The World of Rules

Front matter

GUNNAR FOLKE SCHUPPERT

The World of Rules

A Somewhat Different Measurement ofthe World

Chapter One Measuring the Universe of Regulation: Necessity and Procedure... . A

I. With Daniel Kehlmann in the Footsteps of Alexander von Humboldt 344.5 <.¢esseacetannedeave enw ce s II. Global Governance by Indicators or Measuring the World III. Measuring the World as an Applied Case of Governance

I. Law = State /State = Law: A Seemingly Stable Marriage

Il. Law = State: A Formula with Two Extremely Dynamic

The Coupling and Decoupling of State and Law as

Four Key Concepts of a Non-State-Centric Perspective on Law.

On Reflection... 0.0.0... ce eee eee

A. Every Group Gives Itself Rules: A Group-Sociological Perspective uam 3 2a nee 59 I. Encased in Belongingness: Normative Orders and Group Membership erias 222080 wie a Vee Sian’ 63 B. Governance Collectives and their Normative Orders - A Foray 76 II. Normative Orders of Territorial Governance Collectives .. 77 III. Normative Orders of Personal Governance Collectives.... 79 Chapter Three

A.

B.

The Search for Normative Spaces and How to Set About It... 138 IV. The Organizational Fields of Paul DiMaggio and

Walter Powell in. .cnckcer eee ns Rene 142 A Tour through Five Normative Fields and to the Norm II. Fundamental Rights as Collective Ordering Phenomena

III. The International Arena and “Its” International Institutions 160 IV. The Global Administrative Space and its Regulatory Agencies . 172 V. The Transnational Legal Arena and its Norm-Entrepreneurs .. 174

E.

Normative Yardsticks in the Pluralized Production of Law:

II. Rule-ofLaw Principles as Second Order Rules in the Sense

Concluding Remarks... 0.0... cee eee

From the Plurality of Normative Orders to the Plurality of Norm Enforcement Regimes: Jurisdictional Communities and their Specific Jurisdictional Cultures .... 2... 0.0... eee eee

A.

Normative Orders: “Ought-Orders” Intended for Realization: The Enforcement Dimension of Every Normative Order I. Law Enforcement: A Necessary Element of Effective

Legal Ordes 24.2.2245 bee ee hoes oe eee in ee Re II. The Organizational-Institutional Dimensions of

Norm Enforcement: Norm Enforcement Law and

II. The Diversity of Norm Enforcement Regimes as

Safeguarding and Enforcing the Law as Functions of GOVEMMIMENE rasai RE Eade Sue woe toe PE I. The Safeguarding of the Law and Judicial Office as Tasks II. Law Enforcement as a Task of the State: The Duty of the State to Maintain the Well-Functioning Administration of Criminal Justice ... 26... ee eee ee eee III. Judicial Authority as a Component of the Manorial System: Two Examplesi.ooo 3.22: 2 ae

I. Mobilization of the Citizen for Environmental Protection In, European Lawes eree «.0500040 42 beso bos «sche

186 186

187 190

VII von |

I. Enforcement of Antitrust Law by Public Authorities or through Private Law?. 2... i teenet Enar eee 213

IV. Defence of the Law (Rechtsbewährung) in Criminal Law - Self-Defence . 2.2222 cn onen ee eee ees 216

The Plurality of Norm Enforcement Regimes as a Consequence of Functional Differentiation: The Example of the Professions . 219

Norm Enforcement as Institutionalized Social Disciplining ... 226 Il. Social Disciplining at Work: The Example of Church

Discipline sss 3260602 hsa eas 5200 reas oe oe ee eas 229 II. Parallel Conflict Resolution Institutions and Norm

Enforeement sso decided gad e EEE TETEE es ee edges 235 Norm Enforcement through Institutionalized Compliance... . 240

Sanction Modes and Criteria not Disciplined by Law: Forms and Actors? i040 eccesssakatn. nocieees See edess 245 I. Imposing Norm-Conforming Behaviour through Thematic II. Moral Entrepreneurs as Key Actors in the Creation and

The Multiplicity of Sanction Modes as a Selection Problem:

Concluding Remarks... 2... 0. eee eee 260 Contents

A.

