The Anthropology of Legal Form: Ethnographic Contributions to the Study of Transnational Law

Abstract

For most of legal anthropology’s existence as a distinct subfield, ethnographers have studied the function of law rather than its form. With the proliferation of neoliberal technologies of governance, however, anthropologists are increasingly turning to law’s form. This article surveys the anthropology of legal form and its contribution to the study of transnational law and governance. In taking legal form as the object of ethnographic inquiry, legal anthropologists examine the material, sensory, and symbolic dimensions through which law is recognized. Such an approach analyzes how power operates not through law’s substantive meanings but, rather, through its aesthetic dimensions. Current anthropological scholarship has illuminated the diverse ways in which the technical and formal aesthetics of law operate to foreclose political contestation. I argue, however, that the aesthetics of legal form may also be mobilized to render power relations visible and open to challenge amidst proliferating forms of neoliberal governance. Drawing on ethnographic fieldwork within one arena of global governance—the UN Committee on World Food Security—I illustrate how activists draw on the aesthetics of rights to illuminate inequalities and politicize governance processes. In doing so, I suggest that greater engagement with Jacques Rancière’s political theory of aesthetics can deepen anthropological insights into the power of legal form in the context of transnational law and governance.

INTRODUCTION

Today’s global legal landscape no longer corresponds to the conceptual maps of liberal legalism. Decolonization and neoliberal globalization have blurred the boundaries between public and private, giving rise to new configurations of law and politics that scholars have variously called “transnational law” (Jessup 1956) and “transnational governance” (Djelic and Sahlin-Andersson 2006). These terms signify a shift away from the state-centered hierarchical order imagined through public international law to a more pluralistic world in which rival actor networks compete to establish authoritative rules and norms (Slaughter 2005; Grewal 2009; Golia and Teubner 2021). As scholars seek to chart the changing cartographies of power in this context, they are returning to fundamental questions about the meaning, forms, and role of “law” in the global context.

As in previous eras when scholars have sought to map new legal terrains, legal and anthropological scholarship has increasingly converged—a reminder of what Clifford Geertz (1983, 170) once called the “family resemblance” between the two disciplines. Then, as now, anthropologists and legal scholars are “raiding” each other’s disciplines for empirical and conceptual insights. On the one hand, transnational legal scholars are increasingly embracing legal pluralism to account for the proliferating forms of regulation through which power now operates. These scholars have adapted the theory of legal pluralism not only as a descriptive concept to chart the proliferation of multiple legal systems in a single social field (Merry 1988, 870) but also as a normative framework to theorize—albeit in different ways—the function of law (Michaels 2009; Krisch 2010; Zumbansen 2010; Berman 2012, 2020). On the other hand, just as lawyers are giving up their fixation with legal form, anthropologists are increasingly interested in the specificity and agency of it. This turn from studying legal function to legal form reverses a long history within anthropology, in which scholars have focused on the substance and processes of law rather than law’s form. Yet as anthropologists increasingly engage in the sphere of transnational law and governance, they are drawing on new theoretical tools not to ask “what is law?” but, rather, to inquire about the material, sensory, and symbolic conditions through which “law” is represented, recognized, and resisted.

This article surveys the emerging anthropology of legal form and its contribution to the study of transnational law and governance. In taking legal form as the object of ethnographic inquiry, legal anthropologists investigate not only formal legal texts and doctrine but also the material, technical, and symbolic dimensions of law. By examining the aesthetic conditions through which “law” acquires meaning and force, ethnographic studies offer critical insights into the changing ways in which power operates in the global legal and political landscape. In doing so, much ethnographic scholarship has followed in the footsteps of legal realists by revealing how formalism and technical legal mechanisms mask contingent values and foreclose political debates. However, I illustrate how ethnographic studies of legal form can also illuminate how legal forms can operate to make relations of power visible and open to contestation. Drawing on Jacques Rancière’s (2013, 2015) political theory of aesthetics, I show how the formality of rights can serve to disrupt the depoliticizing aesthetic logics produced by proliferating forms of neoliberal governance.

