Symposium on opposing_the_rule_of_law

INTRODUCTION

Ronald Janse on Behalf of the Editorial Boardof the HJRL

Ronald Janse1

Published online: 13 February 2017! T.M.C. Asser Press 2016

Nick Cheesman’s much praised Opposing the Rule of Law: How Myanmar’s CourtsMake Law and Order is the first major study of courts and politics in contemporaryMyanmar. It advances both general theory and close empirical description at thehighest level.

Opposing the Rule of Law contributes significantly and distinctively to the theoryof the rule of law and to legal and political theory more generally. It develops apersuasive argument that the rule of law is opposed to law and order, a concept withwhich it is commonly conflated–in Myanmar but more widely as well. Regimes that‘lack’ the rule of law rarely encounter an absence, but the presence of somethingelse, opposed to the rule of law, which has its own characteristics that need to beexplored and understood. Such understanding matters both intellectually andpractically: to how we think and to what we should do.

At the same time, by paying close attention to the Burmese-language records of393 criminal cases supplemented by findings from fieldwork and archival researchof hitherto unutilised or underutilised published and classified official documents,the book pushes the study of politics in contemporary Myanmar beyond the binaryof democracy movement versus military dictatorship, and also disrupts conventionalthinking about how authoritarian rulers use courts for political ends.

As a result of its layered and sophisticated complexity, then, Opposing the Ruleof Law not merely advances our understanding of politics and law in Myanmar, butsignificantly advances contemporary discussion of the rule of law. It is a book offine detail yet large implication.

In June 2016, Opposing the Rule of Law was the subject of a lively Author-Meets-Reader panel discussion at the Law and Society Association’s AnnualMeeting in New Orleans. Given the manifest interest in the book exhibited by

& Ronald [email protected]

1 University of Amsterdam, Amsterdam, The Netherlands

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scholars from a range of disciplines and domains, the panellists were asked to revisetheir comments for a symposium in the Hague Journal on the Rule of Law, andCheesman was asked to write an extended response. These comments andCheesman’s response, which includes important explication and further develop-ment of some of the central themes of Opposing the Rule of Law, cover questions oflegal and political ethnography, history, theory, methodology, explanation andnormative evaluation. All these ingredients are combined in the rich feast thatfollows.

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ARTICLE

Rule of Law Inside Out in Myanmar

Commentary on Opposing the Rule of Law: How Myanmar’sCourts Make Law and Order by Nick Cheesman

Frank Munger1


Abstract Opposing the Rule of Law is an exemplary ethnographic and historicalstudy of rule of law in Myanmar from the ‘‘inside out’’. Employing historicaldocuments, court records, extensive observation and interviews, this researchexamines jurisprudence at the core of the Myanmar junta’s governance. Authori-tarian governance has rules and a logic of its own, presenting itself at times as a ruleof law but one thoroughly conflated with law and order, demonstrating, Cheesmanreminds us that contemporary studies of legal development have too often focusedon elements of the West’s ideal rule of law that are missing, rather than onunderstanding the systems that actually animate governance. Several important linesof inquiry for future research in Myanmar and elsewhere are suggested by thisstudy, and a profound tension is apparent between Western rule of law ideals andactual practices of governance in Myanmar, with global implications—for gover-nance in the West as well as in emerging societies of the developing world.

Keywords Rule of law ! Legal development ! Anthropology of rights ! Courts underauthoritarian government

1 Introduction

Nick Cheesman’s Opposing the Rule of the Law: How Myanmar’s Courts MakeLaw and Order examines legal ideals and practices animating governance inMyanmar from the British colony, through years of brutal repression under militaryjuntas, to the present democratic opening. Informed by extensive interviews andobservations as well as government records and thorough knowledge of Myanmar’slegal history, Opposing is among the best of the recent wave of ethnographies

& Frank [email protected]

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examining the role of law in developing societies, literally from the inside out.Cheesman’s analysis of Myanmar’s legal ideology is based on exemplaryethnography but also makes an important point that resonates far beyond Myanmar.

The book opens with criticism of jurisprudence that measures working legalsystems, and especially evolving legal systems in new states, against Western ruleof law ideals. Rejecting such rule of law ‘monism’, Cheesman proceeds to considerMyanmar’s governance on its own terms, as a coherent system animated by‘opposing’ principles incommensurate with Western rule of law.

Drawing on official records, court decisions, observations and interviews as wellas histories of colonial and post-colonial Myanmar, Cheesman’s analysis revealshow legal ideologies promoted by Myanmar’s rulers worked as political strategies,phrased in the cosmopolitan language of rule of law but adapted to political needsby exploiting the ideal’s deeply embedded ambiguity to justify governance practicesthat ‘oppose’ the rule of law’s emphasis on limited government. Opposingforegrounds a jurisprudential puzzle, namely how our dominant rule of law theorycan provide insight into a working system of governance that rejects virtually everyprinciple represented by the West’s gold standard. Classics of Western jurispru-dence, and contemporary political promoters, treat rule of law as the masternarrative of modern governance, measuring alternatives by their failure to adopteffective Western models—tallying the missing or defective pieces and attributingundesirable outcomes to the deficits. Cheesman observes that the rule of lawframework itself is only a fragment of a more sociologically informed theory, initself a standard which neither accounts for incompatible, universally coexistent,normative conceptions of governance (principally, ‘law and order’) nor acknowl-edges the variety of practices that stabilize and legitimate governing authority.

The book’s introductory critique of conventional rule of law jurisprudence is sothorough, in fact, that one might justifiably read it as a call to abandon that conceptfor the purpose of comparative inquiry in favor of textured, sociologically andethnographically informed examination of governance practices, were it not forCheesman’s commitment to the ideal. Returning to a global perspective in hisconcluding chapter, he passionately urges our resistance to governance ‘opposingthe rule of law’. Values count, and we are reminded of sociologist Philip Selznick,who examined legal ideals in practice, their emergence from experience andtransformation through institutionalization. While Selznick believed that the valueof rule-limited authority is universally apparent from human experience, Cheesmanargues that different (i.e. ‘opposing’) ideals animate different forms of governance.Yet, as his narrative of governance in Myanmar unfolds, the inside story reveals thatruling ideologies and practices remained connected to the Western ideal theyopposed. Governance from colony to the present is in part a narrative of continuingentanglement with the language and authority of cosmopolitan ideals that rulersadapted to their radically opposing ends.

I begin my comments with five reasons why scholars and a wider publicinterested in rule of law should read Opposing the Rule of Law. I then suggest thatCheesman’s insightful study should challenge scholars not only to emulate hisdetail, depth and careful analysis but also to pursue two further lines of inquiry notfully developed in Opposing: first, the persistence of opposing ideals within

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Myanmar itself, and, second, the arc of careers and roles played by actors whobecome the carriers of these alternatives. As Cheesman recognizes, both are neededfor a full understanding of legal evolution and political change. The final part of mycomment suggests that the study’s conclusion remains incomplete – parts of thelandscape provocatively described in the book’s introduction remain blank.Entanglement between ‘law and order’ and ‘rule of law’ is a universal characteristicof modern governance.

2 Five Reasons to Read Opposing the Rule of Law

As Cheesman explains in his introduction to this symposium, Opposing the Rule ofLaw is about idea-action relationships that give meaning to an elusive concept, ruleof law. More specifically his focus is on what ‘animates the criminal juridical system’and its network of supporting and collaborating actors in government and outside ofit. In turn, this system is a central element of the system of governance that givessubstance to the ideals that its rulers promote to maintain authoritarian rule. The bookbegins with an insightful interrogation of the rule of law ideal itself. Misconceptionof the rule of law as the single, best standard for assessing legal system development,Cheesman suggests, has led many Western scholars to ask the wrong questions.Merely cataloguing the ways development fails to match the ideal risks ignoring thereal world of alternative ideals and functioning systems of governance and likewisefails to provide the conceptual tools needed for a general understanding ofdevelopment of different ideals animating working political orders. Myanmar is anexample of an alternative legal order. Cheesman details the mechanisms of theideology and working system of governance that maintains the rulers’ authority.

First, Cheesman’s insightful unpacking of the meaning of rule of law has as muchto say about our general understanding of law in Europe and North America asabout studies of developing countries. ‘Law and order’ passes unremarked inWestern political discourse, taken for granted as a part of the package of ideasmaking up the rule of law. Yet, as Foucault and other theorists remind us, law andorder is a theory on its own and the very antithesis of rule of law. How thiscontradiction is managed remains an issue for Western states as it is for states likeMyanmar whose political leaders have sought to conflate the two, progressivelyeliminating the distinctive elements of rule of law while retaining its legitimatingterminology. Developed democracies often deviate widely from rule of law‘orthodoxy’ yet claim a dominant role for rule of law. Consideration of practicesthat give substance to different ideals will lead to better understanding of the role oflaw and more meaningful exchange about the value of law in different systems ofgovernance.

Second, the complex relationship between language, meaningful action, andpolitical structure comprises the central work of theory in this study. Successiveauthoritarian governments in Myanmar adapted the formulations of rule of lawestablished by colonial government to suit their own purposes, rebalancing thealready conflated elements of law as limit and law as power to support thelegitimacy of increasingly unchecked state authority. Cheesman’s admirably clear

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narrative describes the development of this complex relationship step by step, ateach stage relating an historical account of Myanmar’s colonization, independence,and subsequent military dictatorships to the evolution of a legal discourse (andjurisprudence) and to the practicalities of maintaining regime authority. We are ledto understand the origins and meaning of rule of law in contemporary Myanmarthrough his detailed account of the practices that ‘animate’ the ‘rule of law’ idea atseveral different levels of authority and action.

Third, the hierarchical and interdependent nature of the state as police (not theadministrative unit called police, but the mission of the state to ‘police’ the society)advances our understanding of not only authoritarian governments, but governancegenerally. Cheesman resists the suggestion of other authors that police brutalityunder authoritarian regimes demonstrates that law has no real content, but meansonly what the police choose it to mean. He challenges this characterization byobserving that on whatever level we choose to consider the discourse of law,normative content is created by an audience which influences action, whether as aresult of participation in political dialogue at the global level or interdependenceamong administrators and publics at the national and local levels. Discourse isevidence of, and indeed creates, expectations and constraints on action.

Fourth, one of the challenges for a work which attempts to keep complex ideassimple is that peripheral vision may be reduced, and in this narrative of criminaljurisprudence in Myanmar there is potentially a lot of periphery – two centuries ofhistory and development in a complex, multi-ethnic society at an important globalcross-roads of trade and geopolitics. Cheesman does not deny the reader the benefitsof conventional chronology and historical development. Historical contextualizationof the work that law has done and is doing in Myanmar makes his ethnographicreadings of courts and law practice richer and more relevant to the continuingevolution of law. The admirable efficiency of this description of a complex and, fora general audience, unknown history should remind the reader of Dan Lev’smagisterial work on Indonesia and Malaysia. Cheesman similarly incorporatesilluminating description of historical and political context while maintaining focuson which ideas influence action.

Finally, all of this would be enough to recommend the book to anyone interestedin the way law is being deployed and transformed in landscapes outside the GlobalNorth, but Cheesman’s writing is wonderfully clear and effective. His years as ajournalist and human rights reporter yield prose that is straightforward and lucid,even when he is reviewing complex theory. Clear writing is associated with clearthinking, and Cheesman’s account of the role of the rule of law ideal, crafted byMyanmar’s rulers in the complex mechanisms that sustain their power, is conveyedwith a clarity that make this study a compelling starting point for work by others.

3 Ideals and Change

It is important to remember why the rule of law ideal draws attention. Globalpolitics in the modern era has been driven in large part by efforts of nations in theNorth Atlantic to manage change. With colonization still a bitter memory, former

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colonizers and their allies exercise power less directly, by promoting limitedgovernment, constitutionalism, and rule of law friendly to capitalism and free trade.Other international actors take up the cause of human rights, limits on abuse ofpower and the role of law in creating wider opportunities for the less powerful. Yet,these sources of material and ideological influence should not distract us from theprimary message of rule of law ethnography: that political authority and legalevolution have occurred from the inside out.

The opening pages of Opposing the Rule of Law describe a present day Myanmarwhere rule of law is on everyone’s lips after the junta’s decision to restore civilianrule in 2010. Rapid reemergence of civil society and a public rule of law discourseshould remind us that even under brutal authoritarian rule ideological tensions andferment existed. This diversity of perspectives was apparent among influentialmembers of the junta and subordinate officials such as the carefully controlledjudiciary, as well as among lawyers and ordinary citizens. At critical moments, whenan uprising or political coup challenged Myanmar’s incumbent rulers, alternativeperspectives embraced by elites or ordinary citizens became rallying points.