I. Eugen Ehrlich or How Bukovina Developed from a Remote Region in the Austro-Hungarian Empire into II. Theodor Geiger or From Embryonic and Incomplete Law to the Hardening of Social Norms... 0.0.0.0 ee cee IV. Taking Stock: A Dualistic Concept of Law -

The Difficulty of Drawing a Line between Law and Non-Law:

I. The Need to Overcome Thinking in Categorial

Developing Gradation and Transitional Criteria in the World

of Rules: “If it looks like a duck, swims like a duck, and quacks

X

Chapter Six Summary and Outlook ss 6... 0.0... ce eee 309

As -SUMMALY sno perinke versenden des 309 I. Summary 1: Revisiting the Four Key Concepts of Chapter 1 309

Il. Summary 2: The Close Link between Community

B. Outlook: From Plural Communities of Justice to Plural Types

OF JUSTICE: Scr. ae an ne ne ea AR 314 I. The Plurality of Injustice and its Mirror Image:

II. Communities of Justice and their Conceptions of Justice. . 316

Bibliography... cee eee deeds 10 0 Bw. a vee eee eae ee 331

Acknowledgements

My thanks go in the first place to the Max Planck Institute for European Legal History for its hospitality in the spring of 2014 and 2015; two lectures I held there obliged me to order and tauten my thinking. Further discussion with Thomas Duve and Peter Collin proved particularly useful.

I also thank my student assistants Hannah Hömberg and Julian Schwarz for taking on the arduous tasks of proofreading and literature procurement, as well as Roland Römhildt for useful suggestions. Above all, Anna Schulze has earned my gratitude for her sensitive but resolute editing. Cornelia Vetter and Barbara Wennemer-Abée transformed the handwritten manuscript, as always the product of work with numerous pencils, into a publishable text. My thanks also go to them.

However, my deepest gratitude is owed to my wife, who has accompanied my - notwithstanding my emeritus status — unquenchable exploratory urge with cheerful imperturbability. This book is dedicated to her.

Acknowledgements

XI

Preface

We have long taken the view that jurisprudence is a discipline that ought to develop into a yet to be delineated science of regulation. Were our proposal to address the fundamental issues of a modern science of regulation to find favour, (legal) norms would of course continue to be the subject of attention, but not the primary one: the focus would shift to ‘rules.’ This is the concern of Lorraine Daston, a permanent fellow at the Berlin Institute for Advanced Study, in a research project for the academic year 2015/2016 examining “Rules: The Prehistory of an Indispensable and Impossible Genre? She explains: “Rules - in the form of everything from traffic regulations and government directives to etiquette manuals and parliamentary procedures - structure almost every human interaction. ... Drawing upon diverse genres — astronomical tables, traffic regulations, law codes, game manuals, handbooks of parliamentary procedures, cookbooks - I would like to reconstruct the history of the premodern rule as both a concept and a practice in order to better understand our own modern ambivalence about rules? (Daston 2015, pp. 28 f.)

Our lens is not as wide as that of Lorraine Daston: our focus covers neither cookbooks nor astronomical tables, although it does include rules of the game and the law of thieves. This exploration of the universe of the rules governing human and institutional behaviour — the ‘World of Rules’! — is a middle-range venture. We investigate the multitude of normative orders, the plurality of norm producers and norm enforcement regimes. We shall not eschew the question, always hovering in the background, of what all this means for the concept of law.

We embark on the project in the conviction that the world of law needs to be resurveyed. Old certainties reflected in the equation law = state are out of true: the state and the law are gradually decoupling from one another.

