David A. Westbrook

Magical contracts, numinous capitalism

One suspects that anthropology’s long preoccupation with magic has much to do with the widespread sense, famously articulated by Weber, that becoming modern involves disenchantment, literally losing the sense that life is magical. This chapter takes issue with that suspicion and suggests that magic itself is a shifting thing, strangely hard to lose, perhaps more durable than often feared. Very mundane and seemingly secular things, legal doctrines and jurisprudence concerning contracts, require rather breathtaking faith in the efficacy of words to shape reality. (“Contracts” here means nothing more exotic than the economic transactions that inhabitants of contemporary society engage in daily.) Functioning at all in our very commercial society requires something akin to enchantment, or perhaps enchantment without the wonder.

The Globalization of American Law

‘Global’, ‘legal’ and ‘American’, name important aspects of much contemporary life. One way (there are of course others) to organize these vague descriptions is to begin from three commonplace observations. These observations are suggestive (they mean more than they say), problematic (they are not simply true; their contradictions have merit), and somewhat incommensurate (the logical relations among the three are not completely clear). First, globalization is a process in which law plays large roles. The global is self-evidently legal in treaties, international institutions, and more deeply, the vast webs of property, contract, and finance through which global business takes place. More personally, acts on the global stage such as an assertion of a human right, or joining a nongovernmental organization, or using a credit card, all entail a great deal of law, even though such law ordinarily is not at issue, submerged. The second commonplace is that law is increasingly understood to be articulated at various levels of politics, above, below, and including the nation state. While law is not the same everywhere (there are numerous variations among jurisdictions) such differences increasingly exist within the same conceptual frame, a frame with global scope. And a third commonplace is that global culture, and particularly its law, feels somehow ‘American’. ‘American’ includes not only the law as it emerges from the many authorities within the United States, but also indicates a certain cultural stance. Taken together, these three common observations suggest the proposition that law is being used to make a global society that is somehow American. One of the difficulties in thinking through this proposition is that ‘law’ has no stable referent. Sometimes, law is understood to refer to distinct social phenomena such as treaties, constitutions (often guaranteeing rights), institutions, and the web of legal relations that inform civil life, law visà-vis society. All this is true enough, but law is also ineluctably part of that which it constrains. Law constructs much of the objects within the realms of politics, morality, and so forth. Thus politics, morality and society writ large (indeed global society) are always already legal in character, law within society. In any society, most matters tend to be so well settled as to be hardly discussed. Law, in this sense of the word, tends to be unquestioned, invisible, hegemonic. To ask ‘what is the role of (American) law?’ is, already, to have assumed a duality between law and its society that obscures much of importance. As a result of the simultaneous opposition and interpenetration between ‘law’ and ‘society’, description of the relationship between law and a particular social phenomenon is difficult. And when the ‘phenomenon’ is that huge set of developments mystically discussed under the rubric of a ‘great transformation’, then the problem of delineating relationships between law and the phenomenon becomes difficult indeed. Consequently, thinking about law and globalization cannot aspire to more than understanding (sophistication). Demonstrable truth (certainty) is out of reach. In response to this situation, social critics may be expected to soften their approaches somewhat, to turn from ‘theory’ modeled on science to something akin to aesthetic appreciation, and an effort to think through the sources and implications of felt experience – the question requires not only rigor but critique, not only demonstration but sensibility. Globalization could be understood from the end of the Second World War, when a number of treaties were signed that established a framework for the integration of non-communist states in Western Europe and elsewhere. The International Monetary Fund (IMF), the International Bank for Reconstruction and Development (World Bank), and the General Agreement on Tariffs and Trade (GATT, which has been incorporated into the World Trade Organization, WTO) established an international, now global, trade and financial order designed to avoid the rivalries that led to both World Wars. Similarly, a series of treaties has created a Europe of interpenetrating politics, laws, economies, militaries, personal ties, and cultural identities – a project that was intended to make war among European states infeasible. In this story, law is a primary mechanism through which the great transformation was begun. And as the strongest power at the end of the Second World War, the United States played a major role in the construction of the new regime. Such an instrumental view of law, however, is only half the story. While treaties provide a legal The Globalization of American Law