Legal Anthropology

Warum Governance? Über den Nutzen des Governance- Ansatzes für die Ethnologie und den Nutzen der Ethnologie für die Governance-Forschung

by Erwin Schweitzer

published in Ethnoscripts 14 (1), 2012

Knowing How to Sleepwalk: Placing Expert Evidence in the Midst of an English Jury Trial

by Thomas Scheffer

Before the Law or Three Narratives about Gaining Access to Criminal Defence

by Thomas Scheffer

Reasons to Ban? The Anti-Burqa Movement in Western Europe

by Prakash Shah

This MMG Working Paper 12-09 (Göttingen: Max Planck Institute for the Study of Religious and Ethnic Diversity) is Co-authored with Ralph Grillo, Emeritus Professor of Social Anthropology at the University of Sussex. Publications include: Pluralism and the Politics of Difference: State, Culture, and Ethnicity in Comparative Perspective, Clarendon Press (1998); editor of The Family in Question: Immigrant and Ethnic Minorities in Multicultural Europe, Amsterdam University Press (2008); co-editor of Legal Practice and Cultural Diversity, Ashgate (2009). Ralph Grillo is a member of the Advisory Group of the Department of Socio-Cultural Diversity of the Max Planck Institute for the Study of Religious and Ethnic Diversity at Göttingen.

During the 2000s, the dress of Muslim women in Muslim-minority countries in Europe and elsewhere became increasingly a... more During the 2000s, the dress of Muslim women in Muslim-minority countries in Europe and elsewhere became increasingly a matter for debate and, in several instances, the subject of legislation. In France, a ban on the wearing of the headscarf
in places of education (2004) was followed in 2010 by the law criminalizing the wearing of the face-veil (usually but inaccurately referred to as the ‘burqa’) in public space. Other countries have enacted similar legislation. Muslim women’s dress has historically been a controversial matter in Muslim-majority countries, too, most recently in North Africa following the Arab Spring, but the present paper concentrates on the movement against face-veiling in Western Europe, documenting what has been happening and analysing the arguments proposed to justify criminalizing this type of garment. In doing so, the paper explores the implications for our understanding of contemporary (ethnically and religiously) diverse societies and their governance.
Is anti-veiling legislation a protest against what is interpreted as an Islamic practice unacceptable in liberal democracies, a sign of a wider discomfort with non-European otherness, or an expression of an underlying racism articulated in cultural terms?
Whatever the reason, is criminalization an appropriate response? An Appendix notes some topics for further research.

Illegal evictions? Overwriting possession and orality with law’s violence in Cambodia

by Simon Springer

Springer, S. Forthcoming. Illegal evictions? Overwriting possession and orality with law’s violence in Cambodia. Journal of Agrarian Change.

The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of... more The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of landholding, which are entrenched in notions of community consensus and existing occupation. The discrepancy between such orally recognized antecedents and the written word of law have been at the heart of the recent wave of dispossessions that have swept across the country. Contra the standard critique that corruption has set the tone, this paper argues that evictions in Cambodia are often literally underwritten by the articles of law. Whereas ‘possession’ is a well-understood and accepted concept in Cambodia, a cultural basis rooted in what James C. Scott refers to as ‘orality’, coupled with a long history of subsistence agriculture, semi-nomadic lifestyles, barter economies, and–until recently–widespread land availability have all ensured that notions of ‘property’ are vague among the country’s majority rural poor. In drawing a firm distinction between possessions and property, where the former is premised upon actual use and the latter is embedded in exploitation, this article examines how proprietorship is inextricably bound to the violence of law.

Die Aksakal-Gerichte in Kirgistan. Entwicklung und aktuelle Situation einer traditionellen Rechtsinstitution

by Judith Beyer

Revitalisation, invention and continued existence of the Kyrgyz aksakal courts: Listening to pluralistic accounts of history

by Judith Beyer

Liberalism and its Other: The Politics of Primitivism and Colonial and Postcolonial Indian Law

by Uday Chandra

Forthcoming, Law and Society Review (paper available on request)

Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous... more Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous individuals. Yet, in both colonial and postcolonial contexts, liberal theorists and policymakers have struggled to defend the rights and freedoms of political subjects whom they regard as “primitive,” “backward,” or in more politically-correct terms, “indigenous” (Pagden 1982; Damodaran 2006b; Viswanathan 2006; Jung 2008). Liberalism thus recurrently encounters its primitive other, a face-off that gives rise to a peculiar set of dilemmas and contradictions for political theory, policy, and practice in colonial and postcolonial contexts (Ivison 2002; Ivison et al 2000; Banerjee 2006; Ghosh 2006). In what ways can postcolonial law rid itself of its colonial baggage? How can the ideal of universal liberal citizenship overcome paternalistic notions of protection? How might “primitive” subjects become full and equal citizens in postcolonial societies?

