Comment on Comments

It is a rare pleasure to have three excellent scholars read and comment on one's book and think about its implications for sociolegal studies. Each of these commentaries makes valuable suggestions for expanding and developing a sociolegal studies framework that incorporates history. Some suggestions would have improved the book, while others point to new projects that could contribute theoretically and methodologically to developing an historical approach to sociolegal studies. In his insightful essay, Bill Maurer reminds us that in the law and culture equation, we have devoted far more attention to the analysis of the terms that anchor the equation ("law" and "culture") than to the meanings of the "and" itself. The same is true for "law" and "society," of course. Scholars have challenged the separation into two discrete entities that the "and" entails, but as Maurer points out, too few have explored what kinds of processes are subsumed under the term. The notion of mutually constitutive relations between law and culture is an advance over the notion that these are simply separate entities, but this formulation ignores the relative power relations of the two terms along with the complicated ways that one comes to shape the other. It seems similar to issuing mutual restraining orders in cases of domestic violence. In that case, the mutuality indicates that there is some interaction within the violence, but the nature of the blows, their sequence, their provocations, the way each assault changes the conditions for the next blow, are completely effaced in a framework of apparent equality entailed in the notion of mutuality. Similarly, once the interconnectedness of law and culture are acknowledged, the concept of mutual constitution does little analytic work in disentangling the important questions of power and change. These include the relative power of forms of law, law enforcement, legal consciousness, and legal regulation in forming cultural practices and the power of cultural practices to influence and channel legal regulations. Maurer suggests that one way to deepen our analysis of the "and" is to consider techniques of personification and reification, to take seriously the objects of law such as documents, papers, texts, and forms. This is clearly a productive mode of inquiry. These instantiations of legal practice bring a fixity to legal relations which themselves constitute a form of power (see Riles 2004). Thinking about the "and" over time provides another way of conceptualizing this relationship. Although causality is notoriously elusive, an historical analysis provides at least one way of thinking about how change in one sphere is temporally related to others. One of the advantages of historical research is the possibility of tracing law's changing intervention in everyday life over time with relation to changes to politics, economics, and society, as I tried to do with nineteenth-century Hawai'i. Does this mean that the law produced culture, or that its changing operations were caused by changes in culture? Not in any simple sense, but it did appear in my research that the law was mobilized in different ways at different periods. Although it was often a means to control the social lives of new immigrants, the identities of the immigrants changed. Cultural definitions of groups that appeared dangerous shaped prosecution patterns, while features of these groups' everyday lives, such as smoking opium or gambling, were defined as worthy of legal intervention. These examples show how law and culture are two sides of a system of power relations. Law is not equivalent to culture but is a distinctive set of institutions, practices, and rules used by states to exert control over everyday social life. Although law's rules, institutions, and practices are culturally formed, their exercise plays a particularly powerful role in forming the rules and practices of everyday life. Because law is linked to state power, law and culture are not two equal entities but fundamentally unequal in their access to power. …