HAU
Law, law everywhere

This work is licensed under the Creative Commons | © Harri Englund. ISSN 2049-1115 (Online). DOI: http://dx.doi.org/10.14318/hau5.3.017

BOOK SYMPOSIUM

Law, law everywhere

Harri ENGLUND, University of Cambridge

Comment on Obarrio, Juan. 2014. The spirit of the laws in Mozambique. Chicago: University of Chicago Press.

A phantom footnote caught my eye in Juan Obarrio’s (2014) aesthetically accomplished book. The brief concluding section has its sole footnote on page 232. An effort to locate its contents at the end of the book among the rest of the notes yields nothing. It does not exist. For a book that has so meticulously pursued a particular aesthetic, a distinct authorial voice, the phantom footnote comes across as another, final moment in careful composition. Perhaps Obarrio has here invited his readers to compose their own footnotes?

The sentence to which the phantom footnote attaches itself is unremarkable. No points for guessing the reference it would contain: “As during colonial times, the urban is the space of a ’civil society’ that forms the apex of legal reforms of governance.” Mahmood Mamdani’s (1996) controversial thesis on the bifurcation of the colonial state in Africa made precisely this point. Obarrio follows hard on Mamdani’s heels in the next sentence too: “The observation of the prevalence of kinship, custom, and ritual in the community court demonstrates that full modern citizenship, as the legal status of a subject of rights that belongs to the city, is still denied to vast portions of the rural and periurban population” (Obarrio 2014: 232). What begins to be remarkable is that this thesis, the still in its temporal horizon, sits along with some intense referencing, explicit and especially implicit, of postcolonial theory. For Mamdani’s thesis was little more than a Marxist-nationalist’s sure-footed call to abolish the custom that had so enslaved the African people from late colonialism to postcolonial experiments in governance. Obarrio uses a term of art, “the postcolony,” to align his contribution with Achille Mbembe’s (2001) thoughts on subjectivation, power as a fetish, the arbitrariness of the colonial and postcolonial state in Africa, and so on. For those who remember the polarized [268]intellectual milieu associated with the Council for the Development of the Social Sciences in Africa (CODESRIA) at the turn of the millennium, Obarrio’s efforts to marry Mamdani with Mbembe may come either as long overdue reconciliation or as theoretical eclecticism gone mad. So sharply were the battle lines drawn that Paul Tiyambe Zeleza, a self-appointed spokesman for the Mamdani camp, was able to describe Mbembe’s writings as “verbose and overexcited postmodernist fulminations” (2003: 282).1

In my view, Obarrio has presided over a perfectly respectable marriage; The spirit of the laws in Mozambique is no bastard child. Mamdani and Mbembe, despite their obvious political and epistemological differences, are merely two of the more high-profile African scholars vying for leadership in the conceptual representations of the continent, neither much of a fieldworker and both bent on scale-busting generalizations. Beyond these similarities in inclination lies the common conceptual ground from which Obarrio’s book arises. It was only a matter of time that a book marrying commandement with customary citizenship appeared, and that book had to be about Mozambique. For it was in Mozambique that a liberation-movement-turned-postcolonial-government embarked on a particularly vigorous campaign against customary practices and authorities, only to retract after a prolonged civil war by reinstating custom at the core of local government. Inevitably, scores of anthropologists, political scientists, and historians have found in this process a fertile ground for research; Obarrio treads where many before him have been. Because his parsimonious referencing of this previous scholarship has already been noted elsewhere (Bertelsen 2015), I comment briefly on the consequences of the marriage he has effected for our understanding of obligations. My comments are not offered as a book review but—in the spirit of the phantom footnote—as an addendum on the subject of obligations suspended between law and morality.

The reason why Obarrio’s book provides a context for pursuing this subject is the pervasive prominence attributed to law—from written law to customary norms and codes—in virtually everything on which he fixes his gaze. “Kinship rules” and “ritual norms” (Obarrio 2014: 204), all encompassed by custom, are complicit in engaging the citizen-subjects in a “double bind” as “citizens in a liberal republic and as subjects, members of a local community” (228). As a consequence, when commandement meets customary citizenship, little space is available for what anthropologists working in this region have accomplished so well: a sense of contingency couched in customary idioms and practices, multiplex relationships running through extended cases across a range of institutional settings, and morality simultaneously as a matter of reflection, sentiment, and materiality. Methodologically, when Obarrio leaves the capital city to visit a province in Northern Mozambique, he rarely strays far from the courtroom. When he does so, he seems to be accompanied by a judge (e.g., Obarrio 2014: 184). Although he reads (and smells and touches) court files with commendable assiduity and sits through several courtroom dramas, his are not extended cases that would take the reader to the various arenas of protagonists’ lives. He quotes files and speakers in the courtroom, but [269]the reader often looks in vain for what the words he presents might have been in Portuguese or Makhuwa.2 When people begin to speak in Makhuwa, he turns to his “whispering assistant” (208). No wonder, then, that law is all there is when law is all the anthropologist sees.3

