Dossier disponible sur CAIRN : https://www.cairn.info/revue-les-cahiers-de-la-justice-2021-1.htm
Frédéric Audren et Laetitia Guerlain
Introduction. Un nouvel agenda pour l’anthropologie du droit ?
En s’emparant de la thématique des rapports entre droit et anthropologie, ce numéro de Clio@Themis s’inscrit, à l’instar de numéros précédents, dans la perspective d’une histoire sociale et intellectuelle du droit. C’est à partir des rapports difficiles entre droit et anthropologie que ce volume poursuit plus spécifiquement l’enquête sur le couple droit et (autres) sciences sociales, entendu ici, non seulement comme objet, mais également comme méthode. Que les relations entre droit et anthropologie (…)
Difficulté et nécessité de l’anthropologie du droit
Abstract : This article aims to deepen the understanding of the Western legal tradition with the instruments of cultural anthropology. Recalling the properties of legal reason, it opens the way for a new relationship between law and anthropology. It also warns against the temptation to extend the domination of this Western reason over other societies and cultures.
Les juristes humanistes de la Renaissance, des anthropologues en puissance ? Réflexions autour de quelques études (principalement françaises) de cas
Abstract : Questioning the role played by jurists – mainly French – in the history of anthropology during the Renaissance, this article highlights the way in which humanist jurists found themselves, through their philological and historical work, at the heart of an immense collection of ethnographic knowledge. It shows how the extend of the progress in cosmography and legal comparatism allowed them to develop reflections of an anthropological nature. In doing so, it is necessary not only to focus on the contribution of humanist jurists to anthropology, but also to include the development of anthropology in the Renaissance in an epistémè belonging the legal field.
Law and Rationality : A Historiographical Survey of the Understanding of Motivation and Human Agency in Early Legal Anthropology
Abstract : The purpose of this article is to examine how nineteenth-century legal science conceptualized and dealt with otherness in law, with examples of legal phenomena such as ordeal and blood revenge to illustrate how the concept of legal rationality evolved in the early legal anthropology and how it still influences our understanding of legal otherness. It provides new insights on how, in the treatment of specific legal institutions, the ideas of reason and rationality could change as scholars used European medieval history to aid in the understanding of indigenous cultures.
Droit colonial et anthropologie. Expertises ethniques, enquêtes et études raciales dans l’outre-mer français (Fin du XIXesiècle-1946)
Abstract : In the context of 19th– and 20th-century French colonialism, anthropological knowledge plays a crucial role when it comes to legally categorising colonised populations. What are the forms, modalities and aims at stake when the law encountered that other knowledge ? What is the anthropology of colonial legal experts ? How are the knowledge, tools and techniques of anthropology mobilised by colonial jurists, and what are the consequences ? In the light of these questions, this article tackles the issues at stake when colonial law met physical and racial anthropology in the shaping of the statuses of subject and citizen in the French Empire. The analysis of the particular case of the non-recognised Métis being granted French citizenship shows that specialists in colonial law made extensive use of contemporaneous anthropological studies. Not only did they appropriate the contents of anthropological research, but they also learned a method which was to be mobilized in the judicial proceeding. In the 1920s, « ethnic expertise » and investigation became the pillars of a new legal proceeding that was, in large part, the result of the rapprochement of colonial law and racial anthropology.
René Maunier, Album graphique de la statistique criminelle de l’Égypte (1890-1918). Un inédit centenaire présenté par Alain Chenu
Abstract : As the head of statistics at the Egyptian ministery of Justice, René Maunieur drew up a « graphic album of penal statistics in Egypt » (1918), describing the trends in crime and offences registered by the « indigeneous jusrisdictions » from 1890 to 1918. This set of tables, curves, maps, and histograms follows an « explanatory note » where the author defined his guidelines and reviewed the literature in the field of criminal statistics in Egypt. In his presentation, Alain Chenu invites to an upgrading of Maunier’s involvement in the use of statistical methods, and tries to answer a question : why has Maunier, later on, left behind statistics ?
Entre science juridique et savoirs anthropologiques : évolutionnisme et histoire comparée du droit chez Émile Jobbé-Duval (1851-1931)
Abstract : This paper sketches the intellectual portrait of Roman law professor Émile Jobbé-Duval. It tries to analyse the way the author combines legal history with the anthropological and evolutionnist literature of the end of the 19th and the beginning of the 20th century. This article therefore reassesses the contribution of the French jurists to the making of legal anthropology. Their works have indeed been deeply influenced by their anthropological readings, which they have mobilised by using intertextuality.