By now (autumn 2017), because of our beneficial readings of Ralf Seinecke’s fruitful ventures on “The Law of Legal Pluralism” (“Das Recht des Rechtspluralismus? 2015), we would have chosen a slightly differing title for our opus: “The Worlds of Rules” Adding this “s” visibly acknowledges a plurality of legal worlds.

Preface

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The pace of this process has differed from one field of regulation to another. If this is indeed the case, simply attaching a conservatory to the classical mansion of law with its reception rooms statute, ordinance, and bye-law will not suffice. Far more imperative is to replace the old house of law by a new edifice in which all regulatory regimes involved in exercising control find their place, whatever name they go by: standard, code of conduct, and so forth. A television series on the subject could perhaps bear the title ‘House of Rules.’ To avoid inapt associations, we prefer to describe our necessarily ambitious project as ‘Measuring the World of Rules,’ in the hope that the reader will forgive any cartographic imprecisions in this first attempt.

This enterprise has benefited greatly from the stimulating intellectual ambience at the Max Planck Institute for European Legal History, where I had the privilege of spending two months as fellow in 2014 and again in 2015. But this book has developed not only in dialogue with the history of law; it is my hope that the reflections and proposals it offers will also prove useful to this discipline. Such hopes are perhaps not quite unfounded: such cross-disciplinarily minded (legal) historians as Stefan Esders and Christoph Lundgreen have expressed gratifying appreciation of the governance perspective I have repeatedly brought into play.” This is reason enough for me to continue my exchanges with legal history.

Esders 2015; Lundgreen 2014.

Preface

Chapter One Measuring the Universe of Regulation: Necessity and Procedure

A. Introduction: Everything that can be Measured and How

To put the reader in the mood for our project, we start with three variants of measurement before explaining our approach in detail. Since ‘Measuring the World’ naturally calls to mind the bestselling novel by Daniel Kehlmann (2005), we begin with Alexander von Humboldt.

I. | With Daniel Kehlmann in the Footsteps of Alexander von Humboldt

Alexander von Humboldt’s indefatigable peregrinations in the cause of the natural sciences, above all in South and Central America, have become rooted in the collective German, indeed European memory. Delving there could unearth the following cherished image: Alexander von Humboldt was famous in all of Europe for an expedition to the tropics he had led twenty-five years earlier. He had been in New Spain, New Granada, New Barcelona, New Andalusia, and the United States; he had discovered the natural canal that connects the Orinoco and the Amazon; he had climbed the highest mountain in the known world; he had collected thousands of plants and hundreds of animals, some living, the majority dead; he had talked to parrots, disinterred corpses, measured every river, every mountain, and every lake in his path, had crawled into burrows and had tasted more berries and climbed more trees than anyone could begin to imagine (Kehlmann 2005, p. 19. Transl. Carol Brown Janeway).

Humboldt had the reputation of possessing an indomitable scientific curiosity, which seemed a little over the top to his travelling companion Bonpland; when Humboldt wanted to measure a hill encountered on their road to Madrid — before the expedition proper had begun — Bonpland inquired whether this was really necessary and whether they would not get to Madrid a lot quicker if they made straight there:

Humboldt thought. No, he said, he was sorry. A hill whose height remained unknown was an insult to the intelligence and made him uneasy. Without continually establishing one’s own position, how could one move forward? A riddle, no matter how small, could not be left by the side of the road (Kehlmann, 2005, p 42. Transl. Carol Brown Janeway).

Thus much on the scientific exploration of the world exemplified by Humboldt’s famous ascension of Chimborazo (see the stunning picture book by Böhme and Tesmar 2001).

Thus much on scientific curiosity, to which the author of this book also lays claim. But now the reader must accept a leap of several centuries to consider a a way of measuring things that is practically omnipresent and which on closer examination has something imperialistic about it.

II. Global Governance by Indicators or Measuring the World as a Problem of Power and Method

States are coming increasingly under observation and their performance is not only analysed and evaluated from every conceivable angle; the results of this institutionalized observation (see Schuppert 2010) are then recorded in “rankings.” The indicators used and the evaluation results obtained with their aid are communicated worldwide; there is no escaping them even in the remotest corners of the globe. Although such classification does not hold direct sway over the world, its consequences can be considerable — see only the might of the rating agencies.

