By Stefan B. Kirmse (ed). Campus Verlag GmbH, Frankfurt-on-Main, 2012. 299pp. Cloth. ISBN: 978-3-539-39493-0.
Reviewed by Jonathan F. Parent, Department of Political Science, Rockefeller College of Public Affairs & Policy, University at Albany, SUNY. Email: jparent[at] albany.edu.
The experiences of average citizens with the legal system has been an important area of research for legal scholars generally, and those in the law and society subfield in particular, since at least the middle of the last century. Much of this work, however, has focused on the American context with studies by Galanter (1974) and Ewick and Silbey (1998) standing out as foundational pieces. Stefan B. Kirmse’s edited volume One Law for All? Western Models and Local Practices in (POST) Imperial Contexts falls loosely within this tradition, though focusing on the legal experiences of citizens in non-Western states and polities in the late 19th and early 20th centuries. The disciplinary perspective of the book is therefore largely historical, with all of the authors relying on a case study approach to exploring their respective research questions.
The introductory chapter makes clear that the concept of “One Law for All” is not meant to suggest a normative perspective, but alludes more to the importance of a single standard that, at least in principle, lies at the heart of Western legal systems. Indeed, many of the case studies presented in the book focus on the efforts of legal practitioners in contexts as diverse as late Imperial Russia and the German colony of Cameroon to develop uniform criminal and civil law systems. Kirmse stresses the theme of differences or gaps between legal theory and the “law on the ground” that runs throughout the studies presented by each author. Finally, this first chapter emphasizes that the research of the various contributors to the volume are works in progress and should be viewed as largely exploratory rather than fully developed theories.
One Law for All is divided into three sections; “Discussing Legal Reform,” “Gatekeepers to the Legal System: The Role of Legal Intermediaries,” and “When People go to Court.” The first substantive chapter, by Benjamin Beuerle, examines the debates over capital punishment in Russia following the revolutions of 1905 and 1917. According to Beuerle, discussions of legal reform in Russia at the time were unique in that they explicitly sought to emulate the systems then in place in Western European countries, rather than develop expressly “Russian” traditions of their own. The exception, however, was consideration of the death penalty as a legal sanction which, despite its almost universal acceptance in Europe and the United States at the time, faced considerable opposition both in the late Imperial period and briefly following the Bolshevik revolution. The reasons for this were threefold, with liberals citing the historic abuses of capital punishment by the Tsarist regime, the political instability of the time making abolition [*137] attractive to any group currently in power as the durability of their regime was far from certain, and, most importantly, the suggestion that representatives of the “True West” were largely opposed to the death penalty. Ultimately, abolition was only briefly achieved after the 1917 revolution but was quickly reinstated following the onset of the “Red Terror” in September of 1918. Beuerle concludes by reiterating the influence of Western European legal thought on the reform deliberations of early 20th century Russia, even in an area where the latter diverged considerably from the former.
The second chapter in Part I, by Benjamin Buchholz, considers the development of the loya jirga, a political assembly tasked with discussing and developing standardized legal practices in Afghanistan in the 1920s under the direction of King Amânullâh Khân. Specifically, Buchholz is concerned with the “symbolic dimension of the legislative process … rather than particular laws or their application in legal practice” (p.68). As with the case study of early 20th century Russian legal reform in the preceding chapter, the goal of both the loya jirga and the King was emulation of Western legal practices and standardization of law across the country. While initially somewhat successful, conflict between Amânullâh Khân and the conservative Islamic clerics in Afghanistan finally resulted in the abandonment of this “modernization” project and the King’s abdication. The larger point of this chapter, though, is that the success or failure of reform attempts in this case was dependent more on their symbolic representation than their content.
The first section of the book is rounded out with a return to late Imperial Russia in Lena Gautam’s analysis of the use of psychological explanations of criminal behavior by Circuit Courts. After first providing a brief summary of the development of psychiatric theories of criminality in the West and Russia, Gautam describes the process by which these approaches were adopted by the legal establishment of the Empire. The chapter concludes with a case study of a specific murder trial in the Kherson District of Southern Russia in which the accused was found guilty but remanded to the custody of his father as he had “acted in a state of madness” (p.111), an outcome which diverged considerably from the standards of the time. As with Beuerle’s piece, Gautam highlights the importance of Western legal thought on the evolution of law and courts in Russia in the late 19th century.
Part II of the volume, which focuses on the role played by legal intermediaries, begins with Carlos Aguirre’s investigation of tinterillos – legal assistants who were not trained lawyers (translated by the author as “pettifoggers”) – in post-independence Peru. After establishing the commonly-held perception of tinterillos in Peruvian popular culture as unscrupulous exploiters of poor peasants, Aguirre argues that they were in fact invaluable advocates on behalf of the indigenous population when dealing with the White-Mestizo legal establishment. Indeed, far from being agentless victims of an oppressive and foreign legal system, poor, and largely rural, Peruvian peasants were in fact quite adept at manipulating this system to their advantage, often with the assistance of the tinterillos. [*138]
Also challenging common assumptions, in this case the view of law in Tsarist Russia as capricious and arbitrary, Jane Burbank’s contribution to the volume examines the role of mid-level officials in the Kazan Judicial District using primary source documents from the region recorded in 1912. Two cases in particular form the basis of the chapter; the first being a charge against a village leader accused of not enforcing a law dealing with land allotments and the second involving a “peasant delegate of the Imbiurt rural society” (p.166) indicting an entire village assembly for non-compliance with the same law. In both cases, which appeared to have been politically motivated, investigations by the governor of the district cleared the accused parties of any illegal activity. Burbank offers a number of conclusions drawn from these case studies, the most salient being that ethnicity and religion seemed to matter very little in the ultimate outcome of the investigations, administrative agencies worked very quickly, denunciations of individuals or groups were not taken at face value, and that all levels of the administrative system used similar conceptions of the law.
