Anthropology of law

I teach Anthropology of Law at Erasmus University Rotterdam School of Law (link).

Student in 2017:

“Now that I already have my grades and I will be not be misunderstood, I would like to make a compliment to you. The course (lectures+discussions+readings) was really mind opening. Thank you very much for that! One of the best courses I’ve attended so far.”

From a student mail after the 2014 course:

“Tenslotte wil ik graag nog zeggen dat door uw vak ik voor het eerst echt aangespoord ben om na te denken over het ‘grotere plaatje’, over meer dan enkel het positieve recht. Dit weekend is er een bijlage bij NRC over de universiteit, hoe die is ge- en verworden tot iets dat we wellicht niet moeten willen. Ik moest denken aan de vele vakken die weinig uitdagend, weinig prikkelend en niet tot echt zelfstandig denken uitnodigden. Anthropology of Law vormde daar een uitzondering op. Ik heb dat, en uw manier van onderwijs verzorgen, erg gewaardeerd.”

Some quotes from student evaluations of the course in 2011:

“Maybe it is a good idea to make this course obligatory for law students. Helps them to think outside of the box.”

“Good and dynamic atmosphere, very interactive, everybody felt confident about contributing. I think everybody really enjoyed the classes.”

“The first part started out somewhat vague. But the open way of teaching helped me broaden my horizon and to rethink law.”

“I cant’t think of any weak points in this course.”

 

Anthropology of Law – Course Overview 2017

1.       Introduction

Religious groups, subcultures, indigenous peoples, and ethnic minorities all have their own set of rules consisting of religious law, customary law, traditions, and rituals, sometimes combined or partly influenced by state law. This is what is called a situation of legal pluralism today. In this situation, local groups sometimes challenge the claim for a universal law or resist the application of state law. In times of globalization it is important to understand this struggle of dominance and resistance in relation to diverse manifestations of law.

The first 8 classes are an introduction to Anthropology of Law by studying Australian Aboriginals from the perspective of legal pluralism. We discuss history and method of the anthropology of law, and its general concepts, ideas, and insights. Like whether we can understand other legal cultures by using familiar legal concepts. And like when human rights have a positive influence on local groups. Also, whether the incorporation of ‘their law’ in ‘modern law’ is theoretically possible, and much more.

In the second part of the course we analyse four ‘case studies’. We will study 1. Dutch legal culture, 2. the Roma in the USA and in European states, 3. Muslims and Jews living in European states in relation to their religious legal system, and 4. female genital mutilation/cutting as a legal anthropological issue. In every specific case, we will return to the discussion on concepts, methods, and insights that we had in the first part of the course.

2.       General information

2.1 Course objectives

1. You know what the concept of ‘legal pluralism’ entails, how to recognize situations of legal pluralism and what the diverse scientific positions are concerning legal pluralism

2. You know what in the discipline of anthropology of law is involved with the definition of law, with ethnocentrism, and with the translation and transformation of legal concepts between legal cultures

3. You know in general the history of anthropology of law and its developments

4. You understand what is involved with empirical research, especially fieldwork, observations, and interviews, and you know of problems concerning gender, secrecy of information, and the dual position of informants

5. You are able to distinguish legal and normative from empirical perspectives on law

6. You have insight in the worth and effectiveness of legal rules in several concrete pluralistic situations, especially concerning human rights

7. You have insight in different and sometimes contrasting perspectives on modern and local law between state actors, indigenous peoples, minorities, subcultures, religious groups, etc.

2.2 Contact

Dr. Wibo van Rossum

Van der Goot (M) builing, 5th floor

e-mail: vanrossum@law.eur.nl

2.3 Participation requirements

Ba-level 3 in Law or one of the Social Sciences.

2.4 Mandatory literature

1. James M. Donovan. Legal Anthropology: An Introduction. Lanham, MD: AltaMira Press, 2008.

2. Digital sources via LawWeb for weeks 1-4 (class 1-8)

3. Recommended literature (not for the exam): digital sources via LawWeb for weeks 5-6 (class 9-12)

 

2.5 Schedule

1. Introduction (4 January)

Goals

Begin to understand what fieldwork in the social sciences is, and how ‘other law’ relates differently to society as compared to societies with modern law; begin to understand how culture influences our behaviour and determines our worldview and perspective on what ‘law’ is; getting to know what the anthropology of law actually entails.