Governance by Indicators (2012) edited by Kevin A. Davis, Angelika Fisher, Benedict Kingsbury, and Sally Engle Merry offers a wealth of information and material on the subject - under an extremely pertinent subtitle: Global Power through Quantification and Rankings. This is exactly our present concern: the measurement of the world as a problem of power and method.

In the following overview Franz Nuschler (2009, p. 42 f.) gives us a good idea of who is involved and how in this “business of rating and ranking”:

Overview of International Index Constructions

Matters Index

Political stability and absence of violence

Effectiveness of public management

Accountability of government Corruption control Respect of human rights various sources

Surveys of experts

Indices Focus / Indicators Methods Source Human Purchasing power per capita in | Aggregate data from UNDP Development | PPP dollars various sources Index (HDI) | Life expectancy at birth

Literacy and school enrolment

rates Governance | Rule of law Aggregate data from World Bank performance by 17 criteria and 52 indicators

Polity IV Democracy (party competition, | Sub-indices, combined | University of Index elections, accountability of into an overall index Maryland

government)

Semi-democracy / autocracy

in the absence of democratic

standards Freedom in Scale for civil rights: Evaluation by experts, Freedomthe World - Rule of law combined in an overall | house, Wash-

- Freedom of religion index with 7 levels of ington D.C.

- Freedom of the press evaluation

- Freedom of association

Scale for political rights

- Free and fair elections Political Rule of law Reports from Amnesty | University Terror Scala Freedomi fi tort International and the of North (PTS) nme State Department Carolina Failed State Level of fragility on the basis Collection of country Fund for Index (FSI) of economic, political, and data Peace

social data Corruption Corruption in government and | Assessment by local Transparency Perception administration experts International Index (CPI) Bertelsmann | 1. Status index on the develop- | Country reports and Bertelsmann Transforma- | ment of democracy and the second reports by local | Foundation tion Index market economy - divided experts; comparison by | with the (BTI) 2. Management index on the regional experts; calcu- support ofa

evaluation of management lation and aggregation scientific BTI

of means board

The real problem with this “governance by indicators? apart from the Western bias rightly criticized by Davis et al. (as compared, for instance, to the Mo Ibrahim Index of African Governance), is its weak spot: method. Nuscheler cautiously comments as follows: *

The methods used by such measurements and index constructions differ widely. They are mainly based on country reports by experts, who for their part examine and evaluate the data collected by international organizations in their specific areas of operation. It is then a methodological problem whose solution requires more than mastery of statistical tools to select the right indicators for constructing an index and ranking countries. How performance parameters are to be weighted must also be decided, such as economic growth, which the World Bank stresses in governance indicators; the status of freedom of the press and opinion, strongly weighted by Freedom House (Washington, D.C.); or the level of development of the market economy, emphasized in the Bertelsmann Transformation Index (BTI).

Apart from objective indicators and those that - depending on the quality of the data — can be quantitatively measured, there are many that are based on subjective perception and assessment. A prime example is the Corruption Perception Index (CPI), which draws on how the local business community appraises corrupt practices in government and administration, and which is used by many other indices. Even when such subjective assessments are cross-checked against multiple expert reports, as in the multi-stage BTI process, the allegedly ‘objectivized’ results of the various indices can differ considerably. It is therefore advisable to compare not only the data produced by country rankings but also the underlying indicators and data processing methods (Nuscheler 2009, 32 f. Transl. R.B.).

In using governance indicators, caution is advisable for two main reasons: first, they reduce complexity in a questionable manner while suggesting quantitatively grounded rationality for the evaluations made on the basis of them; second, the selection and weighting of such indicators is grounded explicitly or implicitly in a given political philosophy, which is thus propagated in Trojan guise.