Une brève historiographie de « pluralisme juridique » : quand les usages d’une notion en font un instrument de luttes politiques
Abstract : My basic argument is that “legal pluralism” (concept and words) is, in anthropological discourses, not only a descriptive notion, but above all a political struggles tool. Those struggles take place on three fields : scientific, academic, and ethical. All of them contest State and its law, its role in social-lige and how jurists legitimize this role.
La reconnaissance des peuples autochtones comme sujets du droit international. Enjeux contemporains de l’anthropologie politique en dialogue avec le droit
Abstract : This article explains how the relational political category [Indigenous Peoples] raises new debates in anthropology and law. By returning to linguistic issues – as the statement of this international category varies according to the dominant languages and its uses fall into various political contexts – it specifies the stakes of the differentiation between the terms « people » and « population », the [s] making a difference in English (the working language of the United Nations) between people (individuals) and peoples (collective). The treatment of indigenous issues induces a series of epistemological transformations stimulating an analytical reflection on the institutions and forms of government of the collective. New areas of dialogue between anthropology and law emerge from this perspective, particularly on the meaning of law, on land issues that must be reconsidered in the light of the pressure of multinational companies (extractive or agro-industrial) on indigenous territories and on systemic classifications.
Legalism : a turn to history in the anthropology of law
Abstract : Notorious definitional debates have characterized the anthropology of law, and scholars have not reached consensus over how “law” is to be distinguished from other social phenomena. This article suggests that light can be shed upon this issue by combining the insights of anthropologists and historians. Careful comparison among empirical examples highlights the importance of texts and the legal form. Case studies from Tibet are used to illustrate these points and draw attention to the phenomenon of legalism, that is, the use of generalizing rules and abstract categories to describe and organise the world. This provides a basis for exploring the nature and significance of law, both in the modern world and societies of the past.
Frédéric Audren | Jacques Flach
DOCUMENT : L’ethnologie juridique au Collège de France : le cours de Jacques Flach sur les Institutions primitives (1892-1904)
Abstract : This paper presents Jacques Flach’s Collège de France course in primitive law, which he taught from 1892 until 1904. It insists on the specificity of his historical and comparative approach. Ever attentive to studying institutions in their context, Flach proposes an innovative interpretation of feudalism, seeks to write a global history of law and endeavours to stress the institutional alterity of primitive societies. Flach is therefore among the first scholars to teach social and legal anthropology in France.
Annelise Riles (auteur)
Le droit est-il porteur d’espoir ?
Abstract : This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope ? Is there anything hopeful about law ? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” about law is its “As If” quality.
Laetitia Guerlain (présentatrice) | Prune Decoux et David Foulks (traducteurs)
London; New York, NY: Routledge
ISBN : 978-1-13855-176-3
Legal Pluralism in Central Asia reports on historical, anthropological and legal research which examines customary legal practices in Kyrgyzstan and relates them to wider societal developments in Central Asia and further afield. Using the term legal pluralism, the book demonstrates that there is a spectrum of approaches, available avenues, forms of local law and indigenous popular justice in Kyrgyzstan’s predominantly rural communities, which can be labelled living law. Based on her extensive original research, Mahabat Sadyrbek shows how contemporary peoples systematically address challenging problems, such as disputes, violence, accidents, crime and other difficulties, and thereby seek justice, redress, punishment, compensation, readjustment of relations or closure. She demonstrates that local law, expressed through ritually structured communicative exchange, through dictums and proverbs with binding characters and different legal practices or processes undertaken in specific ways, deem the solutions appropriate and acceptable. The reader is thereby enabled to see the law in people’s deepest assumptions and beliefs, in codes of shame and honour, in local mores and ethics as well as in religious terms. In this way, the book reveals the dynamic, changing and living character of law in a specific context and in a region hitherto insufficiently researched within legal anthropology.
Table of Contents
PART ONE Chapter 1: Introduction, Chapter 2: Legal Pluralism in Kyrgyzstan, Chapter 3: Social Structure and Agency
PART TWO Chapter 4: Concept of Apology and Forgiveness, Chapter 5: Mediation and Negotiation , Chapter 6: Making Amends and Kun-Giving
PART THREE Chapter 7: The State as the Main Form of Ordering , Chapter 8: Eldik sot – People’s Law, Chapter 9: Islam as a Reference
Popular Culture and Legal Pluralism: Narrative as Law
Wendy A. Adams
2017 – Routledge
Drawing upon theories of critical legal pluralism and psychological theories of narrative identity, this book argues for an understanding of popular culture as legal authority, unmediated by translation into state law. In narrating our identities, we draw upon collective cultural narratives, and our narrative/nomos obligational selves become the nexus for law and popular culture as mutually constitutive discourse.
