The workshop will focus on current debates in legal anthropology, which owe a great deal to the work of scholars like Franz von Benda-Beckmann who mapped legal diversity and analysed the social working of law when it was less fashionable.
Long Abstract:
Anthropology of law has made an overdue comeback into the centre of the discipline. Discussions about recent processes of globalisation, the postcolonial experience and cultural diversity often concern legal issues. These current debates owe a great deal to the work of scholars like Franz von Benda-Beckmann who mapped legal diversity and analysed the social working of law when it was less fashionable. Thanks to his and others' efforts the anthropological study of law and legal institutions has left the narrow confines of a sub-discipline on the wane and has been taken up across the discipline spurring new research agendas, and intensifying intra- and inter-disciplinary exchange.
The law in its multifarious manifestations, be it state-law, customary law, religious law, transnational law or para-law, is not merely an instrument to address disputes or regulate social life but rather powerfully shapes people's ways of making sense of the world. The workshop is based on this conception of law in society and focuses on a number of central themes:
From the margins: Claiming rights against the nation-state
The limits of religious law: Islam and family law
The politics of global order and the transnationalisation of law
Contested diversity and conceptualisations of legal pluralism,
The aim of this exercise is to investigate the appropriation of legal ideas and institutions and the production of legal knowledge in different inter-related local settings. The operation of power and the ways in which law is constituted by and constitutes social and cultural life will be central to our discussion.
Law in China cannot be separated from government politics or public moralities. My paper looks at law activism in China. I argue that legal processes working towards accountability are in rural China typically diverted into efforts to rebalance relations between particular local activists (and their ‘constituencies’) and their local government.
Paper long abstract:
Law in the People's Republic of China is an important new tool of governance and cannot be neatly separated from either government politics or public moralities. In order to explore local visions of law, and law's possible resignifications, it is necessary to take into account the realities of juridical processes, and of fazhi ('governing through law') as a discourse that
emphasizes accountability towards the state, citizen morality and social stability or harmony. My paper looks at law activism in China. I argue that while legal processes might formally work towards establishing accountability, in China's particular context this is typically diverted into efforts to rebalance relations between particular local activists (and their 'constituencies') and particular local governments. 'Settling a case' here means to create new spaces for political and moral negotiation, a new
'balance' of interest by bridging the quest for accountability with situated sensibilities, derived from particular moral relations. Justice is here primarily sought as a social aesthetic ('balance') not as the outcome of legal processes. Such a search for justice with, but ultimately beyond the law, is often interpreted as 'culture corrupting law'. This is a serious misinterpretation/beyond the point. Instead, my paper argues that such appropriations of law are central in linking local moralities to the public sphere, in creating new spaces of negotiation and in injecting local relations (including what is ordinarily seen as state and society)
with a new notion of the 'right' (as opposed to both 'rights' and to the morally good).
Is Constitutionalism possible in an Insurgent State? In this paper, I aim to questions the significance of recent efforts to create a new constitution in Bolivia for anthropological ideas about legal pluralism.
Paper long abstract:
In this paper, I aim to questions the significance of recent efforts to create a new constitution in Bolivia for anthropological ideas about legal pluralism. The paper focuses specifically on the significance of recent constitutional processes for Bolivia's largely indigent and previously politically marginalised majority indigenous population. As such, the paper considers the manner in which the country's legal plurality has become a part of the national political identity and an integral part of the constitutional process now completed in the country's legal capital. Whilst highlighting the causes and dangers of continued contestation, the paper argues that important lessons about the possibilities for the empowerment of the poor and acceptance of a place for plurality in law can be learned from Bolivia. With its empirical background of insurgency and constitutionalism, but also of indigenous cultures, the case of Bolivia tests the limits of standardised rights based approaches to development and legal empowerment. In this paper attention is drawn to the cultural pliability of ideas about modernity and democracy and the importance of an inter-legal rapprochement between formalized legal norms and alternative legal systems. The paper further highlights the validity of anthropological approaches to the state that highlight the social construction of institutions and structures. Drawing from its empirical base the paper finally aims to critically contribute to recent discussions in "pro-poor" theory, highlighting the problems and possibilities of multi-culturalism and questioning the relevance and applicability of recently proposed ideas of inter-legality.
