the postcolonial period. In the postcolonial period, at least three different kinds of entanglements can be observed in previously colonized, plural legal orders. First, international financial institutions and multilateral donor agencies continue to entangle state legal systems transnationally. These entanglements encompass both the substantive legal provision, generally along liberal lines, and the facilitation of material legal infrastructures like courtrooms or digital devices. Contemporary transnational legal entanglements thus take myriad forms, often enumerated by international actors in terms of ‘laws passed, people trained, computers provided, buildings erected’.¹³ Second, transnational entanglements also continue shaping the operation of non-state legal systems. These entanglements stem from various sources, including (again) international donor organizations that have recently rediscovered non-state justice institutions as seemingly ‘local’ and ‘authentic’ avenues for the promotion of human rights and the rule of law.¹⁴ Yet diaspora communities also entangle non-state justice institutions in broader webs of conflict resolution beyond the confines of the nation state, thus embedding seemingly local courts in wider networks of normative and legal reasoning.¹⁵ Finally, state and non-state law in postcolonial contexts are not only transnationally embedded but also interact with each other. The ensuing entanglements can take various forms. They can surface as formal legal integration, for example, when non-state justice institutions are recognized by state authorities under conditions of adherence to certain substantive and/or procedural requirements. In addition, entanglements can also emerge through officials performing functions across different systems. Marlies Bouman provides a powerful example of such entanglement in her analysis of the complicity of police officers in the facilitation of non-state justice in Botswana, where ‘chiefly courts are in fact tolerated, or even supported, by the official police forces, although their adjudication activities are in violation of various national laws’.¹⁶ Beyond formal integration, state and non-state law thus also become entangled in quotidian practices of conflict resolution.

What emerges in these entanglements is a dynamic movement of approximation and distancing, as actors navigate the complex space in-between state and non-state law. As argued in Chapter 1, this space in-between emerges as entanglements ‘[are often] characterized by a dialectical dynamic – one in which actors favour proximity between different bodies of norms but they also seek a certain distance, and they thus construe the relation as neither strict separation nor full integration into one order’. In what follows, I introduce three distinct modes in which the dynamics of entangling (and disentangling) legalities can unfold: denial, deferral and translation. Denial constitutes a radical form of distancing. It does not concern so much the repudiation of the actual existence of the entanglements of different sets of norms as empirical phenomena but denies their legal validity as much as their normative desirability. Entangled legalities are thus portrayed as pathologies to be overcome by the actors involved. In the case of entanglements between state and non-state law, denial as a way of (almost) unmaking entanglements frequently relies on teleological narratives reproducing rather than challenging idealized notions of law as a unitary and coherent system. Interestingly, the denial of one set of entanglements might well coincide with simultaneous demands for new but different entanglements. Liberal critics of the pathologies of non-state institutions, for example, often rely on international norms concerning human rights to make their case for severing the ties between state law and its local non-state counterparts. In these cases, entangled legalities are evaluated against the backdrop of a spatial imagination in which ‘the international’ is seen as the reservoir of normatively desirable order, whereas ‘the local’ becomes the source of backwardness, poverty and strife.¹⁷ State law is sought to be entangled with the former, also to distance it from the latter.

In contrast to the denial of legal entanglements, deferral aims at keeping a precarious balance between different forces in place. Often this involves undermining aspirations to unity and coherence usually associated with state law. Instead of producing certainty, the politics of deferral flourishes in the realm of the uncertain and undecided. It enables cohabitation precisely because it does not conclusively settle issues or conflicts, which cannot be settled, or cannot be settled in a way acceptable to all parties involved. Noah Salomon provides a striking example of the politics of deferral in his analysis of ‘The Ruse of Law’ in Sudan. Analysing the politics of religious diversity in the 1990s, he shows how, in the run-up to the 2005 Comprehensive Peace Agreement, only the suspension of the questions of applicability of Islamic religious principles to non-Muslims enabled progress in otherwise stalled negotiations between the north and the south. In Salomon’s words, in the negotiations it seemed ‘that the consensus was that the building of a state that respects religious diversity was only possible in spite of the law – that is, when the law was unequally or inconsistently applied – and not by crafting a law that would be acceptable to all’.¹⁸ Here, a unitary and consistent legal system is deliberately eschewed for inconsistency and a status of deferred legal certainty. Interestingly, the resulting uncertainty is often a source of stability rather than chaos. While scholars operating within the kind of unitary images of law outlined in Chapter 1 unavoidably understand uncertainty as a source of trouble and strife, the notion of legal entanglements opens the analytical space to appreciate the stabilizing function of uncertainty. Precisely because the conflictual relationship between different sets of norms is not brought into hierarchical order but is kept open and thus dynamic (or ‘uncertain’), entangled legalities can have de-escalating effects in situations where seemingly irreconcilable differences coincide.

The third mode through which actors navigate entangled legalities is translation. Rather than aiming to unmake entanglements, as in the case of denial, or postponing specific settlements between competing sets of norms (as with deferral), translation refers to the proactive transformation of norms that occurs as they move back and forth between different contexts. Its focus is less on conceptualizing the ways in which different sets of norms are temporarily coupled or decoupled but rather on the myriad ways in which external ideas enter specific sets of norms. Translations usually involve two kinds of change that occur simultaneously.¹⁹ On the one hand, the content of norms changes, at times quite considerably. As Walter Benjamin argued in his seminal reflection of ‘The Task of the Translator’, translations are inherently creative as much as productive processes. Instead of simply transferring ideas from one language (or one context) into another, translations constitute proactive innovations of new meanings. This, in turn, challenges the idea of ‘the original’ as an authoritative reference point to which any translation would need to seek as close a proximity as possible. Instead, proximity in meaning might well arise from a seeming distance to the original. In the beautifully poetic words of Benjamin, ‘no translation would be possible if, in accord with its ultimate essence, it were to strive for similarity to the original. For in its continuing life, which could not be so called if it were not the transformation and renewal of a living thing, the original is changed.’²⁰ On the other hand, as the content of norms changes, the contexts in which they are translated are also altered. In processes of translation as well as in instances of denial and deferral, the boundaries of Razian legal systems, both inwards and outwards, become rather fuzzy. To illustrate the modes of denial, deferral and translation, the remainder of this chapter turns to the analysis of entangled legalities in contemporary Bangladesh.

2.4 Entangled Legalities in Bangladesh

As a highly transnationalized socio-political space, Bangladesh exemplifies the properties of postcolonial statehood and the correlative legal entanglements so far discussed. Since its inception Bangladesh has been a highly aid-dependent country. Labelled as a ‘perpetual basket case’ by Henry Kissinger in the 1970s,²¹ it subsequently became a testing ground for development practices and ideas as well as a focal point for developmental innovations.²² At the same time, the country’s legal landscape is characterized by historically grown and deeply anchored plurality. In Sarah White’s paraphrase of Joel Migdal, Bangladesh remains ‘a weak state in a strong society’.²³ The resultant legal entanglements between international, national and local sets of norms as well as between state and non-state law unfold in a long historical trajectory reaching back to the British colonial state in India. Before turning to the analysis of three instances of denial (Section 2.5), deferral (Section 2.6) and translation (Section 2.7), I first briefly sketch some pertinent aspects of this trajectory.

Having been part of the colonial state in India, Bangladesh emerged from the so-called second partition on the Indian subcontinent. The first had resulted in the separation of India and Pakistan upon the eve of independence in August 1947. Based on the ‘two-nation theory’ and the assertion that Hindus and Muslims constituted two different nations and consequently ought to inhabit distinct nation states, Pakistan emerged as a bifurcated state with two geographically disconnected wings, separated by more than 1,000 kilometres of Indian territory. In many ways an unviable political project from the outset, tensions in Pakistan quickly rose, especially between the eastern and western wings. Escalating over questions of political representation, the distribution of resources and – above all – national language, these tensions resulted in a short but bloody war of independence in 1970–1, leaving between one and three million dead and more than ten million refugees in neighbouring India. Based on an ethnolinguistic nationalism built around the Bengali language as the most decisive marker of identity for the inhabitants of what was then still East Pakistan, the independence movement sought to undermine Pakistan’s raison d’être as the homeland for all Muslims on the subcontinent by advocating a secular rather than religious identity for the future state-to-be. After the surrender of the Pakistani troops, following Indian aerial intervention in December 1971, Sheikh Mujibur Rahman and the Awami League as leaders of the independence movement consequently established secularism, together with socialism, nationalism and democracy, as constitutive principles of the newly born state of Bangladesh.²⁴

Since its inception the state of Bangladesh has existed in a web of multiple, at times overlapping, entangled legalities. From the British colonial state in India, it inherited a bifurcation between secular Civil and Criminal Codes and a set of religious personal laws governing questions of marriage, divorce, inheritance and the custody of children. While based on religious precepts, the colonial state heavily intervened in the interpretation of religion. Relying on orientalist scholarship and excessively scripture-based understandings of religion, the colonial state codified religious laws whose content diverged significantly from the quotidian practices of (religious) legal interpretation in India. As Michael Anderson has argued, ‘colonial administrators may never have changed Islamic legal arrangements quite so profoundly as when they were trying to preserve them’.²⁵ Departing from the colonial interpretation of religious law, the Pakistani state also engaged in substantial religious law reform. From the Pakistani period, the postcolonial state in Bangladesh inherited the 1961 Muslim Family Laws Ordinance (MFLO). In many ways a radical piece of legislation, the MFLO altered inheritance patterns for orphaned grandchildren in ways considered by many religious authorities in direct contravention of Shar’ia law.²⁶ Until today, this provision of the MFLO is subject to vocal protest, most recently during large-scale rallies of the Hefazat-e-Islami movement in Dhaka in 2013, demanding (in addition to twelve further points) the ‘abolishment of anti-Islamic inheritance laws’. Besides altering the law of inheritance, the MFLO also established a central role for the state in the administration of Muslim family law.

It prohibits the practice of so-called ‘verbal divorce’ (effected by a husband uttering the word ‘talaq’ three consecutive times). Under the MFLO, all Muslim marriages have to be registered with the state, and any divorce of such marriage can only take effect if submitted in writing to the chairman of the local administrative council and subject to a ninety-day mediation phase aimed at the restoration of marital life. While welcomed by women’s rights organizations, the MFLO provoked severe resistance among the community of religious scholars in Pakistan who understood it to be a direct attack on their authority.²⁷

From the liberation movement, the state inherited the initial emphasis on secularism as a foundation of the state. Yet this notion of secularism was always subject to interpretation and contestation. Between 1975 and 1991, Bangladesh was governed by two military dictatorships, both of which deployed religious language as a legitimating device.²⁸ The first dictator, General Ziaur Rahman, changed the principle of secularism to an emphasis on ‘absolute trust and faith in the Almighty Allah’ in the preamble as well as a new subclause (1A) of the Bangladeshi constitution. The second one, General Husain Md. Ershad, altered the constitution in 1988 by introducing the Eighth Amendment that declared Islam to be the state religion.²⁹ Ershad’s amendment encountered strong resistance from both secular and religious forces within the country, as the strongest Islamic political party, the Jamaat-e-Islami, denounced Ershad’s move as ‘hypocritical’ and ‘not genuinely Islamic’.³⁰ A 2010 Supreme Court verdict reinstated secularism as a cornerstone of the constitution and banned Islamic parties.³¹ Through the following Fifteenth Amendment of the Constitution in 2011, Article 1A was deleted and replaced by Article 8 (1) stating that ‘[t]he principles of nationalism, socialism, democracy, and secularism […] shall constitute the fundamental principles of state policy’. At the same time, however, Article 2A was left intact, declaring that ‘[t]he state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions’.³²

Finally, the complex constitutional history also encompasses ongoing transnational entanglements in the form of obligations under international treaties. Bangladesh has signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, signed in 1984), the Convention on the Rights of the Child (signed in 1990), the International Covenant on Economic, Social, and Cultural Rights (signed in 1998) and the International Covenant on Civil and Political Rights (signed in 2000), all of which have become powerful tools in the hands of Bangladeshi human rights organizations in their struggles against myriad forms of discrimination. In these struggles, local organizations need to navigate a complex web of entangled legalities, comprising a discrete set of state laws, often still exhibiting the imprint of colonial authorship, various forms of local non-state law, including religious precepts and customary conventions, and a liberal international architecture at least partially anchored in state law.

In what follows, I analyse denial, deferral and translation as three modes in which human rights organizations seek to navigate these entanglements. To scrutinize these processes of entangling and disentangling legalities, I focus in particular on the question of the legal status of fatwa. While the precise definition of fatwa is itself subject to ongoing debates, at its most basic fatwa refers to a non-binding decision issued by a learned religious authority on a point of Islamic law or practice.³³ Yet who exactly qualifies as a learned scholar authorized to issue fatwa, the weight of fatwa in light of competing legal precepts and the precise scope of which kinds of questions are actually governed and governable under Islamic law remain subjects of contention, and not only in Bangladesh.³⁴ In Bangladesh, these questions gained judicial salience with a High Court judgement issued in 2001.

2.5 Denial

On 1 January 2001, a Division Bench of the High Court Division of the Supreme Court of Bangladesh delivered what many national and international observers at the time considered to be a landmark judgement. On its own initiative and without having been approached by any party, the court has issued a suo moto ruling in reaction to a news item reported in the Bangladeshi newspaper Daily Bangla Bazar Patrika on 2 December 2000. The ruling questioned local authorities of Naogaon district regarding their failure to act against an illegal fatwa. The fatwa had directed a young woman of Naogaon to undertake an intervening marriage after an alleged verbal divorce to restore marital life with her previous husband. According to the news report, Saiful Chunnu of Naogaon village had pronounced ‘talaq’ (‘divorce’) to his wife Shahid more than a year ago, yet the couple had reconciled and continued marital life. As Saiful Chunnu spent a few days away from their village on family business, a neighbour claimed to have heard the pronouncement of ‘talaq’ and issued a fatwa directing Shahid to undergo a so-called hilla (intervening) marriage with another man from the village. Upon his return and learning about the forced hilla marriage, Saiful Chunnu refused to continue their marriage and sent Shahid back to her father’s house. While highlighting the persistence of patriarchal power relations, the case is rather unambiguous in the legal terms of the state. Both intervening hilla marriages and verbal divorce (whether by uttering ‘talaq’ once or thrice) are in violation of Section 7 of the MFLO; in addition, causing people to believe that they will become objects of Divine displeasure is punishable under Section 508 of the Penal Code.³⁵ The court’s condemnation of the local authorities’ failure to act is thus neither surprising nor controversial.

While singling out the fatwa case from Naogaon, the court’s verdict unfolds against the backdrop of deeper societal controversies over fatwa practices. As Dina Siddiqui has shown, since the early 1990s approximately thirty-five to sixty fatwa cases have annually gained attention in the national press.³⁶ This does not mean that fatwa are a recent phenomenon; it only indicates the increased visibility of certain kinds of fatwa verdicts after the return to electoral democracy in 1990 and the correlative improvements in freedom of speech. The fatwa cases that attract the attention of a larger audience often involve extreme displays of violent enforcement, frequently targeted against women’s bodies. One of the first fatwa cases discussed at the national level was the case of Nurjahan in 1993. After having obtained a divorce from her first husband, Nurjahan rejected the proposal of an influential member of the village community and decided, instead, to marry a landless youth of her choice. Enraged by the refusal, the influential village elder initiated a shalish court and prompted a local religious figure to issue a fatwa against Nurjahan and her second husband for adultery. Although the same figure had previously verified the state-sanctioned divorce of Nurjahan and her first husband, he subsequently disputed the validity of the divorce papers produced in the shalish session, in which Nurjahan, her husband and the guests attending their wedding party were condemned to acts of severe public humiliation. Based on her meticulous reconstruction of the complexity of local power structures, Dina Siddiqui has shown how Nurjahan’s case cannot be read exclusively through the lens of seeming adherence to religious moral precepts. Instead, she shows how the fatwa aims to reaffirm intersecting power structures, including patriarchal control and class domination.³⁷ Yet these complexities are frequently lost in both liberal international and secular-nationalist narratives of fatwa violence. As Siddiqui argues, in Bangladesh:

Understandings of the ‘fatwa-frenzy’ were also overdetermined by the specific trajectory of secular nationalism […], in which Islam had always been the Other of the nation. Within this context, fatwas came to signify the contamination of secular national space by the backwardness of religious law. Accordingly, fatwas could be read as antinational phenomena attached to Islam, rather than one located in the complex conditions of modernity.³⁸

It is this broader discursive universe, in which questions of fatwa verdicts intimately link to questions of national identity and the legacies of the liberation movement that the High Court’s verdict is articulated in January 2001.