As far as the trend towards simplification and the suggestion of rationality backed by data are concerned, we fully share the reservations of Kevin A. Davis et al.:

Simplification, or reductionism, is central to the appeal (and probably the impact) of indicators. They are often numerical representations of complex phenomena intended to render them more simple and comparable with other complex phenomena that have also been represented numerically. Indicators are typically aimed at

Highlighting in quotes is always by myself and only in exceptional cases by the author. G.ES.

policy makers and are intended to be convenient, easy to understand, and easy to use. Yet, the transformation of particularistic knowledge into numerical representations that are readily comparable strips meaning and context from the phenomenon. In this numerical form, such knowledge carries a distinctive authority that shifts configurations and uses of power and counterpower. This transformation reflects, but also contributes to, changes in decisionmaking structures and processes.

Indicators also often present the world in black and white, with few ambiguous intermediate shades. They take flawed and incomplete data that may have been collected for other purposes, and merge them together to produce an apparently coherent and complete picture. Wendy Espeland and Mitchell Stevens identify this as a potential consequence of what March and Simon refer to as uncertainty absorption, which ‘takes place when inferences are drawn from a body of evidence, and the inferences instead of the evidence itself, are then communicated’ ... As Espeland and Stevens describe this process, ‘Raw’ information typically is collected and compiled by workers near the bottom of organizational hierarchies; but as it is manipulated, parsed, and moved upward, it is transformed so as to make it accessible and amenable for those near the top, who make the big decision. This ‘editing’ removes assumptions, discretion and ambiguity, a process that results in ‘uncertainty absorption’: information appears more robust than it actually is ... The premises behind the numbers disappear, with the consequence that decisions seem more obvious than they might otherwise have been (Davis et al. 2012, p. 76 f.).

Still more dubious in our view is the subcutaneous conveyance of certain political points of view immanent in the standard-setting function of governance indicators.

Indicators set standards. The standard against which performance is to be measured is often suggested by the name of the indicator — corruption, protection of human rights, respect for the rule of law, and so on. To the extent that an indicator is used to evaluate performance against one standard rather than another, the use of that indicator embodies a theoretical claim about the appropriate standards for evaluating actors’ conduct. Indicators often have embedded within them, or are placeholders for, a much further-reaching theory — which some might call an ideology — of what a good society is, or how governance should ideally be conducted to achieve the best possible approximation of a good society or a good policy. At a minimum they are produced as, or used as, markers for larger policy ideas. They may measure ‘success’ directly along this axis, or they may measure what, from the standpoint of the theory or policy idea, are pathologies or problems to be overcome. More frequently they address simply some measurable elements within a wider scenario envisaged by the theory or policy idea. Offen the theory or policy idea is not spelled out at all in the indicator but remains implicit (Davis et al. 2012, p. 77).

We find this example of global governance by indicators extremely instructive: it shows that measuring cannot be reduced to a technical dimension but has a clear power component, an aspect we shall be coming back to.

III. Measuring the World as an Applied Case of Governance By and Through Knowledge

With this third set of examples, we are - almost imperceptibly - approaching our topic of “measuring the diversity of law”; two examples will show how important, indeed indispensable it is for “governance of and through knowledge” to have not only a reliable cadastral system at one’s disposal but also a “mental map of legal phenomena” (Twining 2009, p. 117) that provides information about the law that is being applied.

