[Editor’s Note: I-CONnect is pleased to feature a symposium on Constitutional Ethnography. This is the sixth entry of the symposium, which was kindly organized by Deepa Das Acevedo. The introduction is available here].
—John Conley, University of North Carolina at Chapel Hill
Revisiting Constitutional Ethnography eighteen years after its publication has prompted me to think about what the paper—and the method it advocates—has meant for both the study of law and the practice of anthropology. From my perspective as a lawyer and legal and linguistic anthropologist who teaches in a law school, several themes come to mind, many in the form of questions.
1. Thinking about the topic provides a stark reminder that history is contingent–as if we needed another one. The paper’s leading examples of constitutional development include Russia, Turkey, and Hungary. Look at them now, each movement derailed by a clever and powerful autocrat. Russia’s constitution is gone. Turkey’s seems to be going, as the country slips from secularism into Islamism. (I wonder if the EU regrets its initial slow-walking of possible Turkish membership). And Hungary may be on the brink, as (as vividly retold in Kim’s keynote) Viktor Orban manipulates the historical significance of “the Crown.”
As I think about these instances of constitutional unraveling, it makes me wonder whether a state can have no constitution at all, even in the broadest anthropological sense. By anthropological sense I mean, for example, Llewellyn and Hoebel’s Cheyenne Way, where they extracted (or at least purported to extract) “constitutional” principles from the long-ago conflicts retold to them by elderly Cheyenne. Does Russia still have even that much of a constitution?
2. Constitutional Ethnography suggests the possibility of translating concepts across time and sites. Does anthropology still do that? Are anthropologists still allowed to do that? I would ask the same questions about the paper’s suggestion that we can and should “recover the lost traditions” of comparativism.
3. The next theme involves the limits and possibilities of methods. Contemporary ethnography insists on tremendous local depth. Can you get that depth on a subject as broad as constitutionalism? Are there limits imposed by scale? I can see the possibility of the ethnographic study of evolving constitutionalism in, say, Northern Ireland. But Russia, sprawling across two continents? Or Turkey?
This raises for me the related question of who can do local constitutional research– in the sense of do it consistent with current anthropological sensibilities–and then attempt to generalize? Must it be a local person? Constitutions are all about power. Consequently, does ethnography by an outsider, especially one from a historical power center like the U.S. or Western Europe, become a form of colonialism?
4. More on methods, this time from a positive perspective: In 2004, Constitutional Ethnography proposed a multi-focused, multi-sited method that is now the norm in the ethnography of institutions and issues. The paper’s emphasis on observation and interviews would have been familiar to Malinowski. But much more novel were its stress on multiple sites, documents as artifacts, even agents, and historical archives. Sally Merry’s work on international human rights is a nice parallel.
This reflection made me realize that my own work in recent years has followed Constitutional Ethnography’s methodological agenda, though I’m just now becoming aware of my debt. With colleagues from medicine and bioethics, I have, for example, studied the emerging practice of genetic medicine in a kind of institutional ethnography. We observed the promulgation by the American College of Medical Genetics and Genomics of a list of genes that doctors should be especially attentive to. I now realize that this list was a “constitutional” document. We followed national and local official bodies—analogous to courts and legislatures, perhaps?—as they issued guidance on how to use the list, and continually added to it. We were also present at local medical meetings, down to the level of corridor conversations, about how to practice genetic medicine, which revealed the importance of individual personalities. It was all as Kim had advocated, so a belated thank you.
5. A final theme for me has been how to look at Constitutional Ethnography from the particular perspective of an anthropologist who works in a law school. Especially helpful to me, whether teaching civil procedure or law and social science courses, has been the idea of a constitution as a web or network of actors and artifacts. Thinking about my research, this idea brings to mind new governance (and its first cousin, anticipatory governance) theory, whose core idea is essentially the same. New governance has provided a useful frame for my work over the last ten years on corporate social responsibility, and my current work on the governance of genome editing. I now realize that my approach has been more in line with Constitutional Ethnography, and that I like that approach better. Once again, a belated thank you to Kim.
But for an anthropologist in a law school, a larger practical problem remains in trying to do this kind of work. In my law school, and some others I know about, the reward system favors bounded, quantitative hypothesis-testing—the opposite of ethnography, constitutional or otherwise. I thought about the prestigious annual Conference on Empirical Legal Studies, where “empirical” is defined as “quantitative,” ignoring the word’s broader roots. I also was reminded of my own experiences at law faculty workshops where long, painstaking discourse analyses have been dismissed as “pilot research.” Constitutional Ethnography is certainly not responsible for this narrow-mindedness. On a hopeful note, maybe its prestige and influence can help to cure it.
To conclude, Constitutional Ethnographywas and remains a major conceptual advance and methodological restatement. It affects my research approach every day, even if I haven’t always known it.
Suggested citation: John Conley, Comments on Constitutional Ethnography, Int’l J. Const. L. Blog, May. 31, 2023, at:iconnectblog.com/comments-on-constitutional-ethnographyi-connect-symposium-peopling-constitutional-law-revisiting-constitutional-ethnography-in-the-twenty-first-century-part-vi/
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