Two important questions follow. First, what were the origins of thesealternatives, how did they evolve, and how did they emerge in moments of tensionand crisis? This is in part a story of social organization at many levels of society thatshaped perceptions and action, and in turn it is a story of changing socialorganization of the society over time (e.g., economic change under the impact offoreign investors, dominant neighbors, and cross border connections with othersocieties). Second, and closely related, contention and change in governancerequires actors. Thus, an important window on change is provided by research thatcharts the trajectories of groups or individuals who become the carriers ofcompeting points of view on authority and rights, offering a deeper understanding ofthe role that law is expected to play in governance.

3.1 Rule of Law Tensions and Politics

Opposing the Rule of Law suggests many starting points for a complementary insidehistory of the influence of alternative ideas about law, governance or rights, theirsurvival, transformation and reemergence. For understandable reasons, Cheesmandoes not attempt to create an exhaustive map of the ideological landscape of pre-colonial Myanmar or its subsequent changes. Nor does he attempt to canvasperceptions of ordinary citizens under colonial and post-colonial rule whose dailylife was remote from politics and who sought, above all, to distance themselvesfrom rulers and from formal legal institutions. Among elites, of course, post-colonial succession was not consensual, as the fledgling democracy failed andMyanmar’s governments became increasingly authoritarian and arbitrary. Somedissenting elites survived to play important roles after 2010. How their views ofgovernance took shape under post-colonial rule and how they were altered by lifeunder the junta remains to be explored. As Cheesman notes in his concludingchapter, even Myanmar’s internationally acclaimed spokesperson for democracyand its current leader, Aung San Suu Kyi, voices a rule of law ideal that continues toresonate with the junta’s ‘law and order’ alternative.


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Voices of dissent are apparent in the historical and ethnographic narratives ofOpposing the Rule of Law, including those of courageous lawyers who had to besilenced by arrest and banished from the practice of law as well as the voices ofordinary people who attempt to invoke channels of complaint, legal redress andoccasionally collective action. The judiciary itself, central to the system of criminalpunishment and control, was kept in line through heavy handed political guidanceand a system of sanctioned bribery and punishment which curbed independentinitiative. The bankrupt system of criminal jurisprudence, nearly emptied of anysubstantive meaning beyond the regime’s political needs, preserved many of theforms of rule-ordered decision – courtrooms, prosecutors, use of criminal codes, andafter their own fashion, trials and taking of evidence. Members of the judiciarysometimes chose to apply the terms of the post-colonial criminal code, but whenpolitical rulers disagreed with the outcome, a judicial decision could elicitadministrative intervention to ‘correct’ the outcome.

A civil uprising in 1988 demonstrated continuing capacity for popular dissent,and while other scholars document the movement, Cheesman’s examination ofMyanmar’s political and legal evolution raises new questions about its origins andconsequences. Subsequent protests were led by farmers; others in urban areas wereled by monks. How did these protest together with more subtle forms of resistanceand the relationships and practices out of which they grew contribute toreemergence of popular expressions of belief in rule of law and its meaning?

Each of these examples of ambivalence or resistance represents a possible sourceof institutional or political change. In Myanmar, a version of the rule of law appearsto have emerged triumphant after 2010, along with a vibrant political scene andrapid restoration of Parliamentary rule, suggesting that opponents of the junta havelong memories and shared ideals. But just as Cheesman argues that governanceopposing the rule law does not mean governing in a normative vacuum, oppositionto the government’s extreme rejection of rule of law principles does not mean thatdissenters with alternative views embraced the West’s orthodoxy or any particularversion of it. We must still ask, in Myanmar, as elsewhere, what alternativeinterpretations of the rule of law were kept alive, how were they maintained, and bywhom?

3.2 The Importance of Actors

A valuable second line of inquiry follows directly from the first. Alternative ideals,and the particular interests they serve, are maintained by particular individuals andgroups. The carriers of particular orientations to law, authority and power representan important point of entry to the study of the rule of law. Alternative perspectiveson law and authority have origins in the collective biographies of communities,social groups and even generations with shared experiences. The experiences—family, education, social networks, more general social conditions—that encour-aged the development, continuing relevance, or change in these orientations areimplicit elements of Cheesman’s narrative. Interpretations of rule of law by groupsplaying important social and political roles in post-2010 civil society andgovernance will continue to influence Myanmar’s capacity to embrace new

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institutions, and in turn, generate additional narratives about the social constructionof the meaning of rule of law and democracy.

More specifically, consider the military leaders and civilians who sided withthem. Who was inside and who outside the ruling group, and what influenced theirmotivations and choices? In particular, it would not only be useful to understandmore about the internal dynamics of military leadership, but their role in civilsociety and connections with civilian centers of political power as well as influentialinternational actors. How did foreign powers, especially the Chinese, and moreparticularly those supplying capital or other forms of material support influence thesuccess of the junta’s law and order governance that resisted pressure from belowfor nearly half a century? And perhaps most significantly, what led to the junta’ssudden apparent break with law and order governance after 2010?

Similar questions can be raised about the role of educated, politically awaremiddle classes, and especially the civilian leaders in the colony and post-colony.Middle classes may be organized in different ways and have different interests inearly modern European and contemporary Asia, but, lacking religious or socialstatus, middle classes everywhere have played an important role in demanding ruleof law as a check on arbitrary power. We may ask, what values from the colonialperiod lived on in the post-colony? And similarly, what aspirations for governancefrom the post-colony survived to 2010? As a symbol of resistance and democraticaspiration, Aung San Suu Kyi survived years under house arrest to become aunifying figure after 2010 and Myanmar’s de facto head of government. Her familythrived politically in pre-junta Myanmar. Although she speaks frequently ofreestablishing rule of law, it is fair to ask which principles of limited government areinviolable and what weight she will give to law and order in a Myanmar still to entera period of reconciliation and transitional justice, when the military is permanentlyside-lined.

Many of the lawyers who were barred from practice or jailed by the junta havereturned with enthusiasm to advocacy and teaching others about the rule of law. Weknow little about how their understanding of law may have been altered bysuppression under the junta. We know still less about the origins or fate of socialmovement organizers and participants before 2010 or their part in the currentpolitical revival. Cheesman rightly attributes importance to these persistent voicesbut leaves it to others to explore their origins and precise commitments. Cooperationby many groups – the middle class, religious orders, urban workers, rural peasantry,and Myanmar’s many ethnic minorities – will be essential for stability and,ultimately, democracy. Observing the differences in their interests and backgrounds,including prior involvement in resisting the junta and present circumstances,suggests that there will be important differences in political capacity andorientation. In a society in which traditional culture continues to organize muchthought and social life, contemporary ideas derived from the global discourse aboutrule of law and democracy may be at a distinct disadvantage in competition withmore familiar and traditional forms of authority. We must consider carefully what itmeans to say that rule of law is on everyone’s lips.

Each of these perspectives builds upon Cheesman’s valuable account of law andorder in Myanmar, deepening the lines of research his narrative has begun.


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4 Opposing and Comparing—Values in the Rule of Law

Cheesman’s most challenging insight arrives in his concluding chapter ‘AgainstQuietude’. Following a masterful demonstration of the limited utility of Westernrule of law as a measure of the principles animating governance in Myanmar, hepleads with us not to abandon the rule of law as an ideal under pressure frompowerful corporate and political actors. His shift from a comparative to acontemporary global perspective reminds us of the vital function of the rule of law,however imperfectly realized – its capacity to disrupt power. American sociologistPhilip Selznick suggested that the aspiration of subjecting power to even-handedlimits is likely to arise over time nearly everywhere. Cheesman’s ethnographyshould remind us of Selznick’s hypothesis that the ideal emerges naturally fromlived experience. Notwithstanding the junta’s efforts over a half century to controlthe discourse about governing authority, rule of law ideas continued to animate adifferent view that motivated struggle from below, not only because such ideas mayhave been suggested by external influences, but because oppressed Burmese werequite capable of conceiving of resistance and accountability on their own, and giventime, the means of making them real.

Cheesman’s conclusion offers a further, tantalizing counterpoint to thissuggestion, namely that both ‘rule of law’ and ‘law and order’–opposing ideals–are universal elements of governance. He considers whether a statement by AungSan Suu Kyi, charismatic leader of Myanmar’s democracy, that rule of law is aninstrument for maintaining tranquility and order among the people rather than ameans to the accountability of power holders represents a return to the junta’sconflated discourse. Cheesman’s insight resonates with Myanmar’s history, butAung San Suu Kyi’s characterization also suggests a broader principle at work: thatin practice every form of governance is comprised of contradictory elements andcontradictory ideals requiring a complex understanding of what it means togovern—accountability, maintaining security, protections for essential rights ofcitizens, efficiency. Even developed democracies tolerate a degree of routineadministrative arbitrariness and particularism in the name of law and order, andthere are numerous instances where the rule of law has appeared to give wayaltogether to a perceived need for decisive administrative action to secure nationalinterests. These contradictory elements, a strain toward accountability by thepowerful on one hand and a strain toward use of power to serve what appear to becompelling national needs on the other, can be found in every society. Cheesman’sexhortation is also a warning that there is an increasingly precarious global balancebetween them.

Opposing the Rule of Law is one of the finest descriptions of law in thedeveloping societies outside the North Atlantic, opening many doors for furtherstudy of societies in transition but also leading the reader to vital questions about thesources and nature of ideals animating rule of law, not only in Myanmar but insocieties across the globe.

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ARTICLE

What Is the Rule of Law? Perspectives from Myanmar


Sally Engle Merry1


Abstract What is the rule of law? This much celebrated concept serves as the basisfor policy advocacy, reform movements, and rankings. Yet it remains very difficultto define. In Opposing the Rule of Law, Nick Cheesman takes a new approach.Instead of asking what the rule of law is, he asks what it is not. His deep historicaland contextual analysis of the way the law works in Myanmar shows both that theconcept of rule of law blurs with ideas of law and order and also that understandinghow it works requires examining how it is embedded within political and ideo-logical systems.

Keywords Rule of law ! Myanmar ! Law and order ! World Justice Project !Rankings

Nick Cheesman’s Opposing the Rule of Law is a masterful study that provides newinsights on the distinction between the rule of law and law and order through adetailed sociolegal analysis of ideology, power, and practice. Cheesman’sthoroughly researched and clearly written book tacks back and forth between whatlaw does and what it says as a way to examine what the rule of law means. In theend, one of the major contributions of this important book is to show how varied themeanings of rule of law are, how it is ideology as much as an ideal type, and that itis deeply infused by politics. Ultimately, the book shows that the concept has afundamental normative dimension and cannot be described only in terms ofprocedure. It concludes that the rule of law is a system based on the idea of equality.It seems to me that this study shows that also ideas of justice, fairness, and humanrights emerge as key principles.

& Sally Engle [email protected]

1 Department of Anthropology, New York University, New York, USA

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Opposing the Rule of Law takes a novel approach by defining the rule of law bycontrasting it to law and order. It is intriguing that the words for the rule of law andlaw and order in the Burmese language are quite different. The phrase for rule oflaw includes words for fairness, justice, and natural law. The phrase for law andorder combines words that refer to stillness and calmness as well as being flattenedor pressed. It seems that this striking linguistic difference, not found in English,could have inspired Cheesman to develop the contrast as a key analytic argument.Indeed, it follows much anthropological scholarship that argues that the way we seethe world is shaped by the words we use to describe it.

Following this insight, the book begins by clearly delineating the distinctionbetween law and order and the rule of law in theory. Drawing on Foucault,Cheesman points to the distinction between police actions and the rule of law. Theformer is an administrative system, linked to a state’s specific order, while the latteris a juridical system with ‘general and permanent prescriptions’. Foucaultdistinguishes between a police model of government and a rule of law state. Policehere is based on maintaining order and working to abolish disorder through the useof state forces, referring very broadly to an administration intended to secure order.When the administration of policing expands to include all aspects of society, itbecomes a police state, in which the population is subjected to an ever expanding‘array of habitual interference’. It is this distinction that Cheesman traces in thecolonial and post-colonial history of Myanmar. His historical narrative of law andpolitics in Myanmar shows that there is continual slippage, both in ideology andpractice, between the rule of law and law and order.

Much of the book describes the ideology of law and order as it is enacted inMyanmar. The law and order model promotes quietude and immobilization as socialideals. It makes it hard for the population to move from place to place or to shiftpositions—obstacles justified as the control of ‘restlessness’. Intriguingly, Chees-man sees that this approach to law and governance originated in British colonialgovernance, which similarly sought order and quietude in its management ofBurma. When a military government took over in Myanmar, it picked socialism asan ideology but still pursued the creation and maintenance of a law and order state.In the postsocialist period, after the second takeover by the military, the policeincreasingly became part of the governing system. It was still focused onmaintaining order. A need for order was used to legitimate the police use of tortureof the accused in order to generate a confession, the acceptance of money exchangesin case handling in courts (although with some restrictions about how it was done),and the management and control over public assemblies and protests. The systemwas governed by the goals of efficiency and accuracy.

