Law and Disorder in the Postcolonyby Jean Comaroff
Are postcolonies haunted more by criminal violence than other nation-states? The usual answer is yes. In Law and Disorder in the Postcolony, Jean and John Comaroff and a group of respected theorists show that the question is misplaced: that the predicament of postcolonies arises from their place in a world order dominated by new modes of governance, new/i>… See more details below
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Are postcolonies haunted more by criminal violence than other nation-states? The usual answer is yes. In Law and Disorder in the Postcolony, Jean and John Comaroff and a group of respected theorists show that the question is misplaced: that the predicament of postcolonies arises from their place in a world order dominated by new modes of governance, new sorts of empires, new species of wealth—an order that criminalizes poverty and race, entraps the “south” in relations of corruption, and displaces politics into the realms of the market, criminal economies, and the courts. As these essays make plain, however, there is another side to postcoloniality: while postcolonies live in states of endemic disorder, many of them fetishize the law, its ways and itsmeans. How is the coincidence of disorder with a fixation on legalities to be explained? Law and Disorder in the Postcolony addresses this question, entering into critical dialogue with such theorists as Benjamin, Agamben, and Bayart. In the process, it also demonstrates how postcolonies have become crucial sites for the production of contemporary theory, not least because they are harbingers of a global future under construction.
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Meet the Author
Jean Comaroff is the Bernard E. and Ellen C. Sunny Distinguished Service Professor of Anthropology and director of the Chicago Center for Contemporary Theory at the University of Chicago. John L. Comaroff is the Harold W. Swift Distinguished Service Professor of Anthropology at the University of Chicago and a senior research fellow at the American Bar Foundation. Both are honorary professors at the University of Cape Town. They are coauthors of the multivolume Of Revelation and Revolution also published by the University of Chicago Press.
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Read an ExcerptLaw and Disorder in the Postcolony
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Chapter One Law and Disorder in the Postcolony An Introduction
John L. Comaroff and Jean Comaroff
Notes from the Front
Crime vs. ... Who're the criminals, the gangs or the government? Did the Capital just happen to have the power to punish men? MonoPolice manipulate majoraties to run with them So whats the police force but a resource to reinforce the plans of the dominant? I'm haunted by questions, spending time behind bars Statistics on TV, that concede we're sadistic, deceive me 'cause murder and thievery thrives on all sides of the lines that divide class. I take pepper-spray with a pinch a'ssault and battery and I'm charged to step 'n say: "yo honour, go bother the office of your bosses where the crime starts." And I ask, while cleaning dirty white collars for a living, why law suites the raw brutes in board rooms that horde loot? They set the precedent then send the president to assure you, his lady, Justice, is blind. But she's got contacts that say too! The colonists, the capitalists and wordy bright scholars make a killing. MARLON BURGESS, hip-hop verses, Cape Town, 15 September 2004
Among all the things that have been said about the spread of democracy since the end of the Cold War-and a great deal has been said about it, in every conceivable voice-one thing stands out. It is the claim that democratization has been accompanied, almost everywhere, by a sharp rise in crime and violence (see, e.g., Karstedt, forthcoming; Caldeira 2000: 1): that the latter-day coming of more or less elected, more or less representative political regimes-founded, more or less, on the rule of law-has, ironically, brought with it a rising tide of lawlessness. Or, put another way, that political liberation in postcolonial, posttotalitarian worlds, and the economic liberalization on which it has floated, have both implied, as their dark underside, an ipso facto deregulation of monopolies over the means of legitimate force, of moral orders, of the protection of persons and property. And an unraveling of the fabric of law and order. This may not be all that easy to demonstrate empirically; it depends in large part on how democracy and criminality, past and present, are measured. But, as popular perception and party platforms across the planet focus ever more on escalating crime, and on the "problem" of dis/order, the co-incidence certainly seems to be beyond coincidence.
