This chapter argues that the relationship between tradition and change can be illuminated through a better understanding of how tradition is (re)produced. How do traditions emerge, how do appeals to tradition serve to justify decisions, and, in what ways does justifying a choice in terms of tradition exercises a constraint over the kind of decision that can be made? The first part of the chapter discusses Patrick Glenn's approach to these questions, as seen, for example, in his claim that tradition is 'massaged', always entails change, and cannot control its own boundaries. It then goes on to put his ideas to the test by examining a controversial Rabbinical innovation recorded in the Talmud; Hillel's introduction of the 'Prozbul' so as to secure loans that would otherwise have been cancelled each sabbatical year. A meta-analysis of how this institution has since been categorized by those within and outside the Talmudic tradition suggests that successful innovation depends on the ability of interpreters to convince the relevant audience(s) that it embodies the best efforts to continue the tradition. It concludes that anachronism may be the price we need to pay if fidelity to tradition is to be more than antiquarianism.

Malcolm Feeley’s Court Reform on Trial: Why Simple Solutions Fail (Feeley 1983) is a monograph based on his report commissioned by the Twentieth Century Fund. The book may be less well known than both many of his earlier and later cutting-edge monographs (see e.g. Feeley 1979, or Feeley and Rubin 1998). But returning to it for the purpose of contributing to this collection made me realize just how good a read it is. Feeley offers us a meta-evaluation of selected court reforms from the 1950s to the 1970s, analyzing the problems that the reformers sought to resolve and the flaws in the solutions that they invented. Following a thoughtful introduction, the central chapters take us through the history of efforts to introduce bail reform, extend pretrial diversion, curb sentence disparities and expedite speedy trials.

In the late 1970s while teaching philosophy of law in Edinburgh I was invited to dinner where another guest was an upcoming MP. Making (heavy) conversation I asked how we could justify not helping desperate people in the world who were so much less fortunate than we were. Was it just a question of geography? If they were actually at the door starving would we not give up our superfluous goods so as to ensure their basic survival – and how could geography make a difference to our obligations? My fellow guest did not see that we had any such obligations, and my questions were no doubt put clumsily. And yet, now with the arrival of so many often desperate people from poorer countries trying to cross borders despite heavy-handed efforts to stop them, even the argument from geography falls away. Some of the same unease arises when we worry about our obligations to those who live elsewhere but on whose work in intolerable conditions we rely to supply our food, our raw materials, our clothes and even the manufacture of the computers on which we assemble our arguments. There may be some plausible arguments – other than the facts of geography – that set limits to our responsibilities to others. But until we formulate these properly we risk remaining ‘in denial’ about the possible obligations that we may have.

The organisers of the workshop whose proceedings are collected in this volume are professors at a leading centre for the study of human rights. They therefore seek to examine the role of human rights in all this. Why is it, they ask, that despite efforts to secure human rights ‘violations do still occur and injustice remains rampant’. They reply that ‘central to this problem appears to be that social, economic, cultural and political structures in societies provide for denialist defence mechanisms’.

The studies in this collection, building on previous important contributions to the discussion (see especially Davis, Kingsbury, and Merry 2012a, 2012b), offer a set of rich and insightful discussions of social indicators that have potentially global implications. The focus here is on the wider relevance of those indicators that seek to compare levels of political freedom, the rule of law, corruption, good governance, and corporate responsibility. In their introduction, the editors explain what is distinctive about their approach. They tell us that most of the literature on indicators focuses on how to develop effective, reliable, and valid measures. It looks at how to conceptualize what is to be measured, how to operationalize broad and vague concepts, what data sets are available that can be used, how to label indicators so that they will be easy to understand, and how to persuade governments, donors, and other potential users of the indicator to pay for and use them. In contrast, this collection asks what difference indicators make to governance and law. It examines how indicators work in practice, why some become successful.

My task in this afterword is to reflect on what the chapters in this book tell us by way of answers to these questions. In particular I shall point to some of the difficulties of actually separating the question of explaining the causes of what they call an indicator's “success” from the search for developing more effective indicators.

Introduction

Law is on the move. Social engineering through law, for all that it is somewhat out of fashion ‘at home’ in many industrially developed societies, is increasingly practised abroad. The range of societies currently caught up in what many still describe as ‘legal transplants’, but which I shall be calling ‘legal transfers’, is not confined to those in the developing world, though even this covers places as different as China, south-east Asia or Latin America. It also includes almost all of the ex-communist countries and, in many respects, even the countries seeking to harmonize their laws within the European Union. Indeed, the developments associated with the globalization of markets and communication mean that few, if any, places are now immune. If the ‘law-and-development’ movement is thus in its second (some say third) wave, the question has been raised of how to avoid repeating the ‘mistakes’ made the first time round. A selective overview of some of the debates concerning the possibility and appropriateness of legal transfers may perhaps make a contribution to this task.

Three sets of interrelated issues will need be considered. How far is it possible to understand other peoples' law? What can be done to ensure that only that law is transferred which ‘fits’ into its new setting? Finally, in what ways are current wider political, economic and social developments affecting processes of legal transfer?