Legal anthropology

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The legal anthropology examines contents and functions of legal structures of people of different cultural traditions of ethnic groups and indigenous peoples . Legal anthropology also describes a legal research area that is committed to the natural fundamental constants of legislation and case law.

overview

The classic study Max Gluckman's The Judicial Process among the Barotse of Northern Rhodesia from 1955 can be cited as a pioneering work.

In the German-speaking area, the scientific subject is young; the Law Faculty of the University of Vienna plays a pioneering role here. The term “culture” runs through the subject of legal anthropology and cultural law as a “red thread”, although this is researched differently in cultural law than in legal anthropology. In this context, it deals with the following questions, which are becoming increasingly important worldwide:

In terms of content, legal anthropology also extends its subject to all offers of anthropology , in addition to those of cultural anthropology also to those of philosophical anthropology and social anthropology. Legal anthropology shares its interest in the results of sociobiology with related legal sociology . Overall, legal anthropology is a naturalistic expression of general legal philosophy. In the background is a kind of cultural dualism of ought (law) and being (natural and social sciences).

The task of legal anthropology is to take up those elements of the image of man provided by the empirical sciences of “homo sapiens” and to combine these with the ideal image of man in the western legal systems. The great western legal and constitutional ideas, such as those of the sovereign legal subject and autonomy, the rights of freedom and the resulting personal responsibility, the form of government of democracy and the old legal institution of the treaty, etc. are based on the unprovable assumption of the (individual) free in will. People ( free will ). The natural sciences, on the other hand, tend to interpret humans in an externally determined manner, as demonstrated by the discussion about neurophilosophy. The socially real level of culture opens up the dual path, at least up to the full proof of the external determination of the human being and the recognition of the evidence by Western society from the assumption (of fiction, the axiom) of free will and nevertheless to consider the natural condition of human beings.

History and theorist

Plato already explains his idea of ​​the state and his conception of justice, according to which everyone has to provide what is his own according to his nature and talents, with his doctrine of the three parts of the soul (the desire, the courageous and the reasonable). For Aristotle the human being is a zoon politikon - a social being.

In his "Problem History of Legal Philosophy", Arthur Kaufmann gives an overview of the development of legal anthropology since early modern times. In modern natural law, Hobbes , Spinoza , Locke , Thomasius , Bentham and Rousseau discussed issues of right-wing anthropology. However, they had not yet known "that humans could not be separated from the given world order".

On the basis of Edmund Husserl's phenomenological method, Max Scheler then addressed (philosophical) anthropology for the first time. Would Driven Ludwig Klages , Helmuth Plessner , Erich Roth Acker , Adolf Portmann and not least of Arnold Gehlen general Anthropology in Germany. With his behavioral research Konrad Lorenz then created new foundations.

Legal anthropology was a major topic for German legal philosophy in the 1960s to 1980s. Jan M. Broekmann, Leopold Pospísil and Herbert Zemen as well as Ernst-Joachim Lampe have presented major publications on legal anthropology from different perspectives . The legal sociologist Hans Ryffel has also built a bridge to political science. His work, published in 1969, is entitled "Basic Problems of Legal and State Philosophy. Philosophical Anthropology of the Political". The legal philosophers Thomas Würtenberger , Werner Maihofer , Peter Noll , Erik Wolf , Heinz Müller-Dietz and Reinhold Zippelius also published individual articles at this time .

The philosopher Klaus Hammacher also dedicates an extensive old work to Law and Justice from the perspective of anthropology. "The idea of ​​justice ... consists in the experience of transcendence, which ... is religious and which we find in all legal relationships as a background in the conditionedness of being human."

Individual approaches

Gustav Radbruch already emphasized the fundamental connection between law and culture in his famous legal philosophy from 1932. He understood the legal philosophy as a “cultural philosophy” and increased the dualism to methodical trialism: “This is how the transition is made from a dualism to a trialism of the ways of looking at things (if one disregards the fourth, the religious way of looking at things). This trialism turns legal philosophy into a cultural philosophy of law. ”After 1949, Radbruch's point of view was presumably ignored against the background of the processing of National Socialism and only found its way into the general legal philosophical discussion late.

The constitutional law teacher Peter Häberle now also expressly interprets constitutional law as a part of “cultural studies” and deals with the constitution's corresponding conception of man.