Readings in advance

Book Donovan – Legal Anthropology, Preface, Introduction, Chapter 1 & Chapter 2

LawWeb text Jane Collier – Analyzing Witchcraft Beliefs; in: June Starr & Mark Goodale (2002) Practicing Ethnography in Law. New Dialogues, Enduring Methods. New York, Palgrave MacMillan, p. 72-86. On LawWeb.

 

2. Forerunners and the First Ethnographers in the Anthropology of Law: Methods, Assumptions, and Concepts (6 January)

‘How to do empirical research on law’ in ‘primitive’ societies was found out by trial and error, some coincidences, and some luck. It led to heated scientific debates about research ethics, assumptions about primitive and modern law, and theories on legal development. Some of these debates will never be resolved, one of them being the debate about the concept of law, legal pluralism, and cultural understanding. By looking closely at some classic texts, we will try to lay bare what is ‘behind’ this classical research.

Goals

Develop an understanding of the struggles of early empirical research in the anthropology of law. Understand different concepts of law. Understand how the background of researchers and their assumptions about the ‘nature’ of man and law in society influenced their research.

Readings in advance

Book Donovan – Legal Anthropology, Chapter 5-10

 

3. Getting to Know Others: Australian Aboriginals (10 January)

Anthropologists usually get to know the people they want to study, by the method of participatory observation. We cannot do that. We will watch documentaries and film.

Goal

Develop sensitivity for the legal situation of Australian Aboriginals and their worldview.

Watching in advance

Search around on YouTube for documentaries on Australian Aboriginals. Be sure to watch the BBC documentary ‘Aboriginal Bush Law’ (in two parts on YouTube).

In class, we will watch the film ‘The Last Wave’ by Peter Weir.

 

4. Australian Aboriginals and Land (13 January)

Goal

Further develop sensitivity for the legal situation of Australian Aboriginals and their worldview, particularly in relation to the land.

Readings in advance

Download text Deborah Bird Rose – Nourishing Terrains. Australian Aboriginal Views of Landscape and Wilderness. Australian Heritage Commission, 1996. Download from:

https://www.environment.gov.au/heritage/ahc/publications/nourishing-terrains

Internet Do an Internet search on ‘Australian Aboriginal Dreaming / Dreamtime’ to find out how it is described and understood

 

5. Australian Aboriginals and Law (17 January)

Goal

Start thinking about how ordinary language and the discourse of law and legal theory structure the way we think.

Readings in advance

Book Donovan – Legal Anthropology, Chapter 15

Download text Law Reform Commission of Western Australia – Aboriginal Customary Laws Final Report (Perth, Quality Press, 2006), Chapter 1, 4 & 8.

Download from: http://www.lrc.justice.wa.gov.au/_files/P94_FR.pdf

LawWeb text Agnes Schreiner – Observing the Differences; in: Arend Soeteman (ed.) Pluralism and Law. Proceedings of the 20th IVR World Congress. Volume 3: Global Problems (ARSP-Beiheft 90). Stuttgart: Franz Steiner Verlag, p. 87-94. On LawWeb.

 

6. Australian Aboriginal Land and Law, Towards an Understanding (20 January)

Let’s see if we can develop a theoretical understanding of ‘bush law’. We base ourselves on the insights of legal theorists and philosophers. Our thesis is that ‘Australian Aboriginal law’ is neither ‘natural law’ nor ‘positivistic law’.

Goal

Develop a deeper understanding of Australian Aboriginal law.

Readings in advance

Book Donovan – Legal Anthropology, Chapter 3 & 13

Internet text Jean Baudrillard – The Melodrama of Difference; in: The Transparency of Evil. Essays on Extreme Phenomena. 1993, London, Verso, p. 124-138

Download from: http://www2.ubishops.ca/baudrillardstudies/vol3_1/baudrillard2.htm

LawWeb text Agnes Schreiner – Landmarks for Aboriginal law in Australia. In Anne Wagner, Wouter Werner & Deborah Cao, Interpretation, Law and the Construction of Meaning. Springer Verlag, 2007, p. 195-204. On LawWeb.

