Thinking through a legal materialist approach

In the activities of the legal materiality network we have been investigating how particular materials are enlisted within and by law, and their relationships with matters of concern to law. This requires distinguishing between materials and matters, and we have sought to develop working definitions of these terms. Materials may be physical objects, but they also may be intangible, such as techniques (forms and genres) or modes of representation (media). Legal materials are materials that have been enlisted in the making of legal meaning. Meanwhile, matters are problematisations, following Foucault: ‘the set of discursive or nondiscursive practices that makes something enter into the play of the true and false, and constitutes it as an object for thought’.[1] If a matter is transformed into a legal matter through the attribution of legal difference, then it becomes a matter of concern to law.

Building on these definitions, we contend that:

  •  Without legal materials, legal matters are not intelligible to law.
  • Materials are only legal materials insofar as they contribute to the making of legal meaning. The attribute ‘legal’ is not fixed or predermined.
  • Legal materials do not always matter. They may be dormant or untimely, and may come to matter again.

Our forthcoming edited collection in the journal Law Text Culture experiments with these working definitions and approach. In the meantime, here is one illustration of thinking about a particular material in this way:

Sheep

Material: sheep. I begin from a sheep that was offered to a family in the village of Gardez, Afghanistan in the late morning of 8 April 2010. The sheep was delivered by Afghan soldiers, who knelt on it while an Afghan Army mullah began praying as part of an offer of sacrifice.[2] The father of the family intervened, and later recounted to a foreign journalist (present at the request of the family) that the practice was an ‘ancient Afghan ritual’ requesting forgiveness that was difficult to refuse. Also present at the offering was Admiral William McRaven, commander of the US Joint Special Operations Command (JSOC), who entered the family’s house and formally apologised, admitting that his soldiers were responsible for the deaths of their family members. Two pregnant women and at least three other civilians were killed in the village during a ‘night raid’ carried out by JSOC in February earlier that year. Shortly after, NATO suggested they had been the victims of an honour killing in a statement circulated to reporters, claiming that the joint force ‘found the bodies of three women who had been tied up, gagged and killed.’[3]

McRaven

As a legal material, the sheep has multiple valences: among them, as an acknowledgement of wrongdoing according to ‘ancient Afghan ritual’ practice (as described by the individual receiving the sheep), and as an acknowledgement of a mistake by a foreign military in the theatre of armed conflict. The sheep was reportedly supplemented with a payment of $30,000. Is this sheep a legal material, together with the payment? If so, are they (presumed to be) similar kinds of legal materials in this instance, and if so, according to the logic of what jurisdiction? Under what conditions are they enlisted by law? And according to what law? It may be that if the Pashtun ‘ritual’ of nanawatai was considered to be the law governing the scene that unfolded in Gardez from the perspective of the grieving family, and if the family elder felt obliged to accept this felicitous performance of that legal or normative obligation, the sheep would in fact be a ‘legal material’ of nanawatai under the broader ‘legal matter’ of culpability.

Yet whether this is in fact the actual ‘legal matter’ at stake would require more knowledge of the contemporary practice of nanawatai in this region of Afghanistan, and perhaps this particular individual’s view who described it as an ‘ancient Afghan ritual’. Without understanding customary Afghan law nor Pashtun or Dari practices, such a reading runs up against the boundaries of what can be claimed about the legal meaning of this particular practice. Another ‘legal matter’ is a Western legal conception of evidence: the family invited a foreign correspondant and photographer to document the event, and possibly with the impression that an image would be perceived as more credible than direct witness testimony within the optic of a Western conception of reliability. Without legal materials, legal matters are not intelligible to law. Without capturing the image of the sheep, rendering the event durable (in time) and capable of circulation and filing (as evidence), all we have is witness testimony, a legal material that is increasingly regarded as insufficiently reliable, and to be supplemented by new technologically driven forms of evidence.