As argued earlier in this section, the verdict against the specific fatwa under scrutiny seems neither surprising nor especially controversial. Much more controversial than the condemnation of the individual case, however, were the broader implications that the court sought to extrapolate from the case it had decided to pursue. First, it concluded that all fatwa are illegal. As the court argued: ‘Fatwa means legal opinion which, therefore, further means legal opinion of a lawful person or authority. [The] [l]egal system of Bangladesh empowers only the Courts to decide all questions relating to legal opinion on the Muslim and other Laws as in force. We, therefore, hold that any fatwa including the instant one are all unauthorised and illegal.’³⁹ Furthermore, the court called upon parliament to make the issuing of fatwa a punishable offence, even if the fatwa was not executed. In addition, the court’s verdict also recommended the inclusion of the (until today highly controversial) MFLO in the Friday sermons and argued for the creation of a unitary education system, including religious educational institutions:

Before parting with this matter, we find it necessary to answer a question as to why a particular group of men, upon either getting education from maddrasah or forming a religious group, are becoming fanatics with wrong views. There must be defect in their education and their attitude. As a short measure, we recommend that study of Muslim Family Laws Ordinance must be introduced in all schools and that the Khatibs in all the mosques must be directed to discuss the Ordinance in their Friday sermons. As a long-term measure, we recommend an unified education system and an enactment to control the freedom of religion subject to law, public order and morality within the scope of Article 4 (1) of the Constitution. The State must define and enforce public morality. It must educate society.⁴⁰

In effect, this line of argument amounted to a hardly concealed attack on entrenched religious authorities and their standing within established local power structures. Rather than limiting itself to the already justiciable prosecution of the violence inflicted under the seeming cover of religious justification, the verdict constitutes a radical attempt at affirming the superiority of the state over societal sources of law and legal reasoning tout court. What is remarkable about the case decided on 1 January 2001 is thus neither the indictment of the inaction of local state authorities nor the condemnation of the individual fatwa but the vehemence with which it draws much broader conclusions about the relationship of state and non-state law, especially in its religious manifestations. By calling upon the state to enforce public morality and educate society, it seeks to disentangle the complex legal architecture of family relations, especially in rural parts of the country, from religious influences. This denial as a radical form of distancing, which aims at the creation of the greatest distance possible between entangled legalities, unsurprisingly encountered strong resistance. Demanding the subordination of state law to religious principles, several Islamic organizations, including both political parties and religious educational institutions, organized a general strike, disrupting public life and leading to violent confrontation with law enforcement agencies. Religious scholars also appealed the judgement in the Appellate Division of the Supreme Court. The Supreme Court, in turn, stayed the verdict exactly two weeks after it had been first pronounced. Attempts at denying the entanglements between the state laws and religious authorities (however defined) had come to a standstill. What emerged, instead, was a politics of deferral.

2.6 Deferral

After the Supreme Court had stayed the verdict in January 2001, initially for a mere six weeks, it took more than a decade before the legal status of fatwa was to reappear at the court. Confronted with hardened positions between secular-nationalist and religious camps, the court decided not to pursue the case further. Instead of aiming for legal clarity, the court settled for a politics of deferral where the legal status of fatwa remained undecided. Initially, the deferral coincided with a change in political climate. While the original judgement was passed during the last days of the Awami League-led government, in October 2001 the Bangladesh Nationalist Party (BNP), in coalition with three smaller parties, including religious ones, won the elections. Although recent scholarship has shown how the ideological differences between the Awami League and the BNP seem exaggerated in both public imagination and scholarly discourse,⁴¹ the BNP’s return to power in 2001 did amplify the voice of small yet highly organized Islamic political parties. Operating in a precarious balance of different political forces, the erstwhile very vocal defendants of the so-called ‘fatwa ban’ settled for a strategy of deferral, especially at the constitutional level. While the case seemed to be lingering and almost forgotten, its deferral was actually not caused by inaction but hard work, requiring myriad interventions to make sure that no judgement was forthcoming. One close observer and longstanding participant in the judicial contestation over the status of fatwa summarized the politics of deferral that emerged as follows:

And then [after the Supreme Court had stayed the verdict in 2001], we ran a ten-year job to make sure that this case did not get heard too early, because at various points there were very worrying constructions of the bench and so on – and we were worried that if the case got heard that we would end up with a Supreme Court finding […] saying that there is a fundamental right to issue fatwa.⁴²

The decision on the constitutional status of fatwa thus remained undecided – until 2011.

In 2011, the Appellate Division of the Supreme Court reopened the case and endorsed, at least in part, the appeal that had been filed against the initial High Court verdict on the illegality of fatwa. Contra the High Court judgement, it declared fatwa legal, but only if it was (1) passed by a ‘learned person’, and (2) only applied to ‘religious matters’. Yet on both of these important qualifications the judgement remained conspicuously vague. It neither defined the ingredients necessary to qualify as a ‘learned person’ nor delineated what precisely constituted a ‘religious matter’. The ambiguity surrounding the judgement further increased as the Supreme Court did not publish the full judgement until 2015, forty-four months after the verdict had been actually passed and communicated as a brief statement.⁴³ When the full judgement was eventually published, it still refrained from these crucial specifications of what qualifies ‘properly educated persons’ to issue fatwa in ‘religious maters’, and what exactly these religious matters comprised. Even as the Supreme Court formerly settled the case, the politics of deferral thus continued, as the precise status of fatwa within the complex legal architecture of Bangladesh remained an unsettled question and open to competing interpretations.

While deferring the conclusive settlement on the constitutional status of fatwa required the continuous work by the parties involved in the case, it also allowed human right’s activists to disentangle the legal condemnation of violence against women from broader questions about the status of religious law. While these broader questions remained deferred, the judgement nonetheless explicitly stated that ‘no punishment including physical violence or mental torture in any form can be imposed or implicated on anybody in pursuance of [a] fatwa’.⁴⁴ The Supreme Court’s judgement thus overturned the High Court’s decision to ban fatwa in 2001 but upheld another High Court decision from 2010 on the illegality of extrajudicial punishment. This 2010 High Court decision, in turn, came in response to three writ petitions filed by five prominent human rights organizations in Bangladesh, the Bangladesh Legal Aid and Services Trust, Ain-o-Shalish Kendro, Bangladesh Mahila Parishad, BRAC and Nijera Kori. These organizations are exceptionally skilful socio-legal actors, and their strategic choices have paved a distinct pathway to legal entanglement. Most of the organizations had already been at the forefront of the judicial process leading to the fatwa ban in 2001. A decade later, their writ petitions constitute an attempt at disentangling the inflection of violence, often against women, from questions of Islam and Islamic law. Starting from the observation that the first judgement declaring fatwa illegal was ‘very poorly reasoned’, one human rights activist describes how these five organizations at the time ‘thought that somehow we had to clarify this whole question: what is a fatwa, what is not a fatwa, and what is the nature of this violence? And to bring the conversation, the discussion, the judicial exercise back to a discussion about the constitution and law, rather than religion and religious rights. We had to take it out of that space.’⁴⁵ Taking the violence perpetrated against women out of the space of contestations over religious-cum-legal authority is an act of disentanglement. It aims to dissociate the pathologies of patriarchal power structures in Bangladesh from questions of religious rights within a constitutional framework. At the same time, while disentangling questions of violence and questions of fatwa, the argumentative architecture built carefully by the five human rights organizations did include new entanglements with international norms. As the activist already cited argues, in the final court hearing the organizations were very careful to advance the following argument:

we as Bangladeshi organisations working in Bangladesh within the framework of the Bangladesh constitution, but also within the framework of International Human Rights obligation that pertain on our government, have this interpretation. Our interpretation is that we want to have a very clear condemnation of the violence perpetrated in the name of fatwa. We do not want a debate what is and is not fatwa under religious law, we are not before a religious court, but before a constitutional court, so we want a constitutional interpretation. Our constitution clearly says: all forms of cruel and degrading punishment are prohibited.⁴⁶

This argument, in turn, was supported by frequent references to CEDAW and its strict condemnation of all kinds of cruel and degrading punishments. The making and unmaking of legal entanglements in this case illustrates the importance of strategic choices of individual actors. As outlined in Chapter 1, strategic choices constitute one of the possible pathways in which entangled legalities come about. In this case, entangling and disentangling legalities coincided as Bangladeshi human rights organizations very deliberately sought to forge certain connections while releasing others.

2.7 Translation

The processes of distancing and approximation analysed as ‘denial’ and ‘deferral’ in Sections 2.5 and 2.6 play out in a context of confrontation between secular-nationalist and Islamic narratives deployed by different actors to lay claims upon the state and its constitutional order. At times, these claims have been laid quite violently, for example, in the repeated physical attacks on secular women’s rights NGOs by seemingly religious actors throughout the 1990s or in the equally violent crackdown on members of the Jamaat-e-Islami by the seemingly secular Awami League government in the run-up to the 2014 election. While the dividing line between the religious and the secular is frequently staged in exceedingly violent spectacles in Bangladesh, recent scholarship has cast serious doubts on the social embeddedness of this divide. Analysing the confrontation between religious actors and secular NGOs over questions of women’s economic empowerment in rural areas throughout the 1990s, Sarah White has shown how ‘the substance of the NGO–“Mullah” confrontation lay indeed in the symbolic, or political, capital that each side could derive from it, rather than this signifying any more structural antagonism between “Islam” and the expansion of women’s economic activity’.⁴⁷ Analysing the multifaceted dynamics of entangled legalities in rural Bangladesh thus requires moving beyond the confines of both secular and religious elite discourses as they circulate in Dhaka’s higher judicial institutions and national media outlets. In contrast to urban elites, the grassroots-level fieldworker and activists in rural Bangladesh often need to navigate significantly more complex legal landscapes that eschew dichotomous confrontations between Islam and secular nationalism.⁴⁸

To carve out emancipatory spaces for poor and marginalized people, and women in particular, activists in rural Bangladesh simultaneously draw on multiple, often quite different, normative registers. While the upper echelons of Bangladesh’s vibrant NGO sector frequently disregard piety and religious registers as tools for local struggles, Elora Shehabuddin has shown how grassroots-level staff of these organizations regularly draw on religious arguments in their everyday work. The examples she cites range from Islamic condemnations of violence against women (for example by invoking the example of the Prophet Mohammed) to religious sanctions for girls’ education and the use of contraception.⁴⁹ Often materially dependent on international funding, this kind of grassroots-level activism in rural Bangladesh thus needs to straddle the normative expectations of very different audiences. Elsewhere, I have argued that the notion of translation offers a productive way to capture the work local activists do in their attempts to straddle these different normative expectations as well as the different legal systems in which these expectations are embedded.⁵⁰ Rather than distancing or approximation, the notion of translation refers to the transformation of legalities that occurs as norms move back and forth between different contexts where they become embedded in deep webs of pre-existing institutions, practices and normative aspirations. In what follows, I use this notion of translation to illustrate a third mechanism by which different legalities become entangled.

I analysed a series of such translations between 2011 and 2012 throughout my field research on the recursive interactions between transnational liberal norms and local non-state justice institutions in Bangladesh.⁵¹ Responding to a growing fatigue with conventional rule of law reform programmes that exclusively target state institutions, mostly in the Global South, non-state justice institutions have recently reappeared on the agenda of international donor organizations as one possible avenue for the promotion of human rights and the rule of law. One of the largest projects this recent interest in non-state justice institutions has given rise to aims at ‘activating’ the village courts in Bangladesh. The village court is a quasi-formal institution whose setup and operational logic closely resembles the non-state institution of the shalish. Yet, in contrast to the shalish, the state does recognize the village courts as legitimate sites for the trial of minor civil and criminal cases if they adhere to certain procedural requirements laid down in the 2006 Village Court Act. This focus on civil and criminal cases renders the village courts a seemingly secular institution, as in Bangladesh (like in India and Pakistan) the respective Civil and Criminal Codes are based on secular law, whereas Family Law is based on religious sources codified by the state, for example, in the MFLO discussed in Section 2.4. As several representatives of international donor agencies confirmed throughout my fieldwork, one key attraction of the village courts as sites for interventions was precisely their seeming ability to bypass the entire ‘fatwa problematique’ discussed in Sections 2.5 and 2.6.⁵² As they understood the village courts as quasi-formal institutions dealing with conflicts governed by secular law, they simply did not expect religious arguments or religious authorities to figure prominently in their project activities.

Contra their expectations, religion did figure prominently as the fieldworkers and court assistants employed by local NGOs at grassroots levels for the implementation of the project regularly engaged in vivid religious argumentations. Many of these argumentations involved women’s standing in processes of conflict resolution, which – in turn – frequently escaped neat distinctions between civil, criminal and family disputes. Often, questions of physical insult or disputes over land ownership are intimately tied to family conflicts, rendering distinctions between different sets of state law difficult in practice. In reality, religious lines of argument played important roles as the resolution of conflicts falling under civil or criminal law repeatedly required the simultaneous intervention in disputes within the realm of family law. In these interventions, religious arguments were drawn upon. In the case of fatwa, for example, many fieldworkers and court assistants argued that local religious authorities lacked the training to give binding interpretations of Islamic law. Similarly, they emphasized the religious obligation of husbands to issue security payments before marrying their wives (morhana) and maintained that verbal divorces without the state-prescribed ninety-days mediation phase were, in fact, ‘Un-Islamic’. Ironically, while international donor agencies sought to strengthen quasi-formal institutions for the resolution of civil and criminal conflicts, the fieldworkers and court assistants implementing the project argued, in many ways, that only the state had both the authority and the legitimacy to interpret Islamic family law. These acts of translation entangle international and local legalities in novel ways, thus allowing grassroots-level employees of Bangladeshi NGOs to carve out participatory spaces for women in a discursive environment otherwise characterized by a dichotomous confrontation between Islam and secular nationalism.

2.8 Conclusions

As a paradigmatic developing country, Bangladesh exemplifies the complexities of legal entanglements as they unfold in most of the world. Indeed, as argued in Chapter 1, the ideal type of closed, coherent and unitary legal systems that carefully guard their boundaries with clearly defined reception norms while ordering internal plurality hierarchically and unambiguously has been historically the exception rather than the rule. Navigating complex and contradictory legal landscapes often requires the mastery of ‘straddling practices’, in which the boundaries between different sets of norms loosen at the edges and become more fuzzy. As I have argued in this chapter, the conditions of postcolonial statehood are highly conducive to zooming in on these fuzzy rather than clearly demarcated boundaries between different legal systems. Theorizing legal entanglements from the postcolonial space of Bangladesh, I have identified three distinct modes in which actors seek to forge specific entanglements between different sets of norms. In the case of denial, empirically existing entanglements are acknowledged while their normative and legal validity is denied. Deferral as a mode of entanglement eschews fixity and, instead, thrives on ambiguity and imprecision. Here, the precise relationship between different sets of norms is deliberately left open by postponing a conclusive verdict on their hierarchical order. In contrast to legal theorists who equate imprecision with disorder and instability, the empirical excavation of processes of continued deferral as a mode of entanglement in Bangladesh has shown how it actually can become a source of stability in situations where a given relationship between different sets of norms should not be altered without leaving at least one party deeply dissatisfied. Yet, as I have shown, also keeping the final arrangements between competing sets of norms unsettled requires continued and ardent work; the mere fact that nothing seems to change is no indication of inaction but is instead the product of continued legal labour by multiple actors, in the case at hand primarily NGOs and representatives of religious institutions. Like denial and deferral, translation as a mode of entangling legalities also depends on the proactive work of individual actors. In translations, the content of norms is transformed as they move back and forth between different contexts. While resonating in the receiving context, translations nonetheless retain the mark of the foreign, thus constituting a particular kind of entanglement in which norms are neither fully integrated nor wholly kept apart but made recognizable across different contexts. Denial, deferral and translation constitute different pathways to legal entanglements. As I have shown in this chapter, social and legal conflicts do not, as frequently assumed in legal scholarship, unfold as disputes over the precise meaning and interpretation of individual legal norms. Instead, they also, and often even primarily, unfold as contestations over which of these pathways to take.

