https://global.oup.com/academic/product/the-palimpsest-constitution-9780198956884

Amy Cohen: What is the central puzzle that your book addresses through the case study of Burma/Myanmar, and why did you focus on this case study?

Melissa Crouch: Since the semi-political opening in 2011, there was significant discussion and debate in Myanmar about the possibilities of constitutional reform. I had the opportunity through various teaching and other engagements to be witness to those debates. The focus of my book on Myanmar draws on the time I spent teaching but also undertaking intentional field work and archival work. The central puzzle I became curious about was why people in Myanmar kept talking about past constitutions and draft constitutions in discussions of constitutional reform, as opposed to our assumptions that constitution-makers are interested in comparative examples of liberal democracy. In the book I frame this as a question of why do past constitutions matter?

I focus on Myanmar as I had prior connections to this context. Back in 2006, I moved to an area of Melbourne with a high population of refugees and migrants, and was working with a social organisation at the time. Many of my neighbours were Burmese and so my connections began there. Then during my post-doctoral research in Singapore, I undertook field research in Myanmar/Burma. Even when I returned to Australia, I continued travelling regularly to Myanmar until 2020 (when Australia’s borders were closed due to COVID-19). As a marginal or non-existent case in constitutional studies, Myanmar/Burma also seemed the perfect case to both expose the liberal democratic preoccupations of comparative constitutional scholars, and invite these scholars to adopt a broader frame of reference in terms of whose constitutions are worth studying and why.

Amy Cohen: Central to your book is the idea of the palimpsest constitution. Why palimpsest, and what does this concept illuminate in terms of the nature of constitutions in the 21^st century?

Melissa Crouch: The book derives its title from George Orwell’s famous novel, Nineteen Eighty-Four. Published at the end of World War II, Orwell describes history as a palimpsest to explain how a totalitarian regime sought to erase memory and rewrite history. Likewise, in my book, I suggest that the idea of history as a palimpsest is a productive way of thinking about modern constitutional histories, or the palimpsest constitution.

I adapt Orwell’s insights about how regimes manipulate and rewrite history to constitutional history. A palimpsest can be a text on which later writing is superimposed, or it can be the combination of two or more successive texts.

In the book, I elaborate on the ways that modern constitutions are palimpsests: they build on the legacies of each other, each one superimposed on the next, recombining and repurposing earlier texts. Constitutional texts are repurposed, reused, and altered, even as they retain or evoke legacies of prior texts and forms. They draw on previous constitutional principles, scripts, and politics—comparative, transnational, and domestic. The palimpsest constitution embodies the reality that nation states are never blank slates for constitutional reform, and that constitutional histories are marked not only by optimism but simultaneously by tragedy and suffering.

Amy Cohen: Burma/Myanmar is a relatively unknown country for most Global North scholars, with perhaps the most common reference point being Aung San Suu Kyi as Nobel Laureate but also, from 2016 onwards, her fall from grace due to credible allegations of genocide against the Rohingya. Your book uses the case of Burma (the name the US government still gives the country) to illustrate the concept of the palimpsest constitution. As a case study, is Burma an anomaly, or is it a case that can speak to a broader audience, and, if so, how?

Melissa Crouch: I suggest that the case of Burma/Myanmar is a fitting one for our times. The book uses Myanmar to address debates about the legacies of law, but it cuts across legal traditions and different legal systems. Myanmar was colonised by the British and was initially part of British India; once it became independent it introduced parliamentary democracy. The country then experienced periods of martial law, socialist-authoritarian rule, and military rule with and without a constitution. It has multiple points of comparison with countries that were also part of the British empire, that experienced periods of socialist legality, that have had periods of military and authoritarian rule. One of the exciting aspects of Myanmar as a case study is its potential relevance not only for South Asia (such as India, Bangladesh and Pakistan), Southeast Asia (such as Thailand, Indonesia, Philippines), but more widely to parts of Africa and Latin America.

In short, few countries live up to an idealised view of constitutional endurance as the longevity of a single text; instead, many countries have had multiple constitutions. Myanmar has embraced, discarded and replaced multiple constitutional texts. This practise calls into question assumptions of constitutional endurance as the endurance of a single text, and optimistic accounts of constitution-making.

This brings me to a second aspect of the case study, which is to explore the endurance of constitutions in terms of their social life, and how ideas about past constitutions and their legacies circulate in contemporary society. In these ways and more, I think the case of Myanmar/Burma has much to say to a broader audience.