To explore these dilemmas and contradictions, I study the intellectual trajectory of “primitivism” in India from the construction of so-called tribal areas in the 1870s to legal debates and official reports on tribal rights in contemporary India. As such, this paper has two principal aims: firstly, to read closely the legal provisions justifying colonial and postcolonial rule over tribal populations in order to highlight the ambiguities and paradoxes of primitivism as an ideology of rule in India, and secondly, to understand these legal texts in their proper intellectual and political contexts in order to develop an historically-inflected understanding of the continuing tension between the constitutional ideal of liberal citizenship and the disturbing reality of tribal subjecthood produced by colonial and postcolonial states in India. In doing so, I seek to put into conversation the small but influential literature on liberalism and modern empire with the voluminous writings on colonial anthropology and administration in British India.

My approach in this paper may be termed interpretive or hermeneutical. I read primary legal texts closely with particular attention to continuities and shifts in their languages and concepts. Furthermore, I situate these texts in their historical contexts in order to better appreciate how the hermeneutics of these texts share a two-way relationship with real-world policy and practice. For the colonial period, I focus on the Scheduled Districts Act (1874), selected administrative and missionary writings on tribal areas and peoples, and extracts from colonial constitutions and commissioned reports. For the postcolonial period, I study the debates over the Constitution of India and its provisions for scheduled tribes, key legislation and court decisions on tribal rights and livelihoods, and reports on tribal development from the 1960s onwards. Lastly, I invoke secondary sources by historians, political theorists, and anthropologists that explore the historical relationship between liberalism and modern empire as well as ideologies of rule that have used anthropological knowledge to justify their raison d’êtres.

Genetyka behawioralna na sali sądowej [Behavioral Genetics in the Courtroom]

by Radosław Zyzik

Accepted Paper; 'Forum prawnicze'

The paper posits the thesis that there is no methodological shortcut between behavioral genetics and legal sciences,... more The paper posits the thesis that there is no methodological shortcut between behavioral genetics and legal sciences, and we are not into position to walk on the bridge between genetics and law (especially, in the courtrooms).

The structure of the paper is as follows. First, legal cases where behavioral genetics played some role are presented (Bayout, Stefani, Landrigan). In the next step possible points of intersection of law and genetics are described (culpability, mitigation etc.). The third and fourth part of the paper are devoted to genetic research (i.e. on C. elegans) in order to establish the relation between genes, neurons, environment (and again - genes).

The conclusion of the paper is twofold (or even threefold). There is no strong evidence that genetic research can be of any use in legal proceedings. On the other hand, behavioral genetics is already on the courtroom's doorstep and legal community should be prepared for it. And at the end, the relation between behavioral genetics and legal cases is a very interesting problem for legal philosophy and theory.

'I've too much baggage': the impacts of legal status on the social worlds of irregular migrants

by Nando Sigona

Sigona, N. (2012) ''I've too much baggage': the impacts of legal status on the social worlds of irregular migrants', Social Anthropology, 20 (1): 50-65

Drawing on in-depth qualitative interviews with irregular migrants in the UK, this article shows how the condition of... more Drawing on in-depth qualitative interviews with irregular migrants in the UK, this article shows how the condition of ‘illegality’ permeates migrants’ everyday lives, gradually invading their social worlds and social and community networks. The article will focus on three aspects in particular: firstly, the impact of being undocumented on the ways migrants choose who to interact with and how; secondly, the range of social activities undocumented migrants engage in and the places where they socialise; and thirdly, the interaction with community organisations, churches and mainstream support agencies. Overall, by revealing differences as well as commonalities in the ways ‘illegality’ impact on migrants’ social worlds, the paper argues for a conceptualisation of ‘illegality’ that takes into account analytically how this intersects with specific legal and policy arrangements and broader socio-economic context, as well as with migrants’ expectations and histories.