The rule of law is now much talked about in Myanmar and highly valued as anideal to promote. However, Cheesman points out that systems of law and orderingdo not change quickly or easily. For example, British colonial law was expressedthrough codification, and these codes, with their universal claims, persisted up to thepresent. So did colonial legal differentiation, the practice of treating differentsegments of the population differently. This strategy, opposite to that of the rule oflaw, continues into the present as well. Thus, although the current system looks likeone ruled by law, the focus of legal intervention in Myanmar is still on maintaining

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order. To some extent, it builds on British colonial legal practices, as well as morerecent socialist and military government policies.

The model of law and order and its enactment in Myanmar is, Cheesman argues,fundamentally different from the rule of law. Although it may include law andorder, in Myanmar history these are fundamentally opposed ideas. Showing thecontrast is an essential part of his argument, since law and order is oftenincorporated into rule of law ideology and not viewed as distinctive.

Thus, the book argues that rule of law is a very difficult concept to define andneeds to be understood in terms of distinct histories, politics, ideologicalorientations, and ongoing practices by which legal institutions function and peoplerelate to them. I am persuaded that it defies definition, at least in the abstract, and asCheesman shows well, can only be understood within its ideological, normative, andprocessual features analyzed in context. The strategy of defining rule of law byshowing what it is not offers promise. But the rule of law often overlaps with lawand order and they run into each other without a sharp boundary. Ideologically therule of law is often presented as a simple salvation, but the term gets used in manydifferent ways in different political contexts.

What is distinctive then about rule of law? The book suggests that the differenceis normative: there are ideas of equality in the rule of law, and perhaps humanrights. The book offers ethnographic examples to support its arguments. Oneinteresting case describes a group of farmers facing loss of their lands todevelopment who assert their rights. They join together with other displaced formersto protest and file petitions. Although they are convicted, their sentences are thenreduced significantly. The point is that they claimed rights and that there is alanguage of rights available to make claims which may have some effect. In otherwords, the rule of law discourse of rights exists alongside law and order ideologyand is not a distinctively different system.

Although Cheesman is primarily interested in defining the rule of law, byfocusing on the contrast with law and order, he defines that concept as well. Yet hedoes not problematize the concept in the same way as he does the rule of law. Thereare, however, multiple meanings to law and order. It too has an ideology, a set ofpractices, and laws. The law and order regime in Myanmar is justified by talk aboutdisorder and threats. It too is the product of historical political and sociologicalforces. Although Cheesman recognizes the socially and culturally situated nature oflaw and order, it is not emphasized. The model would, I suspect, have appeared in amore nuanced and complex way if he were not using it to define the rule of lawthrough juxtaposition.

Given Cheesman’s clear analysis of the distinction between rule of law and lawand order, it is noteworthy how often these concepts are merged in everydaydiscourse and even in sophisticated ranking systems. For example, the World JusticeProject, in its effort to rank the countries of the world in terms of their compliancewith the rule of law, sees law and order as a dimension of the rule of law.1

According to the 2014 Rule of Law Index, for example, there are nine factors in therule of law, two of which are similar to law and order concepts. Factor 5: ‘Order and

1 \http://worldjusticeproject.org/rule-of-law-index[. Accessed 26 July 2016.

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http://worldjusticeproject.org/rule-of-law-index

Security’, ‘Measures how well the society assures the security of persons andproperty. Security is one of the defining aspects of any rule of law society and afundamental function of the state.’ It is also described as a precondition for realizingrights and freedoms. Order and security covers three threats to order and security:crime, political violence, and vigilante justice.

Factor 8: Criminal Justice, is described an ‘effective criminal justice system is akey aspect of the rule of law’, and a ‘mechanism for bringing action againstindividuals for offenses against society’. Other characteristics of this factor are thatit needs to be successful and timely in investigating and adjudicating criminaloffenses; use a system that is impartial, non-discriminatory, and free of corruptionand improper government influence; and protect the rights of both victims andaccused. Other factors measure protection of human rights, such as Factor 4, whichrefers to the absence of corruption, open government, constraints on governmentpowers, regulatory enforcement, civil justice and informal justice.

Although these factors refer to law and order, in contrast to the situation inMyanmar, they do not define it as order at all costs nor do they highlight onlyefficiency or quietude. Thus, the major effort of the World Justice Project to specifythe characteristics of the rule of law and measure them globally incorporates someelements of law and order.

Clearly, distinguishing these concepts is very difficult, particularly if they canonly be understood within particular historical and social contexts, and throughongoing and enduring beliefs and practices. I agree with Cheesman that these twoconcepts cannot be seen as clearly distinct. We need to acknowledge the slipperynature of rule of law: that it refers to many different things and that claims to therule of law are made politically and ideologically. Ultimately, the distinction isnormative rather than structural or procedural. As Cheesman’s initial linguisticdistinction between the words in Burmese shows, these terms refer to fundamentallydifferent conceptions of social order. They differ more in cultural conceptions oflaw and its role in society than they do in rules or procedures; more in everydaypractices and beliefs than in institutional arrangements.

This valuable book will not tell us what the rule of law is, but may help us todevelop more contextualized ways of understanding the way the concept is thoughtabout and deployed by various groups from international NGO leaders to socialistgovernment officials and local farmers and fishermen. In this way, Opposing theRule of Law has opened up a major new area of discussion about the rule of lawwhich promises to be very productive.

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ARTICLE

Enlivening Rule of Law Through Law and Order

Commentary on Opposing the Rule of Law: How Myanmar’sCourts Make Law and Order by Nick Cheesman.

Jothie Rajah1


Abstract This brief comment on Nick Cheesman’s Opposing the Rule of Lawhighlights the roles of first, documentary records; second, ethnographic engage-ments and methodologies; and third, the analytic traction gained by illuminating theconcept of rule of law through juxtaposing rule of law with the asymmetricallyopposed concept of law and order.

In her introduction to the influential collection of essays, Documents, Annelise Rileswrites, ‘in disciplines from law, sociology, and economics to literary criticism,scholars are turning to ethnographic work as a way out of overdeterminedparadigms, as a theoretically sophisticated antidote to the excesses of theory’.1 Sheis also explicit about the value of attending to documents: ‘paradigmatic artifacts ofmodern knowledge practices’.2 With Opposing the Rule of Law, which stands on thetwin limbs of documents and ethnography, Nick Cheesman has produced atheoretically sophisticated antidote to overdetermined paradigms on rule of law.

Drawing on ‘[r]ecords pertaining to 393 criminal cases in 86 courts at all levelsfrom across Myanmar’ (12), ‘an abundance of primary and secondary material frompublished and classified sources, most of which authors writing in English haverarely or never used’ (13), as well as interviews and observations relating to acomplex web of actors connected to Myanmar’s criminal courts, Cheesman’s

Commentary on Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order by NickCheesman.

& Jothie [email protected]

1 Research Professor, American Bar Foundation, Chicago, IL, USA

1 Riles (2006), p. 1.2 Idem, p. 2.

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Hague J Rule Law (2017) 9:15–18DOI 10.1007/s40803-016-0042-x

http://crossmark.crossref.org/dialog/?doi=10.1007/s40803-016-0042-x&domain=pdf

http://crossmark.crossref.org/dialog/?doi=10.1007/s40803-016-0042-x&domain=pdf

monograph contributes to knowledge in many important ways. Perhaps the mostbroadly applicable of these contributions is his interrogation of rule of law throughthe lens of conceptual asymmetry. The concepts he juxtaposes are rule of law, andlaw and order.

Cheesman highlights the critical analytic and ethical importance of thisjuxtaposition,

I did not choose to study the rule of law through a place where it is absent soas to treat Myanmar as an object of ridicule or cause for dismay. […] On thecontrary, my concern throughout has been to explore Myanmar as a complexand paradigmatic case of the asymmetrical relations between the rule of lawand an opposing concept, law and order: to take what animates its courtsseriously (258).

Where rule of law is impoverished and characterised as rule of man or rule bylaw, he explains, there is a reproduction of conceptual symmetry to rule of lawbecause these terms, located on a continuum with rule of law, refer to rule of law fortheir content. Whichever way you look at it, rule of man and rule by law areconceived of as rule of law inadequacy. As a consequence of this conceptualweakness, scholarly analysis typically ‘reduces rule-of-law questions to empiricalaccounts of how law serves instrumental ends. By contrast, law and order is apolitical ideal opposed to the rule of law. It has its own contents, which areasymmetrical to the rule of law. Its asymmetry makes it a useful concept for study ofthe rule of law through juxtaposition’ (17).

He explains opposing and asymmetrical concepts thus,

Opposing concepts […] involves more than just contrasting a political idealwith conditions of its absence. It requires scholars to think of opposingconcepts asymmetrically, as ideas with their own distinctive contents. We can,for instance, oppose the concept of war with the concept of peace. In itsopposition to war, peace does not entail the absence of armed conflict alone. Itis asymmetrical in its opposition. It entails more than non-war. [Importantly][…] Asymmetrically related concepts are […] multi-faceted. Unlike symmet-rical concepts situated along a scale, each can have more than one opposite(19).

Warning against the stasis of definitions, and highlighting the relational,contingent dynamics between rule of law and law and order, Cheesman helpfullyoffers working definitional parameters for law and order. Reviewing the literatureon law, police, order, state, institutions, and governance, he summarises,

[T]he relation of law and order to the rule of law has the following features.The rule of law relies on general rules to maintain order, whereas law andorder rests on particularistic commands and directives, in response toexigencies. The former emphasizes judicial institutions, whereas the latterprivileges administrative ones. Under the rule-of-law ideal, public adjudica-tion according to general rules guides conduct so that people can makedecisions of their own accord. To maintain law and order, authoritative

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institutions act on specific injunctions to intervene directly in people’s lives.Lastly, law and order entails the exogenous imposition of discipline, whichrequires a superordinate-subordinate political relationship, whereas under therule of law, discipline is an endogenous feature of political relations: it ischaracteristic of those relations not imposed on them (34).

For scholars of transnationally applicable political categories, such as rule oflaw—whether as theory, concept, discourse, practice, politics, philosophy orhistory—Cheesman’s careful tracing of the asymmetrical relations between rule oflaw and law and order is invaluable. In tracing the content and deployments of ruleof law and law and order from British colonial rule (Chapter 2) through subsequentpostcolonial regimes (Chapters 3–8), the book is unambiguously important for areastudies specialists. However, this book is also of enormous value to scholars seekingto understand histories, politics, concepts, actors, and arenas of rule of law in otherplaces and other times, because every instance of analysis engages an impressivebody of critical theory.

Additionally, a consistent sensitivity to the always already transnationalresonances of rule of law illuminates dynamics involving but transcendingnation-state borders. Opposing the Rule of Law repeatedly illustrates Eve Darian-Smith’s point that ‘domestic law as it plays out within states is, and always hasbeen, constitutively linked to issues of global economic, political, and culturalpower’.3 For example, Cheesman launches his Acknowledgments by recounting anevent that, in the best ethnographic tradition, captures the major themes of the book,

Leafing through the records of criminal cases brought across the border fromMyanmar, we selected one. A court had wrongly convicted a teenage boy forallegedly throwing rocks at policemen. Back in Hong Kong, I wrote up thecase and publicised it. Radio stations picked it up and contacted the boy’sfamily. His mother spoke out fearlessly. People in Myanmar and abroadexpressed their support. Something happened that I had not expected. Withindays, a government minister ordered the boy’s release (viii).

Again and again, the book illustrates dynamics involving documents, abuses ofpower, people speaking fearlessly for an emancipatory, rights-bearing rule of lawdespite the prevalence of law and order, women and other marginalised populationsas advocates and activists, the importance of media and publicity—within Myanmaras well as internationally—for galvanising reparative government action; actionwhich often takes the law and order form of ‘particularistic commands anddirectives, in response to exigencies’ (34), as with the minister’s command torelease the teenager.

In Laws and Societies in Global Contexts, Darian-Smith flags the problem of ‘thegeneral lack of funding for critical sociolegal scholarship’.4 Ethnography, especiallywhen tied to fieldwork in difficult places, takes time. As Cheesman notes, his 2015publication began with his 2003 effort to draw attention to a wrongfully convicted

3 Darian-Smith (2013), p. 378.4 Idem, p. 17.

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teenager’s case (quoted above). Today, a vast and worldwide community ofreaders—scholars, policy workers, activists and more—benefits from Cheesman’scommitment to his project, and the funding that enabled his observations,investigations, and analysis. In these, our neoliberal times, it is worth repeatingRiles’s point that ethnographic work offers ‘a theoretically sophisticated antidote tothe excesses of theory’.5 Opposing the Rule of Law is a powerful illustration ofcompelling, theoretically sophisticated scholarship accompanying the carefulrecording of material realities. In the hands of Cheesman’s determined and rigorousscholarship, rule of law has been enlivened and animated for us all through itsopposition to law and order.

