David Graeber died suddenly earlier this month. An anthropologist by trade, Graeber was a theorist of almost unfathomable breadth and depth who, because of his welcoming and good-humored style, was also widely read and appreciated by non-academics. Debt, his magnum opus, is that rarest of birds: an electrifyingly original work of social theory that almost any curious person will enjoy. It’s certainly the book that played the biggest role in making me the (proto-)academic I am today.
I’m not sure how well known Graeber’s work is in the LPE world.
Money folks probably know at least some. After all, as Matthew Zeitlin explains at the New Republic, Graeber has played a powerful role in the battle against the economist’s fairytale about a “neutral” form of money arising out of barter (on which, see also Christine Desan here at The Blog). And his writing on money, debt, and value have had a deep influence on even very widely read political economists.
But the importance of Graeber’s work goes well beyond money and debt. In my view, anybody interested in building up a renewed legal realism that can stand up to not just law-and-economics but also the updated formalism of liberal analytic moral/legal theory would be well served to familiarize themselves with his writings.
One article in particular comes to mind:
The piece I link there is called “Fetishism as Social Creativity”. In it, Graeber draws from anthropological and philological research on the origins of the term “fetish” to explore the paradox of social creativity: that “human beings do create new social and cultural forms all the time” but that, when they do so, it is nearly always to serve goals that have “come to be formed through the very institutions they [and previous generations of humans] create”.
What does the former have to do with the latter? Well, “fetish” is a term that can be traced to one of the most important moments in the creation of the modern world: early European encounters with the people on the Gold Coast of Africa. Portuguese merchants encountered the practice, common to several communities on the Guinean coast of Africa, of initiating a social relationship—a marriage, a truce, a business deal—by swearing an oath and invoking the power of some trinket to inflict punishment should the oath be broken. Traders participated in this tradition, labeling it and the objects it employed with the Portuguese word feitiço. In the pidgin that developed in that polyglot space, fetisso (then, once the Dutch got involved, fetiche, fetich, fattish, and other iterations towards fetish) became a shared word and cultural form.
Accounts of these practices captured the imagination of many philosophers back on the European mainland by way of bestselling travelogues. In the eighteenth century, African “fetishism” came to be interpreted as worshipping whatever happened to be nearby, and “fetishism” more generally became a term for superstitious beliefs in the power of material objects. Early theorists of religion, inevitably placing Christianity at the top of their hierarchy, treated “fetishism” as a primitive form of pre-religiosity the practitioners of which failed to distinguish the spiritual from the material domain.
Yet once centuries of exoticization are dusted off, the African practices of “fetish” should look familiar and should have looked familiar to the Europeans confronting them. Rituals, including rituals that attach deep moral and spiritual significance to material objects, precede entry into marriages, truces, and alliances to this day. When rituals precede entry into commercial agreements—e.g. a seal or a signed writing or (more tenuously) bargained-for detriment—contract scholarship calls them “formalities”. (Not to mention wedding rings, swearing on Bibles, etc.). Though we live in a largely disenchanted world, many of us—including many atheistic moral philosophers—feel that by breaking an agreement one has created a disturbance in the not-quite-material moral universe that might come to haunt us in some way we cannot quite explain.
Indeed, in Graeber’s interpretation fetishism is an inevitable characteristic of human cultures. It is “at root, our tendency to see our own actions and creations as having power over us.” The fetish rituals on the west coast of Africa in the fifteenth and sixteenth century did involve superstitions and mistaken cosmologies, but much of their power—and the discomfort they caused among Europeans—derived from their embodiment of the universal uncanniness inherent in the binding feeling of social obligations that are the product of our own hands. Fetishes “were both human creations and alien powers, at the same time….The remarkable thing is how much, even when the actors seem perfectly aware that they were constructing an illusion, they also seemed aware that the illusion was still required.”
Accordingly, the creation of the category of “fetish” and the development of a whole theoretical tradition to demean it was a sort of defense mechanism for Europeans to avoid confronting the uncanniness of social creativity and the arbitrariness of their own practices. They did not want to confront the possibility that the bindingness of obligations, of social institutions, of law, could derive from their own power rather than that of an all-seeing, all-knowing God.
What most disturbed Europeans about African “fetish” practices is what Graeber thinks is most attractive about them: their “improvisational quality”–using “whatever object happens to be lying around” to create a binding obligation simultaneously acknowledges the necessity of feeling that the bindingness of our social power must somehow come from something other than ourselves and that it cannot come from anything else. “A fetish is a god under process of construction.” As Graeber explains: “Fetishism is the point where…objects we have created or appropriated for our own purposes suddenly come to be seen as powers imposed on us, precisely at the moment where they come to embody some newly created social bond.”
Graeber’s lesson is not that once we see the arbitrariness of our institutions we should come to realize that we have no obligations to each other and disobey anything that do not fully endorse in the moment. Rather, to borrow a trick from the Marxian account of (commodity) fetishism: we should not become alienated from our own (social) labor. We create/reproduce the social forms that shape our lives, and we can recreate them in an infinite number of ways. But that does not mean social forms do not have power over us. There is no way to create a world without social forms that are somehow outside of our power.
This account–to the extent I have done it any justice–names exactly the sort of dynamic that the American Legal Realists and their allies in Europe were getting at.
Realism is often treated as a pure form of functionalism: the internal logic of socio-legal forms should be ignored in favor of asking how a given legal rule serves broader policy goals. Law and economics has claimed the mantle of realism under this guise: all legal rules should be seen as instrumental to the maximization of an exogenously defined social welfare function. CLS has done so in a different way: taking legal forms too seriously is a form of false consciousness to avoid confronting the real, deep, existential-moral question of how to strive for a society totally free of alienation and domination. When liberal legal theorists talk about realism, it is usually just the slogan “every legal question is actually a policy question” that they have in mind.
Graeber’s essay on fetish should help to encourage the alternative possibility that being against the reification of existing legal forms is not to abandon the importance of forms altogether. Doing so requires embracing paradox, but the paradox is merely a feature of living in a world of our own creation. We need illusions and performances even if we know they are “only” illusions and performances.
It is not a coincidence that Karl Llewellyn, on page 454 of “A Realistic Jurisprudence: The Next Step” calls the “realistic” approach to legal analysis “of a piece with the work of the modern ethnographer.”
What Lewellyn was after was a way to make sense of the fact that legal practice depends on dividing up the world into relatively stable social forms and yet it must avoid the “tendency of the crystallized legal concept [or form] to persist after the fact model from which the concept [or form] was once derived.” What is required, then, is “constant back-checking of the category against the data, to see whether the data are present in the form suggested by the category-name.” For example: does the legal form/concept “employee”, developed, as it was, with certain assumptions about how industry would be organized, still serve in a fissured world when those assumptions no longer hold (assuming they ever did)?
Graeber goes much further than Llewellyn does–a different both of disciplinary and political proclivity. He wants not just a more flexible form of jurisprudence (which an older Llewellyn would refer to as “The Grand Style”), but a world more like that which existed on the northwest coast of Africa before the Europeans pillaged it:
a world of almost constant social creativity; in which few arrangements [are] fixed and permanent, and, even more, where there [is] little feeling that they really should be fixed and permanent; in which, in short, people were indeed in a constant process of imagining new social arrangements and then trying to bring them into being. Gods could be created, and discarded or fade away, because social arrangements themselves were never assumed to be immutable.
I’m sure that sounds attractive to at least some LPE-ers as a description of what legal analysis should become. If so, I recommend Graeber’s work to you.
Rest in power.
