“A model worker in Guangdong may be a criminal in Shanghai, a chair of meetings in Hainan may be a bearer of handcuffs in Beijing.”

—Popular saying in China, quoted in Yan Sun (2004, 3).

It is a fascinating challenge to attempt to integrate the insightful comments by Goldstein, Ramachandran, and Gandolfo. One issue that runs through all three is the question of labelling people as illegal as opposed to so defining practices. Goldstein and Ramachandran focus on the consequences of treating people as illegal based on their status identities, while Gandolfo provides background into how such ways of talking about people developed historically, whether as “illegal” or “lumpen” or “marginal.” What is also common to them is their emphasis on “illegalization” among the less powerful sectors of society. In this commentary, I will try to balance this emphasis with a parallel discussion of “illegality” among elites. For example, the aftermath of the 2008 financial crisis gives us a flood of information about pervasive illegality in the financial sector. The Economist magazine entitled its August 30, 2014, cover story, “The Criminalisation of American Business,” although its emphasis is more on the ways in which the Securities and Exchange Commission (and other US agencies) “runs the world’s most lucrative shakedown operation.” In the first eight months of 2014, American banks have paid nearly $50 billion as settlements for misleading investors in mortgage-backed bonds.

The anthropology of illegality needs to follow Laura Nader’s precept to “study up” as well as “down.” Studying up does not simply mean examining the way in which the elite construct the less powerful and stigmatized groups as “illegal,” but also paying attention to illegal practices undertaken by the rich and powerful, or even state agencies themselves (Heyman and Smart 1999). Filippo Zerilli and I (2014) recently published an essay on “extralegality” in which we argued for its advantages over illegality because it encourages us to consider activities beyond the strictly legal carried out by rulers, not just the ruled. “Illegality,” on the other hand, tends to focus less attention to those who decide what is counted as legal.

Illegality among the powerful differs in important ways from illegality among ordinary citizens, most significantly in the way that elites often have the ability to redefine what is illegal. The consequences of such remapping of the legal landscape can be immense. In 1987, Josephine Smart and I began studying the emergence of capitalist relations of production in China under the new economic reforms. What was legal and illegal was very uncertain in this period, and from our ethnographic work with investors, government officials and workers, we found that the Pearl River Delta consistently “pushed the envelope” of what was acceptable to the central government. Much of this entrepreneurial activity could easily be defined and prosecuted as corruption, particularly if there was to be a shift in the political winds. Ironically, however, giving “gifts” to more powerful officials was a crucial way of protecting oneself from being accused of corruption (Smart and Hsu 2007). These practices were indispensable in the early reforms, when rules and property rights were particularly uncertain, and contributed considerably to the emergence of the Pearl River Delta as the “workshop of the world” (Smart and Hsu 2007). Yet, they have not disappeared as capitalism in China has gone from being secured by local processes to being routinized, particularly since China’s accession to the World Trade Organization in 2001 (Osburg 2013). How the liminal spaces of what is not-yet-(il)legal are legally determined constitute the “rules of the game”, and often make it unnecessary for the elite to resort to illegal activities, since what they want to do can often be accommodated within flexible interpretations of “acceptable accounting practice” or “market socialism” rather than “taking the capitalist road”.

What is surprising about the revelations that emerged after 2008 of widespread wrongdoing in the global financial industry is how many of the elite stray from the “gray zones” into outright black activities despite having no need for more money. Perhaps we need to develop more research into “Lumpenesque” capitalists, to borrow Gandolfo’s term. Yet there are potentially disadvantages in extending our focus from illegality “below” to illegality “above.” Ann Varley (2013) argues that in challenging the informal/formal dualism in Latin American cities by showing that elite informalities seem to be as pervasive as the informalities of the poor, the result may be rather to perpetuate the distinction by equating informality with the totality of the cities of the Global South, rather than effectively challenging the utility of the distinction. For these reasons, it seems strategically important to pay more attention not just to elite illegality, but to illegalities among the most “un-marked” status categories: American and Western European white male corporate owners and managers.