3 To Be Is to Be Entangled Indigenous Treaty-Making, Relational Legalities and the Ecological Grounds of Law

Kirsten Anker

3.1 Introduction

How are we entangled? I invite you to breathe in. Can you feel the air enter your nostrils and lungs, and then be expelled? Try it again. With some practice you may no longer feel ‘you’ and ‘the air’, but simply a sensation that appears in consciousness. From this and a multitude of other metabolic processes, your body is literally constructed and deconstructed daily through exchanges – the activities of breathing, eating, shedding – with your environment. At an atomic level, it is not even easy to tell where the boundary between the self and the environment lies. Between the electrons and the nucleus that make up the apparent solidity of your skin is a distance the equivalent of something like that between the Sun and Jupiter. Electrons that are ‘part of’ your skin can be discharged in a current, and, indeed, have no distinct location (or other definite properties) but exist as a set of probable states expressed as a wave function (indeed, as energy).¹

The human minds that find these aspects of quantum mechanics counterintuitive have evolved, slowly and over millennia, a form of intuition matched to the mechanics of what is visible and touchable,² a musculoskeletal system adapted to gravity on earth, and a nervous system capable of responding to prevalent threats and resources in furtherance of survival. Generalized throughout ecosystems, this physical, chemical and biological interconnectivity entangles everything from whales to weather patterns.³ The way things appear to us is a product of an interaction of the properties of matter and motion with our sensory-motor system (although we can play around with those perceptions, as in the breathing meditation above). This ‘life of the body’ then proves integral to the development of even the most abstract of conceptual schemas, whether because reasoning relies metaphorically on basic physical properties like shape, size, distance, motion, up/down, now/later, inside/outside and containment, or because, as a neuroscientist might put it, ‘imagining and doing use a shared neural substrate’.⁴ That is, we learn to think together with human and non-human others; through them, we humans co-constitute our ‘selves’. Forms – selves, types, categories, concepts – are neither mind nor thing, say ecologists of mind, but a process of pattern production and propagation in which we participate with the rest of the world, both present and absent.⁵

Following the first order of physical interdependence, this second order of semantic emergence from the material is also related to the inseparability of observer and observed. For example, were we to measure or observe the location of those electrons above, we would find that our choice of apparatus affects the phenomenon that is observed, such as in the famous wave–particle experiment for light.⁶ Interaction with laboratory equipment causes the wave function to collapse into a definite state.⁷ Further, to understand what an electron is, we would first need to examine the material conditions that provide it with meaning and some definite sense of existence; doing so, we would inevitably find a network of humans and non-humans – scientists and lab technicians, microscopes and particle accelerators, but also funding agencies, manufacturers and policy-makers, as well as a shared system of signs and representations.⁸

I have begun with the lessons of (to take them in rough order) mindfulness, dialectics, quantum mechanics, ecology, phenomenology, cognitive psychology, evolutionary semiotics, anthropological post-humanism and actor-network theory to make the point that you and I have multiple ways of grasping entanglement. However, my purpose in this chapter is not to then notice that law is yet another ‘thing’ that becomes entangled or is made by entanglement, although I hold this to be sometimes a useful way of seeing the world. Socio-legal theory, for example, has embraced the dialectic idea that ‘law’ and ‘society’ are co-constituted through processes of argumentation, proof, naming and claiming, record-keeping, monitoring and all forms of performance, discipline, enactment, representation and discourse. Intersecting legal orders may produce particular formulations of one another through processes of ‘recognition’, on which social actors act, so that those actors then become in some measure part of the changing reality of each of those orders.⁹ Rather than entangled legalities, though, in this text I am interested in legalities of entanglement – forms of legality adapted to the ontological entanglement in which we find ourselves. It has been noted that one reason for the various ecological crises we face is that dominant forms of law have become dysfunctionally oblivious to human interdependence with the living world.¹⁰ Seeking to understand or develop legalities of entanglement engages with the normative project of developing what has been labelled ‘Earth jurisprudence’ or law imagined in ecological terms.¹¹

In this chapter, I would like to suggest ways in which many Indigenous legalities provide examples of law borne out of entangled ways of being. From where I am writing, in Canada, invoking Indigenous legalities also engages with the normative project of settler-colonial reconciliation and the call for the recognition of Indigenous law as law.¹² Indeed, political philosopher James Tully’s recent work on sustainable constitutionalism would have us see that the ‘ecological problem’ and the ‘reconciliation problem’ are intricately connected.¹³ The disembedding of European peoples from their environments – produced by phenomena like the enclosure of the commons and industrialization – and the colonizing dispossession of Indigenous peoples were driven by similar forces and ideologies.¹⁴ Indeed, some would go further and describe plantation colonies as the historical engine for industrial capitalism and its ecological fallout.¹⁵ In the present, efforts towards Indigenous reconciliation are continually thwarted by the pressures of extractive economics, as well as the assumption of state dominion over land through its monopoly over sovereignty and the rule of law.¹⁶ So, on the one hand, reconciliation cannot occur without a reckoning with the ecological pathologies of the reigning legal, economic and political systems. On the other hand, solutions to ecological crises that do not address the colonial suppression of Indigenous law and knowledge, Tully argues, will ‘fail to discern and realize a good, sustainable relationship [with the Earth] because such a relationship is discovered and learned through practice. […] Indigenous peoples and their practical knowledge systems have co-evolved with the ecosystems in which they have co-inhabited, learned from, shaped and been shaped.’¹⁷

As state institutions and citizens grapple with the issue of how to ‘make space for’ and recognize Indigenous legal orders, a reverse formulation of the question of coexistence appears that is much more deeply challenging both to state sovereignty and its form of legality: how can newcomers find a place for themselves in Indigenous legal orders?¹⁸ It is my argument that attempting to find such a place leads us to a different take on both the reconciliation and the Earth jurisprudence project. First, tentative answers to the question of coexistence require not simply trying to understand the competitive overlap of Indigenous and non-Indigenous legal orders, for example, as they vie for jurisdiction over forestry or child protection matters, nor the mutual normative or ideological influences that may historically have created ‘intersocietal law’¹⁹ or now lead to entanglement in the nature of mutual impacts, transplants and borrowings between legal traditions.²⁰ Rather, these questions require looking to the way Indigenous law speaks to the deeper ontological entanglement in which all things – including Indigenous peoples, newcomers and their legal orders – are implicated in each other. For the Earth jurisprudence project, this engagement with Indigenous legalities leads us away from mere intellectual recognition of symbiosis and planetary limits and towards embodied practices of entanglement.

Beginning with a brief overview of Canadian history through the lens of pluralist legal encounters, the centrepiece of which is the conclusion of treaties between European colonial (and, post-1867, Canadian federal) authorities and Indigenous peoples, I argue, borrowing a framework developed by Anishinaabe legal scholar Aaron Mills, that such a view largely relies on a contractual, and thus liberal, understanding of legality.²¹ I then shift to exploring the legalities out of which Indigenous practices of treaty-making emerged. As Robert Williams Jr. puts it, treaties are ‘a way of imagining a world of human solidarity where we regard others as our relatives’.²² Following the lead of Williams and a number of other Indigenous scholars, I understand treaty jurisprudence as growing out of a deep appreciation for entanglement as constitutive of our being. Human treaties, if you like, are the reiteration of similar patterns of interdependence beyond the human. Further, I have learned that treaties were – and are – extended as invitations to newcomers to enter into relations with the peoples of Turtle Island²³ and the broader webs of their connections with local ecologies. Responding to an invitation confounds the colonial dynamics of recognition, in which Indigenous law is rendered legible to state institutions or individuals;²⁴ it is also different to simply stepping back or carving out a space for Indigenous law so as to avoid appropriating what is not mine, because it is about law as the practice of relationships rather than as an object of knowledge or appropriation. Finally, the invitation to invigorate ontological interdependence also has critical consequences not just for rethinking the liberal monad of the contractual conception of treaties, but for several other separations foundational to modern legal theory, such as the division between culture and nature, mind and matter, and subject and object. It gives me a way of drawing the lessons of entanglement from above into a relational mode for law generally.

3.2 Colonial Encounters and Normative Pluralism

Colonial encounters in North America produced a range of plural legal phenomena when the ‘visitors who never left’ – European fishers, fur traders, religious orders, soldiers, farmers, entrepreneurs and others – were variably integrated into local kinship networks, trade alliances and treaties, and when the original peoples – Mi’kmaq, Innu, Eeyou, Anishinaabe and Haudenosaunee fishers, hunters, agriculturalists, warriors, medicine people and others – were variably integrated into imported forms of education, economics and law. Historical accounts demonstrate different degrees and kinds of entanglement. In the terminology used in Chapter 1 by Nico Krisch, one can see the adoption, from early times, of Indigenous protocols by colonists as a strategic pathway to mutual benefit. In conducting trade and diplomatic business, colonial officials would give gifts, exchange wampum belts and perform abbreviated parts of the Haudenosaunee condolence ceremony for greeting allies:²⁵ these norms were likely adopted to ‘create space to come to a preferred conclusion’.²⁶ Conciliatory approaches led in some places to ad hoc forms of criminal and civil justice that represented compromises between differing conceptions of crime and punishment. For instance, in New France, the individual responsibility for French habitants confronted the Innu practice of compensating crimes like murder with goods or human substitution.²⁷ The emergent norm for intercultural murder in New France for 150 years – that Aboriginal culprits would be delivered to French authorities, who would then pardon them with the exchange of ceremonial gifts – could be a connecting norm, ‘weaving together different bodies of norms in order to come to a solution in a given case’.²⁸ Again, in Krisch’s terms, we can see interface norms providing for varying degrees of engagement. The Treaty of Albany from 1701 describes complimentary, but distinct, areas of jurisdiction in which wrongs or injuries committed by the English or Dutch against Indians would be punished by the governor at New York, and, conversely, wrongs committed by ‘Indians belonging to the Sachims’ against the English or Dutch would be punished by the Sachims.²⁹ American law similarly recognized limited tribal sovereignty and treated it as foreign law subject to private international law rules.³⁰ Elsewhere, the common law ‘doctrine of continuity’ promoted the recognition of local Indigenous ‘customs’ within colonial legal categories and incorporated them as British law.³¹ The longstanding practice of making trade and diplomatic agreements formalized into an official British treaty-making policy with the Royal Proclamation of 1763, which provided for an ‘interface norm’ of consent for the settlement of lands occupied by Indigenous ‘nations’ – such lands would only be settled if ‘ceded to or purchased by’ the Crown at ‘some public Meeting or Assembly of the said Indians’.³² These so-called ‘cession’ treaties extended from Ontario in the east to parts of British Columbia in the west from the 1780s to 1921; their written texts read as a transaction in which Indigenous parties promise to ‘cede, release and surrender’ their lands to the Crown in exchange for small reserves, contingent hunting and fishing rights over the remainder of their territories, payments and other promises like the provision of education or medicine. An earlier era of treaties secured ‘friendship’ between the British and their Indigenous allies.³³ The undertakings of the Royal Proclamation itself were the subject of the Treaty of Niagara in 1764, at which 2,000 representatives of twenty-four Indigenous Nations from the eastern regions of North America gathered to ‘join hands’ in the Covenant Chain of friendship and alliance, in continuity of such treaties with European colonists dating back to the 1600s.³⁴

Treaty-making thus constituted the central ‘interface norm’ for Indigenous and colonial polities for an extended period. Later, the balance of power shifted in favour of the Europeans. Following confederation in 1867 the Canadian state assumed jurisdiction over Indigenous peoples as subjects, and instigated a policy of assimilation.³⁵ After a century or more of official state denial of the existence or relevance of Indigenous law, the constitutional recognition of ‘Aboriginal and treaty rights’ with the promulgation of s. 35 of the Canadian Constitution Act in 1982 opened the door to wider consideration of the place of Indigenous legal orders, jurisdiction and sovereignty in modern Canada. For historic treaties, constitutional recognition has meant reversing the prevailing judicial stance that they were unenforceable either because First Nations lacked the capacity of an ‘independent power’, or because treaties were understood simply as gestures of political good will and not as binding legal obligations.³⁶ Further, courts now undertake to interpret the written treaties as manifesting the parties’ common intention in light of their distinct motivations and understandings, and the cultural and linguistic differences between the parties.³⁷ While the written text remains the core of treaty interpretation for the courts, research on the transcripts of treaty negotiations, as well as oral histories passed through generations, has led to an academic consensus that the Indigenous signatory parties to the ‘cession’ treaties could not have intended to surrender their land; that an understanding of their relationships to land – and of their constitutional orders more generally – supports only that the treaty parties were agreeing to share the land and enter into ongoing relationships with the newcomers.³⁸

3.3 Indigenous Treaty Jurisprudence

It is my contention that to see these interpretive differences with respect to treaties in terms of different things that are consented to misses the forest for the trees. For the whole structure of a contractual-style agreement as the interface between normative orders – the means by which individual norms might become entangled – treats contract as a neutral meta-norm. However, an attentive turn to Indigenous treaty jurisprudence shows up the ways in which the contractual paradigm is deeply implicated in the common (and civil) law traditions imported into Canada but is inimical to the territory’s Indigenous forms of law. This has dramatic implications for treaty interpretation; it also has significance for legal pluralist scholarship and our focus in this volume on the ways in which norms become entangled. Indeed, it is significant for what we see as being entangled.