The author demonstrates the efficacy and desirability of applying a pluralist legal analysis to examine a much broader scope of subject matter than is possible through the restricted perspective of state law alone. The study considers whether presumptively illegal acts might actually be instances of a re-imagined, alternative legality, and the concomitant implications. As an illustrative example, works of critical dystopia and the beliefs and behaviours of eco/animal-terrorists can be understood as shared narrative and normative commitments that constitute law just as fully as does the state when it legislates and adjudicates.
This book will be of great interest to academics and scholars of law and popular culture, as well as those involved in interdisciplinary work in legal pluralism.
Table of Contents
2. A framework for Re-imagining Law
3. Legal Pluralism as Capacity and Result
4. Obligation and Identity
5. Resistance has Rules
Normative and Empirical Approaches
Giselle Corradi, Eva Brems, Mark Goodale (ed.)
ISBN : 9781849467612
Hart Publishing, 2017
This collection of essays interrogates how human rights law and practice acquire meaning in relation to legal pluralism, ie, the co-existence of more than one regulatory order in a same social field. As a social phenomenon, legal pluralism exists in all societies. As a legal construction, it is characteristic of particular regions, such as post-colonial contexts. Drawing on experiences from Latin America, Sub-Saharan Africa and Europe, the contributions in this volume analyse how different configurations of legal pluralism interplay with the legal and the social life of human rights. At the same time, they enquire into how human rights law and practice influence interactions that are subject to regulation by more than one normative regime. Aware of numerous misunderstandings and of the mutual suspicion that tends to exist between human rights scholars and anthropologists, the volume includes contributions from experts in both disciplines and intends to build bridges between normative and empirical theory.
1. Human Rights and Legal Pluralism: Four Research Agendas
PART ONE: NORMATIVE APPROACHES
2. Legal Pluralism as a Human Right and/or as a Human Rights Violation
3. Legal Pluralism and International Human Rights Law: A Multifaceted Relationship
4. Human Rights, Cultural Diversity and Legal Pluralism from an Indigenous Perspective: The Awas Tingni Case
Felipe Gómez Isa
5. Taking the Challenge of Legal Pluralism for Human Rights Seriously
6. Indigenous Justice and the Right to a Fair Trial
PART TWO: EMPIRICAL APPROACHES
7. Gender, Human Rights and Legal Pluralities in Southern Africa: A Matter of Context and Power
Anne Hellum and Rosalie Katsande
8. Women’s Rights and Transnational Aid Programmes in Niger: The Conundrums and Possibilities of Neoliberalism and Legal Pluralism
Kari B Henquinet
9. Legal Borderlands: Ghanaian Human Rights Advocacy between the Layers of Law
10. Insiders’ Perspectives on Muslim Divorce in Belgium: A Women’s Rights Analysis
11. Through the Looking Glass of Diversity: The Right to Family Life from the Perspectives of Transnational
Families in Belgium
Barbara Truffi n and Olivier Struelens
Demystifying Legal Pluralism
M. Isabel Garrido Gómez (University of Alcala) has posted Forms of Demystifying Legal Pluralism on SSRN.
Here is the abstract:
Globalization is given impetus by the needs of the global economy and by the unequal distribution of power. And there are new spaces where there are innovating socio-post-materialistic programmes and policies to promote peace, the well-being of the environment, gender and racial equality, that are led by new groups and social movements. These ideas have influence in the new conception of law. In the second part, with the goal of demystifying legal pluralism we study substantive and formal instruments. Finally, we show an formal/substantive instrument that is represented by the equality because the concept has its origin in the creation of a legal and social order in which the independence of the individual could only be obtained by positioning him under the auspices of the legal power of the State, with the concept of independence being linked to a formal system and economic autonomy.
« Forms of Demystifying Legal Pluralism » (November 29, 2017), Jurisprudence & Legal Philosophy eJournal.
Law Reform in Plural Societies. The World of Small States, vol 2. Springer, Cham
Print ISBN 978-3-319-65523-9
In England, Australia and Canada, there are records of early attempts to establish law reform machinery dating as far back as the fifteenth century. The systematic process of law reform achieved in the nineteenth century was in the form of temporary and part time law reform commissions. The first formal body established to carry out law reform was the 1934 Law Revision Committee in England appointed by Lord Chancellor Sankey. The institutional Law Commission was established under the Law Commission Act of 1975 to be an independent and permanent office staffed by lawyers and support staff. The early literature on law reform offers useful insights for this book on how the forces of government, the bureaucracy and civil society transform law reform machineries and agencies at a given place and time.
- First ever to investigate suitable law reform processes for pluralist societies
- Discusses how a ‘local jurisprudence’ could support law reform
- Examines codification and restatement in law reform
- Addresses legal transplants and law reform
- Describes customary law and state law – accommodation through law reform