Legal pluralism within a transnational network of governance: the extraordinary case of rendition.

• Author: Dale, John G.
• Position: Report

1. Introduction

   Nation states organise many functions of governance within transnational networks, and this complicates our understanding of the dynamics of legal pluralism as primarily functioning within national legal systems. Legal pluralists have frequently observed that law is not confined within the coercive power of sovereign states and the international system of states. (See, eg , de Sousa Santos 2003, 2005; Galanter 1981; Griffiths 1986; Merry 1988, 2007; Moore 1986; Rajagopal 2005; Sharafi 2008; Tamanaha 2007; and Teubner 1997)

   Some legal pluralists have documented hybrid or transnational legal spaces, where more than one legal regime operate within the same social field (Moore 1973), and in which law and legal meaning are contested, elaborated, and constructed through the conflict between norm-generating communities (Cover 1992), as well as transnational advocacy networks (Keck and Sikkink 1998), and transnational social movements (Dale 2003, 2007, 2008, and forthcoming; Rajagopal 2005). Legal pluralists have also shown, as in the case of Sally Engle Merry's legal anthropological work over the past two decades, how multiple, overlapping, and interpenetrating legal systems create sites of contestation that can generate legal opportunities not only for resistance but also creative intervention and adaptation that significantly modify or transform legal meaning and practice within an existing plural legal system. (See, eg, Merry 1988)

   Paul Berman has applied a similar framework to the global arena in his effort to make better sense of the hybrid legal spaces that are generated by what he calls the 'global legal system,' which he understands to be '... an interlocking web of jurisdictional assertions by the state, international, and non-state normative communities.' (Berman 2007, p. 1159) He argues that it is the overlapping jurisdictional assertions among these different types of actors within a global, yet multiscalar, legal system '... that creates a potentially hybrid legal space that is not easily eliminated.' (Berman 2007, p. 1159) He notes, '... [t]hese spaces of complex overlapping legal authority are, not surprisingly, sites of conflict and confusion. (Berman 2007, p. 1162)

   Berman's global legal pluralism does not adequately specify why conflict should result from overlapping jurisdictional assertions. After all, these overlapping jurisdictional assertions could as easily result in the mutual reinforcement of all of these actors, authority and elaborate internormative development across these jurisdictions. Yet, as Brian Tamanaha (2007) explains, it is the diversity among these multiple jurisdictional assertions, not the multiplicity itself, that helps make this legal space a site of contestation.

   What makes this pluralism noteworthy is not merely the fact that there are multiple uncoordinated, coexisting or overlapping bodies of law, but that there is diversity amongst them. They may make competing claims of authority; they may impose conflicting demands or norms; they may have different styles and orientations. This potential conflict can generate uncertainty or jeopardy for individuals and groups in society who cannot be sure in advance which legal regime will be applied to their situation. (p. 375) At the same time, Tamanaha (2007) points out, the diversity among these multiple jurisdictional assertions can create legal opportunities for challenging authorities themselves.

   This state of conflict also creates opportunities for individuals and groups within society, who can opportunistically select from among coexisting legal authorities to advance their aims. This state of conflict, moreover, poses a challenge to the legal authorities themselves, for it means that they have rivals. Law characteristically claims to rule whatever it addresses, but the fact of legal pluralism challenges this claim. (p. 375) (1) For Tamanaha, legal pluralism is a social phenomenon that '... exists whenever social actors identify more than one source of "law" within a social arena." (2007, p. 396) This begs the key question that has stumped legal pluralists for over three decades: what is law? Tamanaha offers a simple, yet practical, solution that substitutes the intersubjectivity of a social constructionist perspective for the ever-elusive objectivity of a positivist perspective: '... law is what people within social groups have come to see and label as law.' (2007, p. 396). Tamanaha argues that it is unnecessary to resolve these debates to come to grips with legal pluralism: 'For those interested in studying law and society, what matters most is framing situations in ways that facilitate the observation and analyses of what appears to be interesting and important.' (2007, p. 411)

   From the perspective of international human rights law and United States Constitutional law, many of the practices comprising the Extraordinary Rendition Programme, which the US President George W. Bush's Administration secretly initiated in preparing for its "war on terror" during the immediate aftermath of the September 11, 2001 attacks on the World Trade Centre and the Pentagon, are illegal. However, the Bush Administration has been able to effectively complicate the efforts of activists, journalists, lawmakers, judges, and a growing list of prosecuting attorneys in venues and jurisdictions around the world to hold accountable the Programme to such international and US Constitutional legal standards. This fact has led many commentators to assert that the Bush Administration is a "rogue state executive," as we discuss below.

   In this article, however, we do not attempt to assess the validity of the normative assertions and legal discourse that the Bush Administration has offered in defence of the Extraordinary Rendition Programme, or the validity of its opponents legal claims. Instead, we show how the Bush Administration has constructed, while maximizing the secrecy of it's doing so, a transnational network of state executives, intelligence agencies, corporations (including private military firms and subsidiaries of the largest aerospace companies in the world), professional attorneys, psychologists, interpreters, and academics. We resist conceptually reducing to 'state action,' or analytically conflating with other branches of state action, the practices comprising the Bush Administration's Extraordinary Rendition Programme. Instead, we introduce the concept of a transnational network of governance to describe the social field within which these actors have developed the relations, practices, and discourses (including legal discourse) that have sustained this Programme.

   The concept of a transnational network of governance provides a useful way for thinking through these and related questions. This concept is distinct from Anne Marie Slaughter's (2004) "transnational governmental networks" in that it is comprised not only of state entities but of non-state entities as well. Particularly since the work of Michel Foucault on governmentality, governance has come to denote forms of control, and of producing subjects, that are not limited to, though they may certainly include, the state (Burchell, Gordon & Miller 1991). Instead, governance increasingly, under conditions of globalization, works through a variety of networks, some relatively permanent, others more transitory, that can include, in addition to states, sub-state actors, corporations, professional organisations, and media. These networks of governance traverse the boundaries of the traditional nation-state. Although the state, or some component of it, is often central to these networks, this is not always the case. We use the phrase transnational networks of governance to refer to these governance networks.

   This is an innovative feature of our analytic framework that poses a challenge to most international legal, as well as legal pluralist, approaches. Both of these general types of approaches typically treat the State (although not necessarily its national legal system) as a unified actor. However, to account for the empirical practices of a United States Executive branch of government that asserts normative claims and legal discourse that violate its own state laws and international obligations, but which also has forged a transnational network of foreign-state executive counterparts, we have adopted an understanding of states that does not take for granted their unity, but rather sees them as being capable, at times, of nationally dissembling and transnationally reassembling to pursue particular functions of governance, for example regulating terrorist activity, that are being challenged by newly emerging transnational relations and practices, like those of Al Qaeda. (2)

   In a spirit of global legal pluralism, we attempt to describe and examine this transnational network of governance, and the transnational legal space that it is producing, as an inherently contested terrain of legal discourse. It is a complex transnational social field that also has generated a variety of oppositional legal and normative challenges from state and non-state, domestic and international, as well as local and transnational actors, all of whom now may be analysed as actors attempting to shape and "fix" the still contested legal meanings of the practices constituting the development of this transnational legal space, and that, at least for now, still sustain the Extraordinary Rendition Programme.

   In this article, we examine three general dimensions of the Bush Administration's practices that have prolonged its ability to sustain and develop the Programme. We should emphasize that we conceptualise these as dimensions, not reified, separate spheres, of their practices (including their discursive practices). (See, eg, Emirbayer and Goodwin 1994)

   (1) Politically, the Bush Administration has attempted to use its executive power to build a network of governance that extends its...