References

Darian-Smith E (2013) Law and societies in global contexts: contemporary approaches. CambridgeUniversity Press, New York

Riles E (ed) (2006) Documents: artifacts of modern knowledge. University of Michigan Press, Ann Arbor

5 Riles (2006), p. 1.

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ARTICLE

The Rule of Law and Its Rivals


Martin Krygier1,2


Abstract This comment on Cheesman’s Opposing the Rule of Law explores fiveelements of the work that lead me to describe it as exemplary. These are its interdis-ciplinary fluency and reach, spanning high theory and ground-level ethnography; itsspecific argument about the independent significance of law and order as not just theabsence of the rule of law but a rival conception altogether; its specific contribution tothe understanding of Myanmar political and legal realities; its distinctive, linguisti-cally alert, mode of analysis; and its moral underlay. The comment ends with threequestions about Cheesman’s argument: one having to dowithwhether law and order isbetter described as a rival conception to the rule of law, rather than its asymmetricalopposite, the second suggesting there might be dynamic interconnections between thetwo, and the third asking whether the terms in which Cheesman cashes out his contrastmight owe more to anatomical mainstream definitions, which he and I suspect, thanthey do to the sort of ethnography he does so well.

Keywords Rule of law ! Law and order ! Myanmar ! Courts ! Burma

Nick Cheesman’s Opposing the Rule of Law. How Myanmar’s Courts Make Lawand Order, is exemplary at several levels. It is distinguished intellectually,beautifully written, and a fine example of interdisciplinary engagement andsophistication that follows where the problems lead rather than where disciplinarygatekeepers demand.

Early in the work, Cheesman asks ‘why does rule of law matter for Myanmar, orMyanmar matter for study of the rule of law?’ (p. 3) These are particularly apt

& Martin [email protected]

1 Faculty of Law, University of New South Wales, Sydney, Australia

2 School of Regulation and Global Governance (REGNET), ANU, Canberra, Australia

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questions in relation to this book, since it draws on and illuminates legal andpolitical theory, and comparative law and politics, at the same time as it is a closehistorical and ethnographic account of the politics of Burmese law, the law ofBurmese politics, and the language(s) in which they are transacted. It is not merely atheoretical examination of the complicated and contested concept of the rule of law;nor a descriptive report of a (very large) slice of Myanmar legal history; nor just abook that is a pleasure to read. Its elements are interwoven to their mutual benefit. Itis a distinguished work. In what follows, I will sketch five elements that make it so,and then ask three questions of the author, just to make my partisanship less cloying.

My first encomium concerns the multidisciplinary command of the work.Cheesman shows an ethnographer’s and historian’s close-grained mastery of generalsocial, legal, and political history as well as particular Myanmar realities. To thiscommand of empirical material he brings an exceptional and refined theoreticalgrasp and sensibility, empirically grounded but theoretically and comparativelyinquisitive and deft. Indeed, among many distinctive aspects of all his work, itsbreadth of intellectual reach and grasp stand out. He combines without straingeneral and particular reflection with empirical analysis, on matters of greatintellectual, political and moral importance—for Myanmar obviously, but also foranyone interested in the complex relationships between law and power, law andpolitics, more generally.

This equal surefootedness in matters of large theory and particular fact makeshim unusual in most of the fields on which he draws. Restricting myself to the workof legal theorists on the rule of law, Cheesman’s own combination of familiaritywith philosophical and sociological work, and rich sources of challenge andreflection from his granular account of Myanmar’s history of criminal law isuncommon. Indeed, such combination of theoretical sophistication with painstakingethnography is exotic among legal theorists, who typically know nothing about howone might explore the sorts of empirical materials that Cheesman has made his own,or indeed about any empirical materials at all. Nor, for that matter, is it at all likelythat many Myanmar experts would move so easily into larger sociological andphilosophical reflection and theorisation as he does.

A second virtue is the particular argument of the work, about the nature of therule of law. At a theoretical level, Cheesman seeks to expose the distinctiveness ofthe rule of law by examining a concept he takes to be its contrary: ‘law and order’.He develops a particularly original argument that has general conceptual pay-off, aswell as extremely well marshalled empirical grounding, inspiration and implicationsthat reach well beyond the specific empirical focus of the book.

Cheesman’s conceptual strategy draws on one shared by a number ofdistinguished social and political theorists, to whom he refers: exploring the natureof a concept by seeking to understand its conceptual antipode, its opposite notmerely because the concept is denied or absent, but because something quitedifferent is in its place. He cites Judith Shklar,1 who wonders why there are so manyphilosophical explorations of justice, so few of injustice, and seeks to repair the

1 Shklar (1990).

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deficiency; Philip Pettit,2 who understands freedom as non-domination andtherefore explores domination; Avishai Margalit,3 for whom a decent society isone whose institutions do not humiliate those dependent on them, and so analyseswhat humiliation involves; and Hannah Arendt,4 who opposes violence and power.In each case, the contrast is not merely between something and its absence, butbetween something and something else, quite different from it but occupying thesame semantic terrain.

This theoretical strategy can stand alone, independent of Myanmar, as is clearfrom an impressive piece recently published in this journal.5 Not only is theargument original and persuasive in general terms, however, but its particularapplication to (and derivation from) Myanmar, most recently distilled in anotherarticle,6 challenges the presuppositions of many who write and who practise in thisfield in countries said to need the rule of law, all over the globe. It has led to asignificant change in my own views, and I had thought that, after all this time, theywere set in stone!

Rhetorical commitment to the rule of law is today well-nigh universal. It iscommon in discussions of that contemporary ‘hurrah-term’ to rate countries aroundthe globe by ‘rule of law indices’ of various forms. They typically work on a slidingscale: a country does well, middling, poorly, etc., in achievement of the rule of law,or putative elements of the rule of law, drawn from many numerically weighted‘indicators’. Cheesman points out, and it is truly an original point, that thismisconceives the place of law within many political ambitions, practices, and evenideals: it is often not simply that people are more or less interested or informed oradept in achieving the rule of law, and so higher or lower on the rule of law scale.Rather they often have purposes, for which law is employed, often centrally, that aresystematically, institutionally, practically, antithetical to the rule of law; not as amatter of accident or ineptitude, but deliberately. This leads to his contrasting therule of law with what he takes to be its ‘asymmetrical opposite’, law and order,where symmetrical opposite would be just the bottom of a single rule of law scale,with rule of law at the top and some lesser achiever, say ‘unrule of law’,7 downbelow. On Cheesman’s argument, however, partisans of law and order are not juston a low rung on the ladder of the rule of law; they are climbing a different ladder toa different destination altogether.

What is intriguing about this antithetical coupling is that unlike justice/injustice,or decent/humiliating, the terms ‘rule of law’ and ‘law and order’ often overlap witheach other, compete for the same space, shelter under the same conceptual umbrella,in common and particularly in governmental usage. Now that rule of law isprestigious it is common to mask other aims with that language, but the concepts

2 Pettit (1997).3 Margalit (1996).4 Arendt (1969).5 Cheesman (2014).6 Cheesman (2015).7 See Cheesman’s earlier article, the argument of which is now modified by precisely this theoreticalinsight and distinction, Cheesman (2009/2010).

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that underlie them are in the most serious respects contradictory; as he puts it, ‘asthe rule of law has become an international hurrah term it has eclipsed otherpolitical ideals. […] [and] […] as the rule of law’s stature has grown, it has alsosubsumed other concepts. Rule of law looks less like a singular essentially contestedconcept and more like a package of goods’ (p. 27). Cheesman’s professed aim is ‘tochallenge the monism that dominates contemporary literature on the concept, byreintroducing into the debate one of the rule of law’s others’ (12).

In relation to the rule of law, then, Cheesman operates at two levels at once, eachof which has a separate significance for him, but which feed off each other. He is ledto general reflections by close observation of a particular case. These then react backon his observations to refine them, draw out their significance, and ready them forcomparative and theoretical use. His interest in the theoretical questions is at onceinstrumental and intrinsic. On the other hand, he has intimate knowledge of theparticular case, which first generated some of his theoretical reflections, then thesein turn inspire fresh insights in his empirical work. And so the wheel productivelyturns.

Thirdly, and here I can only speak with an amateur’s diffidence, is his specificcontribution to the understanding of Myanmar political and legal realities. Myanmaris not just a source of fancy philosophical moves, a mere stage on which conceptualanalysis can be performed. It is a scholarly subject in its own right. It is also aparticularly intriguing case for his analysis, which he conducts by examining aprodigious array of legal materials, court cases, police practices, and dissidentprotests, from colonial times through independence and military dictatorships to thepresent day. Cheesman appears to move effortlessly through cases, statutes,newspaper reports and a mastery of historical detail to make this an exemplary andilluminating history and interpretation, through the lens of the criminal law, of someof the major framing political motives and ideas of over a century and a half ofBurmese history. This is a legal history, if one likes to call it that, but it is just asmuch political and social history. I should add that anyone who has spent time withCheesman in Myanmar can only be awed by his immersion in its culture, language,practices, and ways of life. It’s like being with some fine old (though he is young)specimen of the Raj, but without the condescension—Lawrence of Mandalay.

Fourthly, the mode of analysis is also distinctive. What is characteristic andstriking of Cheesman’s methods, all the more striking in that he is a non-nativespeaker (albeit fluent in the language), is his attention to language, and what itreveals, how it reflects unstated, perhaps unconscious, purposes, while it oftenusefully masks them. Myanmar is a particularly intriguing case for his conceptualanalysis, since it has two phrases that have sometimes had separate careers but inrecent decades have been elided, in the interests of despotic power: taya ubadesomoye (Cheesman’s rule of law) and ngyeinwut-pibyaye (law and order).Cheesman shows how different the ambitions and practices are that serve thesedifferent ideals, so often run together.

Finally, though this is scholarly and fine academic work, it is in no way‘academic’ in the pejorative sense. It speaks well and it speaks out. For there is amoral underlay to the analysis. It is, for example, not just an interesting fact that wespeak more than ever of the rule of law without our practices conforming to our

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words, and nor is that, according to Cheesman, a simple accident. He believes theconceptual confusion does dirty work: ‘My fear is that in our time the triumphantlanguage of rule of law conceals a general trend away from the ideal, toward lawand order, or other concepts that are asymmetrically opposed to the rule of law’(p. 264). Again, lest one assume that if the polity is changed all else will changewith it, there is Cheesman’s caution that ‘tectonic shifts in political power can bedramatic and exciting. Shifts in institutional behaviour are protracted andwearisome’ (173). Given how much noise, activity, and money are today devotedto the rule of law, in Myanmar and elsewhere, and how meagre have been thesuccesses to which promoters can point so far, this is an arresting conclusion. Wewill be with these issues for some long time to come.

A critical reader should not simply praise, though, so let me end with threequestions. One is about Cheesman’s central conceptual strategy: to explore aconcept by studying its conceptual opposites. There are a few reasons one mightapproach a phenomenon by looking at its negation. One is that it can help tounderstand what something does and what it is worth by examining how things arein its absence. As the Polish sociologist, Adam Podgorecki argued, you canunderstand quite a bit about the worth of rights by examining circumstances inwhich they are ‘crippled’.8 That is a heuristic and normative point, not a conceptualone. And while I think Cheesman agrees with it, it is not what he’s arguing in thisbook, and it is not enough for what he argues in the book. His central point is thatthe ‘absence’ of the rule of law is not necessarily an empty space, ground zero, butoften and in Myanmar in spades, something else—with its own motivations,rationales, instruments and consequences—that needs to be investigated on its ownterms. Cheesman expresses this by saying law and order is the ‘asymmetricalopposite’ of the rule of law.

I think this argument embodies a deep insight, but I have come to wonderwhether his way of putting the point is at once inaccurate and overly complexifying.Cheesman’s key innovation, drawn from Goertz and Mahoney,9 is the concept of‘asymmetrical opposition’. As he explains it in his previous article in this journal,

asymmetrical opposites do not occupy poles on a scale of shared values. Oneis not a negative of the other, as rule of men traditionally has been to the ruleof law. Nor does one occupy part of a continuum extending down from theother, like rule by law in relation to the rule-of-law ideal. They are notsymmetrically related. They are opposed because their specific contents areadverse.10

For the authors on whom Cheesman draws, however, at least Shklar, Pettit, andMargalit, the contrasting concepts they use are negatives of each other: injustice isthe opposite of justice; freedom is absence of domination; decency absence ofhumiliation. They are true opposites in the common or garden sense as being eachother’s negation. That does not stop it also being true that there are self-standing

8 Podgorecki (1991).9 Goertz and Mahoney (2012).10 Cheesman (2014), p. 96.


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accounts one can give of each of them, which are not exhausted simply by putting‘not’ before their positive antipode. But rule of law and law and order are notopposites in the same sense. Unlike justice and injustice, freedom and domination,decency and humiliation, rule of law and law and order are not each other’sconceptual negation, they are not negatively inter-defined.

Once in his book, Cheesman speaks of law and order as a rival to rule of law, andI think that is much closer. The fundamental point Cheesman wants to make is thatone is not simply the empty absence of the other. ‘Rival’ says all that: my rival isnot just not me; she is something other than me, and you can have many rivals. I’mnot sure you can have many opposites. Black is the opposite of white, but green isjust different. Talk of opposition, made more complex when it is asymmetrical,confuses two things: something which is really a conceptual opposite, andsomething which is systematically different. There are more of the latter than theformer. A conceptual opposite can be a rival, but not all rivals are conceptualopposites.