It has long been argued that social disorder, expressed in elevated rates of criminality, is in the nature of transition itself, that it inevitably follows epochal changes in the order of things. Our times, like many before, are commonly described in the language of historical disjuncture, whether by appeal to retrospection and renaissance (neoliberalism, neomedievalism), to ironic aftereffect (the postmodern, posthuman, post-Fordist, f-utilitarian), or to the portentous dawning of New Eras (of Empire, Exception). Little wonder, then, that the ruptures of the ongoing present, real or imagined, are often associated, in collective consciousness as well as in social theory, with transgression, liminality, and lawlessness. As Hannah Arendt reminds us, Marx long ago saw a generic connection between transformation and violence, which, he insisted, "is the midwife of every old society pregnant with a new one"; even more, of "all change in history and politics." Foreshadowings here of Fanon (1968) and other theorists of decolonization. To be sure, modern history has seen some very bloody transitions to populist rule. And it has born witness to regimes that, under the alibi of liberal democracy, have sanctified and sustained criminally brutal modes of domination, some of them highly rationalized, highly technicized, highly sanitized. Indeed, the relative ease with which autocracies have made the transition to constitutional democracy points toward the possibility that they-autocracy and liberal democracy, that is-share more mechanisms of governance than has conventionally been recognized, not least their grounding in a rule of law, an Iron Cage of Legality itself predicated, more or less visibly, on sovereign violence (cf. Agamben 1998: 10; Foucault 1978). Whether or not there is a necessary relationship between the lethal and the legal, as Walter Benjamin (1978) and his intellectual progeny would have it, their historical affinity seems beyond dispute.
The coincidence of democratization and criminal violence has been most visible in, and most volubly remarked of, postcolonies: that is, nation-states, including those of the former USSR, once governed by, for, and from an elsewhere; nation-states in which representative government and the rule of law, in their conventional Euro-modernist sense, were previously "underdeveloped"; nation-states in which the "normalization" of organized crime and brutal banditry, themselves the product of a complex play of forces (see below), has been a central motif of the chapter in their history that began, at fin de siècle, with the end of the Cold War and the triumphal spread of neoliberal capitalism. With a new Age of Empire, the Age of US and Them. This age has its mythic fons et origo in 1989, the year that history was supposed to end (Fukuyama 1992) with the political birth of a Brave Neo World. The "neo" here refers to a reanimation-or, more precisely, to the fetishizing anew-of old panaceas from the history of liberalism: two in particular.
One dates back to the second half of the eighteenth century, to a time when political authority, social order, citizenship, and economy were also urgently in question (see, e.g., Becker 1994). It is the idea, often associated with Adam Ferguson (1995), that a measure of control over arbitrary governmental power, especially over the power of autocratic potentates, ought to be vested in, and exercised by, a citizenry. This idea has come to be subsumed, loosely, in the term "civil society" which, in its neo guise, stands for many things, among them: (1) "society against the state," itself a highly ambiguous aphorism; (2) "the" market, often glossed as "the private sector," utopically envisaged as a technically efficient mechanism for producing the common good; and (3) "the community," a vague abstraction posited, somewhat mystically, as an appropriate site for, and agent of, collective action-and, more cynically, as the end point of the devolution of the costs and responsibilities of governance (J. L. Comaroff and J. Comaroff 1999). But above all, since the late 1980s, "civil society" has connoted a teleological reversal: a move from increasingly rationalized, increasingly bureaucratized, increasingly elaborated regimes of rule toward ever more outsourced, dispersed, deinstitutionalized, constitutionally ordained governance-from political evolution, classically conceived, to political devolution. In theory, at least.