This paper examines the application of Moroccan or Spanish family law systems by Moroccan migrant women who want a divorce from their Moroccan husbands. I will present a detailed case as an example of legal pluralism and multicultural policies in Spain today.
Paper long abstract:
This paper deals with legal pluralism and multiculturalism from a gender perspective. The fact that the reformed Moroccan family law (Mudawwana) and the Spanish Family Code co-exist in Spain offer maltreated Moroccan women migrants a chance to get a Spanish divorce by the application of the Integrated Law of Gender Violence (2004), something which have consequences for migrant women's chances of rapidly getting residence and work permits in their own names. They get the permits independently of their ex-husbands, from whom a divorce valid in Morocco according to Mudawwana often in practice results more difficult to achieve.
In this paper I present a detailed case of a Moroccan woman's marriage and divorce career during the five years that she has lived in Spain. I include her encounters with the Spanish legal and administrative authorities and her Moroccan family's efforts to get a divorce for their daughter in Casablanca. This example illustates the many and complex factors such as religious and/ or secular ideologies and political pragmatism which together shape the conditions of the Moroccan female migrants' legal rights to divorce.
Syrian and Moroccan Muslim family court judges are able to award judicial divorce on the grounds of marital discord. I consider the influence of each legal systems institutional structures on actors' enactment of agency during the legal process and the resulting impact on court rulings.
Paper long abstract:
The codification of Muslim family law, with provisions drawn from the classical Islamic legal corpus (fiqh), has been identified as having constituted a fundamental shift in the sourcing and application of legal norms, and imposing restrictions on the discretion exercised by the judiciary. In codifying Muslim family law, post-colonial states privileged a selection of norms to the exclusion of the general body of opinions contained in the fiqh, and increasingly introduced procedural regulation of matters such as marriage and divorce.
Both Syria's Personal Status Law No. 59 (1953) and Morocco's recently reformed Mudawwanat al-Usra (2004) contain legal articles enabling the family court judiciary to award a judicial divorce to a claimant on the grounds that their marriage is in discord, meaning that it has undergone irretrievable breakdown. Although the wording of these provisions is similar, fieldwork undertaken for this paper illustrates significant disparities in the processing of judicial divorce claims, with repercussions for litigants' dispute strategies and post-divorce financial settlements imposed by the court.
Evaluating empirical data gathered during observation of Damascus and Marrakesh judicial divorce process, this paper illustrates discretionary behaviour by the family court judiciary when interpreting the meaning of the legal rules, enforcing procedural regulation of claims and incorporating social attitudes towards litigants' claims. Although judicial divorce is always granted to persistent claimants, variations in the application of legal provisions in Damascus and Marrakesh demonstrates that there is a creative tension between the 'situated practice of judging' and post-colonial codified family law.
The paper analyzes faith-based arbitration in Canada in the aftermath of the shari'a law dispute in Ontario and the debate on reasonable accommodation in Quebec. An empirical example in which Moroccans and Quebecers of Moroccan origin were involved shows changing attitudes toward legal diversity.
Paper long abstract:
State legislation in Canada has been regarded as one of the most advanced and path breaking state legislations worldwide allowing for legal and cultural diversity in accordance with multiculturalism politics. The inclusion of faith-based arbitration according to the Ontario Arbitration Act of 1991, however, has been deleted in 2006 after a vehement public dispute over the compatibility of Islamic law with Canadian legislation, particularly over the legal and social status of women in Islamic law — a decision with reverberations all over Canada and beyond.