To illustrate the different ways in which ethnographic approaches to legal form may contribute to the study of transnational law and governance, I survey four approaches that anthropologists have developed. The first focuses on legal materiality, particularly on documents as objects through which law is produced and known. The second focuses on what Annelise Riles (2005, 976) describes as the “technical aesthetics of law” and the ways in which doctrinal techniques may simultaneously be presented as transparent, while also concealing power relations. The third examines how legal technologies such as indicators and soft law are imbued with authority through the technical aesthetics of quantification. Each of these approaches examines how particular assumptions, social values, and forms of knowledge are encoded with power through the aesthetics of legal form. The fourth approach, which I elaborate through my own ethnographic fieldwork, examines how actors draw on legal aesthetics to politicize multi-stakeholder governance, a proliferating form of transnational governance that invites “all affected stakeholders” to collaboratively engage in the development of norms and standards (Gleckman 2018). Promoted by corporate leaders as part of a vision “stakeholder capitalism” (Schwab 2021), multi-stakeholderism is seen by grassroots movements as a new technology of neoliberalism (Brennan, Gonzalo Berrón, and Paranhos 2021). By attending to the aesthetics of legal form within the United Nations (UN) Committee on World Food Security (CFS)—a highly contentious arena of global governance—I show how activists draw on legal language and the claim of the right to food to reconfigure political space foreclosed by the representation of the arena as a multi-stakeholder forum. This final approach attends to the often-overlooked spatial and temporal dimensions of legal form through which power is constructed and contested. Taken altogether, this article shows how ethnographic analyses of legal aesthetics are indispensable for understanding the contemporary exercise and operation of power in an era when the symbolic orders through which power were once made intelligible are transforming.

FROM FUNCTION TO FORM

Debates over legal form have typically been the province of legal theorists. Philosophers have debated the virtues of rules versus standards as well as whether the “rule of law” should be defined by form or moral content (Fuller 1941; Dworkin 1967; Weinrib 1993). In the late nineteenth and early twentieth century, European anthropologists shared Eurocentric notions of legal form, crafting theories of civilization that tied human development to the adoption of particular European legal forms (Maine 1888). In the early twentieth century, however, as legal formalism reached its zenith and legal realists began rebuking “legal formalism,” anthropologists also began to turn away from a concern with legal form. Anthropologist Bronislaw Malinowski rejected the conflation of law with the forms it took in Euro-American societies, famously arguing that all societies had “law” and that “law ought to be defined by function and not by form” (quoted in Comaroff and Roberts 1986, 11). Like legal realists, anthropologists increasingly focused their analyses of law on the operation of law in action, examining how law shaped inequalities and power relations. In the 1970s and 1980s, this aversion to legal form was strengthened as socio-legal scholars and anthropologists adapted the concept of legal pluralism from the colonial context and developed a decentered approach to law that focused on the processes through which social control, domination, and resistance operated (Moore 1973; Merry 1988). When legal form did reemerge as a topic of socio-legal inquiry in the 1970s and 1980s, it was mostly from the vantage of critique—that is, as a framework to study the reproduction of capitalist relations of power (Balbus 1977).

While the processual orientation of anthropology and socio-legal studies remains a productive framework to assess how law shapes domination and resistance in the global context (Merry 2006; Canfield 2018), anthropologists and socio-legal scholars have recently begun to point to the limits of its explanatory power. Sida Liu (2015) argues that socio-legal scholarship’s focus on the substantive aspects of law reproduces a set of progressive political horizons rooted in the American context that may be ill-suited to other social and political contexts. Moreover, he suggests it has stymied theoretical insights into law and legal form that may be of more cross-disciplinary, cross-cultural relevance. Likewise, anthropologists have turned from studying the substance and function of law to its forms. In seeking to reinvigorate a cross-disciplinary and cross-cultural analysis of the nature of law, Fernanda Pirie (2013, 223) calls on anthropologists to study legalism: “a style of thought identified by its form rather than its functions; it is explicit in its use of categories and distinctions, propositional rather than tacit, not demanding of judgment, and it often seems removed from the practices of daily life.” Studying legalism, she argues, enables anthropologists to examine the specificity of what gives “law” its power across cultures and can contribute to the philosophical project of distilling law’s essential characteristics. In a different, but similarly form-centered approach to law, Annelise Riles (2004, 2005) suggests that anthropologists should focus on the “technical aesthetics of law” and the “agency of legal form” to examine how particular forms of thought and representations shape knowledge and regulate relations. Across several fields of law, Riles has shown how legal tools and legal doctrine may serve as objects of ethnographic inquiry. Building on these insights, anthropologists have illuminated the centrality of legal form in the transformation of borders (Kahn 2019), the circulation of legal documents (Bernstein 2018), the power of law enforcement (Fuchs 2020), and many other contexts described below.