The other panacea is the ballot box: an appeal to the classic apparatus of mass participatory democracy. In its postcolonial neo-life, however, this has often proven, in practice, to involve a very "thin" distillation of the concept: a minimalist, procedural version that, notwithstanding the claims made for it by some political scientists (see, e.g., Przeworski et al. 2000; and, for a critique, Wedeen 2004 and forthcoming), equates freedom with the occasional exercise of choice among competing, often indistinguishable alternatives. Which, as we have said elsewhere (J. L. Comaroff and J. Comaroff 1997), renders the franchise to homo politicus what shopping has long been to homo economicus: a beatified, cosmic fusion of free will, human satisfaction, and ethical righteousness. This is historically apt: it is a version of democracy that shadows closely the neoliberal apotheosis of the market, the displacement of homo faber by the consumercitizen, and the reduction of collective action to the pursuit of "enlightened" interest. It is also the version of representative government-a "small idea," Malcolm Bradbury (1992: 276) once wrote in a postmodern fiction, which "promises hope, and gives you Fried Chicken"-that is currently being thrust upon the world at large. Often it is imposed as a condition of financial aid, foreign investment, and moral salvation by an unadornedly coercive Western consensus led by the United States (see, e.g., Young 1993: 299-300) and abetted by such instruments of the new global economy as the World Bank and the International Monetary Fund (Stiglitz 2002). Indeed, this is the translucent veil behind which has closed the iron fist of structural adjustment, with its demands on postcolonies to cleave to market principles and to deregulate in ways that privilege the private sector over the state. It hardly bears repeating any longer that these demands have had unintended, highly destabilizing effects on the fragile political and economic arrangements-on the ecologies of patronage, redistribution, and survival-that developed in many nation-states across the global south with the end of the high age of colonialism. Of which more in due course.
As this implies, civil society and the ballot box, as they have come popularly to be understood at the dawn of the twenty-first century, are not just panaceas for the contemporary predicament of postcolonies. More significantly, they have taken on the substantive forms of the Brave Neo World of which they are part. This, in turn, raises an obvious, and obviously loaded, question: To the degree that there has been an epidemic of criminal violence in these polities in recent times-to the degree, also, that they have seen the emergence of criminal "phantom-states" in their midst (Derrida 1994: 83) or even "the criminalization of the state" tout court (Bayart, Ellis, and Hibou 1999; see below)-does it really have anything at all to do with democratization? Or, pace the commonplace with which we began, does electoral democracy, itself long an object of critique outside the West (see, e.g., Mamdani 1990, 1992; Makinda 1996; Karlstrom 1996), veil the causes and determinations of rising lawlessness, just as the material realities of the Brave Neo World disappear behind the ballot box?
The answers are not as straightforward as they may seem. Why not? Because rising criminality in postcolonies is not simply a reflex, antisocial response to poverty or joblessness, scarcity, or other effects of structural adjustment, important though these things are. Neither is it merely the working of unchecked power, clothed in the trappings of state-or of bandit quasi states-serving itself by monopolizing the means of extracting value and doling out death (cf. Bataille 1991; Hansen and Stepputat 2005: 13-14). Nor even is it the consequence of normative slippage occasioned by the radical transitions of the recent past. It is part of a much more troubled dialectic: a dialectic of law and dis/order, framed by neoliberal mechanisms of deregulation and new modes of mediating human transactions at once politico-economic and cultural, moral, and mortal. Under such conditions-and this is our key point-criminal violence does not so much repudiate the rule of law or the licit operations of the market as appropriate their forms-and recommission their substance. Its perpetrators create parallel modes of production and profiteering, sometimes even of governance and taxation, thereby establishing simulacra of social order. In so doing, they refigure the pas de deux in which norm and transgression, regulation and exception, redefine each other both within and beyond national polities. In the process, the means and ends of the liberal democratic state are refracted, deflected, and dispersed into the murkier reaches of the private sector, sometimes in ways unimagined by even the most enterprising of capitalists, sometimes without appearing to be doing very much at all to disturb the established order of things.