The authors Cheesman cites make the first claim: For Pettit, what freedom meansis the absence of domination, similarly Margalit on decency and humiliation, Arendton violence and power. However, they make the second claim as well: cruelty,domination, humiliation, violence, aren’t just opposites of their Others. They arethings in themselves. I think to talk of law and order as the opposite of rule of lawconfuses things. The real and important point Cheesman is making is that law andorder is a rival political ideal; so too, I think, what Fuller called ‘managerialdirection’11 which overlaps in part with law and order but has its own distinctivefeatures as well. Both in common make systematically different demands of lawthan does the rule of law. Other rivals, less likely to be confused with the rule oflaw, are anarchism and totalitarian movement regimes, in both of which power isliable to be exercised arbitrarily. These are all rivals—to each other and to the ruleof law—and it is important to distinguish them, particularly if their partisans benefitby blurring the distinctions. But they are not conceptual opposites in the sense Pettit,say, believes freedom and domination are opposed.

Moreover, and secondly, it is possible in principle that rivals might come to beallies, even over time to make common cause, notwithstanding that their ideals areresolutely contradictory. Such possibilities are perhaps not excluded but nor is spacemade available to them in Cheesman’s dichotomous formulation. Thus PhilippeNonet and Philip Selznick have told an influential story about legal development,which has it starting with repressive law, moving through autonomous law, andpossibly ending up in responsive law.12 The first two stages could roughly be elidedwith ‘law and order’ and ‘rule of law’ respectively. On their model, the job of earlystate-building is rough craft, a large task with few resources, where the centre seeksto establish itself, and doing that, if necessarily over others’ interests or opposition,is the overriding aim of law. With such objectives, coercion is never far from thesurface. Separations between law and politics are unknown and unloved.

11 Fuller (1969).12 Nonet and Selznick (2001).

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But it does not necessarily stay like that. For forces within repressive law cantend to work against it. Firstly repressive legal orders, which seem so strong, are insome fundamental ways weaker than more moderate alternatives, for where law isthe servant of power, legitimation is not always easy to glean, and supporters (onemight call them ‘cronies’) are needed. That can ultimately be a source ofvulnerability which can lead to an ultimate paradox:

The dynamics by which the [repressive] legal order upholds social subordi-nation are paradoxically a chief source of evolution away from repressive lawand toward legal institutions that can remove themselves from, and tame, thepower of the state. They lay the foundation of a ‘rule of law’ capable ofholding government accountable.13

Of course this is a highly stylised and idealised account, not the necessary run ofevents. But it does suggest something more than asymmetry and opposition mightrelate law and order and the rule of law. It builds on a Hobbesian intuition, nicelyexpressed by Raymond Aron: ‘if society is to be free it must first exist’. Maybe,before you can get Locke you need Hobbes. This is not to seek to praise Burmesemilitary dictatorship as a prelude to democracy (though one hopes it might one daycome to have been), since even if repression is a necessary prelude to autonomy, itis not sufficient, and many law and order regimes lead to nothing but bloodshed. Butit might suggest Cheesman’s stark contrast contains complications and mutualimplications, yet to be explored.

My final question derives from a distinction I have made and which Cheesmanendorses, between anatomical (or morphological) accounts of the rule of law, andteleological ones.14 Typically people come at the rule of law anatomically. Theystart with some list or description of alleged institutional components that add up torule of law. I think it is preferable to start by asking what is the point? What do youthink the rule of law is for, why care? What would need to be achieved in a societyfor one to say the rule of law is in good shape there?

There are two reasons for favouring the second approach to the first. One isphilosophical: the rule of law (as distinct from law per se) is supposed to be good forsomething, so you should ask what that good might be, in order to then see how itmight be attained. Otherwise, you don’t know where to look, what to look for, orwhat qualifies. Law has many features; which ones matter? And anyway anatomicalaccounts travel badly; what might achieve the purposes you posit for the rule of lawmay work differently elsewhere, or not work at all. What is sold as a ‘transplant’might turn out just to amount to what Pritchett and Woolcock call ‘isomorphicmimicry […] adopting the camouflage of organizational forms that are successfulelsewhere to hide their actual dysfunction’.15 Institutions, forms, rules, andprocedures are shipped or copied, but the outcomes expected do not eventuate. Does

13 Idem, p. 46.14 Krygier (2009), pp. 45–69.15 Lant Pritchett, Michael Woolcock and Matt Andrews, ‘Capability traps? The mechanisms of persistentimplementation failure’, CGD Working Paper 234, Cent. Glob. Dev., Washington, DC., 2010, 2,emphasis in original.\http://www.cgdev.org/content/publications/detail/1424651[. Accessed 18 October2017.


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http://www.cgdev.org/content/publications/detail/1424651

one then have the rule of law because the institutions and rules appear to be in place,or lack it because nothing works as it should? Cheesman explicitly rejectsanatomical accounts, partly for these reasons. He starts, not with legal bric-a-brac,but with the contrasting political ideals of rule of law and law and order, those thatanimate Burmese dissidents and are not addressed by international rule of lawtinkerers who think they’re solving technical legal problems with familiar technicallegal solutions.

This leads to a second, sociological, reason not to start with anatomy. If thequestion is what do you hope to get out of the rule of law, the second question has tobe how would we get there? And that is a sociological, political, economic matter.In principle the answer is open, and will vary in different societies. That’s animplication that an ethnographer like Cheesman should find plausible. If, say, youthink the goal of the rule of law is lessening arbitrary power, then thinking about itethnographically, as Cheesman does, should lead you not to prejudge the answer tothe question: how might we reach that goal, in a particular society, in particularcircumstances, at a particular time? Given the variety that ethnographers discover,and Cheesman’s work reveals, nothing can be assumed. And yet both in his bookand subsequent articles, Cheesman delivers a quite familiar anatomical accountwhen he contrasts the rule of law with law and order. In summary form he writes,and elsewhere he extends, on the legal anatomical contrasts:

Whereas the rule of law has as a central concern the eliminating ofarbitrariness, law and order is concerned above all with the eliminating ofrestlessness. The former relies primarily upon general rules for the mainte-nance of social order, whereas the latter rests on particularistic commands anddirectives, in response to specific exigencies. The rule of law emphasises therole of juridical institutions, whereas law and order privileges administrativeones. Under the rule-of-law ideal, public adjudication according to generalrules guides conduct so as to enable people to make decisions of their ownaccord. For the maintenance of law and order, authoritative institutions actupon specific injunctions to intervene directly into people’s lives. Lastly, lawand order entails the exogenous imposition of discipline, which requires asuperordinate-subordinate political relationship of some sort, whereas underthe rule of law, discipline is an endogenous feature of political relations: it ischaracteristic of those relations, not imposed upon them.16

I wonder whether this assured set of contrasts between legal institutions andpractices, taken as universal instantiations of rule of law, on the one hand, and lawand order on the other, is a contradiction of the spirit and the teachings of the wholeof Cheesman’s book and of his vocation as an ethnographer. Isn’t that preciselywhat we need to discover, and not assume? That at least is what I learnt from closeand immensely rewarding reading of Cheesman’s work; I can only think that thistime, as after all happened even to Homer, Cheesman nodded.

16 Cheesman (2014), p. 111. And see Opposing the Rule of Law, p. 34.

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References

Arendt H (1969) On violence. Houghton Mifflin Harcourt, OrlandoCheesman N (2009/2010) The rule of law or un-rule in Myanmar. Pac Aff 82:597–613Cheesman N (2014) Law and order as asymmetrical opposite to the rule of law. Hague J Rule Law

6:96–114Cheesman N (2015) That signifier of desire, the rule of law. Soc Res 82:267–290Fuller LL (1969) The morality of law, 2nd edn, Yale University Press, New HavenGoertz G, Mahoney J (2012) A tale of two cultures. Qualitative and quantitative research in the social

sciences. Princeston University Press, PrincetonKrygier M (2009) The rule of law. Legality, teleology, sociology. In: Palombella G, Walker N (eds)

Relocating the rule of law. Hart Publishing, Oxford, pp 45–69Margalit A (1996) The decent society. Harvard University Press, CambridgeNonet P, Selznick P (2001) Law and society in transition. Transaction, New BrunswickPettit P (1997) Republicanism: a theory of freedom and government. Oxford University Press, OxfordPodgorecki A (1991) A sociological theory of law. Dott. A. Giuffre Editore, MilanShklar J (1990) The faces of injustice. Yale University Press, New Haven


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ARTICLE

Taking the Rule of Law’s Opposition Seriously

Nick Cheesman1,2


Abstract What does it mean to study the rule of law from conditions of its absence?In this response to symposium commentators on Opposing the Rule of Law I suggestthat to do so is to situate the rule of law in relation to other ideas without relativizingit; to take seriously questions of what animates practices in its stead, including thequestion of what ideas might plausibly oppose it. Adopting this mode of inquiry intocourts in Myanmar, I perceived that the rule of law is not compatible with law andorder, as commonly assumed, but is its asymmetrical opposite. Competing notionsof order inhabit each, one endogenous, the other imposed. While the rule of lawpushes towards political equality, law and order reveals in itself a deep affiliationwith inequality. Opposing the two dispels the illusion that law and order is ele-mentary to the rule of law. It opens up alternative ways of thinking and talking aboutboth that might better equip scholars to discharge a special responsibility: not toresearch and write in ways that can be readily interpolated into projects for thedelivery of the rule of law to places where it is absent, but to compel different typesof political action for the rule of law, by provincializing it.

Keywords Rule of law ! Law and order ! Burma ! Myanmar ! Asymmetricalopposition ! Interpretive research

& Nick [email protected]

1 Department of Political and Social Change, Australian National University, Hedley BullBuilding, Canberra, ACT 2601, Australia

2 School of Social Science, Institute for Advanced Study, 1 Einstein Drive, Princeton, NJ 08540,USA

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1 Introduction

To research and publish a scholarly book is already a privilege, but it is theconversations with readers that follow which bring a book to life. For this reason, Iam sincerely grateful to the contributors to this symposium, Martin Krygier, SallyEngle Merry, Frank Munger, and Jothie Rajah for their generous and thoughtfulremarks on Opposing the Rule of Law: How Myanmar’s Courts Make Law andOrder.1 I could not have hoped for more attentive and encouraging interlocutors.

As the book’s contents have already been very well captured in the commen-tators’ remarks, this response starts on a different tack, recalling the puzzlement thatmotivated inquiry culminating in the book, and how the argument emerged.Thereafter, it revisits the book’s claim that the rule of law is asymmetricallyopposed to law and order, and addresses questions about the difficulties andpossibilities of comparison. It closes by pushing back against insistence on aparticular type of practicality in literature on the rule of law, and enjoins scholars todischarge a special responsibility: to challenge rather than acquiesce to demandsfrom the policy audience, to contextualize and provincialize the rule of law.

2 From Puzzlement to Plausibility

The genesis for Opposing the Rule of Law lay in conversations with Burmesecolleagues throughout the early to mid-2000s, during a 5-year stint with the HongKong-based Asian Legal Resource Centre, as well as interventions made into avariety of criminal cases in Myanmar, in particular, cases where people complainedagainst state officers. The ways that people in Myanmar spoke back to the statethrough practices in and around the courts, or that referred to and challengedjuridical arrangements for public order, were puzzling. State institutions were hardlysympathetic to complainants, least of all where they leveled accusations againstofficials. Nor were they particularly effectual. Nevertheless, the documents I readand discussions I had with lawyers and complainants revealed that under at leastsome circumstances people did express grievances about abuses of rights, in bothpolitical and nonpolitical affairs. In doing so, they – or others acting on their behalf– also invoked the rule of law.

It was one thing for public propaganda to iterate the military junta’s expressedconcern for the rule of law. Those pronouncements could be dismissed as rhetoric;the fraudulent misappropriation of a good name, as Martin Krygier oncecharacterized ‘socialist rule of law’ in Poland.2 But documents circulating throughthe betel-stained corridors of courthouses, government departments and policestations also habitually had recourse to, if not the idea of the rule of law then someidea that the term represented. These documents were not prepared for a publicaudience, let alone for a foreign researcher. Whatever the term was doing, it was not

1 Cheesman (2015a).2 Krygier (2006, p. 138).

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just an empty platitude. It had some function that warranted attention and requiredexplanation, but what?

This question necessitated study that went beyond lexicon, to how thearrangements of Myanmar’s courts came to appear as they are today. Apart fromMyint Zan, nobody writing in English had done any sustained research on courts inMyanmar for 50 years.3 It fell to me to go back to historical records and archivalsources and without aiming to write a legal history, to identify certain features ofcourts in Myanmar, in their colonial and postcolonial continuities and discontinu-ities, so as to situate and explain their circumstances in the present.

