Searching for unity and certainty amidst (dis-)embedded systems
The result of the modernisation process in law is that there now exist plural normative orders (Merry 1988). On the one hand, there are the disembedded normative systems of modern state law, and on the other, there are locally and temporally embedded local normative systems.
The embedded systems existed in pre-modern times and (to some extent) continue to exist in modernity. In a sense, we could say that they coexist and are stacked (Roquas 2002) on top of each other. We could analyse them as “maps,” as norms of different levels of abstraction operating at different scales (De Sousa Santos 1987). The most important aspect of scales is the difference in detail. Higher-scale maps (e.g., 1:300) cover a smaller geographical area and are more detailed and specific. By contrast, lower-scale maps (e.g., 1:300.000) cover a larger geographical area, are more abstract, and lack detail. Ideally speaking, lower-level norms (i.e., custom, customary law, and even local lawmaking) are more specific and can be compared to higher-scale maps (De Sousa Santos 1987). Lower- level norms should ideally be similar to local social contracts or conduct norms (mores) (Sumner [1906] 1960). Thus, such norms have a close relationship with the volksgeist (Savigny 1831) of what law ought to be and especially of what justice is. This is not always the case. Colonial customary law was often the result of negotiation between the colonial ruler and the ruled. Thus, it is an example of local norms which did not conform to this ideal (Starr and Collier 1987; Chanock 1989).Nevertheless, as a result of their local specific character, lower-level norms can only apply to a certain local context. In the words of Giddens (1990), they are embedded within a certain place (and in the case of custom, within a certain time). Legal implementation requires both enforcement and invocation (Pound 1917).
Since the norms are (ideally) similar to local society and justice, knowledge and invocation of such norms will be more widespread because they are locally legitimised. For the same reason (and because ofthe small scope of application), enforcing such norms will have low costs. Such local norms serve as the basis for social cohesion. Local norms govern the most basic building blocks of society (see Ehrlich’s [1936] description of associations). The problemwith local norms in modernity is that they themselves cannot provide unity and certainty outside of their own locality, attributes necessary for non-local social relationships.
Modern state law is ideally of a lower scale (in the sense of the map metaphor) and should be more abstract. One method of abstraction involves codifying a recognised norm of custom and customary law, such as, e.g., in Ghana (Otto 2002b; Ubink 2008a). However, recognising locally (and in the case of custom, temporally) embedded norms at the national level leads to a state legal system with norms referencing different places (and for custom, different times). Cross-local social relationships are thus faced with different norms. Under such circumstances, maintaining cross-local relationships will be difficult since there is no mutual system of norms to build trust. The state legal system's recognition of custom and customary law does not solve this problem. State recognition of custom and customary law through abstraction thus undermines what modern state law set out to do in the first place: provide large-scale certainty and unity.
Codification is another method through which modern state law has abstracted norms from existing locally and temporally embedded norms. Codification is ideally the process of extracting local norms out of society and making them into uniform and unchanging law. In geographically larger legal systems, the abstraction of different local norms through state law would result in the norms having no meaning or power.
Most states are too geographically large for state law to be made only through pure codification. Modern states share development goals that are partly based on certainty, goals such as nation-building, unity, and economic development. Thus, their legal systems cannot be so abstract as to no longer provide certainty and unity.Therefore, in most states, lawmaking has not developed through recognising custom or customary law, or through abstraction. Instead, most states have used non-abstract codification, choosing to codify some norms over others. This has potentially privileged certain norms, as outcomes of political processes have favoured specific interests by exerting power during the final phase of codification.
Finally, state law has completely severed its ties with local existing norms by introducing regulatory law. This type of law neither consists of abstractions of local norms nor prefers certain local norms while neglecting others. Regulation is made to carry out state policy. Therefore, it is made to a large extent through a top-down process (Sabatier 1986). Regulatory law has grown immensely in the twentieth century. In many legal areas, it has come to replace codification-based legislation. Similar to codification, regulatory law can be abstract but in many cases, it can also be highly detailed. European law is a good example of detailed regulatory law with a large scope of application. It has detailed norms and standards on issues such as the banning of livestock vaccination against foot and mouth disease. The codified and regulatory laws and regulations of modern developed countries have spread across the globe through the process of legal transplantation. As we have seen, those laws and regulations contained many specific norms.