This study of legal form is not restricted to anthropology; legal theorists are also embracing an aesthetic approach to legal analysis. Legal aesthetics encompasses a variety of disciplinary and doctrinal approaches that attend to the sensory, visual, auditory, material, and morphological dimensions of legal form (Douzinas 2000; Manderson 2000; Gearey 2001; Schlag 2001; Dahlberg 2012; Giddens 2019). Aesthetic approaches inquire into how “law” is constituted—how it is known, sensed, and identified as law and what makes it different from “non-law” (Fischer-Lescano 2016). In the past, philosophically oriented legal scholarship has considered how legal form is related to larger conceptions of beauty and justice (Llewellyn 1942; Schwartz 1987). But contemporary scholarship on the aesthetics of law has shifted away from seeking to define law to instead conceptualize the dynamic ways in which law “orchestrates its appearance” and stages its authority (Philoppopoulous-Mihalopoulos 2019). This rethinking of aesthetics has provided a conceptual and methodological framework that is well suited for empirical scholarship. Ethnographers and other empirical socio-legal scholars are increasingly adopting aesthetics as a framework to ask: what forms and qualities encourage discourses, norms, and technologies to be recognized as “law”; what are the social and political effects of recognizing a norm as “law” or law like; and how do actors draw on different aesthetic qualities and forms of law to exercise power?

THE AESTHETICS OF LEGAL FORM IN TRANSNATIONAL LAW

In the context of transnational law and governance, aesthetics offers a productive analytical perspective through which to understand how power operates. As described earlier, decolonization and neoliberalism spurred the proliferation of new institutions, technologies, and processes of governance that have blurred the boundaries between law/politics, public/private, state/market on which liberal legalism and public international law were once erected (Anghie 2007; Canfield, Dehm and Fassi 2021). These boundaries or “walls of separation” not only reflected normative assumptions and values (Walzer 1984), but they also provided an aesthetic framework and symbolic order—a set of representations through which society acquires meaning and political control is conceptualized (Lefort 1986). The rise of transnational law and governance represents a “mutation” of liberal legalism’s symbolic order. As Matthias Lievens (2015, 12) suggests, through new forms of governance, “power has been (symbolically) dissolved into a network without a center.”

Scholars from across disciplines are therefore turning to aesthetics to critically analyze the dissimulation of power relations in these changing political and legal forms (Swyngedouw 2010; Kompridis 2014). In doing so, many have turned to the ideas of Rancière, who has placed aesthetics at the center of political analysis. He describes aesthetics as “a system of a priori forms determining what presents itself to the sense of experience … a delimitation of spaces and times, of the visible and the invisible, of speech and noise that simultaneously determines the place and the stakes of politics as a form of experience” (Rancière 2013, 13). Rancière’s conceptual approach to political aesthetics is shaped by a distinction that he makes between what he calls the “police” and “politics.” The former, he argues, is the governing distribution of the sensible that renders who and what are visible. The latter is a term he reserves for the events in which the reigning order is unsettled and egalitarian democracy is made possible. Politics, he argues, “before all else, is an intervention in the visible and the sayable” (Rancière 2015, 36). Politics serves to re-disclose and re-distribute the sensible, thereby creating new conditions of possibility. As he explains, “politics, rather than the exercise of power or the struggle for power, is the configuration of a specific world, a specific form of experience in which some things appear to be political objects, some questions political issues or argumentations and some agents political subjects” (Rancière 2011, 7). For Rancière (2005), the aesthetic distribution of the “police” is spatial and temporal in its organization. It is by disrupting space and time that people apprehend their “place” in society.

In the networked context of transnational law and governance, Rancière offers a framework that attends to the dynamic and aesthetic processes of sense making. Socio-legal and anthropological scholarship has already been attentive to the spatial dimensions through which law constitutes power relations (De Sousa Santos 1987; Blomley 1994; Darian-Smith 1999; Benda-Beckman, Benda-Beckman, and Griffiths 2009; Delaney 2010) as well as its temporality (Greenhouse 1989; Mawani 2014; Merry 2014; Valverde 2015). But it is in applying these insights to understand the aesthetics through which “law” acquires meaning and force in the transnational context that ethnographic scholarship can offer new insight into the ways in which power is constituted, concealed, and contested.

ETHNOGRAPHIC APPROACHES TO LEGAL FORM

In analyzing the aesthetics of legal form, legal anthropologists have adopted multiple approaches and objects of ethnographic inquiry. Such scholarship has often focused on the way in which technical and formal legal mechanisms depoliticize conflict and internalize contested values and assumptions. Though such scholarship is important, particularly in the context of transnational law and governance, drawing on the framework of critical political aesthetics can also open up ethnographic scholarship to other uses and approaches of legal form. Here, I review four ways in which anthropologists have approached the ethnography of legal form in the context of transnational law and governance. Though only some of the analyses I describe explicitly draw on an aesthetic framework, each has yielded productive insights into the agency of legal form and, in some cases, could be enriched by more deeply attending to the aesthetic dimensions of the forms studied.