Adopting a mode of inquiry that might make the rule of law’s lexical presence inMyanmar’s courts less perplexing; more sensible if understood in context, I movedbetween observation and theory in an ‘iterative-recursive’ mode.4 I gatheredmaterials and tried out plausible explanations synchronously, tacking back and forth‘between the theoretical and the empirical, the abstract and the concrete’.5 Thisresearch mode is not to be misunderstood as a form of what some social scientistshave dismissively labeled descriptive inference.6 The researcher working in thismode is not attempting to describe or accurately represent what is observed. Rather,the goal is to make sense out of what initially did not make sense: in my case, not bydevising a definition of the rule of law, but by fashioning or refashioning aconceptual relation between the rule of law and its other.7

As the study went from a rather narrow inquiry into how and why peoplecomplain under politically oppressive conditions to a wider one into the politics ofcourts, I found useful resources in new work on Latin America and North Africa byscholars like Lisa Hilbink, Anthony Pereira and Tamir Moustafa.8 But much of theliterature on authoritarian legality was taken up with empirical inquiries aimed atidentifying patterns with which to make causal inferences through structuredcomparisons, based on assumptions about observed facts that I was unwilling tomake, either because they were implausible or because they precluded salientquestions about the constitutive interplay between political ideals and institutionalpractices.

Late in the research, I benefited from studies by scholars who unbeknown to mehad been asking similar kinds of questions in other places: Jothie Rajah on theoxymoronic Singapore model of authoritarian rule of law, as she puts it, and MarkMassoud on Sudan, a country which he shows is not characterized by a lack of lawor a condition of lawlessness, but rather, by a complex admixture of legal politicsthat actively counteracts rule-of-law interventions.9 But initially I had to lookelsewhere for inspiration.

3 Myint Zan (2000a, b, c, 2004).4 Yanow and Schwartz-Shea (2012, p. 33).5 Wedeen (2010, p. 264).6 King et al. (1994, ch. 2).7 See Cheesman (2015a, p. 17).8 Hilbink (2007), Pereira (2005), Moustafa (2007).9 Rajah (2012), Massoud (2013).

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Frustrated by dead ends in the social scientific literature, I turned increasinglytowards political and legal theory, and read Krygier’s classic on Marxism and therule of law, in which he asks, ‘What can we learn about the rule of law from itsabsence?’10 The question hit me between the eyes. Whatever I was trying to do, ithad to be situated at least partly in response to this question.

Oddly enough, I had already published on ‘un-rule of law’ in Myanmar,borrowing this term from the Brazilian scholar and human rights advocate PauloPinheiro, who was a United Nations representative on the country.11 Yet the un-ruleof law obscures rather than illuminates things. It does not invite close study of whatideas and practices exist in a given setting. It merely encourages a smuglycondemnatory view of what is lacking. It failed to propel the research forward eitherconceptually or analytically. The many and varied rule-of-law invocations Iobserved in Myanmar spoke not of absences, but of presences crying out for inquiry.

If the problem was not just one of absences, then Krygier’s question requiredmodification, as follows: what can we learn about the rule of law from the presenceof other things observed in its absence? This is a different kind of question from thequestion of how the rule of law might be established in an environment thatcurrently lacks it.12 That question is premised on the notion of inadequacy orinsufficiency. Krygier’s question modified does a different kind of work, by askingus to attend more carefully to what we find, rather than what we fail to find, wherethe rule of law is absent; by asking about, as Sally Merry has put it neatly in herremarks, not what the rule of law is, but what it is not.13 What are the rule of law’ssignificant, co-constitutive others? What ideas animate practices other than the ruleof law?

Through study of courts in Myanmar, I proposed that one idea animatingpractices absent the rule of law, and against it, is law and order. Law and order, Iclaimed, was not a neighbouring concept to the rule of law, or a fellow traveller as isso often supposed, but its nemesis. I made this claim by exploring the relationshipbetween the two on three dimensions: empirical, conceptual, and lexical. The claimif made empirically alone would plainly have been insufficient. In agreement withRajah on Singapore, I was of the view that if this rule-of-law other was to be takenseriously, attention had to be paid not just to observable practices but also to theidea or ideas animating them.14 Therefore, I sought to show that law and order hasnormative contents that are inimical to its other. Furthermore, these contents mightdo more than just occupy spaces in lieu of the rule-of-law ideal. They might activelyoppose it by subsuming it, occupying the lexical domain of the rule of law,hollowing it out semantically while replicating its verbiage.

By juxtaposing the rule of law with law and order and showing how the identityof the one might be understood as forming out of a kind of constitutive antipathywith the other, practices in Myanmar’s courts that had at first seemed confounding

10 Krygier (1990, p. 640).11 Cheesman (2009).12 Hadfield and Weingast (2014, p. 22).13 Merry (2017).14 Rajah (2012).

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now became sensible. Far from being illogical, they evidenced a different kind oflogic. What was incongruous or potentially disastrous when viewed through a rule-of-law lens was matter of course from a law-and-order perspective. For instance,that courts in Myanmar were both formally and informally subordinate andbeholden to other parts of the state apparatus, and functioned essentially asadministrative organs, was from a rule-of-law standpoint an instance of institutionalfailure. From a law-and-order standpoint, by contrast, it was perfectly acceptable.Perhaps less obviously, practices that would corrode the rule of law, such as thepervasive buying and selling of case outcomes, were in Myanmar tolerated becausethey were not necessarily damaging to law and order.

While all of this seemed reasonable during the dark ages of unmitigated militarydictatorship in the mid-2000s, work on the book finished a decade later with theonce-banned National League for Democracy at last holding seats in a long-promised legislature. Within a year of publication, the party had swept nationalelections and taken government.15 For me as an author, as well as for mostof Myanmar’s fifty-two million inhabitants, the political changes from around 2011onwards were fortuitous. Having had the advantage of working from a paradigmaticinstance of opposition between law and order and the rule of law, political changenow pressed me to think harder about how the argument might travel towards timesand places where the conceptual relation may be less easily discerned. Rather thantaking full advantage of changed conditions to go more deeply into the ‘the sociallyand culturally situated nature of law and order’ in Myanmar, as Merry would haveliked, I concentrated my efforts here.16 In doing so, I was cognizant that importantnew sociolegal work on the country would soon complement my own, notably byMelissa Crouch, Lynette Chua and their collaborators.17

But to be clear, I also had certain epistemological and methodological reasons forcollecting and using some types of source materials while omitting or lightly usingothers. In her comment, Rajah draws attention to my emphasis on documents.18

Documentation is not just a by-product of state activity but integral to it. Perhaps toa greater degree than any others, juridical institutions are constituted and giveneffect in the world through their manufacture and movement of documents. Thatoriginal documents had been used little in work on Myanmar over recent decadesgave an added impetus to concentrate on them. And while I could obtain and use alot of documentation relatively safely, I could not openly do the kind of on-the-ground research in the 2000s that is taken for granted by scholars of Myanmar todayso as to examine more fully, say, the perceptions of the courts among their everydayparticipants, or to write generational narratives of lawyers engaged in political andlegal change, as Frank Munger has done in neighbouring Thailand.19 WithMyanmar studies now enjoying a happy renaissance after a long period of torpor, it

15 See generally Cheesman and Farrelly (2016).16 Merry (2017, this issue).17 Chua (2015, 2016), Crouch (2016a, b), Crouch and Lindsey (2014), Ho and Chua (2016).18 Rajah (2017).19 Munger (2012).


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is only a matter of time before talented scholars take up and address these and otherpressing topics.

Since completing the book I have been prompted by colleagues to think abouthow the materiality of the documents used might itself contribute to anunderstanding of the law-and-order mode in which the state in Myanmar works.20

However, I have been given fewer reasons to revisit questions of this sort than Ihave to reconsider the book’s theoretical contents, and specifically, its central claimthat the ideal of the rule of law is asymmetrically opposed to law and order. Thenext part of this response takes up that topic.

3 One More Time for Asymmetrical Opposition

Opposing the Rule of Law posits that the conceptual relation between the rule of lawand law and order is at once oppositional and asymmetrical because the two arehostile to one another, but not precisely contrasted. That is to say, to add to one isnot necessarily to subtract from the other, as in the ‘oft-stated dichotomy’ of the ruleof law to the rule of men – or rule of persons – as if the rule of law is a single-dimensional concept.21 The two do not occupy points at the opposing ends of a scaleof identical units of measurement.22 Rather, each is anchored in values that areinimical to the other. Whereas the former ultimately is concerned with minimizingarbitrariness, the latter has as its concern non-restlessness. Its ultimate object isquietude. Law and order conceives of a mode of association whereby primarilyadministrative immobilizing mechanisms quieten people.

Krygier says he has come to think that this way of going about it might be ‘atonce inaccurate and overly complexifying’.23 He points out that asymmetricalopposition differs from the conceptual oppositions of Pettit, Margalit and Arendt,whose works I cite when making a case for the opposing of ideas so as to enrich ourthinking about politics.24 I agree that although the book begins with those authors’works it departs from them in the manner of the specific opposition conceptualized,as it does also from Goertz and Mahoney on asymmetry.25 But Krygier’s moresubstantive point is that instead of opposition, the relation is really one of rivalry.He agrees that the idea of law and order has distinctive contents from the rule oflaw, but doubts that the distinction between the two need or ought to becharacterized as oppositional. He suggests that rivalry could do the work ofasymmetrical opposition, without so much muddle.

This recommendation is appealing in its simplicity and intuitive commonsense.But I worry that in adopting it we might lose some of the analytical sharpness thatcomes with opposing the two, and open the relation to attempts to conciliate them,

20 Cheesman (2015b).21 Rodriguez et al. (2010, pp. 1457, 1464).22 Cheesman (2014).23 Krygier (2017, this issue).24 Krygier (2017); see Cheesman (2015a, p. 7).25 Goertz and Mahoney (2012, ch. 5).

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eventually leading back to the conflating of the rule of law with law and order: thevery thing from which I want to extricate them.

Briefly restated, the conceptual relation between the rule of law and law andorder is not just one of systematic difference but of asymmetric opposition becausethe type of order that pertains to law and order is not just unnecessary for the rule-of-law ideal, but is antithetical to it. It is not only that they are distinct. They are alsoinconsistent with one another. Notwithstanding, in practice and lexicon law andorder has the capacity to insinuate itself in the rule of law, and ultimately, ashappened in Myanmar, to supplant it.

To go to the last of the points in the paragraph Krygier cites at the end of hisremarks on the book, law and order entails the exogenous imposition of discipline,which envisages a superordinate-subordinate political relationship.26 The rule oflaw, by contrast, envisages that discipline is an endogenous feature of politicalrelations. The order pertaining to the rule of law is integral to those relations. It isnot imposed on them. It is, as Philip Pettit has characterized non-domination,institutionally constituted, not caused.27

In short, these two notions of order cannot be co-realized. The rule of law pointstowards an ideal of political equality. Law and order reveals in itself a deep affiliationwithinequality – not only in fact, but also in principle.28 That is, behind the specific conceptualasymmetry of non-arbitrariness versus non-restlessness that characterizes their oppositionis another ideational opposition, this one symmetrical, between the rule of law for equalityand law and order against it. In this regard, at least, the one is the negative of the other. Theconclusion of the book is taken up with this theme.

The emphasis on conceptual opposition rather than mere rivalry aims to dispelthe illusion that law and order is somehow a necessary element or precondition ofthe rule of law, as if the type of order that pertains to the rule of law is basically thesame as that of law and order. Furthermore, it is structured to prevent slippage into asequentialist reading of the sort that Krygier inches towards, via law and order to therule of law, via Hobbes to Locke, and via Nonet and Selznick from the conceptual tothe sociological features of the study.29

One reason not to adopt this reading goes to the book’s empirical contents, and tothe practices of actual courts. The kind of repressive law that institutionalizes theidea of class justice, from which Nonet and Selznick envisage a legal transitionmight be opened up, differs from how law and order animates institutions that aredescribed in Opposing the Rule of Law. Where law and order predominates, theempirical problem is not the existence of dual law, with one set of legal rules andinstitutions operating in the interests of the elite and another set for everyone else,but the emptying of all legal principles of significance; the levelling out of juridicalinstruments, such that injunctions all have approximately the same coercive value;and, the elevating of administrative principles over legal ones.30 This condition does

26 Krygier (2017).27 Pettit (1997, p. 107).28 Cheesman (2015a, p. 262).29 Krygier (2017); see Nonet and Selznick (2001, pp. 44–46).30 Cheesman (2015a, pp. 102–107).


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not have buried within itself foundations upon which the rule of law can be built; itconsists in the demolition of those foundations.