Amy Cohen: Who is the audience for your book? As a law and society scholar with an interest in ethnography, how does your book speak to an anthropology audience? That is, what is ethnography to you and how is this expressed in the book?

Melissa Crouch: The book offers a way of studying constitutions ethnographically by following the social life of constitutions. I am interested in debates about the legacies of law and constitutions, and how constitutional ideas and texts live on in social memory even after they are replaced.  The book will appeal to anthropologists for its focus on tragedy and violence, which I position as central to the book through engagement with Renato Rosaldo’s ‘Grief and a Headhunter’s Rage’. The book will also appeal to anthropologists for its attention to non-state forms of constitution-making. Constitutional pluralism is a central theme of the book.

If legal scholars tend to focus on liberal democracy, state constitutions and success stories of constitution-making, then this book appeals to anthropologists with its focus on what else is going on – governance motivated by other ideologies, non-state constitutions, and the suffering and tragedy that is a reality in many constitutional contexts.

Amy Cohen: Tell us how you understand constitutional ethnography, and about the choices you made in your approach to writing ethnography, such as questions of representation, style and perspective.

Melissa Crouch: Law and society scholars have long focused on the plurality of law and society and their interrelationship. I seek to bring this focus to constitutional studies by outlining an approach to ‘constitutions-in-societies’ or constitutional ethnography.

Central to constitutional ethnography is an appreciation of constitutional pluralism in terms of both legal and social pluralism. Societies are diverse and heterogeneous rather than uniform, and states have multiple constitutions over time, change constitutions through amendments, vary in the interpretation given to texts, and even host competing texts in terms of alternative or non-state constitutions.

A second dimension of constitutional ethnography is its constitutive impulse, that is, the interdependence between laws and societies. Constitutional ethnography builds on and affirms the constitutive thesis; that is, the idea that laws and societies are not two separate and independent phenomena but, rather, mutually influential and interdependent.

Further, constitutional ethnography in my view is interdisciplinary, weaving together studies of law with anthropology, history, and sociology. Finally, scholars undertaking constitutional ethnography show a commitment to immersion, whether through in-person fieldwork techniques, such as extended participant observation, interviews, to more documentary practises such as archival work. Constitutional ethnography brings to the fore the cultural power of law, and the idea of law as culture, rather than merely as a doctrinal science nor as raw politics.

But beyond this focus on methods, constitutional ethnography pays attention to both the ethics of fieldwork, different types of data, and the writing process. As a mode of writing, my audience was not judges or legal scholars, but rather scholars interested in social processes. The question of representation was a challenging one. I chose to write in first-person both to demonstrate the ability of narrative as a mode of argumentation, but also to navigate some of the complexities of writing about an authoritarian regime and reduce risks to those I met. For anthropologists, this attention to writing and the ethics of writing is commonplace; but for legal scholars, this is an unusual mode of writing, and many may say it is perhaps even outside the realm of what is acceptable in constitutional scholarship. In doing so, I am precisely challenging modes of writing and what counts as scholarship about law.

Amy Cohen: You are based in a law school. Did any particular anthropologists inspire you to work in this way?

As a PhD student, I was inspired by the works of legal anthropologists of Islamic law like Lawrence Rosen (The Anthropology of Justice: Law as Culture in Islamic Society) and Clifford Geertz’s work (Islamic Courts in Indonesia). In fact, so powerful an influence did Rosen’s work have on me, I can remember exactly when and where I first read it. I was sitting on my couch in a rental property where I lived in an outer suburb of Melbourne with a high migrant and refugee population. I was undertaking my PhD on Islam in Indonesia at the time, while living in a community where most of my neighbours were Burmese Muslim. Reading Rosen’s work was refreshing as he confronts Max Weber’s idea of the Qadi sitting under a tree making arbitrary decisions as they please; instead, through ethnographic fieldwork and the use of narrative, Rosen reveals the patterns and advocates for the rationality of Islamic judges based on notions of relationality and community. What I took from Rosen the sensibility that all legal traditions and cultures are worth studying. My current book is only tangentially about religion (although the lawyer at the heart of the book, Ko Ni, was a Muslim in majority-Buddhist Myanmar), like Rosen, I think that we learn much about others and about ourselves through a close examination of how law structures our lives and the diversity and pluralism inherent in human interactions with law.