First, anthropologists have examined the aesthetics of physical forms and documents. An aesthetic approach to documents focuses on the “presentation, structure, and style of legal documents rather than just on their intentional meaning” (Manderson 2000, 56). Anthropologists have recently grown interested in documents as artifacts of bureaucracy. Much of this research has focused on documents as they relate to the production of bureaucracies in national contexts (Hull 2012a, 2012b; Göpfert 2013; Mathur 2016). However, anthropologists have also described how the aesthetics of documents plays a constitutive role in UN human rights bodies. For example, in her ethnographic analysis of UN conferences, Annelise Riles (1999) describes how documents play a key role as an “enabling technology” and knowledge practice through which the “international system” is constituted.

Julie Billaud (2015) illustrates this in her ethnography of the Universal Periodic Review (UPR) of the UN Human Rights Council. She describes the culture of the UPR as a “a sociality organized by form where content fades away behind the aesthetics of logic and language, producing acceptable modes of impartiality” (Billaud 2015, 82). Billaud is especially attentive to the temporal dimensions through which documents are created. She describes how “the pressure to ‘get things done’ on time had the effect of making meaning disappear behind the profusion of information to process” (68). By paying attention to the aesthetics of documentation, she illuminates how those working behind the scenes to produce the UPR use the process of documentation to reproduce the UPR’s core principles of transparency, non-politicization, and neutrality by masking the exercise of power. Drawing on Rancière, Billaud argues that the aesthetics of documents in the UPR thus aim to evacuate “the dissensus that is necessary for the opening of an interval for political subjectification” (81).

Second, anthropologists have examined the aesthetics of technocratic legal knowledge. Legal doctrines and technical legal knowledge produced by jurists and legal scholars have become important objects of ethnographic analysis. In her call for the “cultural study of law,” Riles (2005) describes how legal forms are endowed with agency through the technical aesthetics of legal thought. She encourages anthropologists to take the doctrinal work of legal scholars as objects of ethnographic inquiry. As she argues, the technologies of legal doctrine “come into being in order to overcome the political and epistemological limits of existing knowledge, and, hence, these technologies are best understood quite literally as politics by other means” (Riles 2005, 986). Riles (2004, 2005, 2011) has demonstrated this approach through ethnographic analyses of property, conflict of laws, and, most recently, collateral. She argues that legal doctrine has “a purposeful poverty of expressive capacities,” which “is precisely the engine of its success” (Riles 2005, 1028). In other words, it is through the avoidance of signification that legal doctrine hides behind technical language, depoliticizing its content and thus maintaining the governing distribution of the sensible. In the context of transnational law and governance—where experts often acquire authority by appealing to technical knowledge—Riles illuminates the necessity of unraveling the epistemic and aesthetic dimensions through which legal doctrine operates as a regulatory technology and exercises power.

A third way that anthropologists have analyzed the aesthetics of transnational governance is through technologies of soft law. Much of this scholarship has focused on how activists, bureaucrats, and reformers have turned to indicators in an effort to assert authority through quantification. Mary Poovey (1998) describes how making numbers seem objective and value free was a project of modernity. In the context of neoliberalism, anthropologists have pointed out how numbers have taken on new significance, submitting law to economic rationality (Anders 2008; Supiot 2017). Sally Merry (2016) illuminates the power of quantification in her study of indicators developed to measure violence against women and sex trafficking. She describes how indicators are produced to promote the myth of objectivity, which conceal the distinct theories, values, and assumptions embedded within them. Like the technical domains of legal theory that Riles examines, Merry argues that indicators “camouflage the political considerations that shape the collection and representation of data” (20). Studies of indicators, like Merry’s, reveal how legal reformers have turned to the cultural aesthetics associated with numbers to endow culturally contingent values, assumptions, and theories with authority.

Not all forms of soft law and indicators seek to replicate the objectivity of formal law. Anthropologists have also described how soft law can be endowed with different aesthetics that are embedded with their own meanings, values, and symbols. For example, in his analysis of the soft law deployed in the European Union’s (EU) cultural policy, Jeff Katcherian (2010) shows how soft law is not just an alternative to hard law as many socio-legal scholars suggest (Abbott and Snidal 2000; Shaffer and Pollack 2009). Rather, he shows how the EU’s forms of soft law reflect an “openness of form” that is inherent in the European project and its approach to culture.