One of the ‘strategic pathways’ taken up by the French, Dutch and British was the adoption of the metaphors and tropes of Indigenous diplomatic language. Kinship terms in treaty formalities abounded: the Haudenosaunee were addressed as ‘brethren’ in the eighteenth-century treaties collected by Benjamin Franklin, and the British were invited, through rituals of care and concern between parties (‘wiping tears’ and ‘clearing the ground’), to eschew purely mercantile concerns in favour of human solidarity.³⁹ These treaties invoked the bodily gesture of ‘linking arms’ or the linkage metaphor of the Covenant Chain that had to be polished regularly, lest it tarnish.⁴⁰ In treaty negotiations following the Royal Proclamation, Kings George III and George IV were referred to as ‘our Great Father’, Queen Victoria the ‘Great Mother’,⁴¹ while the newcomers were greeted as Kiciwamanawak or cousin by the Cree: elder Harold Johnson writes of the treaty his forebears signed as an adoption ceremony under Cree law.⁴²

These kinship tropes are not mere flourish, but speak to an underlying ‘worldview’ or, as I have been taught, a legality. Kinship extended beyond the human, to animals, plants, water, rocks and spirits, which are often linguistically marked as ‘animate’ and attributed agency in North American Indigenous languages.⁴³ For Anishinaabe peoples, Nindoodem (totem) animals – representations of which were placed as signatures on the Great Peace of Montreal in 1701 – were not only symbolic ways to organize human groups and to structure identity but, as explained by Anishinaabe of the period, were taken as their apical ancestors in the Creation period.⁴⁴ Harold Johnson puts the connection of humans to non-humans in prosaic terms:

This is where my ancestors are buried, where their atoms are carried up by insects to become part of the forest, where the animals eat the plants of the forest, and where my ancestors’ atoms are in the animals that I eat, in my turn. I am part of this place.⁴⁵

The term ‘worldview’ undersells these connections, though, in that it suggests simply a way of seeing rather than an actual world in which people are engaged (similar to the difference between culture and ontology that worries Paul Nadasdy).⁴⁶

These entanglements at the ontological level give rise to specific kinds of law. In her examination of documented accounts of Treaty 1 negotiations, Aimée Craft notes how identification with the land gave rise to an ethos of responsibility, in contrast to the British concept of property:

Chief Ayee-ta-pe-pe-tung […] spoke to the Queen’s negotiators about his ‘ownership’ and his view that rather than owning it, he was made of the land. Other Chiefs relayed their view that they had a sacred responsibility towards the land and that the future of the land was intimately linked to the future of Anishinaabe children: ‘The land cannot speak for itself. We have to speak for it.’⁴⁷

Indeed, the treaties I have mentioned can be understood as modelled after more pervasive forms of interdependence in the ‘natural’ world. Heidi Stark argues that Anishinaabe stories demonstrate a continuity between human–human treaties and human–animal relationships, both of which are characterized by mutual respect and gift circulation – such as when the beaver agree to offer themselves as food and the Anishinaabe commit to returning their bones to the water and offering tobacco in thanksgiving.⁴⁸ Aaron Mills characterizes this as a form of ‘rooted’ constitutionalism which he calls ‘mutual aid’, rooted because the practices of gifting and interdependence are learned from, and continuous with, earthly relations. Earthly somethings – plants, animals, bacteria, fungus, rocks, air and light – provide natural constraints to human law, but more importantly, sustain it through a web of relations.⁴⁹ Further, the somethings are not just in the material realm: Sákéj Henderson stresses that Indigenous law also emerges out of experiences with the spiritual realm – that is, with the affective forces of the ecosystem for which he borrows quantum physicist David Peat’s term, the ‘implicate order’.⁵⁰

3.4 Logics of Contract, Logics of Kinship

If interdependence is a way of being in the world, this brings a particular inflection to our study of legalities. It is not so much that ecological relatedness creates a norm of responsibility or obligations of gift-giving. It is, as Mills so carefully lays out in his work, that kinship, interdependence and ‘mutual aid’ are logics that structure the way we think and act, including the specific laws we come up with in service of them;⁵¹ they are law as a mode of being alive.⁵² For this, the choice of the term ‘legalities’ rather than law or norm as the focus of this volume is inspired. Legality is the most adjectival or adverbial of nouns; it speaks to the qualities of being legal or acting in accordance with the law; it is modal rather than categorical or concrete. A focus on legality allows us to ask not only ‘why such and such a normative proposition is or isn’t good law, but also and more foundationally […] how a community comes to have a concept of what law is and a view of its purposes’,⁵³ to notice the ways in which ‘law [is] so deeply embedded in the world that one can look anywhere and see its reflection’.⁵⁴

Here I will return to a view of treaties as transactional contracts that is likely more familiar to most readers, in order to now shed light on the legality that informs that understanding. Agreements with Indigenous peoples were referred to in the language of contract in contemporary colonial communications;⁵⁵ the written documents themselves record quid pro quo agreements in which the ‘Indians’ promise collaboration with the British,⁵⁶ grant that the King may ‘hold, occupy, possess and enjoy’ the land in question ‘irrevocably’ for ‘consideration’ or in light of ‘presents’,⁵⁷ or ‘cede, release, surrender and yield up’ territories in exchange for cash annuities and other benefits, for example.⁵⁸ We have already looked fleetingly at two ways in which these texts have come into question as being representative of the nature of the agreements reached between the parties. First, the wealth of research in the past few decades on the oral negotiations shows that Indigenous parties did not cede title to land (much less sovereignty) but were negotiating on the basis of consensual coexistence and the sharing of land and resources.⁵⁹ Second, images like the Covenant Chain emphasize that, from the perspective of Indigenous parties, treaties were relational – and thus involving a need for ‘polishing’ or renewal as parties revisit their commitments to one another and attend to evolving situations – rather than transactional, constituted by a discrete moment in time that fixed parties’ rights with respect to one another.⁶⁰ These two points capture something of the contrast between Indigenous treaty jurisprudence and contract. However, the legality of interdependence that I introduced above allows us to see that the transactional character of contract is just the tip of the iceberg.

In exploring the broader ways of being that lie underneath contractarian logic, I am indebted to Mills’ comparative analysis of constitutional logics in Canada/Turtle Island, one of the most thorough and clearheaded that I have yet seen.⁶¹ Contracts, as we know, create obligations when two parties exercise their free will to make and accept binding promises, in a ‘meeting of the minds’. Aside from these privately created bonds, we are subject to other obligations created by legitimate political authority – again, justified by the consent of the governed through the putative ‘social contract’. The autonomous selves at the heart of this story of obligations are of course deeply liberal ones, with capacities for self-direction and rational choice. The relationship between humans set up by the pattern of offer and acceptance is one of direct and strictly defined reciprocity. Without contract, in the liberal story, we are disconnected, even antagonistic, individuals;⁶² only the social contract and its appointment of a sovereign stop us from descending into Hobbes’ ‘war of all against all’. Rights underwritten by the sovereign are also oppositional, a power over things or others because their compliance is compelled;⁶³ they secure negative liberty and freedom from our fellow humans; rights and obligations, and the autonomy and self-interest they protect, square up bilaterally in a zero-sum game.⁶⁴ The disconnection extends to humans’ ecological contexts as liberal legality collaborates with the extractive ‘mastery’ of nature, and in turn underwrites the physical alienation of peoples from land through commodification of the commons and colonization.

In the logics of gift and mutual aid, Mills writes, treaty is not the means to bring into relation atomistic persons in order to secure their liberty, that is, their capacity to exercise their autonomy. Instead, persons are always and already interdependent – the sum of their relations – and treaties deepen their intentional participation in a complex circulation of gifts through specific kinship forms.⁶⁵ In place of the contractual structure offer/acceptance/consideration, where what is offered in response corresponds directly to the initial offer, the response to gift is gratitude that then moves us to reciprocate, although likely not directly, to the gift giver.⁶⁶ Alternatively, and this is a formulation seen often in treaty records, Mills explains that mutual aid might be initiated through the presentation of a need to one’s relatives that then inculcates a sense of responsibility and initiates beneficent action: hence the language of petitioning the King for ‘pity’ or protection in treaties.⁶⁷ In this way, and whether they are initiated as gifts or petitions, treaties are offered not as a way for Indigenous peoples and non-Indigenous peoples to bind themselves to their promises, but as an invitation to specific forms of kinship, a relationship governed by Indigenous legality.

This understanding of treaty has implications for Canada’s reconciliation project. If, as the aphorism now goes, ‘we are all treaty people’ here in Canada, the possibility of reconciliation and respect for Indigenous law is undermined if contract – and the baggage of its legality – is taken as the framing device. It would constitute what Mills calls ‘constitutional capture’, that is, that Indigenous claims are worked out through common and civil law categories, and within the presumptive structure of Canada’s liberal constitution.⁶⁸ Further, the logic of gifts and mutual aid does not presume, as does liberal legality, that human political and legal relational structures can be severed from those of the Earth. In the logic of mutual aid, the reconciliation question is not about securing space for Indigenous legal traditions and the exercise of autonomy for different legal orders, but about sustaining healthy relationships in our ecosystems.⁶⁹ The treaty invitation to non-Indigenous peoples is to root themselves in Canadian soil, quite literally.

Learning, as an outsider, about the legal traditions specific to particular places in Canada, and the life-worlds that inform them, is part of a process of decolonization. Supreme Court jurisprudence has underlined that the goal of reconciliation in s. 35 of the Canadian Constitution requires the inclusion of the ‘Aboriginal perspective’ on rights under s. 35,⁷⁰ and the Indian Residential School Truth and Reconciliation Commission report of 2015 calls on law schools to include courses on Indigenous legal traditions so that future judges and lawyers may be equipped to go beyond paying lip service to ‘the Aboriginal perspective’.⁷¹ Such cross-cultural projects inevitably raise issues of translation – who can do it and how, the problems of rendering living and highly contextualized traditions legible to outsiders and their institutions, and the risk of appropriating what little remains after centuries of destructive colonial policies. These dynamics are reconfigured by the framing of Mills and others of the issue as one of relatedness rather than recognition. Mills writes that Anishinaabe constitutionalism is not about ethnic identity but about a way of being in political community on Earth: ‘Though your stories may be different and you and I may not read the earth the same way, this is a constitutional framework available to all.’⁷² This is why my approach here and elsewhere is to explore ways in which the messages of Anishinaabe and Haudenosaunee jurisprudence (the two rooted traditions growing out of the place where I live) resonate with the knowledge from my own inherited traditions.⁷³

This understanding of treaties also has consequences for expanding our consideration of the heuristic of entangled legalities itself. Conceiving of entangled legalities in terms of normative pluralism – borrowing or transplanting rules and principles, developing hybrids, instituting structures that deal with conflicting norms – presupposes the form that law takes and constitutes its own kind of capture. If an actor – like a judge or other decision-maker – can select from a range of norms, we would have to think about law as dismembered pieces, as abstract propositions to be ‘applied’ rather than an integral part of the way we live.⁷⁴ In the case of Indigenous law, such a floating rule or principle would, as Gordon Christie argues, be disembedded from the landscape.⁷⁵ Sákéj Henderson’s vivid metaphor is that understanding Indigenous law as rules would be trying to appreciate an opera by reading the flute score.⁷⁶ In fact, Mills argues that rooted legalities do not find their usual or ultimate expression as rules at all.⁷⁷ This is partly because rules require abstraction – the disembedding from relationships – and partly because the agency of beings is suppressed if they are subject to (even provisionally) determinate rules.⁷⁸ Our entanglements, our giving and receiving of gifts, are continually co-constituting the world and, if I have understood well, the law is learned as a way of being in those relationships, producing not generalizable rules but rather a capacity to exercise judgement in situ to foster those relationships.⁷⁹

Many scholars working on law in the Anthropocene have noticed the dysfunctionality of the conventional notion of law as rules faced with the dynamic and integrated nature of ecological crises, largely because the rule of law is based on predictability and resistance to change.⁸⁰ Law needs, consequently, to mirror ecological systems, to become dynamic and adaptive.⁸¹ It may be that models of adaptive management, in which decisions and regulations are provisional and adjustable in light of environmental feedback, have something in common with the indeterminacy of law-as-judgement of rooted legalities. This short foray into the legalities of entanglement that inform treaty-making in North America gives insight into the ways in which the premises of ecological law – a rule of law grounded in the Earth, in which each of us has an ‘ecological citizenship’ calling on us to ‘respect the workings of the Earth’s life systems’⁸² – can be more than just the means to the end of sustainability; those workings are more than simply a model to copy or calculate with, they are a set of relationships to live in.

3.5 Conclusion

But wait. How are we separate? This can also be enumerated. Being an individual and distinct organism is a dominant and recurring part of my existence. When I touch a boiling kettle, it is only my hand that recoils. My body mostly feels like a bounded unit with my ‘self’ located somewhere in my head. Although individualism is often decried as a mythological foundation for liberalism, it has a phenomenological and pragmatic reality – alongside entanglement, it is also part of the way the world thinks. Human symbolic thought has the property of permitting the experience of an interior or virtual world that can seem separate from the domain of the concrete, material world. This separation between mind and matter, and between culture and nature, has in part been actualized – and amplified – through agricultural practices, the construction of cities and states, and empirical science. As anthropologist Eduardo Kohn comments, the phenomenon we are calling the Anthropocene seems to be the apotheosis of the mind–matter dualism inherent in symbolic thinking.⁸³

There is now a multitude of disciplines seeking to critique or find solutions to the ways in which the current legal and political paradigm ignores our ontology of entanglement, among them ecological jurisprudence, ecology of mind,⁸⁴ new materialisms⁸⁵ and cosmopolitics.⁸⁶ Many of their insights, like those I related in Section 3.1, may be useful, in the reconciliation project, for taking Indigenous law seriously, particularly in engaging elements – like spirits or animals as persons – that can sound fanciful because the idiom used to express them has become denigrated within a modern disenchanted approach to knowledge.⁸⁷

But these disciplines addressing the ecological project also have much to learn from engaging with Indigenous perspectives. Zoe Todd, Kyle Powys Whyte and others have pointed out that discourses of the Anthropocene have tended to both overstate the extent to which the problem is a merely recent or impending dystopia, instead of the continuity of an apocalypse that for Indigenous peoples began with colonization, and ignore or erase the contributions of Indigenous activists and thinkers to our framing.⁸⁸ Many factors in anthropogenic climate change and ecocide relate to the genocides, land transformations, migrations and global trade wrought by colonialism, but the Anthropocene as a discursive trope also ‘continues a logic of the universal which is structured to sever the relations between mind, body and land’.⁸⁹ What this study of treaty shows is that the exchange on entanglement cannot be simply an intellectual one, as Indigenous ontologies are part of legal orders through which those who share their territories are, like it or not, related.⁹⁰ And as we have seen, that legality – manifest in treaty – is centred on grounded practices of creating and sustaining kin.

Given that entanglement and separation are both ‘in’ the world, we desperately need to choose to amplify those aspects of the way the world thinks that foster connection and care. As philosopher of science Donna Haraway puts it in her book for these troubled times, Staying with the Trouble, given the irreversible losses that we are facing, any renewed generative flourishing will need the kind of refuge spaces that are made by a mesh of symbiotic, sympoetic, collaborators.⁹¹ The answer that both she and Indigenous treaty jurisprudence give to the question ‘how are we related, how are we entangled’? Let us multiply the ways.

4 And an Algorithm to Entangle Them All? Social Credit, Data-Driven Governance and Legal Entanglement in Post-law Legal Orders

Larry Catá Backer

In the sixth month, Gabriel the angel was sent from God to a town in Galilee called Nazareth, to a virgin engaged to a man called Joseph, from the family of David. […] ‘Don’t be afraid, Mary’, said the angel to her. ‘You’re in favour with God. Listen: you will conceive in your womb and will have a son; and you shall call his name Jesus […] The Lord God will give him the throne of David his father, and he shall reign over the house of Jacob for ever. His kingdom will never come to an end.’¹

4.1 Introduction

The annunciation by Jessup² of the birth of what would become transnational law conceived within the womb of Western (and then global) jurisprudence imagined a transformed juridical order in which the notion of law was broadened beyond the state (at least with respect to a definable set of activities). These legalities, in turn, were to be entangled³ to solve what before had been issues the resolution of which could be undertaken solely by reference to the law of a state.⁴ But this ‘good news’ did not immediately produce transformations in the halls of the priestly castes charged with the preservation of the jurisprudential order carefully nurtured in recognizable form from the time of Martin Luther and centred on the state as the principal expression of regulatory power through law.⁵ For this caste and the states they served, the solution was, is and remains the law of conflicts and traditional private international law.⁶ However, the twenty-first century has seen a reluctant acceptance in theory of the decentring of the state, and consequentially, of the recognition of the rise of multiple centres of governance with multiple forms of law.⁷ That conceptual recognition comes at least a century behind early modern studies of its realities in some states.⁸ The reluctance arises from the ideological consequences of such a conceptual acceptance. At its limit, the fear produces a modernist panic⁹ about the state of the state, and of law as its official language. Despite the need expressed by some,¹⁰ there remains a reluctance to give up ‘the ultimately law-focused epistemological mechanism still at work’,¹¹ and thus to forgo the post-1945 ambitions for a transformation of global politics based on the self-reflexive state as the highest legitimate form of communal political expression,¹² the expression of which could be made legitimate only when undertaken through the language of law.¹³ Indeed, ‘[t]he main shortcoming of the extended conception of law advocated by anthropological and sociological approaches is the one pointed at by the so-called pan-legalist objection: the problem of the distinctiveness of law from other social normative orderings has been haunting the theorists of legal pluralism until today’.¹⁴ In short, what factions of the leader class feared most in the twenty-first century was precisely the consequences of legal entanglements that might bring down their tightly woven conceptual house.¹⁵

Yet that very rejection provides strong evidence not merely of its existence but also of its effects, principal of which are the ruptures that entanglement produces between these emerging centres of law/norms/governance,¹⁶ both within and among the conventional nation state.¹⁷ It is within these spaces that one might seek both the meaning and manner in which what Luhmann once described as structural coupling might occur.¹⁸ These spaces without a space, these in-between spaces of law (and governance), these fragmented but entangled legalities, have assumed a spatial dimension.¹⁹ It is now understood as both a connector (the trames²⁰ through which spaces connect and communicate) but also as its own normative territory within which those communications and connections are not merely mediated but managed through complex entanglements,²¹ or dynamic processes of communicative irritations.²²

The budding focus on the interspatial carries with it both promise and challenge. The promise: an interspatial gap filling in all of its complexities and theoretical possibilities. This has been the central exploration of entanglements among law, norms, rules and habits with coercive effect.²³ The challenge is centred on the risk of boundaries without end: of the permanent and quite dynamic cacophony of borders that is produced by the obsession with the interfaces between bodies of norms that themselves create borders within the space between norm systems for which other interfaces are necessary.²⁴ The problem of the never-ending spaces between spaces, where every law system defines its own inter-spaces, becomes self-entangling, and might itself be undergoing an extra-spatial transformation. That extra-spatial form of governance – in which space loses its centrality and law changes its forms and function – is the object of the exploration here.