Part III of Kirmse’s collection explores the experiences of individuals in various types of courts and begins with Xiaoqun Xu’s consideration of marriage and divorce law in Republican China. After discussing the state of the law inherited by the Republic from the Qing dynasty, Xu presents a number of cases dealing first with marriage and divorce from the 1920s, criminal code violations involving adultery from the 1930s and 1940s, and finally additional marriage and divorce cases from the 1940s, following the reforms of the previous 20 years. The major themes that emerge from these developments include the increasing “westernization” of Chinese law during the Republican era, conflicts that emerged between extant cultural practices and novel legal concepts, and, echoing Aguirre, the ability of average citizens to manipulate the law to their own advantage.
Returning once again to late Imperial Russia, Kirmse’s own contribution to the volume examines the experiences of Muslim Tatars in Russian courts during the late 19th century. This chapter presents a number of accounts of disputes arising from arranged marriages, theft, murder, and several other criminal and civil matters. Consistent with the conclusions presented in many of the preceding chapters, Kirmse finds that this traditionally disempowered group was in fact quite sophisticated in its use of the Imperial Russian courts, turning to this venue for redress when it seemed the most promising avenue for a particular dispute, while preferring to resolve issues within their own community if they expected a more favorable outcome there.
Ulrike Schaper’s piece follows with a study of the “plural legal order” that existed in the German colony of Cameroon between 1884 and 1916. While in theory two separate legal systems existed in the colony during this period, one for the “native” population and another for German citizens, Schaper argues that in practice, jurisdictional lines were often blurred to the point that the differences between the two systems were oftentimes meaningless. In addition, “forum [*139] shopping” was quite common with Germans as well as members of the indigenous population most often choosing to have their cases heard in the venue they perceived as most sympathetic to their interests. Unlike the other chapters in the collection, Schaper’s piece relies almost exclusively on documents from the time detailing official colonial policy, with no reference to specific cases which might illustrate the larger argument.
The final chapter, by Manuel de los Reyes García Márkina, discusses the legal culture of Mexico City specifically, and the country at large in general, in the late 1800s. Much of this piece is devoted to exploring the development of Mexican law during the preceding 300 years, finally leading to the adoption of the Penal Code of 1871. Heavily influenced by European traditions and legal positivism, the overriding goal of this reform movement evidently was to unify what had been up to that point a very disparate collection of local laws and norms. In the end, Garcia concludes, the Penal Code served largely to alienate and marginalize the poor and non-Europeanized mestizo populations in Mexico City.
There is much to like in this book and it engages an important topic from a unique perspective. By examining “law on the ground” in a multitude of diverse geographic and, to a lesser extent, historical locations, Kirmse provides an interesting glimpse into the differences, and perhaps more surprisingly, the often striking similarities, between the experiences of the subjects his contributors present and those of their Western counterparts when encountering official legal institutions. Scholars interested in broad questions related to the impact of law and courts at the level of the individual are likely to find something of value in at least some of the contributions to One Law for All. Additionally, those with a narrower focus on legal history and the examination of long term developments in law would likely find this work of particular interest.
Conversely, there are some weaknesses in the volume which are worth noting. As with any work employing small-n case study methods, the generalizability of the conclusions proposed by most of the authors may be questionable, particularly given the level of specificity inherent in the cases which make up the bulk of the book’s chapters. In addition, despite considerable diversity in the geographical locations covered in each contribution, with the exception of a somewhat disproportionate focus on Imperial Russia, all of the cases are drawn from roughly the same time period, a fact which may further limit the utility of the authors’ conclusions to an understanding of other circumstances.
Beyond these methodological considerations, there is a noticeable difference in the quality of the research between the chapters. While Kirmse’s own addition, as well as the last piece by Manuel de los Reyes García Márkina and Benjamin Buchholz’s examination of the loya jirga, stand out as particularly insightful discussions of the various and often competing influences on legal development, many of the other pieces are limited to a simple recounting of facts and events with little analysis provided. The lack of a consistent citation style within the book as well as a relatively large number of grammatical [*140] and punctuation errors are also at times distracting. Finally, Kirmse provides no concluding chapter which results in a rather abrupt ending to the collection and misses an opportunity to highlight some of the themes which run throughout the various case studies.
One Law for All provides an interesting look at legal development, cultural influences in law, and the interaction of average people with the official mechanisms of the state in a number of unique contexts. Further refinement of the methodological tools used by the contributing authors, as well as more sophisticated analysis – limitations Kirmse himself acknowledges – would, however, improve the overall product. Nevertheless, this edited volume suggests that there remains much to be added to our understanding of the experience of “law on the ground” and Kirmse’s collection is a commendable effort at expanding this research to more diverse times and locations.
Ewick, Patricia and Susan Silbey. 1998. The Common Place of Law: Stories from Everyday Life. University of Chicago Press.
Galanter, Marc. 1974. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” Law & Society Review. Vol. 9, No. 1 pp. 95-160.
Copyright 2013 by the Author, Jonathan F. Parent