Finally, a fourth area, which has yet to be developed, examines how actors draw on the aesthetic features of legal form to politicize conflicts and disputes suppressed through neoliberal governance. The ethnographic scholarship of legal form that I have described above illuminates the ways in which the aesthetics of legal form are used as techniques of depoliticizing governance. Ethnographers therefore see their interventions as making visible the assumptions and ideas occluded by the technical aesthetics of legal form or those embedded within legal documents. By contrast, I ask how legal aesthetics can serve to redistribute the sensible and make the work of politics visible. The potential of mobilizing law to produce what Rancière (2015, 69) calls “dissensus”—“a dispute over what is given and about the frame within which we see something as given”—would seem to strike against much critical legal and socio-legal thought. Indeed, many scholars have argued that claims for rights reproduce liberal legal ideology (Brown and Halley 2002; Boonen 2019) and depoliticize conflicts over distributive arrangements (Englund 2006; Moyn 2018). However, in the context of neoliberalism—a rationality and political program that aims to dispel dissensus by “plugging intervals and patching up any possible gaps between appearance and reality, law and fact” (Rancière 2015, 72)—actors may draw on the aesthetics of legal form to reanimate these gaps. In ethnographic research that I conducted in the CFS, I show how social movements mobilize the right to food to produce dissensus and reanimate the antagonisms foreclosed by neoliberal governance.

GLOBAL FOOD GOVERNANCE AND THE POLITICS OF LEGAL FORM

The CFS has emerged as a site of contentious conflict over the structure and practice of global governance. Founded in 1974 in the wake of a global food crisis, the CFS was for many years a largely technical intergovernmental body that was overshadowed by other institutions and global initiatives to address global hunger. However, when the global food and financial crisis of 2007–8 laid bare the failures of neoliberal policies, transnational social movements successfully advocated to reform the CFS. The reformed structure of the CFS made it one of the most innovative and inclusive governance bodies across the UN system (Duncan 2015; McKeon 2015; Gaarde 2017).

My fieldwork in the CFS began three years after the reform process. In 2013, I attended my first CFS annual, weeklong meeting. Since then, I have attended five more of these meetings and participated in intersessional work through working groups and civil society networks. Given that many activists promote the CFS as a potential model of democratic global governance, my interest has been in the ways in which social movements and non-governmental organizations (NGOs) participate in and influence the CFS as well as in what the CFS can tell us about the mutating forms of law and governance. What has struck me since my first time attending the CFS is that, although activists have lobbied vigorously for their inclusion in the CFS, they are constantly preoccupied that their participation is being co-opted by powerful actors in the CFS, a concern that I have come to recognize is about the aesthetic and symbolic representation of power relations in the CFS.

The reform of the CFS transformed its structure, setting up an enduring tension. Though it remains an intergovernmental body in which states are the primary voting “members,” it now includes “a broad range of committed stakeholders.” Civil society groups and the private sector were invited to participate in agenda setting and policy-making processes through two autonomous mechanisms—the Civil Society and Indigenous Peoples Mechanism (CSM) and the Private Sector Mechanism (PSM). The inclusion of these actors as “stakeholders” enabled the CFS to claim the legitimacy to govern global food systems. Indeed, it rebranded itself as “the foremost inclusive international and intergovernmental platform for all stakeholders to work together to ensure food security and nutrition for all.” However, it also set up a tension over how to represent where power, authority, and responsibility lies.

Social movements and civil society fear that their designation as “stakeholders” diminishes their voices by putting them on equal footing with the private sector. They argue that this model, in which “all affected stakeholders” have an equal voice, is a market-oriented model of governance that fails to recognize the differential responsibilities, needs, and obligations of different actors. As one of the staff members of the CSM explained to me, the problem with multi-stakeholderism is that “not everyone has a steak to eat.” He told me that “the basic assumption is that [corporations] are actually on the same footing as we are. And this is absolutely a misconception. They do not represent the excluded; they do not represent the small-scale food producers. They do not represent those that have been excluded traditionally under national, regional or global level.”¹ Members of the CSM challenge the representation of the CFS as a multi-stakeholder arena, describing it instead as a “multi-actor” body and a model for inclusive multilateralism that emphasizes the accountability and decision-making power of states.

Private sector participants and the powerful states that support them, however, embrace the language of multi-stakeholderism. For multinational corporations, the language of stakeholders is intended to bolster their legitimacy, subvert coercive state regulation by promoting voluntary alternatives, and subdue resistance to their operations. Indeed, the multi-stakeholder framework of governance was initially developed by scholars of corporate management to refigure the relationships between states, societies, and corporations (Freeman 1984). The World Economic Forum—the Davos-based organization that promotes the interests of the world’s largest corporations—has sought to redesign global governance through the multi-stakeholder model to maintain the corporate sector’s influence in the face of increasing resistance to neoliberalism (Gleckman 2018). Klaus Schwab, the founder of the World Economic Forum promotes multi-stakeholderism as part of the “great reset” to build “stakeholder capitalism” (Malleret and Schwab 2020; Schwab 2021).