More specifically, the chapter considers the emergence of data-driven analytics and the algorithmic techniques of imposing consequences (some of it machine driven, on the basis of artificial intelligence (AI))²⁵ as defining not just new modalities of governance but also reshaping the conception of spatiality within which entangled governance happens, national and transnational, public and private. So reshaped, these data-driven governance legalities entangle with traditional modes of governance through law in what may be new and interesting ways. These ‘social credit’ ratings, risk management, assessment, accountability or compliance systems have been established as a means to aid traditional governance;²⁶ yet they have the potential to displace the structures of governance they are meant to serve. But more than that, they may well change the landscape and language in which one encounters legal entanglements and its operational effects. The thesis of this chapter is simple: legal entanglement has moved beyond the two-dimensional space for engagement envisioned by Jessup and his successor. Entanglement was once confined to states, other governance institutions and between them all. That engagement was built around and with the traditional language of law and jurisprudence. Increasingly, the emerging quantitative legalities built around AI and big data management systems (e.g. social credit initiatives) that are neither dependent on the forms and techniques of law nor on the bureaucratic apparatus of state entangle more decisively with conventional and plural law and norm systems. These add an additional layer of actor (the ‘market’, the analyst, the modeller, the systems engineer, the coder) and seek to displace the language of law and jurisprudence with the language of data-based analytics applied towards a comprehensive management of behaviour. The resulting entanglement may reshape the meaning and making of entanglement itself. At its limit, this reshaping will have a particular effect on the way in which conventional plural legalities, until now the singular feature of globalized law frameworks, may be assembled through dynamic and sometimes unstable entangled linkages and rationalized by a regulatory algorithm that may come to manage them all.²⁷

This contribution, then, considers governance entanglement between the entangled legalities of law-norm systems and the legalities emerging from data-driven systems of behaviour management. The realities of emerging legalities that exceed the capacity of law to express their form require a three-dimensional analysis of entanglement and a broader view of legality, one that reconsiders data-driven, machine-administered regulatory systems more than an enhanced form of property.²⁸ One deals here not just with the flattened inter-legalities of the traditional structures of ordering power by rules. Instead, one must now understand the way those clusters of entanglement themselves are entangled with emerging modalities of law/regulation/norms which have come to form the centre of what is understood as plural legalities.

Section 4.2 briefly sketches the characteristics of emerging legalities that neither embrace the form nor the language of law. The two sections that follow examine the nature of inter-systemic entanglements which occur when data-driven governance legal orders²⁹ are thrown into the already plural mix of legalities. Two principal forms of data-driven governance have emerged that are increasingly linking to traditional legalities.³⁰ The first is the Chinese ‘social credit’ initiative, which emerged in its current form in 2014, and is an undertaking by the present administration of the Chinese government that is meant to produce an all-around approach to ensuring compliance with law and social responsibility under the guidance of the state. The second are US and Western private initiatives around emerging markets for data. These are framed around principles of governance, risk management and compliance. With respect to each, the nature and textures of entanglement that encounters between traditional plural legalities and data-driven governance systems produce is considered. These entanglements present a distinct challenge, the challenge of linguistic disjunction, for the management of human organization. While law- and norm-based systems speak the same language, data-driven governance does not. Communicative disjunction may have profound effects on the nature and quality of entanglement, producing a competition for the lingua franca that may affect the way in which law is expressed, and may threaten the plurality of law.³¹ Each also exhibits quite distinct characteristics and therefore quite different forms and qualities of entanglement, suggesting a more complex fracture and interaction among ever more different systems of legalities that are emerging in fractured political systems arranged around global trade regimes.

4.2 The Construction of Data-Driven Operating Systems

The governance consequences of data-driven compliance and risk management systems, and of the informal systems of ratings and assessment, has only recently exploded into the popular imagination of academics and others.³² What started as an effort to rationalize the emerging techniques of indicators,³³ as a means of governance, quickly became a study of these techniques, increasingly systematized, as governance.³⁴ The recognition of algorithmic governance appeared like a direct and hidden threat to the carefully constructed public structures of law and governance systems.³⁵ Just as it seemed that theory could come to grips with the possibility of law (governance) systems beyond the state, the entire framework of law systems themselves seemed to be sidelined by data-based algorithmic systems to which law and norms appeared to be a stranger. And these challenges have come to the West in forms that appear to conflate the operations of Marxist-Leninist government with Western democratic markets-driven polycentric (plural) governance.³⁶ Yet these judgements ought not to deter from considering the (inevitable it seems) rise of these systems in both China and the West, and the additional layer of entanglement they add to the emerging formal and public systems of governance that constitute global legal polycentric (pluralist) governance.³⁷ To that end, a brief exploration of the shape of social credit initiatives fuelled by AI and machine learning-enabled algorithms is worth considering.

The rise of social credit initiatives (ratings and data-driven governance in the West) and big data management systems (as a means to implement these governance frameworks) appears to further entangle legalities in perhaps unexpected ways. It takes as its starting point the significant drive towards accountability and measurement in governance incarnated through rankings and ratings. Administration of rankings and ratings then devolves to the institutions that administer and along with that devolution goes the power to determine what behaviours will be valued, and in what amount, to rank and rate. In effect, the indicator acquires regulatory autonomy. Thus characterized as a regulatory system, it is then entangled with traditional law-norm systems.³⁸ If law and norms – traditional governance – are grounded in the supremacy of space, of territory, then how is one to approach governance orders that might themselves be detached from traditional spatial limitations? That is the principal focus of this chapter. It considers the emergence of what might eventually be understood as a legal/normative order that has arisen not from the need to organize a territory, within which people and things are corralled, but generated from and centred on the objects of regulation themselves. The emerging systems that have been referenced in this chapter as ‘social credit’ initiatives offer a glimpse at a governance operating system quite distinct from the legal/normative systems that have served as the building blocks first of the Westphalian state system (in its domestic and international elements), and thereafter the polycentric systems that mark this transnational age.³⁹

In place of legal/normative systems driven through the construction of an apparatus of government within territories (physical or abstract) it fashions a system driven through data generated by people and things.⁴⁰ Data substitute for custom and tradition; data-driven governance substitutes the language of counting for the more qualitative descriptive language of practice. Governing organs substitute, in place of custom and tradition, the quite precise data warehouse, one with a vocabulary and rule of normativity all of its own.⁴¹ It can be filled constantly with the detritus of daily activity – at the market, on the web, in the car, on the street, in the store, etc.⁴² These can be used for a variety of ends, some of them public, but in the process entangling the normative decisions about character of data for the content of norms.⁴³ In the place of policy and principle one encounters data analytics. Choice ceases to be politically potent only within the electoral field; all choices become political as they point behaviour managers to desires and habits of the masses producing data. In lieu of debate there is analytics. The framing of that analysis, that is the judgements and principles embedded in those analytics, is not subsumed within the algorithm. The algorithm itself is the expression of the sum of the objectives and perspectives of those for whose objectives the algorithm is deployed. In lieu of principles, then, there are presumptions and the self-created limitations of data fields that create the boundaries within which choices are cabined. These are the structures of conventional governance, but now deployed in a quite different space.

But these are not normative orders in the traditional sense. That fundamental characteristic suggests the opportunities and challenges that these emerging systems represent. Social credit initiatives – data and algorithmic orders – change the relation among governance actors, decentring the judge, the regulator and the social actors, in favour of those who can manage, organize and apply metrics to some end or other (that is to the same ends of law). Yet they do not mediate relations among norms so much as absorb them all in furtherance of extra-spatial objectives – to focus on behaviours in a self-reflexive loop founded on behaviour-generated data, the vectors of which may be modified through systems of real-time rewards and punishments (of individuals and institutions, including governmental and economic institutions). These orders, then, are not so much enmeshed as they are ubiquitous – serving both as techniques of management, and as the primary structures of regulation themselves. Absorption does not mean elimination; it posits an entanglement of a different order – between conventional governmental orders, the entanglements of which continue to produce norms, but their interpretation and application, that is the way these norms are given meaning, entangle conventional legalities with the analytic legalities of the algorithm and the entanglement of choices made between techno-experts, coders and public or private officials. These characteristics became much more visible in the context of the Covid-19 pandemic where the entanglement of simulation and conventional political legalities became the central regulatory element of institutional responses to the virus.⁴⁴

It follows then that the anticipated entanglements become more confused where one set of systems (law/regulation) continues to posit that metrics-based governance is merely technique, rather than a regulatory system in its own right. The interspatial, and its data-driven forms, produces a quite distinctive template for the conceptual construction of law/norms between law/norm systems; and it emerges with its own language and sensibilities in ways that are not yet completely clear. Every political culture approaches the emerging realities of ‘artificial intelligence’, machine learning and the data-driven governance that is sometimes its object, in ways that tend to affirm cultural expectations and points of view. Where cultures are obsessed with particular conceptions of privacy and property, the result is an engagement that is centred on political constraints against states and enterprises, on the management of markets for data and at the same time on an enhanced methodology of data-driven analytics to deepen cultures of compliance, assessment and accountability.

In liberal democratic states, that focus also has constitutional and political dimensions.⁴⁵ Thus, the regulatory machinery of the European Union has lately been tasked to manage data under the presumption of a hierarchy of authority that further presumes the normative nature of law and the mechanical nature of data and their analytics. Data and data processing ‘should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality.’⁴⁶ There is a particular aversion to the forms of data-driven intrusions from the economic sector (the ‘for hire’ fields) on the formalities and rituals of exogenous democratic expression.⁴⁷ And, of course, there is an equal obsession with theft of information⁴⁸ and its misuse.⁴⁹ And yet, even as its elites offer the protection of law, it manages that data which itself manages behaviour.

A tiny microchip inserted under the skin can replace the need to carry keys, credit cards and train tickets. […] The small implants were first used in 2015 in Sweden – initially confidentially – and several other countries. Swedes have gone on to be very active in microchipping, with scant debate about issues surrounding its use, in a country keen on new technology and where the sharing of personal information is held up as a sign of a transparent society.⁵⁰

Thus combined, there is a tension between the centrality of the individual as the incarnation of data, and the utility of data in the production of economic goods with great disciplinary effects. This debate has been refined in the context of the Covid-19 pandemic, which has produced a substantial entanglement between data-driven indicator systems, national and international law and regulation in ways that will take some time to untangle.⁵¹

On the other hand, where cultures are obsessed with communal solidarity and the protection of stability around socio-political core values as the basis for legitimate social organization and operation, then the result is an engagement that is centred on issues of surveillance, of detection, and of management of behaviour around key societal principles. There is a particular aversion to antisocial behaviour as a politically destabilizing force.⁵² Feng Xiang, a law professor at Tsinghua University, recently spoke about the end of markets: ‘[i]f AI rationally allocates resources through big data analysis, and if robust feedback loops can supplant the imperfections of “the invisible hand” while fairly sharing the vast wealth it creates, a planned economy that actually works could at last be achievable’.⁵³ He might not be wrong about AI and markets; even the Cubans have sought to turn their economic planning into the rudiments of complex algorithms.⁵⁴ Yet this culture shares with the other a mania for observation – and for punishment and reward based on that power to observe,⁵⁵ one which is incompatible with the values of property and rights-based legal orderings.⁵⁶ And yet, even as there is a movement towards the overt management of behaviour through data, there is as well an obsession to ground that regulatory approach within the structures of regulation – in this case a regulation that protects the integrity of data and its use by the state and its delegees. Data and consequence (accountability for business, incentive to encourage preferred behaviours and punish violations of behaviour norms) thus combined, focus on stability and order in social development.

4.3 Chinese ‘Social Credit’ Systems: The State at the Centre

Social credit is a deeply entangled system; it is a system that will eventually apply to all legal actors, persons, institutions, officials and foreigners in or seeking to engage with China and Chinese actors.⁵⁷ It is more than that – it has been created as a nexus point between the constituting role of law (as well as the normative guides that are its rules) and the evaluative function of data-driven analytics.⁵⁸ It sits at the borderlands between a rating-evaluation system and systems of legal regulation. It is also entangled with the core political premises that drive Marxist-Leninist political economy in China under the leadership of the Communist Party of China (CPC).⁵⁹ Its autonomous and systemic character was emphasized from the beginning:

It is founded on laws, regulations, standards and charters, it is based on a complete network covering the credit records of members of society and credit infrastructure, it is supported by the lawful application of credit information and a credit services system, its inherent requirements are establishing the idea of an sincerity culture, and carrying forward sincerity and traditional virtues, it uses encouragement to keep trust and constraints against breaking trust as incentive mechanisms, and its objective is raising the honest mentality and credit levels of the entire society.⁶⁰

Yet one notes the entanglement – the system is constituted through law, but is established as autonomous from the law system around which it operates. The object is to establish a structure for managed entanglement within the state. Each, in turn, requires the production of a self-reflexive legality whose operation is entangled with those of the normative political, societal and economic order. Its mechanism, machine learning and AI, the entanglement of a rule system for AI and AI as law itself was also elaborated by the State Council in 2017.⁶¹ ‘Social credit systems are centered on ratings. Ratings are derived, in turn, from data generated by what is being rated—individuals, businesses, public and private institutions, and eventually even [CPC] members. To that end, it is necessary to manage data production as it is to manage the analytics and consequences drawn from the data.’⁶²

Social credit initiatives have as their object the development of a national reputation system, assigning a rating that reflects a qualitative judgement of relevant data gathered about the subject. Reputation, itself, embraces notions of sincerity, and of integrity and compliance, in accordance with the standards and objectives overseen by the state. Four areas are identified: ‘sincerity in government affairs’ (政务诚信), ‘commercial sincerity’ (商务诚信), ‘societal sincerity’ (社会诚信) and ‘judicial credibility’ (司法公信). AI and machine learning focus on the generation of mechanisms for the management and integrity of data and for its marketization.⁶³

The objectives of both are grounded in economic and social development and support for national security.⁶⁴ The project of a comprehensive and nationally integrated programme of credit ratings of virtually all aspects of organized life in China, built pursuant to rules and laws, administered by public and private bodies and overseen by the CPC remains a work in progress, though one increasingly structured by the highest Chinese state organs.⁶⁵ It is self-consciously constructed as an alternative legality, both within China and against the forms of plural legalities in the West that the Chinese leadership increasingly find difficult to enmesh with their own.⁶⁶

Nearly from its inception, social credit was understood as a new kind of law, separate from but entangled with traditional law systems, which had been themselves the product of the fusion of traditional approaches to law and Western concepts of law, rule of law and legal mechanics.⁶⁷ At the same time, social credit expressed a form of governance that also deeply entangled systems of social ordering through rules (laws) and the paramount authority of the CPC to guide such lawmaking and its application through its own political-economic model.⁶⁸ The determination to adopt a social credit initiative (and its operationalization through AI-enhanced algorithmic governance techniques) was itself a function of the determination that such data-driven governance would enhance the long-term Chinese political-economic objectives embedded in their concept of socialist modernization, a core policy of the Chinese state since the era of Deng Xiaoping. Social credit was to evidence the transformation of techniques that marked a new phase of the socialist market economy system and of the social governance system, one which received its more definitive political form after the announcement of the ‘New Era’ political line of the CPC in the wake of the 19th CPC Congress of October 2017.⁶⁹

But its genesis also represented a practical response to a long-term problem that both state and private elements of society found increasingly burdensome.⁷⁰ These included a number of issues that threatened not merely the orderly progress of socialist modernization, but also inhibited the progressive advancement of social and cultural objectives. These included grave production safety accidents, food and drug security incidents, commercial swindles, the manufacture and sale of counterfeit products, tax evasion, fraudulent financial claims, academic impropriety and gaps between the extent of integrity in government affairs and judicial credibility and the expectations of the popular masses. If neither law nor regulation appeared to produce conformity, and if the transaction costs of deploying a vast enforcement network was counterproductive to the long-term goal of a self-regulating society that was efficient and productive in socially approved ways, then a different approach to the management of societal factors was necessary.

