Lecture 2 reading Flashcards
what does legal anthropology now study
industrial countries
what did legal anthropology expand from
expanded from the local to national and transna- tional legal matters
what does legal anthropology include
Its scope includes international treaties, the legal under- pinnings of transnational commerce, the field of human rights, diasporas and migrants, refugees and prisoners, and other situations not easily captured in the earlier community-grounded conception of anthropology
For a long while what was the centre of the field,
For a long while, dispute-processing was the centre of the field, with insight into local norms and practices as an essential adjunct. Now, though looking at disputes remains a favoured way of entering a contested arena, the ultimate objects of study are immense fields of action not amenable to direct observation.
Changes in the empirical focus of legal anthropology have been accompa- nied by disagreement about how to approach and answer the question of how and why the legal acquires a particular form in a particular social setting.To simplify, one could say that three general interpretations have prevailed; what are they
law as culture
law as domination
law as problem-solver
what is law as culture
suggests that law is tradition-driven, particularly outside the West but sometimes within it
what is the problem with law as culture
But culture has lost its political innocence. Today, when cultural difference is offered as a legitimation for and explanation of legal difference, cultural context often comes up as an aspect of a consciously mobilized collective identity in the midst of a political struggle, and it arises in relation to constitutions, collective inequalities, insiders and outsiders, and other aspects of national and ethnic politics
what is law as domination
everything in law can be understood to be a mask for elite interests, both in the West and elsewhere. Thus, law purports to be about furthering the general interest, but really serves the cause of the powerful, generally capitalists and capitalism
what is law as problem-solver
basically; Law is a rational response to social problems
To what extent are Western judges’ decisions in fact governed by mandatory rules, and how much is left to judicial dis- cretion
not all judges would admit, as Posner (1998: 235) does (and Justice Holmes did), to using a ‘puke’ test of disgust as a way of deciding when to use discretion rather than to apply existing rules, his acknowledgement of his own reactions and the importance of judicial dis- cretion is neither new nor revolutionary in American law
Since the 1960s and 1970s, anthropologists became less and less likely to what
see behaviour as being overwhelmingly driven by pre-existing cultural patterns and social rules
The work of Nader, Merry, and Abel illustrates what
how some people drew an analogy between the situation of colonial people and the poor in industrial countries
Lazarus- Black (1994) followed the uses of the courts in Antigua and Barbuda that bore on slavery. She shows what
how the law was used to restrict slaves and protect slave-owners, but also how slaves were, at times, able to use the courts for their own advantage
The concept of the state as a unified entity has been more than slightly revised in the past half-century, what has it been changed to
Cultural pluralism and political divisions have long been recognized as basic and durable features of many polities (Furnivall 1948; Smith 1965); governments dealing with culturally distinct collectivities have often acknowledged such differences in legal terms
ethnic and racial pluralism posed what kind of problems
profound political, constitutional, and other legal issues was evident not only in Africa but elsewhere