Another reason not to do so is political. In postcolonial settings, where Europeancolonizers dictated the terms for the modern state’s formation, a reading of this sorthas resonances with the infantilizing discourse of public-schooled administrators,encumbered – so they imagined – with the burden of civilizing others. If only peoplewho have been dominated politically would learn to do things in the right order, thestory goes, to concede to being subordinated and not be too hasty in trying to realizetheir political goals, they would eventually arrive at happier days. This ‘imaginarywaiting room of history’ in which somebody says ‘not yet’ to somebody else, onwhich Dipesh Chakrabarty has written eloquently, is the fictive location from whichMyanmar’s military regime spoke down to its political community for a quarter-century.31 Nothing in it can be redeemed as ‘a necessary prelude to autonomy’,let alone to the rule of law.32 To the contrary, the success of this project was to mirepeople and institutions in a different type of order altogether from the order of therule of law.

To take this last point one step further, ‘basic order’, as Tom Ginsburg has put it,is not just easier or perhaps more efficient to impose through an authoritarian modeof government than through the rule of law – it is exactly the type of order madepossible in this political arrangement.33 It is a kind of order that must be imposed. Innecessarily being imposed, not just as a matter of fact but also as a matter ofprinciple, it is not the same kind of order to the order of the rule of law at all. Nor isit a condition, or set of conditions, that invites order in the sense of the rule of law.

Of course, in every actual situation practices for endogenously and exogenouslyobtained order get entangled. That order in fact emerges from a mixture ofarrangements, some coordinated and others coercive, some from below and othersfrom above, goes without saying. I agree fully with Munger that in practicegovernment ‘is comprised of contradictory elements and contradictory ideals’.34

That is one reason that the book aims to ‘challenge the monism dominatingcontemporary literature’ on the rule of law, by bringing back one of its opposites.35

Likewise, I concur with Merry that in both speech and practice ‘the rule of law oftenoverlaps with law and order and they run into each other without a sharpboundary’.36 Again, these lexical and institutional overlaps are the stuff of the book.

Clearly, then, I am not being so crude as to suggest that a political order in whichwe encounter an admixture of practices animated by opposing ideals is not viable.That would be to rule out every actually existing political order. But I see no conflictbetween this position and an insistence on resisting the seduction to slip the rule oflaw and law and order back into a conceptual relation that might ultimately put theformer at peril. Therefore, I continue to insist on the plausibility of the asymmetrical

31 Chakrabarty (2008, p. 8).32 Krygier (2017, this issue).33 Ginsburg (2011, p. 225).34 Munger (2017, this issue).35 Cheesman (2015a, p. 7).36 Merry (2017, this issue).

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opposition of the two, not only out of political commitment to the idea of the rule oflaw, but also out of a theoretical commitment, with Wendy Brown, to keep some‘breathing space between the world of common meanings and the world ofalternative ones’.37 Our political ideals need not be sacrificed out of demands forallegedly more accurate descriptions or for the analysis of data with which to solvespecific problems. There is still much to be gained from holding our conceptual-izations apart from our observations, even as one must inform the other.

Having said that, Krygier’s querying of my dichotomous formulation doesgesture towards another aspect of the work that I have since its publicationreconsidered; one that although it has not been mentioned by the commentatorsdeserves a few words before turning to the remaining matters in the closing sectionof this response.

A desire for neatness in the conceptual opposition of the rule of law to law andorder, for the maintenance of some symmetry in what was already an asymmetricalrelation, led me to talk about the two as opposing political ideals. Concentrating onthe normative contents of each, rather than interrogating what made them ‘political’,I tethered them to the ‘hereditary cooperative groups… which we call ‘‘states’’’,38

took that relationship as sufficient evidence of the political, and pretty much left thediscussion at that – which perhaps partly accounts for criticism by Robert Taylorthat the book ‘largely ignores the politics that have surrounded both the concepts ofthe rule of law and law and order’ in Myanmar’s history.39 While this criticismstrikes me as not altogether justified, in view of the three chapters that discuss theinterplay between the political and legal histories of the country at length, it doesprompt me to reconsider what it means to talk about law and order as a politicalideal at all; not only in its historical specificity in Myanmar, and before it Burma,but also in terms of the assumptions that I made about the contents of law and orderitself.

If law and order rather than the rule of law is preeminent in a given polity, what ifanything makes it distinctively political? To borrow from Sheldon Wolin, what kindof society could issue from a political regime dedicated in large measure to theeradication of conflict, or the achievement of order through imposition?40 Such asociety may very well be orderly, in the sense of the order that issues from law andorder, or in Ginsburg’s sense of ‘basic order’. It may even be that its order isobtained more efficiently than the order that derives from political relations thatinhere to the rule of law. But on Wolin’s reading it is assuredly not political,because the political is contingent on the possibility of dissent, on recognition of thenecessity of conflict and of its productive capacity.

If the rule of law as a political ideal is understood as enabling precisely the kindof disquietude motivated by demands for equality discussed in the last chapter of thebook, then rather than being an asymmetrically opposed political ideal, law andorder might be better understood as an apolitical ideal, a political ideal without the

37 Brown (2005, p. 81).38 Oakeshott (1991, p. 44).39 Taylor (2016, p. 650).40 Wolin (2004, pp. 40–41).


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political, ‘the political’ here denoting what Chantal Mouffe has called ‘theontological dimension of antagonism’.41 While apparently making political claims,law and order aims at the elimination of political solutions to conflict, substitutingthem with apolitical ones for the exogenous imposition of order, premised on thepermanency and desirability of inequality.

In a sense, this reworking of the conceptual relation set out in the book so as todelimit the scope of the political inverts Carl Schmitt’s opposition of the apolitical,normative rule of law with his political conception of situational law, securedthrough concrete will and the factual superiority of the state’s existence to any legalnorm.42 If so, it may be that in the opposition of the political in the rule of law andthe apolitical in law and order we encounter a further dimension to the asymmetryof the two – the one enabling conditions for ‘conflictual consensus’ through generalorder obtained endogenously;43 the other preventing them via the exogenousimposition of discipline, through particularistic intervention.

4 Provincializing the Rule of Law

Opposing the Rule of Law was researched and written as a single country study ofthe rule of law in a place where it was absent. Rather than building comparisonswith other countries, it aims for a plausible account of the conceptual relationbetween the rule of law and law and order through one paradigmatic case. It is alsoan account of Myanmar that asks to be read and understood on its own terms. LikeMary Steedly, one of my goals as author was to ‘impede the too-rapid leap tounderstanding or easy identification’ that comes with much of the comparativeliterature.44 Like her, I write towards difficulty rather than simplification.

Nevertheless, study of any particular setting presents opportunities to identifyelements of more general relevance. The conceptual relation I identify is clearlyintended as an invitation to other scholars to take the rule of law’s oppositionelsewhere seriously too. The book’s final chapter points to Thailand as a countrywhere any serious study of the rule of law would also have to account for itsopposites, arguing with regards to the state-sponsored murder of thousands ofalleged drug dealers in 2003 that ‘only through institutions operating consistentlywith a political ideal hostile to the rule of law could the killings have beenpossible’.45 In 2016, the incumbent president of the Philippines began working frommuch the same anti-rule of law playbook as his Thai predecessor, after an electoralcampaign that in the words of Duncan McCargo ‘comprised valorizing his ownmasculinity, and solving policy problems through extra-judicial killing’.46 On theother side of the world he is being joined by a new US president who obtained office

41 Mouffe (2013, p. x); see also Mouffe (1993).42 Schmitt (1985, pp. 12–13, 2008).43 Mouffe (2013, p. x).44 Steedly (2013, p. 69).45 Cheesman (2015a, p. 261).46 McCargo (2016, p. 185).

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with a law-and-order refrain reminiscent of earlier ideologically driven order-maintenance strategies in American cities; strategies that were neither theoreticallysound nor empirically grounded, but that demonstrated a commitment to a certainnorm of orderliness.47

The book has other contents that might also lend themselves to comparativeinquiry. Maria Popova has located in it resources with which to account for thepractices of Russia’s criminal courts.48 Popova is not fully convinced by the book’sexpulsion of the rule-by-law literature from study of Myanmar through the law-and-order lens. Nevertheless, she identifies another conceptual dyad, sovereign cetana –sovereign goodwill or good intentionality – and the public enemy, as havingpurchase in Eastern Europe, where

one of the roles of rights codification is to differentiate between those citizenson whom [a] regime magnanimously bestows some of these rights, some ofthe time, and the public enemies whose rights are swiftly withdrawn ordelimited.49

Popova’s own research points to possibilities for comparative work on thepractical meaning or meanings of the rule-of-law ideal to open space for new kindsof politics, as discussed in the closing chapters of Opposing the Rule of Law, withreference to Munger’s work in Thailand.50 As Popova puts it, reflecting on herfieldwork in the early 2000s, ‘Most post-Soviet citizens appeared to be supporters ofthe rule of law, not legal nihilists…. Yet the rule of law was clearly in crisis in bothRussia and Ukraine.’51 In Myanmar too, while the rule of law might be described asbeing ‘in crisis’, the rule-of-law ideal ‘still has resonance for political activists,lawyers, farmers, and human rights defenders’ who retrieve it from law and order‘and invest it with a politics of their own’.52

But if in hesitantly drawing some parallels between Russia and Myanmar Iadvocate for comparison, it is advocacy that goes against what Krygier calls‘anatomical’ modes of inquiry, via the itemization of elements that in theiraggregate are taken to constitute the rule of law.53 Even so, Krygier suggests in thelast of his remarks on the book that I might have unintentionally fallen back into ananatomical trap, by juxtaposing universal instantiations of the rule of law with lawand order.54 If I have erred in this regard it was not because I started with anatomy,but with teleology, as Krygier recommends: with questions of what the rule of lawmight be good for, and hence, likewise, with what competing immanent goals lawand order might entail. Only thereafter did I work backwards from observations

47 Harcourt (2001).48 Popova (2016).49 Popova (2016, p. 904).50 Cheesman (2015a, p. 261); see also Munger (2015).51 Popova (2012, p. 2).52 Cheesman (2015a, p. 261).53 Krygier (2009).54 Krygier (2017).


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towards plausible explanations for the seeming incongruities of Myanmar’s courts,and eventually, to anatomical considerations as well.

Krygier has elsewhere characterized something like this mode of inquiry ascontextual universalism for the rule of law.55 While holding fast to the rule of law as apolitical ideal that matters profoundly for our time, the contextual universalistrecognizes that everywhere it matters in different ways, and asks in each case why wemightwant it, before trying to do something about it. I have come to think of thismannerof working, after Chakrabarty, as a kind of ‘provincializing’ move: one that pushes theresearcher to find out how and in what sense an ideal is universal but also, at the sametime, situated in particular intellectual and historical traditions that cannot claim anyuniversal validity.56

To provincialize the rule of law is to proceed very differently from the anatomist,whocomes to the field site to look for its missing or damaged parts, based on an ideal-typeschema. It is to progress instead, slowly, two steps forward and one step back, fromcontext to idea, to try to situate the rule of law but not to relativize it. To provincialize isto push attention away from the usual sites and methods for an idea’s study. It is todecentre an imaginary, pristine originary figure, to dispel its shorthand and clichedversions throughwork that attends to themanner inwhich the idea emerges and animatespractices in conditions that are unalike those traditionally associated with it.

To provincialize the rule of law is also to reject the epistemologies on whichpostcolonial ‘legibility devices’ for readymade comprehension of places absent of itare premised.57 By producing an alternative body of knowledge about ideas andpractices associated with the rule of law in these places, provincializing workexposes how devices like the indicators that Merry and her colleagues havedisaggregated and critiqued, to which she refers in her remarks, are not neutraldiagnostic tools for the production of scientifically reliable data to enable improvedpolicymaking as their producers claim.58 Rather, they are analogues for earliertechnology of universalizing jurisprudential science with which European expertspresumed to know and thereby rule non-Europeans.59 As in earlier times, theauthority that these technologies design to impress upon the consumer beliesunfamiliarity with the actual conditions that are represented in data and a relianceupon limited and often heavily recycled information.60

In response to Krygier’s concern that by contrasting the rule-of-law ideal withlaw and order I might have somehow given up on my ‘vocation as an ethnographer’,I do not see any contradiction between this mode of inquiry and the values ofinterpretive research to which I am committed; research that aims at generatingepistemic knowledge about the rule-of-law idea in practice, not at beingethnographic for its own sake.61 Research in this mode is deeply situated in its

55 Krygier (2011, p. 32).56 Chakrabarty (2008, pp. xiii, 3–4).57 MacLean (2013); see further Scott (1998).58 Merry et al. (2015); see, for example, WJP (2014, p. 1).59 Cheesman (2015a, pp. 40–45).60 See Versteeg and Ginsburg (2016).61 Krygier (2017, this issue); see Schatz (2007).