Just as, according to Charles Tilly (1985: 170-71), many modern "governments operate in essentially the same ways as racketeers"-especially in the "provision of protection"-so, in many postcolonies, violent crime increasingly counterfeits government, not least in providing fee-for-service security, and social order (J. Comaroff and J. L. Comaroff, forthcoming: chap. 1). With market fundamentalism has come a gradual erasure of received lines between the informal and the illegal, regulation and irregularity, order and organized lawlessness. It is not merely that criminal economies are often the most perfect expressions of the unfettered principle of supply and demand, nor only that great profit is to be made in the interstices between legitimate and illegitimate commerce, between the formal and underground vectors of global trade, from differences in the costs and risks of production, north and south (see Mbembe 2001: 73). Vastly lucrative returns also inhere in actively sustaining zones of ambiguity between the presence and absence of the law: returns made from controlling uncertainty, terror, even life itself; from privatizing public contracts and resources; from "discretionary" policing and "laundering" of various kinds. From amassing value, that is, by exploiting the new aporias of jurisdiction opened up under neoliberal conditions.
Or so we shall argue.
But how particular is all this to postcolonial societies? After all, the coexistence of neoliberalization with the proliferating problem of lawlessness would appear to be an ever more global phenomenon; although whether there is more crime (Gray 1998: 32), more of an obsession with it (Baumann 1998: 47), or a greater readiness under current conditions to criminalize dystopic social phenomena, among them poverty and race (Wacquant 2001), remains a fraught question-especially if, as is likely, all are true, but in indeterminate proportions. That there is an empirical connection, though, is rarely in doubt these days. Thus, for example, the director of Europol, the European police agency, declared in 2001 that transnational crime posed a mounting threat to domestic security in Europe: its governments, he said, should "examine whether the resources that had previously been spent on military defense would be better invested ... in domestic security." And this was before 9/11, before established distinctions between criminality and terror, lawlessness and war, private enterprise and privateering, governance and vengeance, were seriously undermined, making palpable the immanent threat of disorder everywhere. Might it be that, in this as in other respects, the world at large is looking ever more "postcolonial"? And what might that mean?
We shall return to these large questions in due course. Let us begin, however, by interrogating the forms of criminal violence, the lawlessness and dis/order, typically taken to be symptomatic of the postcolony.
Inside the Postcolony: Geographies of Violence, Cartographies of Crime
Lawlessness and criminal violence have become integral to depictions of postcolonial societies, adding a brutal edge to older stereotypes of underdevelopment, abjection, and sectarian strife. "LATIN AMERICA: Graft Threatens New Democracies," "AFRICA: Corruption Is Crippling Growth," screamed twin, internationally syndicated headlines in August 2005, under a picture of tropically shaded hands passing banknotes. Mounting images-of Colombian druglords and Somali warlords, Caribbean pirates and Nigerian gangsters, Afghani poppies and Sierra Leonean blood diamonds-add up to a vision of global enterprise run amok: a Hobbesian nightmare of dissipated government, suspended law, and the routine resort to violence as means of production. More disturbing still are allegations that the line between the political and the criminal is fast eroding. In Africa, the epitome of post/colonial misrule in European eyes, metaphors of malfeasance-kleptocracy, neopatrimonialism, clientalism, prebendalism-have long been the accepted terms, popular and scholarly alike, for indigenous modes of governance. But in the late twentieth century, these conventional images began to assume an even more sinister cast: in 1995, the French Ministry of Foreign Affairs issued a report on the radical "criminalization of politics" south of the Sahara, claiming that popular reformist movements were being resisted in many places, while links between the ruling regimes and organized crime were growing apace (Bayart, Ellis, and Hibou 1999: xiii). Elsewhere, vectors of state repression and sectarian conflict-their logic hitherto relatively transparent-appeared ever more chaotic and opaque as access to the means of force proliferated and crass utility reigned supreme. In fact, the "criminalization of politics" came to signify a new epoch in the sorry history of incivility in the global south: Bayart, Ellis, and Hibou (1999: 1), among the most acute observers of the African scene, went so far as to suggest that we are witnessing a move, there, from "Kleptocracy to the Felonious State."
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