What do abused dogs, prisoners tortured in Guantánamo and supermax facilities, and slaves killed by the state have in common? They have all been deprived of their personhood by the law. In The Law is a White Dog, Colin Dayan shows how the law can be used to dehumanize and marginalize, even as it upholds civil order. Dayan puts the topic in historical context, showing how these issues are still prevalent today. In an interview with WFHB Indiana, the author speaks to recent instances of police brutality. Listen for a fresh take on a a timely issue.
In today’s world, expert opinion is particularly revered in political and economic life. But as experts engage one another on a terrain of irresolvable argument, a world of astonishing injustice and inequality is born. David Kennedy’s new book, A World of Struggle: How Power, Law, and Expertise Shape the Global Political Economy draws on his personal experience working with international lawyers, human rights advocates, and an array of humanitarian strategists. The book reveals the power struggle occurring between those who have a stranglehold on the knowledge and those who don’t, arguing that expertise can be used to promote justice rather than inequality. Recently, Kennedy agreed to answer a few questions about his book.
Why a world of “struggle?”
DK: In this book, I try to reframe the international situation less as order or system than as a continual struggle, hence the title, A World of Struggle. When speaking about international affairs, the social sciences often start with conflict – a Hobbesian state of nature or the competitive market of Adam Smith – and then work to explain how things nevertheless turn out well ordered: through a “balance of power” or “invisible hand.” In my picture, thousands of conflicts undertaken by all sorts of people at once generate the world we live in, including terribly unjust things it seems impossible to change. Struggle and conflict are more prevalent and constitutive of our everyday world than we realize.
You write about knowledge and expertise – aren’t economic and military power more important in global struggle?
DK: It’s true, I am particularly interested in the role of ideas. I do think they’re more important than we realize. Although we think of international affairs as an arena of raw power, a great deal is argument and assertion. People drop bombs to “send messages” and transform economic power into a better deal through negotiation. In the shadow of coercion more often than through force.
People in places like Davos or Washington tell lots of stories about the world: stories about what an economy is, what politics can accomplish, about the limits and potential of law. Their stories make some problems visible, some actors central – and others invisible. The technical work people undertake as they struggle in the shadow of these stories arranges the world, distributing wealth, status and opportunity. In the book, I examine big ideas about things like economic development, international law or world trade to understand how they frame and fuel everyday battles for advantage among businessmen, bureaucrats, politicians and citizens.
Are experts too important in world affairs? Lots of people criticize the European Union, for example, as “technocratic” and decry the “democracy deficit.”
DK: Our world is a technocratic one. Experts have lots of authority and it is difficult to change things without speaking their language. And, as we all know, technocratic language is as prone to irrationality, confusion and conflicting objectives as any other. But “expertise” is not the exclusive province of specialists and professionals. All of us, from politicians, to entrepreneurs, to activists speak some vulgate version of languages once owned more exclusively by “experts.” As a result, it is not so clear there is a “political” or “democratic” alternative once democracy and rulership have themselves become technocratic practices.
To me, the problem is not experts run rampant, displacing more appropriate political, ethical or commercial ways of thinking. The problem is all of us – our human capacity for responsible decision and political engagement has been dulled. Or perhaps, like professional talking heads, we’ve all embraced the reassuring comfort of thinking we “know,” rather than face the anxiety of having to choose.
How does your work fit into the literature about “expertise?”
DK: Other studies of “expertise” focus on what makes expert knowledge distinctive. I focus on the continuities between their work and that of many others. Expert knowledge is human knowledge: a blend of conscious, semiconscious and wholly unconscious ideas, full of tensions and contradictions, inhabited by people who thing, speak and act strategically. If you think “expertise” is distinct from politics, you will worry about keeping experts and political leaders in their respective places. At the global level, this constitutional concern is less pressing because there is no constituted political alternative. It really is expertise all the way down. As a result, I worry less about the proper boundaries for expert knowledge and focus instead on the how of expert rule: the modes of public reasoning that arise where practices of power and the articulation of ideas intersect.
What about law? How important is law in world affairs?
DK: Very. People struggle over legal arrangements because they matter. The domain outside the nation is neither an anarchic political space nor a domain of market freedom immune from regulation. The basic elements of global economic and political life – capital, labor, credit, money and liquidity, as well as sovereignty and right – are creatures of law which could be put together in lots of ways. We forget how strange it is that if you own something here, you also own it when you get off the plane elsewhere. Yet, as businessmen and military leaders well know, our international world is the product of intense and ongoing projects of regulation and institutional management. A global production chain is a complex set of legal arrangements, cross-cut by all kinds of formal and informal norms, public and private regulation. Small changes in the rules can shift who wins and who loses.
Law is often at struggle because it distributes: allocating and protecting gains from economic activity or political conflict. Law is also a tool of struggle: I claim a legal privilege to put you out of business; you claim the legal authority to prevent me from combining with rivals to do so. I claim the right to overfly your territory or protect your minorities – or you claim the right to shoot down my plane and attack my humanitarian convoy.