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site – be it an urban ward, courthouse or archive – as well as in the idea or ideas thatguide it; in this case, the rule of law in opposition to law and order. The strategy is toget into empirical locations from where it is possible to recognize an idea’s salience,to work not ‘in critical distance but in critical proximity’ with both site andconcept.62 The researcher inhabits ‘the gray area between complete acceptance ofthe ‘‘rule of law’’ as panacea, and complete rejection of formal law as a possiblesolution to some problems’.63

I do however see a sharp disjuncture between this mode of inquiry and those thattreat the rule of law as a pile of ‘policy outcomes’ in which various stakeholdershave interests.64 Certainly, it is a mode of inquiry that pushes back against the ‘pullof the policy audience’, by refusing to be of some immediately obvious instrumentalvalue to practitioners.65 But to defy the policy audience’s calls for practicality,which are usually just calls for conformity, is not to be impractical. To the contrary,it is to take a stand for a different kind of practicality, one that recognizes and isgrounded in the distinctive role of the researcher in the university, which isfundamentally unalike the role of the researcher in the development consultancy oradministrative bureaucracy.

This different kind of practicality compels political action through two firminsistences. One entails methodological and epistemological commitments that tounderstand the rule of law through scholarship on Myanmar, or for that matter,Russia or Singapore or Sudan, is to do so on the terms laid down by the subjectmatter. In accepting those terms, the scholar is quite simply unable to speak andwrite in ways that can be easily interpolated into projects that presume to be able todeliver the rule of law to places where it is absent.

The other is political. It entails recognition that in working towards theoreticalexplanations for observed phenomena, the possibility exists for at least partially andimperfectly bringing ideals into being. That is why to capitulate to the policyaudience and enfold the rule of law into law and order in the name of practicality isnot only to raise the flag of intellectual defeatism, but also to militate against thevery possibility that the rule-of-law idea might somehow develop in Myanmar asanything other than some inferior, contaminated product, dissolved into law andorder, or another of its opponents. To make a political case for the rule of law as anasymmetrical opposite to law and order is not just to articulate a desire that it be so.It is also to argue for its possibility.

Put thusly, an epitaph for Opposing the Rule of Law, were it ever to have one,might be that to research and write on the rule of law in ways inconvenient for thepolicy audience is the authentic responsibility and exclusive prerogative of theresearcher in the university. This responsibility goes beyond the need to bepolitically engaged without adopting the agenda of those who make or administerpolicy, as Sarat and Silbey once urged, to the question of how in our time it ispossible for the scholar of politics or law to research and write in ways that frustrate

62 Weizman and Manfredi (2013, p. 172).63 Mertz (2002, p. 369).64 WJP (2014, p. 4).65 Sarat and Silbey (1988).


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the policy audience.66 It is a responsibility that celebrates old virtues of being incontact with the world without being beholden to it, and of recognizing theusefulness of seemingly useless knowledge.67 To the extent that the book constitutesan attempt to discharge this responsibility, readers scanning its pages for convenientsolutions to presupposed problems are unlikely to find anything of use. Those whoadopt more patient modes of reading and thinking will, I hope, be rewarded withmaterials with which to research and write about the rule of law in new andproductive ways; ways that take both the rule of law and its opposition seriously.

Acknowledgements In addition to thanking the symposium contributors for their remarks, I would alsolike to thank Kim Lane Scheppele and students in her 2016 Rule of Law class at Princeton University fortheir timely questions and observations on Opposing the Rule of Law, and Martin Krygier, Philip Pettitand Ben Schonthal for reading and commenting on a preliminary response to contributors. Thanks also toaudience members and colleagues attending events on the book at the University of New South Wales andthe Australian National University, the Law and Society Association’s 2016 annual meeting in NewOrleans, and a workshop in Yangon organized by Partners Asia; including Mary Callahan, MelissaCrouch, Terry Halliday, Zunetta Herbert, Sundhya Pahuja, and Andrew Selth. Lastly, I am grateful toRonald Janse for his encouragement and willingness to publish the symposium.

References

Brown W (2005) At the edge: the future of political theory. Edgework: critical essays on knowledge andpolitics. Princeton University Press, Princeton, pp 60–82

Chakrabarty D (2008) Provincializing Europe: postcolonial thought and historical difference. PrincetonUniversity Press, Princeton

Cheesman N (2009) Thin rule of law or un-rule of law in Myanmar? Pac Aff 82(4):597–613Cheesman N (2014) Law and order as asymmetrical opposite to the rule of law. Hague J Rule of Law

6(1):96–114Cheesman N (2015a) Opposing the rule of law: how Myanmar’s courts make law and order. Cambridge

University Press, CambridgeCheesman N (2015b) Orderly secrets? Opening Myanmar’s Supreme Court files. Paper presented at the

Material Encounters Conference, February 4-6, National Library of Australia, CanberraCheesman N, Farrelly N (eds) (2016) Conflict in Myanmar: war, politics, religion. Institute of Southeast

Asian Studies, SingaporeChua LJ (2015) The vernacular mobilization of human rights in Myanmar’s sexual orientation and gender

identity movement. Law Soc Rev 49(2):299–332Chua LJ (2016) Negotiating social norms and relations in the micromobilization of human rights: the case

of Burmese lesbian activism. Law Soc Inq 41(3):643–669Crouch M (2016a) The judiciary in Myanmar: beyond reform? In: Farrelly N, Holliday I, Simpson A

(eds) Routledge handbook of contemporary Myanmar. Routledge, New York (forthcoming)Crouch M (2016b) Legislating reform? Law and conflict in Myanmar. In: Cheesman N, Farrelly N (eds)

Conflict in Myanmar: war, politics, religion. Institute of Southeast Asian Studies, Singapore,pp 221–241

Crouch M, Lindsey T (eds) (2014) Law, society and transition in Myanmar. Hart Publishing, LondonFlexner A (1939) The usefulness of useless knowledge. Harper’s 179:544–552Ginsburg T (2011) In defense of imperialism? The rule of law and the state-building project. In: Fleming

JE (ed) Getting to the rule of law. Nomos 50. New York University Press, New York, pp 224–240Goertz G, Mahoney J (2012) A tale of two cultures: qualitative and quantitative research in the social

sciences. Princeton University Press, PrincetonHadfield GK, Weingast BR (2014) Microfoundations of the rule of law. Annu Rev Polit Sci 17:21–42

66 Sarat and Silbey (1988, p. 99).67 Flexner (1939).

42 N. Cheesman

123

Harcourt BE (2001) Illusion of order: the false promise of broken windows policing. Harvard UniversityPress, Cambridge MA

Hilbink L (2007) Judges beyond politics in democracy and dictatorship: lessons from Chile. CambridgeUniversity Press, Cambridge

Ho EL, Chua LJ (2016) Law and ‘race’ in the citizenship spaces of Myanmar: spatial strategies and thepolitical subjectivity of the Burmese Chinese. Ethn Racial Stud 39(5):896–916

King G, Keohane R, Verba S (1994) Designing social inquiry: scientific inference in qualitative research.Princeton University Press, Princeton

Krygier M (1990) Marxism and the rule of law: reflections after the collapse of communism. Law Soc Inq15(4):633–663

Krygier M (2006) The rule of law: an abuser’s guide. In: Sajo A (ed) Abuse: the dark side of fundamentalrights. Eleven International Publishing, The Hague, pp 129–161

Krygier M (2009) The rule of law: teleology, legality, sociology. In: Palombella G, Walker N (eds)Relocating the rule of law. Hart Publishing, Oxford, pp 45–69

Krygier M (2011) Approaching the rule of law. In: Mason W (ed) The rule of law in Afghanistan: missingin inaction. Cambridge University Press, New York, pp 15–34

Krygier M (2017) The rule of law and its rivals. Hague J Rule Law. doi: 10.1007/s40803-016-0043-9MacLean K (2013) The government of mistrust: illegibility and bureaucratic power in socialist Vietnam.

University of Wisconsin Press, MadisonMassoud MF (2013) Law’s fragile state: colonial, authoritarian, and humanitarian legacies in Sudan.

Cambridge University Press, New YorkMcCargo D (2016) Duterte’s mediated populism. Contemp Southeast Asia 38(2):185–190Merry SE (2017) What is the rule of law? Perspectives from Myanmar. Hague J Rule Law. doi:10.1007/

s40803-016-0041-yMerry SE, Davis K, Kingsbury B (eds) (2015) The quiet power of indicators: measuring governance,

corruption, and rule of law. Cambridge University Press, CambridgeMertz E (2002) The perfidy of gaze and the pain of uncertainty: anthropological theory and the search for

closure. In: Greenhouse CJ, Mertz E, Warren KB (eds) Ethnography in unstable places: everydaylives in contexts of dramatic political change. Duke University Press, Durham, pp 355–378

Mouffe C (1993) Rawls: political philosophy without politics. The return of the political. Verso, London,pp 41–59

Mouffe C (2013) Agonistics: thinking the world politically. Verso, LondonMoustafa T (2007) The struggle for constitutional power: law, politics, and economic development in

Egypt. Cambridge University Press, New YorkMunger F (2012) Constructing law from development: cause lawyers, generational narratives, and the

rule of law in Thailand. In: Gillespie J, Nicholson P (eds) Law and development and the globaldiscourses of legal transfers. Cambridge University Press, Cambridge, pp 237–276

Munger F (2015) Thailand’s cause lawyers and twenty-first-century military coups: nation, identity, andconflicting visions of the rule of law. Asian J Law Soc 2(2):301–322

Munger F (2017) Rule of law inside out in Myanmar. Hague J Rule Law. doi:10.1007/s40803-016-0045-7Myint Zan (2000a) Judicial independence in Burma: constitutional history, actual practice and future

prospects. South Cross Univ Law Rev 4:17–59Myint Zan (2000b) Of consummation, matrimonial promises, fault, and parallel wives: the role of original

texts, interpretation, ideology and policy in pre- and post-1962 Burmese case law. Columbia J AsianLaw 14(1):153–212

Myint Zan (2000c) Two divergent Burmese rulings on criminal defendants’ confessions: an ‘ideologicalanalysis’. Univ Tasman Law Rev 19(2):335–353

Myint Zan (2004) A comparison of the first and fiftieth year of independent Burma’s law reports. VicUniv Wellingt Law Rev 35(2):385–426

Nonet P, Selznick P (2001) Law and society in transition: toward responsive law. Transaction Publishers,New Brunswick

Oakeshott M (1991) Political education. Rationalism in politics and other essays. Liberty Fund,Indianapolis, pp 43–69

Pereira AW (2005) Political (in)justice: authoritarianism and the rule of law in Brazil, Chile, andArgentina. University of Pittsburgh Press, Pittsburgh

Pettit P (1997) Republicanism: a theory of freedom and government. Oxford University Press, OxfordPopova M (2012) Politicized justice in emerging democracies: a study of courts in Russia and Ukraine.

Cambridge University Press, New York


123

http://dx.doi.org/10.1007/s40803-016-0043-9

http://dx.doi.org/10.1007/s40803-016-0041-y

http://dx.doi.org/10.1007/s40803-016-0041-y

http://dx.doi.org/10.1007/s40803-016-0045-7

Popova M (2016) Book review: Constitutions in authoritarian regimes and Opposing the rule of law: howMyanmar’s courts make law and order. Perspect Pol 14(3):902–904

Rajah J (2012) Authoritarian rule of law: legislation, discourse and legitimacy in Singapore. CambridgeUniversity Press, New York

Rajah J (2017) Enlivening rule of law through law and order. Hague J Rule Law. doi:10.1007/s40803-016-0042-x

Rodriguez DB, McCubbins MD, Weingast BR (2010) The rule of law unplugged. Emory Law J59(6):1455–1494

Sarat A, Silbey S (1988) The pull of the policy audience. Law Policy 10(2–3):97–168Schatz E (2007) Methods are not tools: ethnography and the limits of multiple-methods research. Political

methodology 12, Committee on Concepts and Methods, Mexico CitySchmitt C (1985) Political theology: four chapters on the concept of sovereignty (Schwab G, trans).

University of Chicago Press, ChicagoSchmitt C (2008) Constitutional theory (Seitzer J, trans). Duke University Press, DurhamScott JC (1998) Seeing like a state: how certain schemes to improve the human condition have failed.

Yale University Press, New HavenSteedly MM (2013) Rifle reports: a story of Indonesian independence. University of California Press,

BerkeleyTaylor RH (2016) Book review: Opposing the rule of law: how Myanmar’s courts make law and order.

Asian Stud Rev 40(4):649–650Versteeg M, Ginsburg T (2016) Measuring the rule of law: a comparison of indicators. Law Soc Inq.

doi:10.1111/lsi.12175Wedeen L (2010) Reflections on ethnographic work in political science. Annu Rev Polit Sci 13:255–272Weizman E, Manfredi Z (2013) ‘From figure to ground’: a conversation with Eyal Weizman on the

politics of the humanitarian present. Qui Parle Crit Hum Soc Sci 22(1):167–192WJP (2014) Rule of law index 2014. World Justice Project, Washington, DCWolin SS (2004) Politics and vision: continuity and innovation in western political thought (expanded

ed.). Princeton University Press, PrincetonYanow D, Schwartz-Shea P (2012) Interpretive research design: concepts and processes. Routledge, New

York

44 N. Cheesman

123

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Symposium on opposing_the_rule_of_law

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