WSU Students for Life Complaint

by Romero Anton Montalban Anderssen

Lawsuit against Wayne State University for discrimination against religious students.

This complaint explains how students have been mistreated at Wayne State University. This complaint explains how students have been mistreated at Wayne State University.

Where official Justice ends, Theodicy begins: curse accusations and the rise of retaliatory shamanism in Tuva, Siberia

by Konstantinos Zorbas

Violent accumulation: a postanarchist critique of property, dispossession, and the state of exception in neoliberalizing Cambodia

by Simon Springer

Springer, S. Forthcoming. Violent accumulation: a postanarchist critique of property, dispossession, and the state of exception in neoliberalizing Cambodia. Annals of the Association of American Geographers.

Employing a poststructuralist-meets-anarchist stance that advances conceptual insight into the nature of sovereign... more Employing a poststructuralist-meets-anarchist stance that advances conceptual insight into the nature of sovereign power, this article examines the dialectics of capitalism/primitive accumulation, civilization/savagery, and law/violence, which are argued to exist in a mutually reinforcing 'trilateral of logics'. In deciphering this triadic system, this article offers a radical (re)appraisal of capitalism, its legal process, and its civilizing effects, which together serve to mask the originary and ongoing violences of primitive accumulation and the property system. Such obfuscation suggests that wherever the trilateral of logics is enacted, so too is the state of exception called into being, exposing us all as potential homo sacer (life that does not count). Proceeding as a diagnostic assessment of sovereign power, where although signposted by Cambodia's contemporary experiences of violent land conflict, this article is not intended as a fine-grained empirical analysis. Instead, it forwards a theoretical dialogue where Cambodia's neoliberalizing processes offer a window on how sovereign power configures itself around the three discursive-institutional constellations (i.e., capitalism, civilization, and law) that form the trilateral of logics. Rather than formulating prescriptive solutions, the intention here is critique, where in particular it is argued that the preoccupation with strengthening Cambodia's legal system should not be read as a panacea for contemporary social ills, but as an imposition that serves to legitimize the violences of property.

The Kanun in the City. Albanian Customary Law as a Habitus and Its Persistence in the Suburb of Tirana, Bathore

by Stéphane Voell

Voell, Stéphane 2003. The Kanun in the City: Albanian Customary Law as a Habitus and its Persistence in the Suburb of Tirana, Bathore. In: Anthropos (Sankt Augustin) 98, 1: 85-101

he rapid decline of socialist order in Albania in 1991 and the lack of functioning new administrative structures led... more he rapid decline of socialist order in Albania in 1991 and the lack of functioning new administrative structures led to the breakdown of state authority. During this time a majority of people in the north returned to openly practising the ancient customary law ‚Kanun‘ and brought it with them while migrating to Bathore, the suburbia of the capital Tirana. The Kanun is in this paper described as a habitus, tied to a specific social and economic setting. The social field structuring the habitus Kanun is framed by geographical and social seclusion and stratified by the patriarchal tribal organisation, a social field which can also be found in Bathore. The basic constituting element of the habitus Kanun can also be found at the outskirts of Tirana.

Interaction between Customary Legal Systems and the Formal Legal System of Peru

by Ellen Desmet

On paper, the Peruvian state legal framework has made some progress in incorporating respect for customary legal... more On paper, the Peruvian state legal framework has made some progress in incorporating respect for customary legal systems. For the greater part, however, the recognition of customary norms, organizational forms and decision-making mechanisms is subsequently weakened or invalidated in various strategies, such as: the addition of qualifying language limiting application; the requirement of compatibility with national state law and/or international human rights law; and the imposition in the law of norms, organizational structures or decision-making processes that are foreign to the customary legal systems concerned. This is demonstrated through the analysis of three themes: the organizational and judicial autonomy of indigenous peoples, land rights and nature conservation. The Peruvian national legislation is studied, as well as its impact on the daily life and organization of an indigenous people living at the border Peru-Colombia, the
Airo Pai (Secoya).

This analysis of the Peruvian legislation on autonomy, land rights and nature conservation demonstrates that, in the end, there is no real space for customary institutions and decision-making processes to function.

L’ascèse au sein de la pénitence en tant que rite de passage de l’Église byzantine

by Stavros PERENTIDIS

in: Les Dialectiques de l’ascèse. Études réunies par Brigitte PÉREZ-JEAN avec la collaboration de Michel FOURCADE, Pierre-Yves KIRSCHLEGER et Sabine LUCIANI, aux Éditions Classiques Garnier, Paris, 2011 [Collection «Rencontres» 18], p. 183-196.

