+

Anthropology and Sociology of LawNicolas AubinMartha ChertkowStephanie Clark

+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

1. Timor-Leste2. Canada

+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.”

+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

+

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

+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

+

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

+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?

+ 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.”

+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)

+Garapon

Division en trois points:

1.Espace

2.Temps

3.Robe judiciaire

+L’Espace: Carte de Paris

(localisation du Palais de Justice)

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

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

+Le Temps: 12

+Le Temps: l’Urne

+La Robe judiciaire

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

+Critiques

1. Ethnocentrisme

2. Évidence du propos

3. Difficulté de soustraire une signification universelle d’un même symbole

+Geertz- Local Knowledge: Fact and Law in Comparative Perspective

Problem:

Law is rooted in a web of cultural significance

Compartmentalization of anthropology and law

Lack of appreciation of local knowledge in legal analysis

Summary

+Geertz- Local Knowledge: Fact and Law in Comparative Perspective

Summary

+Geertz- Local Knowledge: Fact and Law in Comparative Perspective

Issues

+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.

a) Which of the following laws would you suggest?b) What would be their benefits and

consequences?

Martha Chertkow 2011

+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.

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.

Martha Chertkow 2011

+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?