Although we think of law as a source of order – the “legal order” – or as a vocabulary for criticizing government – as with human rights — I focus on the distributive role of law and the resulting push and pull about what it means and how it should operate.
Law does seem to be everywhere today – what has fueled its expansion?
DK: The ubiquity of law owes less to lawyers than to the appetite all kinds of people have for a common and malleable language of engagement. As law has become ever more diverse or plural, it has also become more prevalent. Law’s malleability both encourages people to assert their interests as legal rights – even when their interests are opposed – and opens numerous paths for settlement. The legal vocabulary today is widely available for both ethnical assertion and strategic pragmatism. In this, modern law is typical of many sophisticated expert practices: those who use it do so with a strange blend of confidence and disenchantment. Unfortunately, in the process, people can lose their ethical moorings: that, I believe, is the triumph and tragedy of global rule by expertise.
You offer “modern law and modern war” as an example of the contemporary powers and tragic consequences of expertise. What’s different now?
DK: Warfare has become ever more entangled with law as law has lost its distinctive clarity. Law now shapes the institutional, logistical and physical landscape of war and the battlespace has become as legally saturated as the rest of modern life. At the same time, law has become more malleable, the doctrinal materials used to distinguish war and peace or legal and illegal state violence ever more fluid. No longer a matter of clear rules and sharp distinctions, international law speaks with many voices. As it has become a more plastic medium, law has enabled a strategic management of war’s boundaries – when war ends, when it starts, what damage is collateral and what not. It now offers everyone a vocabulary for marking legitimate power and justifiable death. People everywhere can find reason to affirm their cause and decry the perfidy of their opponent.
When things go well, modern law can provide a framework for talking across cultures about the justice and efficacy of wartime violence. More often, the modern partnership of war and law leaves all parties feeling their cause is just and no one feeling responsible for the deaths and suffering of war. Law and war have become oddly reciprocal, communicating and killing along the boundaries of the world system, at once drenched in the certainty of ethics and detached from the responsibility of politics.
You end on an optimistic note – that people could pull back the dysfunctions of expert rule.
DK: I certainly hope they might. It would require inhabiting our expertise in a new way, less as pragmatic and sophisticated strategic actors than as people for whom, as Max Weber once wrote, politics is a vocation: with passion, with proportion and with responsibility in an irrational world that cannot be known or predicted. My proposal is not an escape from expertise or institutional recipe for its better use. It is a habit of mind, a personal and professional practice, to harness a long tradition of heterodox intellectual and political work to change the world. And to cultivate the ethical possibility of acting when we realize we do not know.
David Kennedy is the Manley O. Hudson Professor of Law and Director of the Institute for Global Law and Policy at Harvard Law School. He is the author of The Rights of Spring: A Memoir of Innocence Abroad; Of War and Law; and The Dark Sides of Virtue: Reassessing International Humanitarianism, and the editor of The Canon of American Legal Thought (with William Fisher) (all Princeton). His most recent book is A World of Struggle: How Power, Law, and Expertise Shape the Global Political Economy.
Nancy Woloch’s new book, A Class by Herself: Protective Laws for Women Workers 1890s-1990s, looks at the historical influence of protective legislation for American women workers, which served as both a step toward modern labor standards and as a barrier to equal rights. Recently, Nancy took the time to answer some questions about the book, her reasons for writing it, and the modern day legacies of this legislation, from pregnancy law, to the grassroots movement to raise the minimum wage.
Why did you write this book?
NW: Conflict over protective laws for women workers pervades twentieth-century US women’s history. These laws were everywhere. Since the early 1900s, almost every state enacted some sort of women-only protective laws—maximum-hour laws, minimum wage laws, night work laws, factory safety laws. Wherever one turns, the laws spurred debate, in the courts and in the women’s movement. Long drawn to the history of these laws and to the arguments that they generated, I saw the opportunity to carve out a new narrative: to track the rise and fall of protective laws from their roots in progressive reform to their collapse in the wake of Title VII of the Civil Rights Act of 1964, and beyond. Here was a chance to fuse women’s history and legal history, to explore social feminism, to reconstruct a “constitutional conversation,” and to ferret around all the topics that protective laws touch — from transatlantic connection to social science surveys to the rise of equal rights. Above all, the subject is contentious. Essentially, activist women disrupted legal history twice, first to establish single-sex protective laws and then to overturn them. This was irresistible.
What is your book’s most important contribution?
NW: My book shows the double imprint that protective laws for women workers left on US history. The laws set precedents that led to the Fair Labor Standards Act of 1938 and to modern labor law, a momentous achievement; they also sustained a tradition of gendered law that abridged citizenship and impeded equality until late in the century.
Which groups of women activists first supported women-only protective laws?