Résumé :
La procédure de réintégration du pécheur dans la communauté des fidèles, selon les normes de l’Église... more Résumé :
La procédure de réintégration du pécheur dans la communauté des fidèles, selon les normes de l’Église orthodoxe byzantine, se fait par étapes, soit par des phases successives qui doivent aboutir au retour parfait. L’on y reconnaît le schéma des rites de passage selon Arnold Van Gennep. Durant ce procédé, l’ascèse joue un rôle prépondérant, car la maîtrise de l’esprit se fait par l’ascèse du corps. Outre ce retour petit à petit et par étapes, dans l’espace sacré du bâtiment de l’église et à la liturgie, le récipiendaire, en vue de son rétablissement spirituel, doit jeûner, effectuer un nombre de génuflexions en signe d’humilité, faire peiner le corps et pratiquer une vie à la dure (sklèragôgia). Par ces pratiques austères, il doit ainsi se montrer, à soi-même et aux autres, digne de regagner le corps de l’Église et la communion.

Abstarct :
Reinstating the sinner in the community of believes, according to the standards of the Byzantine Orthodox Church, is done through stages or phases which should lead to a perfect come back. The pattern of rites of passage as of Arnold Van Gennep are to be spotted in such a procedure. During this process, asceticism plays a leading role as controlling the mind is done through the asceticism of the body. Besides this gradual and in stages return, in the sacred area of the church building and liturgy, the recipient, for his spiritual restoration, should fast, perform a number of prostrations to testify his humility, toil his body and live a hard life. In these austere practices, he must prove himself worthy returning to the body of the Church and to communion.


Resümee :
Gemäß der Normen der byzantinischen orthodoxen Kirche, wird die Reintegration der Sünder in die Gemeinschaft der Gläubigen in Stufen erfolgt, durch aufeinanderfolgende Phasen, die zum perfekten zurück führen sollte. Man kann das Schema der rites de passage – oder Übergangsriten – nach Arnold Van Gennep erkennen. Während dieses Prozesses spielt die Askese eine zentrale Rolle, da die Selbstbeherrschung des Geistes durch die Askese des Leibs zu realisieren ist, dieser Mentalität nach. Neben dieser Rückkehr – etappenweise und in Stufen – in den sakralen Raum des Kirchengebäudes und gleichzeitig in der Liturgie, sollte der Sünder für seine geistige Wiederherstellung eine Reihe von Kniefällen in Demut, bzw. eine Abhärtung des Leibs (sklèragôgia) zu führen. So muß er sich würdig der Rückkehrt in der Kirche und in der Kommunion zu zeigen.

Antifonte 44 D.-K.:: una investigación sobre el comportamiento humano, QUCC 89 (2008) 87-115

by Gustavo Veneciano

A paper published in Quaderni Urbinati di Cultura Classica 89 (2008) 87-115.

When South Asians marry trans-jurisdictionally: Some reflections on immigration cases by an ‘expert’

by Prakash Shah

This paper is published as a chapter in Livia Holden (ed.) (2011): Cultural Expertise and Litigation: Patterns, Conflicts, Narratives. London: Routledge, pp. 35-52
http://www.routledge.com/books/details/9780415601566/

Workshop report: Introduction of “cultural expertise” in English courts

by Prakash Shah

This paper is published in Issue 86 [Summer 2011] Amicus Curiae: Journal of the Society for Advanced Legal Studies, pp. 13-14.

Neoliberalism, piracy and copyrights enforcement in Mexico

by Jose Carlos G. Aguiar

In this article, the author looks at the consolidation of intellectual property rights as interna- tional law, and he... more In this article, the author looks at the consolidation of intellectual property rights as interna- tional law, and he argues that the ongoing judicial processes and state policies to enforce copyrights in Mexico are typical of global neoliberalism. The war on piracy results from the legal structure for world trade. Nonetheless, the unexpected outcome from the criminalization of piracy retail in Mexico has been the expansion of the conflict of legitimacy and political authority.The author concludes that the success of the international lobbies to the defense of those rights in the long term will depend on their ability
of understand the multiple levels of action, interest and loyalty of the street vendors and the authorities ordering them legally or extraoficially.