Worldwide, state law has thus rapidly developed. Sometimes it has provided rules abstracted from local norms. But more often, it has provided norms that are largely unrelated to the many variations of local specific norms.
State law can be (and often is) specific and thus De Sousa Santos’s (1987) metaphor of maps does not fully hold true. If state law is similar to low-scale maps, it is supposed to be more abstract. What kind countrywide map provides details of small streets? Yet this is exactly what modern law has started doing. Instead of just inducing (i.e., abstracting) local specific norms, state law often provides detailed regulation applicable throughout a larger territorial sphere. The result is that the uniform state law no longer represents the ideal sum of all local norms. This is understandable, as the process of modernity has led to large spheres of uniform law. If law behaved like a map in such spheres, large-scale law would lack any kind of detail. The lack of detail would entail norms that are open to interpretation and would thus not lead to unity and certainty.
Now that state law does have detail, a problem arises: detailed higher- level law may often be contrary to many sets of local norms and socioeconomic circumstances. This has implications for the implementation of the law. Since higher-level norms are opposed to lower-level norms, they do not benefit local citizens. Thus, citizens will less frequently implement (e.g., through invocation) such high-level norms (e.g., as with contract law). Macaulay’s (1963) study of contract law in the business community may serve as an example, in the sense that business relations were not made according to contract law. Inner community conflicts actively avoided the legal system and only used it as a last resort. Internal norms within the business community (i.e., local norms) were deemed more important. Outside norms of the legal system were not to be invoked “if you ever want[ed] to do business again.” Research on Turkey’s 1920s legal modernisation found that the impact of the new, transplanted, secular, state civil code had little impact on the majority of the society in which custom remained in use (Moore 1973; Merry 1988; Starr and Pool 1974).
These are just two of many examples of a lack of state law invocation due to a contradiction between state law and local norms and circumstances.Implementation through enforcement will also be more difficult. The social and economic costs of such enforcement will be higher for norms that are against local practices, customs, or circumstances. This will lead to less enforcement to avoid high local socio-economic costs. Alternatively, if policy decisions are made to enforce high-level norms regardless of the local consequences, it will lead to over-enforcement with high local costs.
Implementation of higher-level norms has a secondary, well known, spatial implementation problem, which aggravates the problem of higher- level norms contradicting lower-level norms and circumstances: The larger the norm's scope of application, the more difficult implementation will be. With a large scope of application, the number of norm-addressees will be higher. It will thus be more difficult to let them know of the law, let alone empower them to invoke it. A lack of legal knowledge and legal experience will lead to less success invoking the law (Galanter 1974) and ultimately to less legal invocations overall. Furthermore, in terms of enforcement, the further away the level of regulation is from the regulated community, the more costly enforcement will be. Thus, the more difficult it will be to get accurate information on violations. In other words, the larger the number of norm addressees is and the larger the space in which violations of the law can occur, the more it will cost to detect violations, to execute sanctions for such violations, and to monitor compliance after enforcement. This is partly due to a lack of information because of the lack of top-down oversight, which increases along with the spatial distance between the regulation and the regulated. The lack of information will make enforcement both costly and difficult. In different enforcement regimes, this will either cause ineffective enforcement or blind over-enforcement.
So the combination of a specific norm and a large scope of application will lead to less implementation.Modern law is thus caught between two extremes. Laws that cover large jurisdictions can be adapted to local circumstances and feasibly implemented, but then require high abstraction and discretionary implementation, offering very little certainty and predictability. Alternatively, as has increasingly happened, laws that cover large jurisdictions can focus on providing certainty and unity on paper, but become too specific to be adapted to local circumstances and thus become highly challenging to implement. Following Heller's famous book, we may call this the law's Catch-22. If we make a specific certain and unitary law that looks good on paper, it has less effect in reality. If we make an abstract law that may have an effect in practice, it will neither look good on paper nor provide unity and certainty. This will result in (spatial) legal failure because of the spatial dislocation of modern state law and local norms, which cannot be fully solved because of the law's Catch-22. To illustrate this point further, the next sections look at Otto's critique of De Soto's discussion of legal failure.