Social Ostracism and Non-State Governance: A Comment on Hathaway & Shapiro

I read Scott’s and Oona’s article Outcasting with great pleasure.  It is a wonderful contribution to the burgeoning literature on legal pluralism and non-state governance.  In particular, the article contests two propositions that have undermined recognition of various forms of non-state law: first, that law must be enforced by the legal regime itself; and second, that law must be enforced through the threat and exercise of physical force.  By contrast, the article contends that law can exist where members of a social group – legal subjects as opposed to legal authorities – can serve as the externalized enforcement arm of the law by withholding the benefits of social cooperation and membership from those failing to comply with the group’s rules and norms.

In tracing precedents of such forms of non-state governance, Outcasting points to Canon law, which highlights what I take to be an important area of intersection between international law and religious law.  Indeed, critics of non-state law have similarly linked international law and religious law; both have become targets of state legislatures in recent months, with a flurry of proposed bills aimed at prohibiting courts from considering or looking to either international or religious law (for recent updates, see here).

Much of this trend tracks a long-standing (and largely outdated) version of legal positivism – espoused by Thomas Hobbes and J.L. Austin – which refused to recognize to the possibility of law either “above the state” (e.g. international law) or “below the state” (e.g. religious or indigenous law).  Demonstrating that such legal theories fail to account for the wide range of social practices that create legal obligations was one of H.L.A. Hart’s primary objectives in his work The Concept of Law.  While not without ambiguity, Hart emphasized the role of social criticism and social sanction in the creation of legal obligation – experienced from the internal point of view.  (Hart’s role in this transformation was the topic of last week’s American Society of International Law symposium titled Hart’s Legacy on International Law.)

This intuition that social criticism and social sanction – even outside the confines of the nation-state – play prominent roles in the experience of legal obligation stands at the very center of Outcasting.  And while the piece does discuss Canon Law, it is worth noting that Canon law is really just the tip of the iceberg.  In fact, the use of social ostracism is alive and well within the United States among a wide range of religious communities.  Most notably, social ostracism is deployed as a method of enforcing appearance before and adherence to a growing network of religious arbitration courts functioning within the United States.  I’ve tried to explore this parallel form dispute resolution – and its central role in debates over the consequences of legal pluralism – in my recent article Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L. Rev. 1231 (2011).

As highlighted in the religious arbitration context, the use of social ostracism – or outcasting – is quite popular in legal systems below the state because it trades on the importance of membership in religious or indigenous groups to individual identity.  To be ostracized is, as frequently described in the multiculturalism literature, to lose a piece of yourself – to experience the anxiety and devastation associated with the deepest forms of misrecognition.  Accordingly, outcasting has proven a useful and powerful tool for religious arbitration courts, where failure to submit a claim for adjudication before a religious tribunal will sometimes result in devastating form of social ostracism and sanction.  And, in the context of religious arbitration, fear of social ostracism sometimes induces parties to sign binding arbitration agreements, thereby latching on to the enforcement arm of the nation-state.

In this context, the use of social ostracism and sanction “below the state” indicates that the success of outcasting in the international context is and will continue to largely be dependent on the existence of solidarity within the international community.  Social ostracism has been successful below the state because individuals care about membership in the group.  Accordingly, the experience of outcasting below the state reinforces the insight that the use of social pressure requires developing a sense of community and solidarity such that membership within the international remains an important and valuable good.  Of course, the value of such membership can be created through moral, ethical, social, economic and cultural mechanisms.  But in this way, the possibility of outcasting both above and below the state requires a re-evaluation of how we build solidarity within the relevant communities to ensure that membership still matters.