1. Knowledge and Early-Modern State Building: The Need for Knowledge about Country and People

A number of ingredients are needed to govern a country effectively (see Schuppert 1994). The most important (apart from symbolic investiture with crown and sceptre) are a constant flow of revenue to the state — the modern state as a fiscal state, a viable administration, and well-qualified administrative staff - the modern state as an administrative state. But another key governance resource is knowledge (see Schuppert 2008a): for this reason, the emerging early modern state is extremely eager to learn, as the contributors to Das Wissen des Staates (The Knowledge of the State, eds. Peter Collin and Thomas Horstmann, 2004) demonstrate in many ways. The knowledge the state needs includes dependable, always available knowledge about the country and the people in it; after all, as Karin Gottschalk stresses in her informative article “Wissen über Land und Leute. Administrative Praktiken und Staatsbildungsprozesse im 18. Jahrhundert” (“Knowledge about Country and People. Administrative Practices and State Building Processes in the 18th Century”) this is indispensable governance knowledge for recruiting soldiers and collecting taxes efficiently: The efforts of the early modern state to ‘inventory’ its territory were grounded firstly in the need for basic information on the population in connection with the establishment of standing armies (conscription). Similarly, the desire to collect regular taxes more effectively prompted the procurement of comprehensive and up-to-date information on the economic circumstance of subjects. The growing pretensions of the central state to power also encouraged the gathering of information and communication with subjects. In connection with tax collection and the claims to power of the authorities, the state initiated ‘major projects’ to generate and structure knowledge inspired not least by aspects of power legitimation (Gottschalk 2004, 150. Transl. R.B.).

But this indispensable governance knowledge also included knowing about the “living law” (Ehrlich 1989) practised in the sovereign territory of the state; on this subject, too, Karin Gottschalk has interesting things to report about Hesse-Kassel, for instance:

The example of Hesse-Kassel shows how the systematic documentation, storage, and provision of local information and administrative knowledge intensified in the first half of the eighteenth century. But civil servants had difficulties routinizing such procedures and subjects and local officials were reluctant to cooperate. Neither aspect was limited to this principality. Michaela Hohkamp, for instance, shows that for the Further Austrian bailiwick Triberg, the newly appointed bailiff placed very considerable value on the availability of official documentary knowledge. Confronted by subjects demanding the retention of old customs of government on which there was no or little written information, he was obliged to obtain exact knowledge about government matters. He had to choose between interrogating local government officials and sifting through old official records. The latter proved so arduous and time consuming that, in an effort to gain independence from local officials, the bailiff set out to make the records of his predecessor more accessible. He requested the government to assume most of the costs for establishing a records office on the grounds that this was more in the interests of the authorities rather than of the subjects. Whereupon the government paid for a archivist, who was sent to Triberg for thirty days to set up the office. ... Assured access to written knowledge was of great interest for the powers that be: ‘Written law made the authorities independent of cooperation — not always forthcoming — on the part of subjects, and enabled the bailiff to establish regular administrative practices, hitherto constantly at risk with the frequent rotation of officials (Gottschalk 2004, pp. 163 f. Transl. R.B.).

2. Scientific Colonialism: The Constitutive Link between Knowledge and Power for Colonial Governance

Colonialism studies take it for granted that the gathering and utilisation of local knowledge were among the necessary functional conditions for colonial rule (Cohn 1996). This constitutive link - according to Sebastian Conrad, writing about the German and Japanese colonial regimes — has established the concept of scientific colonialism in the literature.

Characteristic of government in the colonial area was the close link between the practices of rule and geographical, legal, linguistic, and ethnological knowledge, ... which played a major role in the allocation of powers and responsibilities. In the case of German and Japanese colonialism — where the scholarly literature has adopted the concept of scientific colonialism — the close link between rule and knowledge was part and parcel of a modern colonial policy. The establishment of colonial knowledge served to guide the action of the colonial administration while setting the boundaries between state power and ‘traditional’ authorities (Conrad 2007, pp. 134 f. Transl. R.B.).

Writing about the types of knowledge relevant for governance and the actors who collected and archived it, notably representatives of missionary ethnography (Bade 1982), Conrad has this to say:

The underlying knowledge was concerned with surveying the territory and recording its geography, taking ethnographic stock of the population, with medical and ‘racial’ classification, cultural patterns, and legal customs. Various actors were responsible for collecting the knowledge pertinent to the exercise of power. The roles of scholars, translators, and mediators could differ greatly - some were under way in a private capacity, most with government support, and some explicitly on behalf of the state. Apart from those who went to Africa to conduct field studies, there were also the anthropologists, doctors, and craniologists who remained in Germany and who participated in the work of ordering, classifying, and differentiating (Conrad 2007, p. 139. Transl. R.B.).