This ambitious set of objectives was to be guided by a set of core premises and constraints. Social credit initiatives must conform to and advance the objectives of the CPC Basic Line, including the development of economic forces for policy ends.⁷¹ The Chinese social credit system also has a moral dimension, which deeply informs its regulatory and enforcement dimensions. Its object is to steer the culture and practices of people in virtually every aspect of their lives. To those ends, the Twelve Core Socialist Values unveiled in 2012 play an important role.⁷² Entanglement is meant to be conscious and coordinated rather than organic and serendipitous⁷³ – highlighting the difference between a central-planning (public and administrative) versus a markets-based (private and demand driven) political order.

The social credit initiative was comprehensive. It was envisioned that when completed, social credit systems would manage key operations in four sectors: government, commercial activities, social integrity and judicial credibility.⁷⁴ With respect to the role of social credit in government, the focus was on the use of data-driven analytics tied to algorithms that produced the basis for accountability to result in rewards or punishments around a variety of governmental actions. These included: administrative permissions, government procurement, tendering and bidding, labour and employment, social security, scientific research management, cadre promotion and appointment, management and supervision, application for government financial support and other such areas and fostering the development of a credit services market. Clearly, data-driven analytics and its resulting assessment system would produce an immediate effect on those whose conduct triggers measured responses. For those who met credit minima, access to benefits would be enhanced. Those assessed at a low enough level would be placed on an effective blacklist that would make functioning in a modern society substantially more difficult and costly, absent readjustment. Moreover, social credit was also to be used as a tool for intra-governmental accountability, and to monitor civil servants.

Social credit mechanisms were also directed towards a very broad range of commercial activities – whether by state-owned enterprises or the private sector. Private behaviour by individuals was also to be managed through social credit systems under the umbrella of enhancing ‘Social Integrity’. An area of particular note for the application of data-driven analytics was that of the judicial system. The specific focus was on judicial creditability and on the integrity of the judicial function and the performance (and accountability) of judges for their work. The State Council identified a number of areas: proceedings transparency, prosecutorial and public security services conduct, the operation of judicial administrative systems and law enforcement standardization. Here one notes the likelihood of a vertical entanglement. Judges are the objects of law and the agents of procedures reflected in the legalities of law and regulation. Yet the content of the way those functions are assessed (and consequentially the way that the implementation of legal duties is understood and measured, and thus interpreted) become a function of a distinct legality – that of the social credit system applied to the judge. Data-driven projects might well include the production of data-driven algorithms to guide judicial decision-making or to develop guidelines for charging and prosecution. Here one encounters an entanglement in which the discretionary scope of one system is constrained by the operation of the other.

The societal effects of social credit programmes were to be enhanced through the application of these mechanisms on education and culture projects. Social credit in the development of education system reform was to be tied to the construction of the socialist core value system. Education was to be a means for the socialization of social credit mentalities and its general acceptance.⁷⁵ Assessment would be built around parameters for judging the development and operation of ‘moral’ classrooms. These are to be built around the establishment of models of appropriate conduct.⁷⁶ Appropriate conduct, in turn, is to be assessed against the twelve socialist values that have been established after the CPC’s 18th Congress: ‘Core socialist values comprise a set of moral principles summarized by central authorities as prosperity, democracy, civility, harmony, freedom, equality, justice, the rule of law, patriotism, dedication, integrity and friendliness.’⁷⁷ To that end, state organs are encouraged to oversee special campaigns in focus sectors, and to ‘persist in correcting unhealthy trends and evil practices of abusing power for personal gain, lying and cheating, forgetting integrity when tempted by gains, benefiting oneself at others’ expense, etc., and establish trends of sectoral sincerity and integrity’.⁷⁸

All of this is to be accomplished by building social credit baseline systems⁷⁹ and their mechanisms.⁸⁰ These systems were then to be operationalized through blacklists. Blacklists – made up of the names of people whose social credit scores fall below certain thresholds – have already begun to have a substantial effect in everyday life. The system is manifested through ratings, and more importantly from the collection of blacklists produced as a function of ratings. Blacklists then affect the availability of goods and services.⁸¹

These, then, will serve as the systems through which entanglement will be coordinated. Baseline systems were identified as (1) sectoral credit information systems; (2) local information systems; (3) credit investigation systems; and (4) uniform credit investigation platforms in the financial sector. In addition, government in cooperation with the private sector were to develop credit information exchange and sharing. These shall provide the regulatory structures for the operationalization of data-driven assessment and punishment/reward systems. The forms of entanglement are also identified as (1) incentive structures and punishments for deviations; and (2) legal, regulatory and standards systems for credit.

The entanglements of social credit within the Chinese context are as comprehensive as its ambitions. Social credit is meant to provide a new language for law, at least as it is meant to serve to control behaviour. At the same time, the constitution of social credit is driven by law. That is, law serves as a constituting element of regulatory systems that themselves are grounded in forms and practices that are not law. At the same time, those forms and practices of social credit then drive law as it is applied. They do so by giving meaning to the objectives and expectations written into law by the way that social credit is administered through the process of identifying behaviour, analysing its meaning and attaching consequences. At the same time, social credit provides a bridge between law, compliance and assessment systems. In the process it also helps shape the cultures within which expectations are shaped and cultural habits formed, which then lend themselves to expression in the normative content of law. Here social credit moves entanglement into an ecology of interrelated subsystems all deployed to move forward the political project of the CPC.

4.4 ‘Social Credit’ in the West: A Governmentalized Private Sector around Markets for Data

To speak of ‘social credit initiatives’ in the West is to consider an initiative that does not exist – as such. And yet, a more careful consideration reveals the outlines of the forms of social credit outside of the state. To speak to the development of social credit and its operationalization through machine learning and AI-enhanced algorithms, is to understand how the fracture and diffusion of power has produced something more than the aggregation of governance spaces and their ‘in-between’ spaces arranged in some manner or other. It evidences the organization of power beyond the orthodox space of law, in the sense that these new data-driven legalities use conventional polycentric governance spaces themselves as fuel for the generation of behaviour-managing ‘incentives’ or ‘punishments’ that function as regulation while avoiding anything like its traditional forms.

Social credit in the West is made possible not merely by the availability of spaces within spaces, but by the effective borderlessness of the market itself. Those extra-spatial zones have been enhanced through the governmentalization of the private sphere, the privatization of the public sphere and the migration from law and regulation to systems and systems management.⁸² To speak about social credit in the West is to identify a host of fractured and market-driven projects by a large number of actors.⁸³ These actors also exercise governance authority in traditional ways (through rules, laws and the exercise of political and economic power). But for them, increasingly, assessment and accountability regimes, born of compliance objectives within the spaces and inter-spaces of conventional law/normative systems,⁸⁴ provide incentives to manage populations above the multiple governance spaces to which they might have to account.

What emerges in the West are systems of ‘governance, risk management, and compliance’.⁸⁵ Where in China the government (under the guidance of the CPC) pushes data-driven governance, in the West it is the market, and the delegation of managerial authority (compliance), that tends to drive these oversight and control systems – the literature highlighting this dynamic is by now well developed.⁸⁶ Anyone can rate and assess – but there are markets for rating as well; the most successful producers of rating enhance their profitability in markets for ratings. They focus on creating everything from hierarchies of value to assessment of conformity to a variety of corporate social responsibility obligations.⁸⁷ Less well developed is the conception of data, and the ratings that draw on them, as a system with regulatory effect. ‘Simply put, because of big data, managers can measure, and hence know, radically more about their businesses, and directly translate that knowledge into improved decision making and performance.’⁸⁸ Data-driven governance is essential for a variety of private sphere activities, and has become a business in its own right.⁸⁹

For both, data-driven analytics and the algorithms through which data-based judgements can be formed and consequences processed have become important elements of risk and compliance systems in five critical areas. The first is law enforcement (state entities) and compliance (private entities). Data-driven analytics here is presented as a method for complying with legal duty or responsibility. Administrative regulation and law provide the objectives, but the implementation occurs within automized data-driven systems. Examples include regimes for the distribution of governmental funds through revenue sharing and other programmes.⁹⁰ The second is transparency regimes: ‘It is used within an organization or community to enhance its operation and discipline its members; it is used externally to enhance legitimacy (norm) and accountability (technique) among stakeholders who have an interest in but not a direct participation in the operation of the enterprise.’⁹¹ The third is in controlling behaviour. For economic enterprises this was driven in part by law,⁹² and in part by changes in the way that administrative officials exercised authority.⁹³ Data-based analytics may be essential in the exercise of prosecutorial discretion in the USA⁹⁴ and the UK.⁹⁵ Businesses are increasingly using data-driven analytics to control behaviours through health and wellness programmes. The fourth, shaping cultures, is possible when monitoring (micro-surveillance) is tied to transparency and enforcement. Smoking campaigns are a well-known example.⁹⁶ Here one entangles moral value systems (about smoking) into political action (anti-smoking regulation) which is then entangled within medical and quantitative measures of harm which contribute to health rankings that affect private markets for insurance, and rankings that may affect individual access to credit or education.⁹⁷ Fifth is accountability as assessment, self-assessment and accountability regimes at the individual and entity levels.⁹⁸ These entangle both legal systems through compliance regimes and markets-based systems through data-driven ratings systems.

Entanglements between data and conventional governance orders have only recently emerged more clearly. The recent controversy over the inclusion of questions about citizenship on the US census provides a case in point.⁹⁹ Inclusion of the question would generate data, a core operational principle of census taking. That generation is coupled with a host of conventional law which relied on the governance of census data generation for its own operation. But the generation of data has significant consequences precisely because the system of regulation into which those data are injected is itself based on the way data are curated. Here is the point of entanglement between census as a system of data generation, census as the jurisdiction of compiling a quantitative narrative image of the American population, and census as a necessary predicate for the operationalization of a number of conflicting political objectives expressed though the law of states and the federal government. It’s no surprise to see census questions shifting with the times: ‘Lots of questions go off the census when they’re not very important anymore.’¹⁰⁰ The conflict within data governance became famously entangled with the legal regulation of the administrative state in a US Supreme Court opinion most notable for its recognition of conflict expressed in rules governing the exercise of political discretion within a web of legislation where the interests of secondary sovereigns are affected.¹⁰¹

Another important point of entanglement between data-driven and traditional legalities centres on the scope and principles through which data may be harvested. Most aggressive – again voluntary and on a bargained for basis – are chip implants for employees¹⁰² by merchants (including the state). This is a system grounded in consent, in value added as an inducement for participation. Increasingly, however, states have sought to use their legislative authority to restrict, or at least manage, this essential feature of data-based rule systems, by legislating the legal effects (and limits) of consent, especially within an employment relationship.¹⁰³ More passive are the seamless systems of cameras, credit card transactions, turnstiles, passes for highway tolls, key stroke and internet tracking systems and the like that can effectively track individuals and record their activities on a continuous basis. Their regulatory effect is now well known.¹⁰⁴ Yet their entanglements with plural legal systems have only just invaded the consciousness of regulatory stakeholders. Emerging issues include privacy rights;¹⁰⁵ and rights to be forgotten.¹⁰⁶ But the focus has also turned to the application of issues of race, gender and other non-discrimination law and policy to the structures of data-driven governance bound up in the extraction of information for behaviour management ends.¹⁰⁷ Conversely, data-driven systems themselves have entangled with law systems in the area of discrimination law by providing a complementary system, the products of which are used by law systems as techniques of proof of discriminatory intent or in forming or assessing policy and regulations.¹⁰⁸

Compliance itself is a data-driven exercise, but one in which the parameters are set by legal systems, administered through the actors onto which compliance is imposed, and assessed and disciplined either by the state or private actors.¹⁰⁹ Compliance is expressed as the private law internal governance systems that implement the delegation of responsibility (in part) from the state effected through law or regulatory directive. These include implementing administrative guidance,¹¹⁰ to compliance systems built around disclosure and reporting systems, for example, the French Supply Chain Due Diligence Law¹¹¹ or the Australian Modern Slavery Law.¹¹² The second is crafted through data-driven assessment systems that take their objectives from the policies of private law internal governance and which rely heavily on markets for external disciplining.¹¹³ These entanglements are clearest in the context of corporate governance.¹¹⁴

Of all of the forms of data-driven governance, perhaps the closest the West has to the emerging Chinese social credit initiative are credit rating agencies. Financial credit rating agencies, for example, become actors in the governance of financial markets through their production of a standardized rating of risk (creditworthiness), which is then used for making investment decisions, and consequently to make the regulation of financial markets dependent on the risk assessed.¹¹⁵ These operate within a market for services with a few big players rating business and public credit. Their profit derives from subscriptions or issuer-pays models of income. This produces a markets-driven model that mimics the effects of Chinese centralizing and public control models. These credit agencies’ businesses are grounded in data-based analytics applied to objectives and their effect is to discipline behaviours through reward–punishment systems derived from their analytics. Their systems are functionally differentiated, and they exhibit only a necessary unification even within the same field. At the same time, their activities serve as the basis for regulation, and are, to some extent, regulated by the state whose finances they in turn rate.

4.5 Conclusion

The relationship between traditional governance orders, in a context of spatially distinct but intermeshed legal/normative orders, remains to be fully explored. This chapter suggested some points of entry and on fundamental approaches. First, the use of metrics and the quantification of accountability has moved beyond an increasingly sophisticated palette of rankings and inducement to become a regulatory space in its own right. Second, that regulatory space embeds politics and law within the construction of its analytics and the determination of the meaning of rankings. China is building a centralized system tied to its political organization. Most of the elements of social credit have already been developed in the West. But the unification of the various elements, and their seamless operation, would be a great innovation. While the West approaches data-driven governance entanglements through the lens of privatization and markets,¹¹⁶ China inverts the trajectories of entanglement, focusing instead on recreating within the state the universe of data-driven governance in which law becomes the instruction manual for the operation of social ordering through data-driven analytics. Third, these systems pose a challenge for the conventional understanding of entanglement among systems all characterized by qualitative approaches to regulation. Perhaps most interesting of all the consequences of these social credit systems may be their ability to absorb traditional systems, and in that process of absorption to reduce the centrality of borderlands between systems.

Hints of this trajectory are evident in the movement towards compliance and accountability. These increasingly data-driven exercises turn traditional governance systems, and the governance systems arising between and within them (conventional spatiality of governance), into the generators of data that themselves can be subject to management in accordance with principles and objectives. These objectives may themselves be drawn from the political-cultural assumptions of society or themselves may be dynamic expressions monitored through the aggregate conduct of data generators themselves. The multiplicity of legal regimes, then, is itself a source of data useful for data-driven analytics that can manage these as well as aid in the management of systems.¹¹⁷ This suggests entanglement of a different order, between qualitative and quantitative regulatory measures which increasingly fold one into the other while retaining an element of autonomy based on the different regulatory spaces from which they are sourced.

What is clear is that entanglement can no longer ignore the legalities of data-driven governance even as it seeks to embed its language and structure its communication across systems that do not speak the same language. The entanglements of a law after modernity¹¹⁸ become more complicated – not merely as between distinct and polycentric rule systems sharing common characteristics (the forms and functions of rules), but now between systems that do not speak the same language (words versus metrics, compliance versus assessment, etc.). Governance evolves from the language and conceptual universe of politics and principles to the language of the operating system grounded in systemic objectives. In a world of algorithms, those who would devise them will be king. And those who would be kings in Western democratic republics may well soon be scientists and not lawyers.¹¹⁹ ‘When you look at the most important issues facing our country, it is climate change or healthcare policy or cyber security, the integrity of our elections. Who better to address these issues than a scientist?’¹²⁰ Who better indeed, when the state is a container for accountability systems through data-driven algorithms? That, ultimately, suggests the great challenge for legalities and their entanglements where society continues to move beyond the problems of entangling legal systems to those for which the econometrician, the statistician and the moralist¹²¹ may have as great a voice as the lawyer or the judge, and the politician or administrator.¹²²

5 Belt, Road and (Legal) Suspenders Entangled Legalities on the ‘New Silk Road’

Tomer Broude

5.1 Introduction

This chapter aims to make three main descriptive and implicitly critical points of varying importance regarding the phenomenon of ‘entangled legalities’,¹ using China’s ‘Belt and Road Initiative’ (BRI) as a platform for discussion.

