This is the second in a three-part essay examining  recent developments in Burma. Tomorrow, Resisting a neoliberal sweep of Burma…

In conversations, message boards, and Op-Eds, opponents deny that current events could signify progress or ‘real’ transformation. Burma’s inadequate legal institutions – the flawed constitution, the lack of judiciary independence, its prison system – allegedly foreclose any possible change. Aided by misguided or reckless international legal ‘experts’ and advocates, these arguments insist that politics necessarily derives from the legal architecture. Law transforms from an instrument into an end in itself; erased in the process is what vision legal reform might effect. Indeed, many in the opposition seem almost incapable of thinking through governance and politics, instead mumbling “free all political prisoners, redo 2008 constitution” like a way of warding off evil spirits.

Janet Benshoof, of legal advocacy group Global Justice Centre, perfectly encapsulates this blindness. In a recent DVB article she claims to peel away the veneer of amelioration by highlighting the legal foundations of an indefinite military rule: “This bold attempt to establish a permanent ‘law free zone’ for the military has escaped the notice of the global community… The military’s stranglehold over Burma is impervious to political reform given its constitutional basis.”

Benshoof continues by arguing that this would preclude any democratically-elected Burmese leader from preventing anything from genocide and nuclear proliferation to international trade violations. From this, despite Burma’s prima facie absence of nuclear capabilities, Benshoof presents Burma as a clear and present danger to the world, and asserts that Burma has abdicated its right to claim participation in a community of “civilised nations.” Those civilised nations, Benshoof concludes, have an “intransgressible legal duty of non-recognition,” citing – along with thousands of Burma commentators over the years – the messianic precedent of South Africa: the Security Council could makeBurma crack in the same way.

The key move in Benshoof’s piece, consistent with the ideological work of centuries of imperialists before her, is to draw a clear and definite line between “civilised” and “non-civilised” social systems. The Rule of Law, she suggests, is the sacred object that separates the two, with civilised nations guided by impartial laws while the non-civilised are allowed to run wild. But as the political theorist Walter Benjamin aptly put it during the Nazi rise to power, “every story of civilization is also a story of barbarism.” By way of elaboration, Benjamin elsewhere noted the “something rotten” at the very core of law, insisting on the violence that must suffuse law to guarantee it, always lurking beneath all ostensibly “civilised” political-legal systems.

Were he still commenting today, Benjamin likely would not simply highlight the US’ tragic Global War on Terror, where the spectacular unraveling of its vaunted constitution has been so egregious and transparent that it can be evoked in iconic signifiers: “Guantanamo”, “extraordinary rendition”, and so on. Benjamin might fixate, rather, on the everyday violations of law that are buried in the interstices of the legal regime, hidden beneath its spectacular and exceptional moments. For instance, while the US’ barely-veiled drone bombing program (outside the law even though it is a political fact) acts as particularly stark example, we need only to examine the quotidian functioning of American justice to notice how it violates itself at every step: the police actively decide whom to arrest (acting as Benjamin put it, as a spectral force between enforcing and creating law); the technically extra-legal plea bargain coerces false confessions of under-resourced defendants; jury nullification is a legally-guaranteed institution that allows juries to disregard the law in favor of public opinion, and yet an advocate who has worked to educate juries about this right has been federally indicted; once incarcerated, the widespread rape of inmates in US prisons is not a part of their sentences and yet continues unabated. The irreconcilable tension between these violations and our systems’ pretensions allow us to come back to Benjamin: “the state of exception… has become the norm.”

A tired response to this is the scream, “If you think Burma and America are the same, you are crazy! In Burma you wouldn’t even be free to write this article!”. This I happily concede; the US and Burma are certainly not the same – especially surrounding political dissent. But there are some similarities between the two regarding how they improvise and violate their own laws, and comparing and contrasting this helps us understand Burma’s current political situation.

Juxtaposing Obama’s US and Thein Sein’s Burma, we see the latter’s allegedly irreconcilably lawless system as similar to America’s in important ways. What prevents US security forces from rounding up ‘average’ (read: white bourgeois) citizens and violating their ‘rights’ is not something wholly inscribed in law. Other factors, particularly an assemblage of social values that animate the legal system, make such an action (at least under ‘normal circumstances’) simply unthinkable. And while laws can produce realities consistent with their explicit rules – as feedback loops produce a given statute as common sense – the law’s power does not come from within itself; its explicit and implicit violations show us that the law is empty, a vessel that society can invest with symbolic capital.

Hence, Burma’s citizens have not found it odd to watch their politically-active countrymen imprisoned for violations of ludicrous laws. The society’s cultural, political, and symbolic realities have filled laws with a different common sense, one that makes oppositional politics dangerous. How would ‘reform’ change this in itself? It would not if it were to mean simply writing another piece of legislation.

Where then does this leave us in assessing the current reforms? Two strategies emerge: first, work through the systems that exist, while maintaining that they are deeply flawed. ‘Reform’ is a strategy and a process that cleaves open space to oppose from within, which allows reformers to remain un-captured by the system in which they are participating. If reformers forget this, and think reform is an end, they will forever be reacting to government backsliding, rather than proactively pushing their own vision.

To illustrate, what separates supposedly durable reforms from the ‘superficial’ is the point at which one arbitrarily draws the line: is there evidence to show that today’s political system has escaped capture by the military, as opposed to instrumentalising military control? What of the fact that even now, after the supposedly irrevocably flawed constitutional referendum and election, military-appointed MPs are interacting with civilian representatives? The sheer fact that military representatives have not always voted as a block – even in this early stage – suggests that they are at least somewhat un-captured. Can they be re-captured? Of course, just as political prisoners can be re-imprisoned. The state could do that, because the state controls the monopoly of violence and the ability to make decisions that exceed the laws, whatever those laws happen to be. The arguments for a ‘good’ constitution as an end seem similarly problematic – we are still dealing with the same inherent problem of the exceptional violence of the state. Unless the opposition demonstrates fidelity to an ethos of political anarchism, a noble goal, they will have to maneuver within a space in which they will never be safe, sure, or soundly grounded.

Second, the flawed constitution gives the opposition an excuse and a reason to start doing creative politics outside of legal-juridical or official political channels, which in turn can bring politics back down to where people live and die. There are alternative ways to communicate this politics – canvassing, outreach, guerilla art, newspapers, periodicals, radio, and internet. Radio contains still-untapped potential: a program called “Everyday Burmese Lives” could highlight the struggles of Burmese people, outline the ways that these struggles constitute governance challenges, and then follow up by outlining concrete policies that combine state and local solutions: increased access to credit for farmers, community ownership of forests, transparent revenues of oil and gas projects directed to health and education, and so on.

These two strategies can act to mutually reinforce each other: any ‘reform’ will likely take on meaning only when practiced. This can change collective common sense, infusing ‘reform’ with social meaning.

Elliott Prasse-Freeman is Founding Research Associate Fellow, HR+SM Program, and Advisory Board Member, Sexuality, Gender, and HR Program at Harvard Kennedy School. He spent five years working in international development for various agencies—from the UN to international NGOs—where he directed projects in Burma, India, Thailand, and other countries in Southeast Asia.