For a colonial empire like that of Germany, which - in contrast to the Japanese model - made do with very sparse personnel in the colonies, it was essential to come to an arrangement with local governance actors and to use their governance capacity for the purposes of German colonial rule. This local governance competence consisted above all in an authority based on knowledge and tradition, which also enabled it to operate as actor in a local conflict culture and settle disputes in accordance with local legal rules. For this reason, making sure about so-called “indigenous” or “native” law and delegating judicial powers to local dignitaries were among the most important pillars of colonial rule. Conrad:

This ... knowledge about native societies was important for a policy of limited delegation of governmental powers. One of the major areas of this knowledge-based policy of divide and rule was the ascertainment of traditional legal customs. From about the turn of the century, German jurists and legal ethnologists began to examine and record local customary law. The reasons behind this were first the self-appointed task of contributing to the ‘advance’ of legal customs and thus to fulfil the promises of the civilisational mission. At the same time, however, native law was the basis on which the dual legal system characteristic of German colonial practice was established. Colonial governance was hence marked by the cession of colonial legal powers in the administration of justice. Civil law cases involving native parties would be heard on behalf of the colonial government by chiefs (local power holders); and since the basis for the administration of justice was not written down, local ‘scholars’ (such as the so-called wali in East Africa) were called in as additional authorities ... (Conrad 2007, p. 141. Transl. R.B.).

But the local knowledge required for the exercise of scientific colonialism was not only geographical, legal, and administrative knowledge. What was also needed was profound cultural knowledge; in her fascinating book The Secret War, Eva Horn plausibly explains this state of affairs, taking the example of the literary classic Kim by Rudyard Kipling:

As Thomas Richards notes, Kipling’s novel depicts in singular clarity a transformation of imperialism from the reliance on ethnocide, enslavement, or unfettered exploitation, that is, from the direct use of violence, to the skilled management of information — and of intelligence, for that matter. ... However, colonial intelligence as the accumulation of knowledge pertaining to the control of colonial territory is already encumbered by problems of communication and interpretation. Hence there is an urgent need for multilingual agents familiar with the many cultural codes, laws, and taboos of an extremely heterogeneous society such as India. In other words, the political and military reconnaissance of colonial space involves more than scouting and spying missions to explore the terrain and eavesdrop on the enemy; it also requires cultural fluency and social acumen. In short, it depends on ‘local knowledge.’ As the British had been forced to learn during the Indian uprising of 1857, they could not secure their rule if they disregarded local codes and customs. The uprising, known as the Indian Rebellion or Mutiny of 1857, was an armed insurrection of Bengali and Indian soldiers triggered by reports of cultural insensitivity triggered by reports of cultural insensitivity: rumors began to circulate that the cartridges of the newly introduced Enfield Rifled Musket had been greased with either lard or tallow, which was unacceptable to Muslim or Hindu soldiers, respectively. Throughout 1857 the revolt spread across central and northern India and ultimately put an end to the rule of the East India Company; from now on India was to be administered by the British government. (Eva Horn, 2013, p. 136. Transl. Geoffrey Winthrop-Young).

IV. Our Task of Measurement

Against the backdrop of these three examples of measuring, our own project is relatively easy to explain:

What we want to avoid at all cost is to be suspected of measurement imperialism. It is not a matter of taking our own legal system as a yardstick or even - which we have always felt to be extremely foolish - to talk about exporting law under the motto “made in Germany” (Bundesministerium der Justiz 2011). Our concern is rather to explore the diversity of normative orders without attaching judgemental labels to them from the outset. Our project is hence analytic in nature, a procedure we have explained in detail and on several occasions for applying the governance approach as an analytical tool (cf. Schuppert 2011a; 2011d). That is the first point to be made clear.