To emphasize the juridical and normative side of obligations is to miss out on the rich legacy of those anthropological studies from the region that considered law and morality as two sides of the same coin. “I know of no concept of Lozi law,” Max Gluckman (1955: 259) wrote, “which has not a high ethical implication.” He arrived at this statement after a careful consideration of several Lozi concepts and idioms, perhaps the most revealing of which was swanelo, a word that translated as both right and duty or obligation (Gluckman 1955: 298–99). “If a man fails in his duty (swanelo), then he has lost his right (swanelo).” Gluckman’s interest in making these observations was to highlight conceptual flexibility that lent itself to judicial discretion. It was flexibility that allowed “the concepts to be expanded to contain all the customs and values, both historical and emergent, of Lozi law.” Hence the intricate relationship between law and morality: judicial discretion entailed moral reflection and sentiment in judges’ attempts to make law absorb any contingent development. Famously, “reasonable standards” were the crux of moral-juridical reasoning that accommodated at once both custom and changes in every sphere of life (Gluckman 1963: 178–206). Compare, then, how Obarrio treats judges’ evocation of kinship terms in the local court. It becomes a matter of the customary legitimizing state law: “Although [the judge] is endowed with a legitimacy that stems from his belonging to the central government of power, in order to reaffirm that legitimacy, he must resort to a common feature of moral sociality in the region, the use of terminology and forms of address rooted in kinship norms” (Obarrio 2014: 186). A crucial equivalence exists between the laws of kinship and the laws of the state: “At the court the rules of intimacy of kinship become the logic of the immanence of the state” (ibid.).

The judges’ “calculated use of kinship terms” (Obarrio 2014: 185) in addressing the protagonists appears as an instrument of legitimation. Their “resorting” to “moral sociality” more or less automatically delivers intimacy and “the aura of legitimate authority” (ibid.). The character and purposes of judicial discretion remain enigmatic when lives and relationships are not followed beyond the courtroom.4 [270]It is the conceptual status of obligations that I worry about. When obligations are made to appear as law-like as the state law itself, and when they are firmly placed on the side of custom, key directions in scholarship are foreclosed. On one hand, Gluckman’s insights into the interface between rights and obligations, and law and morality, are echoed in Ajantha Subramanian’s recent observation from India: “Rights claims are embedded in dense histories of struggle and, in this sense, are not distinct from other cultural expressions of relationality and obligation” (2009: 20–21). On the other, and more recently still, Pnina Werbner (2014: 479) laments that the rejuvenation of anthropological interest in the topics of morality and ethics has been driven by studies of ritual and religion and an almost exclusive focus on personal ethics. She identifies an instance of disciplinary amnesia in which legal anthropology’s past achievements in conceptualizing moral reasoning and sentiment have been sidelined. The spirit of the laws in Mozambique could have joined this momentum to recover, and to develop further, the intellectual resources that anthropologists have had at their disposal to think about obligations in ways that do not uphold law as their model, or subscribe to the “law conception of ethics,” as G. E. M. Anscombe (1958: 8) put it when she reintroduced Anglophone philosophy to virtue ethics. Instead, combining customary citizenship with commandement entangles the author in a theoretical double bind, from which the phantom footnote seems the best way out.

References

Anscombe, G. E. M.. 1958. “Modern moral philosophy.” Philosophy 33 (124): 1–19.

Bertelsen, Bjørn Enge. 2015. “Review of Juan Obarrio, The spirit of the laws in Mozambique.” Anthropological Quarterly 88 (2): 569–80.

Burbidge, Dominic. 2015. “Review of Juan Obarrio, The spirit of the laws in Mozambique.” African Affairs 114 (456): 478–79.

Gluckman, Max. 1955. The judicial process among the Barotse of Northern Rhodesia. Manchester: Manchester University Press.

———. 1963. Order and rebellion in tribal Africa. London: Cohen and West.

Mamdani, Mahmood. 1996. Citizen and subject: Contemporary Africa and the legacy of late colonialism. Princeton, NJ: Princeton University Press.

Mbembe, Achille. 2001. On the postcolony. Berkeley: University of California Press.

Obarrio, Juan. 2014. The spirit of the laws in Mozambique. Chicago: University of Chicago Press.

Subramanian, Ajantha. 2009. Shorelines: Space and rights in South India. Stanford, CA: Stanford University Press.[271]

Werbner, Pnina. 2014. “’The duty to act fairly’: Ethics, legal anthropology, and labor justice in the Manual Workers Union of Botswana.” Comparative Studies in Society and History 56 (2): 479–507.

Zeleza, Paul Tiyambe. 2003. Rethinking Africa’s globalization, volume 1: The intellectual challenges. Trenton, NJ: Africa World Press.

 

 

Harri Englund
Division of Social Anthropology
University of Cambridge
Free School Lane
Cambridge
CB2 3RF
hme25@cam.ac.uk

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1. Adebayo Olukoshi, then my colleague at the Nordic Africa Institute and subsequently Mbembe’s successor as CODESRIA’s Executive Secretary, attributed to Mamdani the joke that the only “post” he had heard of in Africa was the post office.

2. Much, though, is made of the habit by which Makhuwa-speakers use Portuguese for dates and numbers (Obarrio 2014: 171). The habit is widespread across Mozambique’s linguistic diversity and in the neighboring countries where English takes the place of Portuguese in this regard. For Obarrio, the implication is profound: “Makhuwa measures and conceptualizes time differently from Western ideology and taxonomy.”

3. Even so, as has been pointed out elsewhere (Burbidge 2015), the multiple and competing traditions that constitute law in Mozambique are not reviewed in a systematic way, including the role of Islamic jurisprudence in the province Obarrio visited.

4. When Obarrio attempts an interview with a female protagonist in a divorce case at her house, he finds himself subject to her relatives’ attentions. It is hard to ascertain whether there is more surprise than frustration in his comment, “I had to talk at length with several of them in order to be able to exchange a few words with the woman” (2014: 225). The evident constraints of the situation, apparently based on a single visit, indeed preclude more than a portrait of the woman as a victim, her harrowing experiences begging the question of how she might have understood rights and obligations in her predicament.