Anthropology and Sociology of Law

1. Anthropology and Sociology of Law Nicolas Aubin Martha Chertkow Stephanie Clark

2. Structure de la présentation 1- Naomi Mezey, « Law as Culture », (2001) 2- Garapon, L'âne portant les reliques, 1985 3- Clifford Geertz, « Local Knowledge: Fact and Law in Comparative Perspective » 4- Cas pratiques Timor-Leste Canada

3. Naomi Mezey, “Law as Culture” “What I propose is an investigation into the movement and moments of collision between the dependent discourses of law and culture.”

4. Culture • “Any set of shared, signifying practices – practices by which meaning is produced, performed, contested or transformed.” • Unconsciously inhabited way of life or self-conscious appropriation of symbols • Heterogeneous, diverse, internally contradictory

5. Law • Law as a powerful institutional cultural actor with various agents (legislators, judges, civil servants, citizens) • Can be understood in three ways: • Law's pervasive power over cultural practices • Culture's pervasive power over the law • A mutual exertion of power, interdependence

6. The Analysis of Law as Culture • involves the “convoluted investigation between two intertwined social discourses and aims less at interpreting the rules of each and more at explaining the nature of their necessary interaction.” • 3 aspects of analyzing the “slippage”: • Interpretation of law at the site of production • Interpretation of the cultural practices that could influence the law • Interpretation of the encounter between law and culture

7. Unpredicted cultural effects of legal acts: http://www.youtube.com/watch?v=ciKVw6YCVx4 Interactions between culture and the law: http://www.youtube.com/watch?v=AtyKofFih8Y

8. Critiques - Mezey and Fuller: Does Mezey's “Law” include Fuller's “customary law”? - Mezey and Nussbaum: What is the place of a “poetic judge” in Mezey's approach?

9. Justifications for including customary law/culture: Fuller: “a society may have rules imposed on it from above, so it may also reach out for rules by a kind of inarticulate collective preference. Men are seen as directing their interactions by a law that their society has, in some silent way, told them is just and proper. What is missing is any inquiry into the actual social processes through which this law came into being and by which it is sustained.” Mezey: “To acknowledge that institutionally legal actors participate in creating culturally specific meaning and that legal symbols embedded in culture feed back into law does not tell you anything substantive about how cultural meaning and practice change in response to, say, a legal rule.”

10. Antoine Garapon, « L‘Âne portant les reliques », 1985 Procès = Rituel Appel à l’émotivité et au sens de l’esthétique plutôt qu’à la rationalité « Sans l’aide du symbole et du rituel, le droit ne resterait qu’une idée irréelle ou illusoire: il a besoin du symbole pour être transformé en expérience concrète » (p.69)

11. Garapon Division en trois points: Espace Temps Robe judiciaire

12. L’Espace: Carte de Paris (localisation du Palais de Justice)

13. L’Espace: Palais de Justice de Paris (vue de la cour du Mai)

14. L’Espace: Palais de Justice de Paris(façade ouest)

15. Le Temps: 12

16. Le Temps: l’Urne

17. La Robe judiciaire« L’habit fait le moine »(si-bas: Robes de la Cour internationale de justice)

18. Critiques Ethnocentrisme Évidence du propos Difficulté de soustraire une signification universelle d’un même symbole

19. Geertz- Local Knowledge: Fact and Law in Comparative Perspective Summary Problem: • Law is rooted in a web of cultural significance • Compartmentalization of anthropology and law • Lack of appreciation of local knowledge in legal analysis Law

20. Geertz- Local Knowledge: Fact and Law in Comparative Perspective Summary • Argument: Law is constitutive, constructive and formational of local knowledge and culture • Eg. Legal sensibilities =set of principles that give meaning to law • Haqq, Dharma and Adat • Solution: Cross-fertilization of anthropology and law, exploring all intersectionalities • Shift from functional to hermeneutic thinking Law

21. Geertz- Local Knowledge: Fact and Law in Comparative Perspective Issues 1. Implications of Geertz for ‘Rule of Law’ and Access to Justice work 2. Explanatory nature: • What about immoral/unjust components of cultures? • Eg. Bartlett, Female Genital Mutilation 3. International law • Whose cultural web determines international legal system? • Brierly, Allot 4. Role of law in society • Distinguishing between ‘culture’ and ‘way of life’ • Challenging René David

22. Case Study 1: Timor-Leste • Situation: It is 2011, Timor-Leste has recently gained independence. One of the main problems in the new country is widespread domestic violence. Local culture says it is acceptable to beat one’s wife if she does not complete her ‘wifely duties’, so long as there is no blood or instrument used. If there is, the local traditional justice leader mediates, usually requiring the exchange of a pig, a goat and palm wine as compensation. If permanent injury or death occurs, an amount of buffalo or gold necklaces may be demanded. • The job: You are an international legal advisor and have been hired by the Prime Minister to draft a new law against domestic violence. • Which of the following laws would you suggest? • What would be their benefits and consequences? Martha Chertkow 2011

23. Case Study 1: Timor-Leste • 1. Criminalization of domestic violence: If found guilty of physically abusing one’s spouse, a person will face minimum 2 and up to 6 years of jail. • 2. Traditional Justice jurisdiction over domestic violence: Traditional justice leaders have fully authority over resolving any form of domestic violence, except that causing death. Martha Chertkow 2011 • 3. Criminalization of domestic violence that leads to permanent injury: If spouse is found guilty of causing permanent injury they will face 2-6 years jail time. All other cases fall under the jurisdiction of traditional leaders to resolve. Social programmes for awareness and prevention of domestic violence, as well as micro-credit support for survivors will also be launched.

24. Case Study 2: Unwritten Constitutional Conventions The Situation: Canada’s entrenched constitution includes a few elements that are not followed – these elements are called unwritten constitutional conventions. For example, the Governor General has the power to veto any bill passed through Parliament. However, no GG of Canada has ever used this power. The question: Is the convention that the GG will never veto a bill passed by Parliament informed by law or by culture?