International institutions are also embracing multi-stakeholderism. Though the formal structure of the CFS maintains that states are the only official voting members, many leaders of the CFS have used the language of multi-stakeholderism in an effort to cultivate legitimacy and thus voluntary compliance with the CFS’s policy recommendations. In 2019, for example, the chair of the CFS opened up the annual meetings by describing the reform of the CFS and its significance as a “multistakeholder platform.” He told the plenary that “[w]hen, in 2007/2008, another global food crisis necessitated a fundamentally different approach, CFS was transformed into a multistakeholder platform which is a revolutionary advancement in United Nations architecture where governments, civil society, the private sector, scientists and others now sit together as partners and we are, for the first time ever, sitting together here in this room today.”² In evoking the language of “partnership,” the chair represented the CFS through a horizontal spatial aesthetic in which all actors participate as equals in the CFS.

As global philanthropies and multinational corporations have sought to establish the multi-stakeholder framework as the primary paradigm for contemporary global governance in food and agriculture, social movements and civil society organizations have become increasingly alarmed.³ In 2018, this debate over multi-stakeholderism came to a head during the CFS’s annual meeting when the committee’s High Level Panel of Experts (HLPE) released a report about the efficacy of multi-stakeholder initiatives. During the discussion, a representative from a UK-based NGO that the CSM had nominated to speak on its behalf spelled out a clear critique of multi-stakeholderism. She explained to the assembled representatives from countries, the private sector, and civil society that “[a]t every turn we see the promotion of multistakeholder partnerships as the answer to malnutrition. … We believe this is a huge risk and that takes us in entirely the wrong direction. Indeed, we see the risk of governments and the United Nations being reduced to the role of facilitator, rather than the primary actors in address[ing] malnutrition.”⁴ In response, a speaker from the PSM took the occasion of critique to reaffirm the importance of “inclusivity”: “This highlights the critical need for cross-sectoral and holistic approaches pulling together the resources and expertise of different stakeholders in the achievement of food security and nutrition … PSM believes that effective and practical partnerships should be inclusive or diverse approaches in addition to public and private partnerships.”⁵

The celebration and proliferation of multi-stakeholderism as a form of inclusive governance even in the context of profound conflicts and unequal power relations is why critics have charged it as being a form of neoliberal rule that is “post-democratic” and “post-political” (Swyngedouw 2011; Wilson and Swyngedouw 2015). The language of stakeholders and consensus mobilized by powerful actors conjures a political aesthetic that flattens hierarchies and dispels competing representations that seek to recognize the place of power. Rancière describes consensus as a hallmark of “the police,” an attempt to expel the sense of politics or disagreement.

In opposing this aesthetic, members of the CSM have sought to challenge this representation. Over the past five years, they have sought to make a distinction between “stakeholders” (which they reserve to describe the private sector) and rights holders, which they consider themselves. In 2018, when the HLPE’s report on multi-stakeholder platforms was published, the CSM released a statement in response to their growing alarm at the “stakeholderfication” of the CFS. Their statement, entitled “It’s Time to Recommit,” called on governments to “defend and support the human rights mandate of the United Nations.” They declared: “We, the people, are the most critical agents for change. We are the organizations of the rights-holders while governments and intergovernmental institutions are duty-bearers. We are the most important producers, processors and providers of food and nutrition worldwide. National, regional and global public policies have the potential to influence either positively or negatively the environments in which we and our communities live and work.”⁶

In mobilizing the language of human rights—specifically, the human right to food—activists seek to disrupt the aesthetic representation of governance advanced by powerful actors. One might expect the language of human rights to be relatively uncontroversial within a UN forum, yet it is surprisingly contentious. Powerful governments have consistently sought to remove references to human rights in policy recommendations. In 2013, in negotiations over a set of policy recommendations on biofuels—a highly contentious topic because of their role as a key cause of the 2007–8 global food crisis—I watched as the Canadian delegate brazenly refused to include reference to human rights promoted by the CSM. “Canada won’t just accept language lifted from [prior CFS documents] even if we agreed on it. The right to food is not an agreed and established right in the same way as an international declaration,” the delegate said bluntly.⁷ Such statements denying the legality of the right to food have become increasingly common. Though it is widely agreed that the right to food is a human right, powerful actors’ resistance to its inclusion reflects their effort to maintain a political aesthetic of voluntary, horizontal, market-centered governance, one that evades the duties and responsibilities that rights language entails and instead affirms the model of governance in which formally equal stakeholders pursue consensus. In contrast, by mobilizing the language of rights and declaring themselves rights holders, activists challenge this aesthetic and formal mechanism of representation, thereby seeking to reveal a terrain of uneven power relations.