The paper addresses the question of the continuation and reconsolidation of faith-based arbitration in the aftermath of the dispute, then without any connection to the official legal sphere. This development is analyzed in the light of the debate over stately guaranteed legal diversity and religious self-determination as facets of multicultural coexistence.
In this context, the public debate on the findings of the "Consultation Commission on Accommodation Practices Related to Cultural Differences (CCPARDC)" in the state of Québec is contrasted with the transnational discourse on the role of Islamic ethics and moral order in dispute settlement which links Muslims of Moroccan origin in Québec with their interlocutors in Morocco.
The paper shows that Canadian Muslims of Moroccan origin identify with an adjustment of Islamic arbitration to the normative standards of Canadian multiculturalism and that the transnational debate helps liberal Muslims in Morocco dealing with the increasing importance of moral Islamic reasoning in dispute settlements where local legal standards, transnational Islamic normative dogmatism and state law are involved.
This paper examines the combination of scepticism and enthusiasm found in so much engagement with the UN human rights system. In doing so it applies some of the central insights developed by Franz von Benda Beckmann about legal pluralism, to international human rights bureaucracies.
Paper long abstract:
This paper examines the combination of scepticism and enthusiasm found in so much engagement with the UN human rights system. In doing so it applies some of the central insights developed by Franz von Benda Beckmann about legal pluralism, to international human rights bureaucracies. Focusing on the UN Committee Against Torture, it argues that the experience of the plural legal and normative orders that mark human rights practices, means that doubt is the dominant experience for many practitioners. On the one hand, human rights bureaucracies are often seen to be marked out by their rigid certainties. On the other hand, human rights lawyers are faced with an array of often contradictory human rights standards and an uncertainty over the long term impact of their work. In this context, doubt is a sense of being in two minds, that is neither entirely scepticism or enthusiasm, but an unstable and productive combination of the two. The knowledge produced by the UN human rights system is not a self-referential or self-enclosed process, but rather is marked gaps, hesitations and uncertainties. In this process there is a constant movement between legal and ethical concerns, between a focus on means and ends. Such tensions are not simply an issue of jurisprudential theory, but rather are an issue of practical concern for many of the people involved in the Committee. This irresolution produces both despair and hope, as alternative avenues and possibilities are constantly opened up and closed down.
Opinions about international war crimes tribunals are divided: hailed by their proponents as milestones in the development of global order they are often criticized as thinly disguised instruments of Western hegemony. Drawing on ethnographic evidence my contribution will interrogate these claims.
Paper long abstract:
International criminal justice is a rapidly expanding field of international law. Several tribunals have been established to deal with massive human rights violations and contribute to national reconciliation after armed conflict. Whereas international lawyers hail these tribunals as milestones in the development of universal legal order a growing number of critics draw attention to the dark sides of international humanitarianism. Proponents and critics, however, fail to appreciate that international criminal law, in spite of its universal and abstract character, is the product of concrete social processes in specific places and sites.
The Special Court for Sierra Leone offers an interesting case for the study of the local conditions under which international criminal law is made. My fine-grained ethnography of knowledge practices at the Special Court suggests that the court has a much more precarious position than the Manichean image of the neo-colonial humanitarian apparatus suggests since it is a site of contestation and competition, both in the national political landscape and the transnational arena. My analysis shows that international war crimes tribunals such as the Special Court play a crucial role in advancing the idea of a cosmopolitan legal order using sub-Sahara Africa as a laboratory of sorts.
This paper examines some of the paradoxical consequences of the proliferation of actors and arenas of norm production and adjudication using empirical material on India. It focuses on the role of the USAID in institutionalising the new population policy as well as that of the World Bank in shaping new resettlement policies.