Axel Montenbruck presents a legal anthropology in the narrower sense . He gives his writing the title: “Civilization. A legal anthropology ”and thus chooses the legal culture concept of civilization (from civis, the citizen of Roman law). From the point of view of a primarily secular civilization, people “domesticate” (house) “themselves”. In doing so, “he appears as a creator of his own artificial worlds. The cave, the city, the writing and now the electronic information network embody these worlds ”. In addition, in the sense of Elias (process of civilization), the change from religious external compulsion to moral self-compulsion takes place. “If the western person internalizes his connection to the idea of ​​an animated world, regardless of whether he has previously understood it with or without a personal creator, then he has to rely on a special, highest humane spirit and, if necessary, see himself as a creator. As a price for this kind of privatization, the same person also has the responsibility to "humanize" himself and in this way cultivate his self-control at the same time ". Montenbruck tries to categorize the colorful individual aspects that determine western ( secular ) civilization with three large pair terms, a subjectivistic , an objectivistic and a holistic one . The subtitle reads: “State and people, violence and law, culture and nature.” He understands “state and people” both as “legal entities” and as “free actors”, which is why they could communicate and cooperate with one another. The individual aspects of the image of man generally included: the cultured man, the information man and the natural man, the latter among other things as the genetic bearer of evolution, furthermore in the west the civil man, among other things as political and abstract beings as well as forensic decision-makers who share his normative world cultivate the way and way of thinking of rational judging. The collective side of Western civilization was shaped by the terms “general public, public and democracy”, which can be traced back to “community, network and common good”.

Dirk Fabricius bridges the gap between criminology and legal anthropology. Because the psyche has been an essential element of the image of man since Plato and the findings of evolutionary biology give the image of man a new basis. As part of his two-volume work on the criminal sciences, Fabricius pursues, among other things, the aspects of “psychoanalysis” and examines the “evolutionary positions” on the subjects of “crime, law, guilt, punishment, norm, causes”.

Björn Burckhardt deals in a number of writings with the "experience" of freedom, with which the existence of free will is often justified.

See also

literature

  • Arnold Gehlen : primitive man and late culture. 5th edition. 1986.
  • Arnold Gehlen: Morality and Hypermorality. 3. Edition. 1973.
  • Wolfgang Fikentscher : Law and Anthropology. Outlines, Issues, and Suggestions. Bavarian Academy of Sciences, Beck, Munich 2009, ISBN 978-3-7696-0977-6 .
  • Max Gluckman : The Ideas in Barotse Jurisprudence. 2nd Edition. Yale University Press, New Haven 1965
  • Ernst-Joachim lamp : legal anthropology. A structural analysis of the human being in law. First volume: Individual structures in the legal system .: BD 1 1970, ISBN 3-428-02031-6 .
  • Ernst-Joachim Lampe: Limits of legal positivism. A legal anthropological study . 1988, ISBN 3-428-06417-8 .
  • Axel Montenbruck : civilization. A legal anthropology. State and people, violence and law, culture and nature. 2nd Edition. 2010. University library of the Free University of Berlin (open access)
  • Axel Montenbruck : Western Anthropology: Democracy and Dehumanization. 2nd Edition. University Library of the Free University, Berlin 2010. (open access)
  • Peter Sack, Carl P. Wellman, Mitsukuni Yasaki (eds.): Monism or pluralism of legal cultures ? Anthropological and ethnological foundations of traditional and modern legal systems / Monistic or Pluralistic Legal Culture? Anthropological and Ethnological Foundations of Traditional and Modern Legal Systems. Foreword by / Preface by Ota Weinberger. 1991, ISBN 3-428-07193-X .
  • Reinhold Zippelius : Anthropological conditions. In: Philosophy of Law. 6th edition. § 8, also §§ 5 IV 2, 9, 12 IV, 17 II, 19 IV, 23 I 1, 25. CH Beck, Munich 2011, ISBN 978-3-406-61191-9 .
  • Arthur Kaufmann: Problem history of the legal philosophy. In: Arthur Kaufmann , Winfried Hassemer , Ulfrid Neumann (eds.): Introduction to legal philosophy and legal theory of the present. 8th edition. Heidelberg 2010, ISBN 978-3-8252-0593-5 , p. 99.
  • Stephan Kirste, Andrea Ploder: Anthropology and Law . In: Eric Hilgendorf, Jan C. Joerden (Hrsg.): Handbuch Rechtssphilosophie . JB Metzler, Stuttgart 2017, ISBN 978-3-476-02433-6 , pp. 302-315 , doi : 10.1007 / 978-3-476-05309-1 .