The first point, deceptively the simplest, is that legal entanglement is not necessarily an outcome of chance, anarchy or disorder, but can rather be produced and augmented by centralized (albeit not necessarily structurally hierarchical) political aims and ideas, that create legal and regulatory ripple effects, in ways both intended and unintended. Thus, for example, BRI, also previously known as the ‘One Belt, One Road’ (OBOR) and more romantically as the ‘New Silk Road’, is a central controlling idea in the People’s Republic of China’s (PRC) thirteenth five-year plan (2016–20) and beyond,² clearly guided from above within PRC political hierarchies.³ Nevertheless, its local and international legal implications are in many respects non-hierarchical, diffuse and decentralized, touching upon a very broad and diverse range of distinctive, though not entirely discrete, norms, systems and especially actors. The interaction between the presumptively hierarchical and the miscellany of interacting parts, so to speak, produces a high level of legal entanglement. In other words, legal entanglement, or entangled legalities, can be the outcome of strategic thinking and intent, a type of deliberate order of governance, applied to a diversity of actors that serve as nodes or bridges of entanglement between otherwise disparate legal systems. These ideas are expanded on in Section 5.2, using BRI as a case study.

The second point is that, a priori, entangled legalities cannot exist without high degrees of separateness or compartmentalization between norms, systems and actors, even as they constantly interact with each other. This is not merely a trite dialectical observation – that is, just like threads in a ball of string, there must be separate strands of legality for them to become entangled – but a statement related to the structures of legal and law-relevant practice. A global or multi-regional governance project – if that is indeed what it is⁴ – as massive and largely opaque but increasingly familiar as BRI, is obviously overwhelming in its scope and implications to individuals and indeed to organizations (both public and private, governmental and non-governmental). Arguably, most legal practitioners and/or private/public economic operators and government officials in the multitude of relevant jurisdictions do not consider their everyday work to be part of the overall project of BRI or related to it, or at least it’s not the primary way in which they understand their work. Many might not even know what BRI actually is, if only because it does not conform to more standardized international economic legal structures and conventions. They are just ‘doing their job’ within much more limited, object specific, cognitively manageable and often jurisdictionally divided (ratione loci or ratione materiae), a.k.a. ‘siloed’, strands of an overarching legal entanglement to which they might be largely oblivious in practice. This is demonstrated through a stylized and imagined ethnography (which is nevertheless well grounded in realistic scenarios), undertaken in Section 5.3, the heart of this chapter, in which I trace the different legal practices and local perspectives of particular individual actors, legal and other,⁵ engaging in this era, in different ways, with BRI. These actors are the contact points of entanglement, each of them representing a normative and/or legal system that is entangled with BRI and with other systems. These actors include, for example, an investment protection lawyer at MOFCOM⁶ in Beijing, a public procurement regulator in Greece, an associate or partner at (insert big law firm name) in Kazakhstan, insurgents in Balochistan and judges in national constitutional courts and indeed regional courts such as the Court of Justice of the European Union and the European Court of Human Rights.

Taking note of their separateness, the distinctive and representative existence of these individual narratives should not be taken to imply disentanglement in any way. Rather, the opposite is true; this separateness establishes a pattern of a set of different systems, approaches and perspectives that coexist with normative entanglement. Put differently, this is not simple, straightforward self-containment or ‘fragmentation’ of international law.⁷ Rather, to my mind the main contribution of the concept of international or transnational legal entanglement is its emphasis on querying how different legal norms and systems, with heterogeneous yet often shared legal foundations, engage with each other in unanticipated circumstances. Thus, Section 5.4 demonstrates how the seemingly separate worlds of law and practice can come together, and indeed are already conjoined in an actual case – the Belgrade–Budapest railway project – emphasizing their interdependencies, some of them unexpected and counterintuitive, but in any case, deeply legally entangled.

The third point, discussed in the concluding Section 5.5, builds on the first two, and is well demonstrated by BRI, namely that entangled legalities may be strongly and positively associated with the gradual, messy and piecemeal process of empire-building, or at least empire-bidding. The combination of top-down and bottom-up forces of legal entanglement create flexibilities and benefits for hegemonic contenders, such as in the present case, China, that well acknowledge their own political constraints.

5.2 Between Centralized Goals and Localized Effects: Entanglement, from above

Perhaps counterintuitively, entangled legalities are not necessarily (or at all) a chance or accidental occurrence, disrupting an otherwise settled and logically well-organized legal order. Entangled legalities clearly defy the neat analytics of the Kelsenian idea of a ‘hierarchical structure’ or stufenbau⁸ – in the absence of any clear pyramid between the enmeshed norms involved – or any pretence of distinguishing, in a Hohfeldian sense, between rights, liberties, powers and immunities.⁹ Entangled legalities plainly lie in the theoretical and practical realms of legal pluralism,¹⁰ characterized as ‘complex intertwined networks’.¹¹ Add to these the substantively contested but formally accepted public and private law distinction,¹² and further dimensions of entanglement emerge. It is not, however, always that difficult to ‘fix the own point of departure’ of entanglement,¹³ if one accepts that entangled legalities can actually be a preference, ‘from above’. They may express a preference for legal plurality that serves centralized and powerful interests and ideas – even hegemonic aspirations – better and more flexibly than a clearly defined hierarchy. This is to say that entanglement can be an established mode of legal and regulatory governance, at both macro (centralized) and micro (localized) levels. Regarding public (and private) international law it is not merely a phenomenon of the famous international ‘anarchical society’¹⁴ – it is not necessarily a form of anarchy at all, even if it defies the suffix ‘-archy’. Thus, in terms of ‘pathways’ to its emergence, there is a type of legal entanglement that is inevitably a combination of mutual benefit, appeal and coercion,¹⁵ or alternatively, imperfectly close to coercion, the outcome of a fourth pathway – through implicit dominance or disguised hegemony.

In other words, whether by default or by design, a central actor, which has the authority and perhaps even the real power to create a structured, hierarchical legal system, may refrain from doing so or even prefer not to if this conduct better serves its goals, and if the costs of hierarchical regulation outweigh its benefits. Moreover, grand ideas can be both centralized as guiding elements – telos or teloi – and in this respect can be very effective in creating localized effects through legal entanglement. The BRI is, arguably, a case in point. I return to this, in brief, in Section 5.5.

But what is BRI or the ‘New Silk Road’, actually? BRI defies definition, yet cannot be ignored. At its rawest, it can be understood straightforwardly as an ambitious programme of infrastructure project finance within China (primarily in the less developed western provinces)¹⁶ and in dozens of other countries, spreading to the south and mainly outward to the west of China, all to the tune of US$1 trillion to be invested over twenty years. BRI, which has been often been analogized to the post-World War II ‘Marshall Plan’,¹⁷ can transform the living conditions of hundreds of millions throughout the nether lands of South and Central Asia, reaching into Africa and, more discreetly, into Europe.

Indeed, Europe seems to be very much a crucial economic objective of BRI, presenting a ‘pivot to Europe’ in response to the Obama administration’s now all but forgotten ‘Pivot to Asia’ which included US leadership in negotiations over the Trans-Pacific Partnership (TPP),¹⁸ a policy obliterated by President Trump but not considered a great success even beforehand.¹⁹ Chinese investments in European ports and rail systems are transforming market access and distribution in the EU much more positively than the legal conundrums of Brexit will.²⁰ Reportedly, China now controls – in current terms – one-tenth of all European port capacity, with gateways in Piraeus, Zeebrugge and elsewhere.²¹ This can only be expected to expand, as China invests in rail infrastructures through the Balkans to central Europe.²² Thus, BRI is not only important in simple economic terms. The historical Silk Road had two sides; from a Eurocentric perspective, it was a road to China, from a Chinese perspective it was a road to Europe. BRI is more of the latter than the former. Europeans have only recently started to grasp this,²³ as more states in the EU sign on to the programme (e.g. Greece, Hungary, Italy) – literally through ‘non-binding’ BRI Memoranda;²⁴ attend BRI diplomatic forums; and grant Chinese firms infrastructure projects and accept their loans. This has created an intra-EU tension between member states and the EU Commission, which is explicitly more reserved regarding China and BRI,²⁵ due to concerns about foreign investment approval and debt-entrapment,²⁶ and prompted the EU Commission to develop closer economic relations with Japan, including a very recent bilateral agreement on infrastructure connectivity, depicted as a counter to BRI.²⁷

Moreover, it would be naïve to think that BRI is not indeed also a governance project, potentially the greatest geopolitical transformation since the end of the first Cold War, aiming to create a Eurasian economic and political space under Chinese dominance. It brings to mind George Kennan’s ‘Long Telegram’ regarding Soviet influence after World War II, in that it ‘involves questions so intricate, so delicate, so strange to our form of thought, and so important to analysis of our international environment that I cannot compress answers into single brief message without yielding to what I feel would be a dangerous degree of oversimplification’.²⁸ The EU Commission EU-China: Strategic Outlook document from 2019,²⁹ is of course a public document and hence much more cautious in its drafting; notably, however, it does not mention BRI by any of its names, while the word security appears, in a variety of contexts, much more than the words trade or investment. In other words, the EU has become acutely aware of the geopolitical/economic gauntlet that China has thrown down through BRI.

But again, what is BRI, in legal governance terms? It has been noted that locating the ‘formal legal sources, either domestic or international’ of BRI is a difficult task.³⁰ Heng Wang has called the Chinese approach to BRI ‘less institutional’, presumably in comparison with Western approaches that have relied on institutions in the architecture of international law and regimes. Within this Chinese approach he notes two layers or categories of non-domestic law relevant to BRI: first, ‘BRI-specific’ documents, such as the increasing number of non-binding or binding Memoranda of Understanding (MOUs) between China and states and international organizations;³¹ and second, ‘BRI-related’ rules that can apply to BRI economic activity, such as World Trade Organization (WTO) law, regional trade agreements and international investment agreements.³² To these one might add a variety of international legal rules and norms that are also BRI-related, such as human rights instruments, and environmental, maritime and other standards and private law. Seeking further for historical and institutional analogies, one can clutch on to the Asian Infrastructure Investment Bank, established by China supposedly as an alternative to longstanding multilateral development banks, a competitor to the World Bank Group and an essential political and economic instrument for BRI.³³ One can also look to the Silk Road Fund, a multi-million dollar investment fund, wholly controlled by China.³⁴ But as China scholar Maria Adele Carrai has written, these financial branches do not provide BRI with a rigid legal structure.³⁵ BRI does not have a ‘membership’, an ‘institution’, a ‘decision-making’ process. It does not fit easily into any boxes of conventional international legal order. This does not mean, however, that it does not have many significant implications for law in its spheres of influence, creating entangled legalities at many levels, down to the most localized.

To be sure, the present section of this chapter does not aspire to provide a comprehensive descriptive analysis of BRI. Indeed, the nature of the beast, as already stylized above, as well as the current flux in international ‘geoeconomics’,³⁶ would seem to preclude this.³⁷ Rather, the point to be made is that while BRI evidently constitutes a complex system of entangled legalities, it would appear to have been deliberately conceived as such, ‘top down’, by its initiator, not by chance or oversight, and in lieu of attempting to establish a less entangled, more structured (if not hierarchical) form of governance.

One possible point of departure towards understanding this and its implications for entangled legalities, is the top-down definition of the BRI goals, as set out quite innocuously in Chapter 51 of the PRC’s thirteenth five-year plan,³⁸ which reads as follows:

We will uphold amity, sincerity, mutual benefit, and inclusiveness as well as the principle of joint discussion, common development, and shared growth as we look to undertake practical and mutually-beneficial cooperation in multiple sectors with countries and regions involved in the Belt and Road Initiative, with the aim of developing a new picture of all-around opening up in which China is opened to the world through eastward and westward links and across land and sea [emphases added].³⁹

Compare to this unexpected source, Article 2 of the 1957 Treaty of Rome establishing the European Economic Community:

The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it [emphases added].⁴⁰

These passages are fascinating, when read side by side, in both their similarities and their differences. The similarities of mutual benefit, economic development amity and harmony are clear (although also worthy of deeper theoretical analysis in other contexts). The differences relate to the conceptual mindset of governance. ‘The Community’ contrasts with ‘We’, ‘task’ may be opposed to ‘aim’. China’s five-year plan sets out goals and aspirations for BRI, leaving open the institutional technology for their achievement, while placing China firmly as primus inter pares in a decentralized project. Elsewhere one can find that BRI has a driving concept of a ‘community of common destiny’,⁴¹ but the terms in which it is couched only enhance the difference in institutional (or non-institutional) design – China at the centre of a decentralized system (oxymoron intended). In contrast, the corollary in the Treaty of Rome sought to establish an orderly structure of institutional governance, which will have as its task the achievement of its common goals.

We know how dramatic the Treaty of Rome has been for the peoples of Europe over the last six decades, for its governance and for its legalities, which are often entangled but nevertheless structured upon formal principles such as direct effect, supremacy and subsidiarity. We do not know how dramatic the vision of BRI, posed in its own terms, will be over the next decades. But it can be said that it is a politically centralized vision that can have manifold unintended consequences in many established legal systems – in any state or territory that BRI relates to, directly or indirectly, in any international legal system that it relates to, and indeed in any issue area of regulation or legal domain. Perhaps the key phrase in the paragraph quoted from the five-year plan is ‘a new picture’. Let us try to hypothesize what this picture could be – indeed, already is – for a variety of entangled legal actors.

5.3 Between Separateness and Entanglement: Vignettes of Entangled Legal Practice on the New Silk Road

A comprehensive study of the different legal practices and local perspectives of particular individual actors, legal and otherwise, with BRI, is well beyond the scope of this chapter. Nevertheless, I wish to demonstrate that these actors are the very contact points of entanglement, each of them representing a normative and/or legal system that is entangled with BRI and with other systems. The following are constructed vignettes of professionals and other agents interacting with BRI and other related legal systems in recent history, from variegated legal and geographical perspectives. The reader can consider this as a narrative or as an imagined or hypothetical ethnography,⁴² but the section does not aspire to methodological insight, rather aiming at illustrating one end of the spectrum of legal entanglement, namely, the relative separateness of legal actors, actions and environments and their interconnections. The names, characters and incidents portrayed can be thought of as fiction, but they are all based on or derived from real situations. Thankfully, there are social scientists and legal scholars conducting actual field research in this area. The contribution here is aimed towards the theory of entangled legalities, not to legal sociology or anthropology or to the empirical study of BRI, at least not directly.

The main point to be made here is that entangled legalities exist on a regular basis, first and foremost because of separateness and compartmentalization derived from structures of legal and law-relevant practice, as well as overarching cognitive limits, that constrain these actors to a focus on their particular environments, backgrounds and objectives. In Section 5.4 I show, through a more detailed real-life example, how this separateness is only part of the story of legal entanglement, as the distinct fields of legal practice inevitably, though sometimes unexpectedly, have points of contact and interdependence.