Paper long abstract:
Global governance has involved the loss of the monopoly of the state over law and policy-making for its citizens. Sub-national and supra-national non-state actors have increasingly begun to shape the formulation of norms and watch over their implementation. This paper examines some of the paradoxical consequences of the proliferation of actors and arenas of norm production and adjudication using empirical material on India. It focuses on the role of the USAID in institutionalising the new population policy as well as that of the World Bank (and its Inspection Panel) in shaping the new norms for the resettlement of those forcibly displaced by infrastructure projects. The contestation of these norms at the local, national and transnational scales by NGOs is analysed in terms of the resulting juridification of politics. Problems of overlapping sovereignties and fragmentation of citizenship rights are discussed in this context and their consequences for democratic decision-making are delineated.
Using an ethnographic example of the Cabeza Prieta National Wildlife Refuge, the paper explores the co-existence of two sets of principles relating to the management and use of wilderness areas, and how they affect the imaginings and practices of wilderness as a specific place and space.
Paper long abstract:
The paper presents the co-existence of two sets of principles which define the scope of management and public use of a protected area which has been designated as a wilderness area. The first set of principles in question concerns the concept of "minimum requirements", which is an exception stemming from the Wilderness Act of 1964 (Section 4(c)) and has been further defined through guidelines that are the joint efforts of wilderness managing governmental agencies and interest groups. The second set is the "Leave No Trace" principles, the origin of which can be traced back to wilderness advocates in the 60s, 70s and 80s, but were also appropriated by the governmental agencies when teaching visitors to these areas on how to behave. Conflicts arising from the opposition of the mission of the National Wildlife Refuge System and the wilderness designation are discussed in relation to these rules. Examples of activities that are being undertaken on the refuge illustrate how these two sets of principles affect imaginings of the area as well as movement within the refuge, whereby movement is understood as a spatial tactics occurring at the level of individual visitors to such areas, and as one of the crucial practices in the processes of 'wildernization', a term the author derives from van Loon's (2002) 'spatialization'.
This paper examines the articulations between custom, Islamic and Algerian laws in different cases of diya (blood-money) practices occurring in South Algeria.
Paper long abstract:
Starting from case studies, the aim of my communication is to analyse articulations between custom, Islamic (Maleki) and Algerian laws in different cases of diya practices occurring in South Algeria. In this region, and more generally in the Maghreb (particularly in Saharan and pre Saharan areas), diya still occurs with some changes linked to the supremacy of State law (in which diya is not legally recognized). In fact diya is still legitimated as a customary duty. This compensation is done in order to prevent acts of revenge or vendetta against the brothers or the cousins of the guilty person. Diya comes to complement State law which does not take into account the collective responsibility of the group of the guilty person (in preventing vengeance) and of the group of the victim (in acting vengeance).
This paper shows how diya (which follows custom and Islamic recommendations) comes as a substitute or a complement of Algerian State law in order to make justice more efficient and legal procedure (based on social arrangements) more socially accepted.
The paper critically evaluates the discussions of the invention of tradition in light of the Ducht Adatrechtschool and the current re-emergence of tradition.
Paper long abstract:
Processes of globalization and decentralization and the political interest in local tradition, call for a critical examination of the deconstructivist literature. This paper discusses the analytical problems and the political context for which the term adatrecht was created by the Dutch scholar Cornelis van Vollenhoven who laid the foundations of the Adatrechtschool and compare this with the context in which the creation of history was criticized in the 1970s and 1980s, and the political context in which the issue has resurfaced in light of globalization.
We shall argue that the evaluation of this work was largely based on a rather legalistic conception of "law", underrated the degree of continuity of local legal orders in most parts of Indonesia, and grossly overrated the actual significance of these colonial legal constructions. A legal anthropological perspective serves to capture the agency of local people, elders and writers, actively transforming and reshaping their own legal orders, irrespective of what foreign writers did, and in response to yet not entirely dependent on state agencies. Law is not only and not primarily to be found in confines of state institutions. Such an approach offers insight into the complex interdependences between different actors engaged in the reproduction and transformation of adat laws in different contexts and at different scale. Van Vollenhoven's insights are still valuable, though he may not have predicted the degree of complexity we are facing in the globalised world of today.
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