The sheep may or may not be a ‘legal material’ depending on whether it is interpellated or conscripted by juridical forms. Materials are only legal materials insofar as they contribute to the making of legal meaning. Perhaps my original interest in the sheep as the legal material is because it appeared so clearly as a glaring attempt to bridge distinct legal cosmologies – an effort to translate between seemingly incommensurate normative worlds, where a village could be celebrating an important family event within a broader context of a ‘global war on terror’, and a state actor could attempt a form of redress that appears as a misfire, a miscomprehension, exceedingly inadequate. And yet it reveals something telling about the legal form and the drawing of legal difference: law establishes relations of equivalence through technologies of calculation.[4]

A foreign military power felt it could redress a wrong, harm, or error through the transfer of a non-human body. The offering of the sheep is the physical dimension of McRaven’s apology and admission of culpability for the actions of troops under his command. The image of the sheep and the image of McRaven’s presence above, documented at the request of the family, might serve as ‘legal materials’ if they are used as evidence in a legal process – but in what forum for accountability?

Given that the night raid took place in the context of an armed conflict of an international nature, international humanitarian law would also govern the conduct of the state parties to the conflict – in this instance, the US and Afghan forces carrying out the raid – with principles including proportionality, necessity, and distinction (the obligation to distinguish between civilians and combatants). In this framing the Gardez villagers killed in the raid would not have been lawfully targetable, and their deaths are civilian casualties. There is no clear forum of criminal accountability (a ‘legal matter’) for these arguable breaches of international humanitarian law unless there were to be domestic trials for those responsible for operational decision making before US military courts, or if Afghanistan would appear as a situation before the International Criminal Court (with attendant questions of jurisdiction and admissibility). Legal materials do not always matter. The sheep might become a piece of evidence, a trace of an admission of culpability, if a case were to emerge in one of these forums. But in the absence of active cases (despite investigations carried out by the United Nations and the Afghan government), one might ask what other material traces exist that suggest state negligence and noncompliance with legal obligations.

identifying other materials. If the sheep may be a dormant material for now, perhaps there are other traces of this ‘legal matter’ that appears increasingly as a crime. International humanitarian law seems metaphysical and remote in such contexts, where its manifestation is largely through forms of inscription and recording devices, such as reports concerning state breaches of these obligations enshrined in international treaties, and more recently through popular media platforms.[5] The exercise of thinking of the sheep as a ‘legal material’ brings other materials into view, such as a freedom of information act request to the US Department of Defense to provide an account of the US internal investigation into the deaths in Gardez. Although the government response was largely redacted, the conclusions offer some insights into how the state defense brings together the legal material – the rifle – in a completely decontextualised manner, whereby the rifle holder in a remote area of Afghanistan is always already suspect: ‘the investigation concluded that the U.S. forces were justified in shooting him, as well as his cousin Mohammed Saranwal Zahir, the local prosecutor. The investigators found that the men had showed “hostile intent” because they were armed with rifles.’[6] An investigation into legal materiality that departed from the body of the sheep would then turn to documents, files, the cathected ‘legal material’ of the rifle, and (human) bodies, tracing their relationships with different jurisdictions and juridical priorities.

[1] Michel Foucault, ʻThe Concern for Truthʼ, in Politics, Philosophy, Culture (London: Routledge, 1988), 257.

[2] This account is drawn from Jeremy Scahill’s Dirty Wars: The world is a battlefield (London: Serpent’s Tail, 2013). It also appears in his film bearing the same name. The images above were shot by a foreign photographer accompanying a foreign journalist; both sought to document the event on behalf of the family as evidence that it had occurred.

[3] The 12 February 2010 press release, ‘Joint force operating in Gardez makes gruesome discovery’, is available here. See also popular press coverage.

[4] One wonders how the military settled upon this ‘equivalence’, and the possible role of the US ‘Human Terrain System’, which sought to embed social scientific knowledge in circumstances of armed conflict; see Foreign Affairs and Inside Higher Ed.

[5] See for example the recent documentary Truth Detectives, which claims that ‘[e]quipped with just a cell phone camera, civilians today can call for justice. Networking through social networks makes the whole world witnesses – even to war crimes.’

[6] The Intercept

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s