The New Legal Temporalities?
Discipline and Resistance across Domains of Time
Regulating Time AHRC Network
PLENARY ABSTRACT
On Perpetuity: Law, Tradition, Juris-diction
Justin Richland (anthropology, University of Chicago)
“Between facts and norms” is how Jürgen Habermas (1998) describes the place that law occupies and by which it communicates the authority of sovereignty in state-level societies. But law is not the only discourse that stakes an authorizing claim to mediating between facts and norms. Discourses of tradition, for example, have increasingly been turned to in contemporary indigenous law and politics as a way to insure that their contemporary claims to sovereignty reflect the integration of their particular cultural norms with the vicissitudes of everyday indigenous life in the twenty-first century. This paper is an examination of the interaction between discourses of law and tradition as they unfold in inheritance dispute hearings before the Hopi Tribal Court between the mid 1990s and 2000s. I will argue for understanding the authority that law and tradition discourses generate in this context in terms of what I call their perpetuity – a kind of time–space, figured in the details of their courtroom performance, by which they are deployed by legal actors to represent the norms and facts of a given dispute and to rule over it. As I show, to the extent that in the Hopi Court’s Anglo-style processes the discourses of law and tradition often vie to occupy exclusively the mediating time–space between facts and norms, their respective perpetuities can also be understood as a kind of jurisdiction or juris-diction: discourses of law that call point up, explicitly, the productive limits of legal authority. In conclusion, I will suggest the value of considering this notion of perpetuity for answering recent critiques of legal pluralism by returning to the juridical arena from which I borrow the concept – British and U.S. common law of property inheritance. In considering the ways in which inheritance in general, and the Rule Against Perpetuities in particular, have posed problems for juridical authority, I suggest that it is precisely because the notion of perpetuity can be seen to operate both as the legitimizing force and the enduring limit of Anglo-American law, it reveals how it is perpetuity itself that constitutes the core of all authoritative discourses – whether of tradition, law, inheritance or some other genre – whose legitimacy turn on claiming the exclusive role of being a rule, or the rule in Anglo-style legal contexts, that mediative time-space between facts and norms.
Justin B. Richland (PhD, 2004, UCLA Anthropology, JD, 1996, UC Berkeley Law) is Associate Professor of Anthropology at the University of Chicago and Research Professor at the American Bar Foundation. His research explores the intersections of culture, language and law in contemporary Native American and US settler colonial governance. He is the author of two books, Arguing with Tradition, The Language of Law in Hopi Tribal Court (University of Chicago Press, 2008) and (with Sarah Deer), Introduction to Tribal Legal Studies, 3rd Edition (Rowman and Littlefield Press, 2015) as well as articles in various scholarly journals including American Ethnologist, Annual Review of Anthropology, Discourse & Society, Law and Social Inquiry, and Law & Society Review. In addition to his research, he also serves as Associate Justice of the Hopi Appellate Court, the highest court of the Hopi Nation. In 2016, he was named a John Simon Guggenheim Fellow.