Legal ethnology

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The legal anthropology (see also Sociology of Law ) can be considered as a science that deals with "becoming, change and design of the law" (Thurnwald 1934).

Richard Thurnwald is considered to be the founder of legal ethnology, as he was the first ethnologist to conduct ethnographic field research and saw law as a "function of the living conditions and the entire culture of a people". The forerunners, especially Henry Sumner Maine ( Ancient Law , 1861), who is considered the founder of comparative law , and Johann Jakob Bachofen ( Das Mutterrecht , 1861), studied the law of other peoples as trained lawyers and using legal methods.

Since law is always part of the cultural ideas that organize and legitimize social, economic and political institutions, the analysis of law must take into account the cultural context and cannot be treated separately from other areas of ethnology. At the same time, legal ethnology overlaps with its neighboring disciplines, above all law , but also social science and political science , although the view of theoretical, methodological and pragmatic-political issues varies.

As a special field of ethnology , legal ethnology primarily deals with the rights of non-European societies, the so-called " indigenous " or " non- literate" societies, whereby the boundaries are becoming increasingly blurred and overlapping with the above-mentioned disciplines is increasing.

The investigation of the law gained an “analytical boost” with the realization that the state is not the only source of mandatory norms, but coexists with a number of other bases of legitimation of righteousness and social control. This “multiplicity of law” is by no means a peculiarity of former colonies and developing countries, but also exists in industrialized countries within the framework of the rights of foreigners and in connection with rules and sanction mechanisms within associations or “semi-autonomous fields” (Moore 1978). As a result, legal pluralism has become a key concept of modern legal inquiry.

The “discovery of the state” also led to a reassessment of the historical dimension and made it clear that the state has so far been largely overlooked in research into traditional law. The researched customary rights, which are to a large extent the product of state and colonial activity, can therefore not count as “original”, pre-colonial local rights, but are closely related to the influence of the state.

Evolutionist right-ethnological theory

The early development phase of legal ethnology was dominated by evolutionist theories (see evolutionism ) which tried to determine the point in time and the conditions of the emergence of law and statute and to assign specific social “stages of development” (Roberts 1981). An attempt was made to write a “universal history of human culture from the most primitive beginnings” to its modern manifestations. The basic assumption is a unilinear development process from the lowest (“primitive”) level to “further developed” stages of human society, at the top of which the European civilization was placed. In ideological terms, evolutionist theory served in particular to legitimize colonial policy, which claimed to "civilize" its colonies . Later, the studies served, in particular under the maxim of the indirect rule ("indirect rule"), to facilitate the work of the colonial authorities. Much of the early work was commissioned by the colonial governments.

Methodologically, this approach is based on the idea that the law in all societies manifests itself in codifiable rules, which can be written down and classified according to a “continental European legal system” (Schott 1983). An attempt was made to grasp the essence of traditional societies by describing ideal norms. In addition to a clear inherent Eurocentrism , the main criticism relates to a lack of consideration of legal reality. Because “dead rules” that are not observed by society and not applied by the judiciary do not make any statement about the actual legal situation (Pospisil 1971).

The main proponents of the evolutionist way of thinking include Lewis Henry Morgan (1818–1881), Johann Jakob Bachofen (1815–1887) and Henry Sumner Maine (1822–1888). Maine postulates three stages of development of legal order , which include small kinship groups with a patrilineal board (1), who settles disputes without judging according to fixed norms, via the merging of larger, but still genealogically ordered groups (2) to the highest level, the territorial Society (3) leads.

In Germany, the evolutionist history of universal law is linked to Albert H. Post (1839–1895; Introduction to a Natural Science of Law , 1872) and Josef Kohler (various articles in the Zeitschrift für Comparative Jurisprudence , which he published), who compiled extensive material encyclopedically and tried to process it in a comparative jurisprudence.

Friedrich Engels transformed the evolutionist approach of an originally domineering society into a backward-looking utopia by trying to prove that societies can get along without a state, judges and prisons.

Functionalist right-anthropological approaches

The method of participatory observation in the context of field research and the discovery of the principle of reciprocity as the basis of social ties and the legal life of societies are revolutionary in the analysis of the law of foreign societies . Functionalist theory ( functionalism ) asks about the importance of law for other areas of society and for society as a whole, as well as the importance of society for law. It is a descriptive approach that focuses on actual behavior and focuses on the discrepancy between ideal behavior and actual behavior. When dealing with the law, traditional elements are emphasized. To this end, law is broken down into institutions, later into subsystems, in order to explore the functions and interrelationships of the individual institutions. Since cultural differences have recently also been used to legitimize legal differences and inequalities as well as to mobilize “collective identity” politically, the formerly apolitical orientation of this descriptive method is taking on an increasingly political dimension.

The method of dispute in legal ethnology

The analysis of the dispute settlement process ( dispute method ) also turns away from the investigation of the structure of law and abstract normative rules. Instead, based on the Anglo-Saxon case law (see also Common Law ), legal cases and the rules applied in this context are methodologically placed in the foreground of legal ethnology (Llewellyn / Hoebel 1941). Max Gluckman concentrates on the argumentation in the dispute settlement process and, when examining court cases of the Lozi, finds that the basic assumptions are different than in the European context due to the social environment, but the logic of the legal argumentation and its problems are the same (Gluckmann 1955) .

Law is seen as a rational answer to social problems (problem solver) and used as an instrument to minimize conflict (Moore 2001). The main criticism of the dispute settlement method relates to two main arguments. On the one hand, the dispute settlement method can only cover cases negotiated in official proceedings, whereby unofficial conflict resolution is neglected (which may even dominate the dispute settlement process). Secondly, there is the danger of generalizing an individual judicial case as a rule, and thus leading to misinterpretations.

Current developments

The globalization affects also the subject of research in law ethnologists. Current legal studies deal with the

  • universal validity of human rights;
  • Rights over natural resources and resource protection;
  • the rights of (ethnic) minorities and “indigenous” cultures in nation states;
  • the right of asylum;
  • with international rights of the WTO (World Trade Organization), ILO (International Labor Organization);
  • the effects of legal pluralism on legal certainty and the source of legitimation of the law.

Further examples of research fields

See also

List.svgfList of topics: Legal ethnology  - overview in the portal: Ethnology

literature

  • Franz von Benda-Beckmann : legal ethnology. In: Bettina Beer , Hans Fischer (ed.): Ethnology. Introduction and overview. 2003.
  • Paul Bohannan : Justice and Judgment among the Tiv. 1955 (English).
  • Max Gluckman : The Judical Process Among the Barotse of Northern Rhodesia. 1955 (English; 2nd edition 1967).
  • Max Gluckman: The Ideas in Barotse Jurisprudence. 2nd Edition. Yale University Press, New Haven 1965 (English).
  • Llewellyn, Hoebel: The Cheyenne Way. 1941.
  • Sally Frank Moore: Law as Process. 1978 (English).
  • Sally Frank Moore: Certainties Undone. Fifty Turbulent Years of Legal Anthropology, 1949-1999. In: Journal of the Royal Anthropological Institute. No. 7, 2001 (English; PDF file on dhdi.free.fr).
  • Leopold Pospisil: Anthropology of Law. 1971 (English).
  • Rüdiger Schott: Legal ethnology. In: Bettina Beer, Hans Fischer (ed.): Ethnology. Introduction and overview. 2003.
  • Peter H. Kemp: Combating environmental crime: legal ethnological perspectives . ISBN 978-3-7392-1972-1
  • Peter H. Kemp: Refugees * aggravate the blurring. Legal ethnological consideration. ISBN 978-3-7448-4443-7

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