In observing this constant struggle over the past seven years, it has become clear that social movements’ mobilization of the right to food as a formal legal obligation does not serve as a technical language that seeks to foreclose disputes, as legal formalisms may in other arenas. Rather, the formalism of rights language serves a powerful role in contesting the governing distribution of the sensible in the CFS. Indeed, in mobilizing the human right to food, civil society and human rights experts challenge both the spatial and temporal dimensions of the aesthetic of multi-stakeholderism.

From a spatial perspective, the right to food seeks to disrupt the horizontal aesthetic of multi-stakeholder governance in which stakeholders are represented as formally equal and, instead, to import the hierarchical aesthetic framework of public international law. Although there are multiple aesthetics of law (Schlag 2001), the formalist language of the right to food mobilized by civil society seeks to partition the regulatory space into bounded categories that distinguish between the duties and obligations of parties. For example, activists sought to call on this spatial aesthetic when they declared that “we … are the rights-holders while governments and intergovernmental institutions are duty-bearers” in their 2018 statement.⁸ The imagery corresponds to what Pierre Schlag describes as the most traditional aesthetic of law rooted in the framework of legal positivism, or “the grid.” It constitutes law “as a field, a territory, a two-dimensional space that can be mapped and charted” (Schlag 2001, 1055). For civil society, rights were mobilized to challenge horizontal networked image of governance that disaggregates the framework on which accountability is premised (Catlaw 2009). Through the language of human rights, they sought to clearly distinguish the role of states as the primary duty bearers to uphold human rights and create a clear line of accountability to rights holders.

This spatial aesthetic of law was reinforced through the CSM’s (2018) Report on the Use and Implementation of the Right to Food Guidelines, which was also published in 2018.⁹ In a section entitled the “CSM Perspective on Multi-Stakeholder Platforms,” the CSM noted that it had expressed its position “on many occasions” that multi-stakeholder platforms can lead to “confusion of the roles of states, intergovernmental organizations, civil society, and the private sector.” In particular, the report argued that multi-stakeholderism “lack[s] a clear distinction between public and private interests, which ignores the fundamental differences in the nature, and consequently the roles and responsibilities, of states and, for example, corporations.” In an attempt to rectify this confusion, the CSM drew on the right to food to construct a legal framework composed of distinct spheres of responsibility: “States draw their legitimacy from the people who confer on them a mandate to serve the public interest based on the principle of human dignity and human rights. States are accountable to the people.” The report summed up this critique explaining that “[t]he creation of artificial spaces … risk[s] limiting the role of existing, more legitimate decision-making” (CSM 2018, 35). This emphasis on spaces made plain the spatial frameworks through which activists apprehend power relations.

Activists’ mobilization of the right to food might seem unremarkable given that human rights have become the primary global discourse of social justice (Moyn 2012). But many activists in the CSM have articulated “food sovereignty,” not the human right to food, as their primary collective action frame (Claeys 2015). Their mobilization of this formal legal claim therefore reveals an important temporal dimension through which activists seek to challenge inequalities in transnational governance. As Liu (2015, 20) notes, the temporal dimension of any given aesthetic is just as important as its spatial dynamics: “Temporality contextualizes social processes, gives them a formal shape (e.g. a sequence or a cycle) and links them to a legal system’s macro social structures.” Anthropologists have emphasized the significance of temporality in shaping the authority and power with which governance is perceived. Merry (2014), for example, points out that indicators and other forms of soft law acquire the power of hard law over time as they become more accepted. However, the temporality of legal form works differently in the context of multi-stakeholder governance than it does for indicators. Rather than serving as a sequence, it operates as a cycle, one in which activists tack back and forth between the hierarchical spatiality of human rights and a horizontal imaginary of the network that informs activists’ own practices of cultivating food sovereignty (Canfield 2020).

Anthropologists have described how transnational social movements rely on horizontal, networked forms of organization to cultivate solidarity and prefigure egalitarian democracy (Maeckelbergh 2009). The claim of food sovereignty as well as the CSM both reflect the horizontal structure of the network. The CSM’s founding document describes it as a “space for dialogue between a wide range of civil society actors where different positions can be expressed and debated,” not an institution of majoritarian voting or hierarchical representation (CSM 2010). This emphasis on horizontality helps to maintain collective solidarity of the CSM amidst significant class, ideological, and geographical diversity. Yet while activists embrace the networked model of governance as a tool for movement building, this structure becomes more fraught when adopted in formal arenas of governance. As described above, the CFS’s adoption of the networked structure of multi-stakeholderism has meant that what appeals to social movements about the networked structure—its horizontal and egalitarian structure—also renders them as stakeholders on an equal footing with the corporate sector and diffuses the responsibility of states. As members of the CSM confront the institutionalization of the network form in multi-stakeholder fora, they therefore turn to the hierarchical spatial aesthetic of human rights to challenge the representation promoted by powerful actors. It is for this reason that, as food sovereignty activists participate in the CFS, they mobilize the language of the right to food, not food sovereignty.