Let us start where it all begins, in China itself, with an initial ethnographical vignette. A is a very senior lawyer at the investment law division of MOFCOM, the PRC’s Ministry of Commerce.⁴³ A, in his late thirties, works in Beijing, which is no less than the centre of the real-world universe for him (forget about Manhattan or Berlin, unless you are thinking of Leonard Cohen). Born in a prefecture-level city in Hubei province in central China, he has been predominantly trained and groomed in the PRC, from a very young age, for public service, through its system of ‘meritocracy’.⁴⁴ He is, however, distinctly a ‘man of the world’. He holds an LLM degree from a leading law school in the USA, speaks excellent English, and has travelled – in his professional capacity, of course, primarily as an advisor to trade and investment agreement negotiations, perish the thought of corruption – several times to Brussels, Singapore, Kuala Lumpur, Johannesburg, Dubai and Canberra, and has previously worked at a junior level in the Chinese delegation in Geneva. Despite his worldliness, his sights are always set on promotion within the Chinese system. He cautiously hopes to hold high office in the Party and government someday.⁴⁵ To him, BRI is very significant. It will project and extend China’s economic and political power and prowess to the world, and A is both confident and proud that he is part of this project, in particular because it will, on balance, bring wealth, welfare and Chinese values to other cultures.⁴⁶ Law is an important instrument to this end, utilizing formats developed by Western powers (such as International Investment Agreements (IIAs), which he negotiates)⁴⁷ that are now fundamental for facilitating and establishing China’s trade and investment policies, which can promote BRI as a significant global public good.⁴⁸ Entangled legality is de rigueur, it comes naturally, so long as the overarching goals are promoted and ideally achieved. A is not concerned at all with the formal problem posed by parallel or even contradictory legal systems, such as international investment agreements and commercial obligations,⁴⁹ so long as they serve the greater purposes of BRI.

For A, ‘law’ is technically public international law, that needs to be upheld as an overarching order that serves China’s interests in general and BRI in particular; but in practice much of it is commercial law. This need not be enforced through traditional Western dispute settlement systems, but through combinations of legal argumentation and diplomacy, and alternative dispute resolution procedures, such as mediation.⁵⁰

Moving on to another entangled and entangling actor at the European portal representing the other end of BRI, B is a mid-level legal counsel in the Greek Ministry of Infrastructure, Transport and Networks in the Athens suburb of Cholargos. At the age of thirty-two, B’s worldview is inevitably coloured by the financial and government debt crises of the 2000s that began when she was a law student at the Kapodistrian University of Athens, and the scepticism that it has brought in Greece towards international institutions, both at the EU level⁵¹ and beyond. B aspires to attain an internationally recognized graduate law degree, perhaps in the UK (though this is becoming less attractive because of Brexit, making the Netherlands her new first choice), but she first needs to establish herself economically and in her professional career, and perhaps start a family. B is a formalist, she follows the book, even when the book is blurred. But she also patriotically understands her state’s strengths and weaknesses, and that an opportunity for foreign investment and increased employment should not be passed up. In her eyes, austerity, imposed by international neoliberal forces, pales in the face of the riches offered by a powerful and trustworthy economic good faith partner from China. The Chinese state-operated enterprises that offer lucrative terms for infrastructure projects that place Greece at a crucial juncture between China and the rest of Europe are a breath of fresh air. Yes, the Chinese can be difficult to deal with, but they don’t have the arrogance of the Western Europeans or Americans.⁵² They know what civil law means and are willing to negotiate flexibly and pragmatically. B is not really sure what BRI is – she’s heard of it, after all she reads the Greek economic press and The Economist from time to time. Over the last few years, however, she has been much more focused on settling the terms of the corporate franchise of a shipping container terminal in the port of Piraeus, and the sale of a majority share in the port authority, with a huge Chinese state-owned shipping company. As time goes by, she takes pride in her small professional contribution to the major increase in shipping container traffic through Piraeus (about ten times the 2008 volume),⁵³ as well as the increase in the number of Chinese tourists visiting Greece, all of which have helped the Greek economy. She was delighted when, in August 2018, the Tsipras government signed a BRI MOU with China, and is pleased that the current government is continuing to expand the relationship, while cognizant of US and EU concerns.⁵⁴

For B, law is mainly Greek administrative and corporate law, in the shadow of EU law; A’s world of law is entirely foreign to her.

In-between A and B, C is a partner in the Almaty office of X, Y and Z LLP, a global ‘big law’ firm. He is only aged twenty-eight, actually born on the day that Kazakhstan declared sovereignty on its territory just before the dissolution of the Soviet Union. He is considered something of a maverick in the Kazakh energy and infrastructure law scene. Fluent in Kazakh, Russian and English, his legal education is exclusively from law schools in Kazakhstan. He is a deal-maker, building on his excellent family connections. His legal specialty is project finance, and he sees BRI as the future – breaking away from Russia, disengaging from the USA (with which he has become personally disillusioned), China is the way forward to Kazakhstan’s prosperity and international recognition.⁵⁵ He has worked with US and EU companies on energy projects, but prefers to work with China – far less red-tape, no social and environmental risk assessments through the Equator Principles or Global Compact,⁵⁶ no EU regulations. This is not to say that he is not concerned with these issues, but they can be addressed through Kazakhstan’s laws and regulations. He is particularly proud of his involvement with the massive Khorgos ‘Dry Port’ project, with its potential for regional transformation.⁵⁷

To C, law is a somewhat blurry (if not shady) area of Kazakhstani business and corporate law,⁵⁸ transnational financial law and energy law. From the perspective of legal practice, his work is quite similar to that of B, but the legal environment is very, very different. As an ambitious young commercial lawyer, he is driven not only by his clients’ interests but also by his own – knowing that he and his partners stand to gain a lot from the Chinese presence in Kazakhstan.⁵⁹ He considers himself no less a businessman than a lawyer, and is contemplating entering politics. He is happy to take Chinese dictates and stay within the bounds of Kazakh legality, so long as the project gets done.

D is a Baloch nationalist and insurgent separatist in Balochistan, the most destitute province in Pakistan, despite being extremely rich in natural gas and minerals – and hence, of great interest to the PRC. Balochistan is also a key building block in BRI, in the form of the ‘China–Pakistan Economic Corridor’, in which reportedly some US$60 billion have been invested or pledged by China, not least in the port of Gwadar on the Arabian Sea, now wholly run by a Chinese corporation, with a lease until 2059. At twenty-four, he was extremely disappointed with the 2018 surrender of the leadership of the Baloch Liberation Army (BLA), which seems to him connected to China’s increased involvement in the region.⁶⁰ He is very concerned that Chinese control in his homeland will benefit elites and not trickle down to his people. Weighing his steps carefully, he is not excluding the possibility of joining militant factions and insurgents that advocate taking armed action against the Chinese presence and have even attacked Chinese engineers under the name of the BLA, if only to gain more political traction, even independence, by raising political risk to BRI operations.⁶¹

For D, law, in general, is not very relevant. There is tribal law, there are social norms, but he is not concerned with Pakistani law or with contracts beyond a handshake (that is to say, legality can be entangled with an absence of legality too). A’s, B’s and C’s worlds of legality are as distant from him as are their air-conditioned offices.

Even more distant, occupying her own tempered chambers, E is a western European Judge in the European Court of Human Rights. Trained in the best law schools of Europe, a well-respected professor of law in her country and with several honorary doctorates around the world, for her, Strasbourg is no less than the centre of the normative universe (forget about Geneva, Washington, DC or Karlsruhe, let alone San Jose or Beijing), and the European Convention for the Protection of Human Rights and Fundamental Freedoms is her moral compass. It is of course the law, and even more so, it is a constitution. Yes, it can get messy sometimes with the overburdened caseload, and the unclear effectiveness and the constitutional orders of the Council of Europe members, such as Georgia and Azerbaijan. These are BRI states, but now also Greece, Italy, Hungary, Serbia and fourteen other Central and Eastern European states are. BRI is not remotely on her judicial radar, though if something relevant comes up in the Caucasus, or anywhere in Europe for that matter, the European Convention and Court will surely kick in.

For E, law is Western, European human rights law, and her legal practice, originally one of scholarship and court-watching, is now firmly the practice of judging.

The list, this cast of characters, can easily go on, but the point should be clear. Each and every one of these legal actors is a constitutive part of BRI, even if they are barely aware of it. They seem to occupy separate universes in which each of their representative narratives does not imply disentanglement, but rather separateness, a separateness that is both necessary for entanglement and coexists with it. They occupy legal silos across national and substantive lines. They are entangled without really knowing it, as they are cognitively limited and object oriented and, above all, practice focused. In Section 5.4 I briefly relate one recent, actual case in which both the separateness and connectedness dimensions of entanglement have been brought to bear.

5.4 Between Entanglement and Interdependence: Bringing Separate Strands Together

In light of the extreme plurality of law and viewpoints of practice – entangled legalities along the New Silk Road – as described only indicatively in Section 5.3, many questions may arise regarding their interdependence, especially as I have so far emphasized their separateness. For example, how might Chinese officials like A link their efforts and rules with the legalities found in the places where they are doing business and seeking influence, when they come into contact with people like B and C? How would the last two and their corollaries along the BRI navigate potential tensions between Chinese expectations and their own laws and norms? How should Chinese actors engage with normative sensibilities they may risk offending, such as those of E – and also of D? To be sure, these questions are worthy of real rather than hypothetical research, whether through doctrinal legal analysis or through political, sociological and anthropological field research. Instead, within the bounds of this chapter, we can look at a brief case study, to appreciate the interdependence of separate entangled strands of legality in action. The following is a brief descriptive analysis of such a case, based on mainly secondary sources.

The case relates to the ongoing project for the modernization of the train line between Belgrade and Budapest, the capitals of Serbia and Hungary respectively, and the entanglement of BRI project-related law with EU law. The project, which will include high-speed trains, fits in with the broader vision of modernized train lines from Piraeus/Athens into the heart of central Europe,⁶² and indeed with its engagement strategy with Central and Eastern European countries, which preceded BRI – the so-called ‘16+1 initiative’ informally launched in 2011,⁶³ now often referred to as ‘17+1’, including Greece. Our focus here is on the segment that lies in Hungarian territory and the project’s interaction with EU law (Serbia not being an EU member state). Hungary was the first EU member state to sign a BRI MOU with China, in 2015.⁶⁴ In November of the same year, China, Hungary and Serbia signed a US$1.9 billion government-to-government (G2G) agreement regarding the Belgrade–Budapest line, and the project’s main contractor was named – a consortium between the Hungarian State Railways corporation and two Chinese railway companies. This legal relationship – the China–Hungary MOU and the infrastructure construction and financing agreement – constitute one strand in this story of entangled legality. The second strand emerged and entangled with the first once the EU launched a preliminary infringement procedure against Hungary in May 2017, based on concerns that the absence of a competitive tender for the huge contract violated EU competition and procurement law; and that the role of the Hungarian corporation, with only 15 per cent of the deal (and 85 per cent of the project to be funded through twenty-year loans from China) was unclear. Reportedly, the Hungarian government was of the position that since the infrastructure agreement was not within the commercial competence of the EU, it was ‘none of Brussels’ business’.⁶⁵

Even at this early stage of the story – the plot is soon to thicken, though the general setup is the same – one can think of the sources of both separateness and interdependence in this case of entangled legality, at least on a speculative basis. If one is charitable, at least regarding intent rather than legal capacity, perhaps the Hungarian public and most likely also private lawyers (think of variations of B and C) involved in the rail infrastructure agreement truly thought that it had nothing to do with EU law, having been signed between three governments in an area that generally is (so Hungary claims) not within EU competence. Perhaps they just didn’t think of it, being so cognitively focused on making the deal on the legal separateness of this kind of agreement. Or, less charitably, maybe they were aware of possible problems, but took the chance in order to make progress with China, and with the hope that the EU would back down for political reasons. Least charitably, they had other incentives that perhaps justified EU scrutiny.

China’s lawyers – A’s colleagues in a different department of a different ministry and their counterparts in the Chinese corporations – were either oblivious to EU law and/or did not consider the possibility that a governmental party to a G2G agreement would make representations of this nature with any real legal (or political) risk, or perhaps thought that if there were a problem it would be handled as it would have been in China, or were so self-motivated that they chose to ignore all of these issues, or deliberately took this chance in order to signal to the EU their determination to engage with EU member states and corporations directly.

What about the EU Commission lawyers, whom we can to some extent analogize to E? For them, there is no question that EU law on competition, procurement, corporations and more are applicable, answerable and supreme. To them, the infrastructure agreement is no different than any of the multitude of structurally similar agreements that are subject to EU law. Maybe this one required additional scrutiny due to its size and mainly because of its role in bringing Chinese influence into the heart of Europe.⁶⁶

Apparently, conceding interdependence, Hungary issued a tender for the project later in 2017,⁶⁷ and a new one in late 2018, which was won in April 2019 by a similar Chinese–Hungarian consortium, with a similar financial structure,⁶⁸ but for the fact that the Hungarian partner would be a company controlled by Lőrinc Mészáros, reportedly ‘a key ally’ of Prime Minister Viktor Orbán,⁶⁹ a strong proponent of the project and of strong relations with China – among his many other well-known political views.

This is not the place to reflect in-depth on either the economic and political undercurrents of this episode, or on its actual outcomes, or on the effectiveness of the different legal actors and legalities involved. What can be said is that in this case, separate strands of legality – international law in the form of the Hungary–China BRI MOU, international G2G commercial law and EU law – started off as separate, with actors even in denial of their entanglement, and ended up in a state that may be called ‘interdependent accommodation’. At least for now, EU law and institutions have been placated, and the Belgrade–Budapest project is projected to go ahead.

5.5 Between Entanglement, State and Empire: Beyond a Conclusion

In Sections 5.3 and 5.4, we saw that entangled legalities entail both separateness and interdependence of legal systems. In Section 5.1, we saw that legal entanglement need not be the result of chance or accident, but can be a deliberately preferred form of international governance. We can now add to this a final observation: that entangled legalities as a form of governance can be a preference of empire builders and empire bidders (though not exclusively so), and an aggregation of the preferences and attitudes of actors at a variety of levels of action.

In the realm of modern public international law, a similar point has been made with respect to institutional and normative fragmentation by Eyal Benvenisti and the late George Downs: powerful states thrive in fragmented legal environments and encourage them because they divide and rule along functional lines. These environments create high transaction costs for normative integration, and cause ambiguity that deflects accountability despite the existence of power.⁷⁰ In a less positivistic mode, however, sociologists have suggested that we should ‘look at empire as a set of slow-moving, temporally based, entrenched, yet also changing political formations that need to be studied to understand how they change, adapt and move on to maintain themselves, partly through reproduction and partly through innovation of their institutional structures’.⁷¹ Histories of the British and other European empires,⁷² and of the American ‘non-empire’,⁷³ confirm the relationship between legal pluralism and the creation of imperial domination over extended periods of time. It is no coincidence that Queen Elizabeth included the statement that ‘Rome was not built in a day’, albeit in different circumstances, in an address at the University of Cambridge in 1564.⁷⁴ No empire, new or old, is so built.

This ‘set of slow moving […] political formations’ would seem to inevitably lead to ‘entangled legalities’, or in other words, to a set of separate, but enmeshed, legal and governance constructs. Although these constructs may seem to lack a hierarchy or ‘centre’, they nevertheless constitute a system of non-national power allocation, however vague it may be, for example globalization as empire, selon Hardt and Negri.⁷⁵ Alternatively, in a more historified manner, empires may be built on entangled legalities as ‘transnational organizations that aim[ed] to mobilize the resources available not only within their areas, but outside them as well’ that ‘[w]hatever their origins, […] ow[ed] their existence and their unity to the broad network of connections that they manage[d] to establish’.⁷⁶

These understandings of empire are not, of course, without controversy or critique, as fitting to the topic itself.⁷⁷ They are brought out here to accentuate – once again, descriptively but implicitly critically – that BRI, with its attributes and character of entangled legalities, shares similarities with other imperialist projects, representing a shift ‘beyond the state’ and perhaps postnational or transnational trends, at a time that seems to be marked by heightened statism, nationalism and perceived disrespect for international law.

All of this is manifested in BRI, which combines both a non-national, ultimately global vision with localized segments that can be recognized and comprehended along national, territorial and object-oriented lines. Pre-national, postnational – perhaps the only way to understand entangled legalities is through the lens of empire: ‘a new and all-pervasive system of power, based on networks and amorphous connections, rooted nowhere in particular’.⁷⁸ ‘Nowhere in particular’ is not necessarily a geographical statement. Communism was ‘rooted’ in Moscow, ‘globalization’ in Washington; both were empires by this definition, both built upon nationalism and created and encouraged ‘entangled legalities’ (with separateness) in multiple ways. BRI might be thought of in a similar fashion.