Individual evidence

  1. ^ Max Gluckman : The Judicial Process among the Barotse of Northern Rhodesia . 2nd Edition. Manchester University Press, Manchester 1967.
  2. ↑ Arthur Kaufmann: Problem history of the legal philosophy. In: Arthur Kaufmann , Winfried Hassemer , Ulfrid Neumann (eds.), Introduction to Legal Philosophy and Legal Theory of the Present, 8th edition. Heidelberg, 2010, ISBN 978-3-8252-0593-5 , p. 97.
  3. ↑ Jan M. Broekmann: Law and Anthropology. Alber College of Legal Theory, 1979.
  4. ^ Leopold Pospísil: Anthropology of the law. Law and Society in Archaic and Modern Cultures. Verlag CH Beck, 1982.
  5. ^ Herbert Zemen: Evolution of the law. A preliminary study on the evolutionary principles of law on an anthropological basis. Springer, 1983.
  6. ↑ See literature below
  7. ↑ Klaus Hammacher: Legal behavior and the idea of ​​justice. Nomos, 2011, ISBN 978-3-8329-5477-2 , p. 31.
  8. ^ Gustav Radbruch: Philosophy of Law. 1932. (Ralf Dreier, Stanley L. Paulson, (Eds.): 2nd edition. 2003, § 1, 11 (3,4)).
  9. ↑ On the temporary displacement and assignment of the entire jurisprudence to culture by jurisprudence itself, Kurt Seelmann: Jurisprudence as cultural studies - a neo-Kantian thought and its survival. In: Marcel Senn, Daniel Puskas (ed.): Law as cultural studies? ARSP Beiheft 115 (2007), p. 121 ff. Seelmann's conclusion (132) reads, because of the reference to “social norms and evaluations in society” and their “constant reflection… in jurisprudence”, “jurisprudence is and remains a cultural science " .
  10. ^ Peter Häberle: Constitutional theory as cultural studies. 2nd Edition. Duncker and Humblot, 1998; Peter Häberle: The image of man in the constitutional state. 4th edition. Duncker and Humblot, Berlin 2008.
  11. ↑ Montenbruck: civilization. P. 213.
  12. ↑ Montenbruck: civilization. P. 394.
  13. ↑ Montenbruck: civilization. P. 70.
  14. ↑ Montenbruck: civilization. P. 396.
  15. ↑ Montenbruck: civilization. P. 127 ff.
  16. ↑ Montenbruck: civilization. P. 257.
  17. ↑ Montenbruck: civilization. P. 259.
  18. ↑ Montenbruck: civilization. P. 257.
  19. ↑ Montenbruck: civilization. P. 270.
  20. ↑ Montenbruck: civilization. Pp. 326 ff, 340 ff.
  21. ↑ Montenbruck: civilization. P. 299.
  22. ^ Dirk Fabricius: Kriminalwissenschaften: Fundamentals and basic questions. II: General Part- Fundamental Criticism, Fundamental Terms. III: Individual crimes within the framework of a criminal science based on evolutionary biology . (= Series of publications "Studies on criminality - law - psyche. Volume 2). 2011, pp. 93 ff, 97 ff ,; on evolutionary biology see also Dirk Fabricius: Kriminalwissenschaften: Basis und Grundfragen, I: Darwin's inheritance: evolutionary biology also for non -Biologists . (= Series of publications "Studies on crime - law - psyche. Volume 1). 2011.
  23. ↑ Among other things: Björn Burckhardt: What is it like to be a person? - On the meaning and content of the human experience of freedom. In: Jörg Arnold, Björn Burkhardt, Walter Gropp, Günter Heine, Hans-Georg Koch, Otto Lagodny, Walter Perron, Susanne Walther (eds.): Humane criminal law, commemorative publication for Albin Eser on his 70th birthday. 2005, p. 77 ff.