This cyclical process in which horizontal and hierarchical spatial frameworks are evoked reveals a dynamic tension inherent in transnational governance. Though new forms of governance enable social movements to participate in global decision making, their horizontal, networked structure also conceals implicit hierarchies (Davies 2011). In seeking to confront and illuminate these hierarchies, activists rely on the hierarchical aesthetic of public international law primarily within formal institutions of governance. As activists move between these various networks, law serves as a tool of socio-spatial struggle through which activists alternatingly pursue both horizontal egalitarianism and hierarchical regulation of powerful actors.

Together, the spatial and temporal dimensions of the right to food play a critical role in activists’ mobilization practices within the CFS. They serve to redistribute the sensible and oppose the symbolic fiction of formally equal stakeholders promoted by multi-stakeholder governance. As Rancière (2015, 37) emphasizes, politics “consists in re-figuring space, that is in what is to be done, to be seen and to be named in it.” Activists draw on formal law to contest what Rancière describes as the “police”—the veneer of consensus promoted by multi-stakeholderism—to refigure space, to illuminate the place of power that remains in the hands of states, and to challenge the inequalities that are smoothed over by multi-stakeholderism (Duncan and Claeys 2018).

Activists’ mobilization of legal form thus differs from how anthropological analyses have understood the aesthetics of legal form. In the CFS, formal law serves to disrupt the aesthetic order produced by neoliberalism and transnational governance by politicizing the “gloss of harmony” of consensus-oriented forms of governance (Müller 2013). Indeed, in this context, formal legality operates as a “weapon of the weak” to redistribute the sensible and open up power relations to contestation (Scott 1987). It also illustrates how the spatial and temporal dimensions of legal form operate as critical dimensions through which power operates (Liu 2015). Indeed, by attending to these aesthetic dimensions of law, we see how the aesthetics of legal form serves to shape power relations in a variety of different ways that are contingent on the political context in which they are mobilized.

CONCLUSIONS

An aesthetic approach to law asks not “what is law” but, rather, how “we see and should see” law (Manderson 2000, 43). While legal theorists continue to theorize the former, social scientists are increasingly turning to the latter—how we see law—in an effort to understand the agency and function of legal form in the shifting context of transnational law. Indeed, it is no surprise that, as neoliberal globalization continues to transform the symbolic order of global law and politics, scholars from across disciplines are plumbing the theoretical resources of aesthetics. As neoliberalism produces an aesthetic-political order based on the model of the market to minimize dissensus, attending to the aesthetics of law thus allows scholars to examine the meanings derived from the form and presentation of law and enables ethnographers to understand the agency of law in one of its most crucial dimensions—disclosing or, alternatively, concealing social relations of power.

Legal anthropologists are well situated to examine the aesthetics of legal form. In this article, I have described three ethnographic approaches to legal form that illuminate how the aesthetics of legal form serve to depoliticize law and governance: the ethnographic study of legal documents, the techniques of legal doctrine and theory, and the quantification of soft law. However, I have also sought to describe how legal categories can be mobilized to politicize what would otherwise be framed as technocratic processes. As I have argued, the CFS offers an example of one arena of transnational governance in which social movements mobilize law to disrupt the neoliberal aesthetic that seeks to suppress political conflict. It reveals how the spatial and temporal dimensions of legal form play a critical aesthetic role in illuminating the cartographies of power within transnational governance.

As legal theorists draw on the concept of global legal pluralism to map the proliferation of norms, the anthropology of legal form reveals the topography of this new terrain. Indeed, the concept of global legal pluralism (and legal pluralism more generally) has been critiqued for commensurating diverse normative forms through what is essentially a liberal pluralist framework (Croce and Goldoni 2015) and for failing to recognize the political dynamics inherent among plural legal orders (Barzilai 2008). Moreover, it remains burdened by legal pluralism’s long-running debates over what to call law. Attending to the aesthetic dimensions of law enables legal anthropologists and other empirical socio-legal scholars to take seriously the question of legal form without falling back on normative assumptions that once plagued anthropological inquiries into the meaning and definition of law. Ethnographically examining the spatial, temporal, and epistemic dimensions of legal form thus reveals how that which is recognized as “law” constitutes power relations in the ever-shifting transnational legal terrain.