NW: I focus on members of the National Consumers’ League, a pressure group formed in 1898 and led as of 1899 by reformer Florence Kelley. One of the most vibrant and successful reform organizations of the Progressive Era, the NCL enabled the campaign for protective laws to move forward. I also focus on the federal Women’s Bureau, started in 1920, which inherited the mission of the NCL: to preserve and promote protective laws. Other women’s associations, too, were involved; so were women labor leaders. But the NCL and the Women’s Bureau were most crucial. Women who promoted women-only protective laws endorsed a dual rationale: the laws would redress disadvantages that women faced in the labor force and provide “industrial equality”; they would also serve as an “entering wedge” to labor standard for all workers. The dual rationale persisted, with variations, for decades.
How did you come up with the title?
NW: “A Class by Herself” is a phrase used by Justice David J. Brewer in Muller v. Oregon, the landmark Supreme Court decision of 1908 that upheld a state ten-hour law for women workers in factories and laundries. Woman, Justice Brewer stated, “is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained.” Two issues intersect in the Muller case: Can the state impose labor standards? Is classification by sex constitutional? The fusion of issues shapes my narrative.
The Muller case remains fascinating. I am stunned with the exceptional leverage that Florence Kelley grasped when she intervened in the final appeal of the case. I am struck with the link that Muller’s lawyers posited between employers’ interests and equal rights; with the fragile relationship between the famous Brandeis brief and the Brewer opinion; and with the way that Justice Brewer challenged Brandeis for dominance. I still ask myself: Who took advantage of whom? Looking back on Muller, I find an intriguing contrast between that case and the Supreme Court case that terminally rejected the Muller principle, UAW v. Johnson Controls (1991). This is when single-sex protective laws definitively expired. Johnson Controls also offers a counter-image of the 1908 case.
Did classification by sex ever help women workers?
NW: Yes, of course. Women-only state protective laws might provide benefits to women workers. In many instances, they provided shorter hours, higher wages, or better working conditions, just as reformers envisioned. But women-only laws always had built-in liabilities. Laws based on “difference” perpetuate difference. They entail hierarchy, stratification, and unequal power. They can quash opportunity, advancement, and aspiration. Once embedded in law, classification in sex might be adapted to any goal conjured up by lawmakers, or, as a critic in the 1920s pointed out, used to impose whatever restrictions “appeal to the caprice or prejudice of our legislators.”
What sort of challenges did you face as an author?
NW: Protective laws were tough customers. They fought back; they resisted generalization; they defied narrative. Part of the challenge was that I deal with a great mass of legislation –several hundred state laws — and each type of law followed its own trajectory. I also cover the laws and their ramifications over many decades. To estimate the impact of protective laws on women workers at any given time was a hazardous undertaking; one could not easily measure the negative effects, or what one critic called the “debit side.” Changing circumstances compound the problem; the effects of the laws were always in flux. Not least, protective laws generate controversy among historians; to tackle this subject is to stroll through a minefield. A special challenge: to cope with the end of protective laws in the 1960s and 1970s.
What was the biggest surprise you encountered in writing this book?
NW: The role of “surprise” itself was a surprise. Progressive reformers who promoted women-only labor laws in the early 1900s could not see around corners, anticipate shifts in the economy, or envision changes in the female work force. Nor could their successors or their opponents. Much of my narrative is a story of close calls and near misses, of false hopes and unexpected consequences, of accident and unpredictability. The theme of the unforeseen peaks with the addition of “sex” to Title VII of the Civil Rights bill of 1964; the impact of the amended Title VII on women-only protective laws was yet more of a surprise. I was surprised myself, as narrator, by the complexity of the downfall of protective laws. I was also surprised to discover the key role that “overtime” played in my story and the gradual mutation in its meaning over the decades.
Does your subject have present-day legacies?
NW: Definitely. In a sense, single-sex protective laws sank totally out of sight when they capsized in the 1970s. But in another sense, many facets of the history of protective laws reverberate; the echoes pervade current events. Labor standards are now a global issue, as illustrated in Bangladesh in 2012 and 2013. The fire in a garment factory on the outskirts of Dhaka that killed 117 workers, so reminiscent of the 1911 Triangle fire, and the yet more lethal collapse of an 8-story building, with garment production on its upper floors, underline the need for safety regulation everywhere. Closer to home, the drive to improve labor standards continues. Most recently, we have seen a grassroots movement to raise the minimum wage and efforts to revise federal law on the threshold for overtime. Reconciling work and parenthood impels discussion. Pregnancy law remains a challenge; enforcement of the Pregnancy Discrimination Act of 1978 has spurred more litigation than anyone expected. A recent case is Young v. United Parcel Service (2015). Beyond that, demands for compensated parental leave proliferate. President Obama’s proposal to fund parental leave, though unlikely to move forward right now, at least keeps the issue on the table. Finally, equal employment opportunity cases remain a challenge, from the Lily Ledbetter case of 2007 to the dismissed Wal-Mart case of 2011. Title VII, which catalyzed the end of single-sex protective law, turns out to be a work in progress.
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