 

7. The Australian State(s), Human Rights, and Aboriginal Law (24 January)

Let us assume we have begun to understand a little of the Australian aboriginal perspective on (their own) law. As we have seen, the Australian states, the Commonwealth, and the Aboriginals in Australia have to deal with at least two normative orders. One of the questions is how Aboriginal law relates to human rights law. What are parameters of recognition of Aboriginal law, what boundaries are drawn (based on which principles), and which parts of Aboriginal law are rejected?

And in the meantime, is justice being done to aboriginal law?

Goal

Understand the relationships between Australian state law, human rights and Aboriginal law.

Readings in advance

Book Donovan – Legal Anthropology, Chapter 16

LawWeb text AAA – Statement on Human Rights (1947) and Commentaries; in: Mark Goodale, Human Rights; An Anthropological Reader. Wiley, Blackwell, 2009, pp. 23-31. On LawWeb.

Internet text AAA – Declaration on Anthropology and Human Rights 1999. See on http://humanrights.americananthro.org/1999-statement-on-human-rights/

Download text Sally Engle Merry – Transnational Human Rights and Local Activism: Mapping the Middle; in: American Anthropologist, Vol. 108, Issue 1, 2006, p. 38–51. Download from: http://onlinelibrary.wiley.com/doi/10.1525/aa.2006.108.1.38/abstract

Download text Law Reform Commission of Western Australia – Aboriginal Customary Laws Final Report (Perth, Quality Press, 2006), Chapter 7 (see the download link at class 5)

 

8. Widening of Topics and Discussions (27 January)

In the last class of the ‘introductory part’ we will widen our view and have a look at more recent research and debates in the discipline. We will discuss its merging (up to a certain extent) with sociology and psychology of law, and its contribution to problems in contemporary modern societies. We will keep the Australian Aboriginals and their law in the back our minds as a specific ‘case’ that brings together many of the ‘hot issues’.

Goals

Develop ability to reflect on the moral, political, legal strategic and ethnocentric aspects of studying ‘other’ legal cultures.

Readings in advance

Book Donovan – Legal Anthropology, Chapter 11, 12, 14, 17, 20 & 21

 

9. Dutch Legal Cultures, or: Your Lecturer as Researcher (31 January)

Goals

Understand different types of legal anthropological research in modern Dutch society, by way of the research of the lecturer.

Recommended reading in advance (all download texts on http://www.wibovanrossum.nl/?page_id=15)

Download text Wibo van Rossum – Showing Respect. The Appearance of a Turkish Defendant in a Dutch Courtroom. In: IX/27 International Journal for the Semiotics of Law/Revue Internationale de Sémiotique Juridique, 1996, pp. 287-303.

Download text Wibo van Rossum – Religious Courts Alongside Secular State Courts: The Case of the Turkish Alevis. In: Law, Social Justice and Global Development, Issue 12, 2008, no. 2

Download text Wibo van Rossum and Katja Jansen Fredriksen – How legal professionals in the Netherlands and in Norway deal with cultural diversity. In Henriette Sinding Aasen et al (eds) Juridification and Social Citizenship in the Welfare State. Edward Elgar Publishing, 2014, pp. 221-240.

 

10. Gypsy Law (3 February)

Goals

Understand how Roma law works and on which principles it is based. Understand why Roma law is essential for cultural survival. Develop insight in the consequences of the Roma worldview.

Recommended reading in advance

Download text Walter Weyrauch & Maureen Bell – Autonomous Lawmaking: The Case of the “Gypsies”. In 103 Yale Law Journal, 1993-1994, pp. 323-399. Download from: https://www.jstor.org/stable/797098?seq=1#page_scan_tab_contents

Download text Paloma Gay Y Blasco – Agata’s story: Singular lives and the reach of the ‘Gitano law’           . In 17 Journal of the Royal Anthropological Institute, p. 445-461.

Download from: http://onlinelibrary.wiley.com/doi/10.1111/j.1467-9655.2011.01701.x/abstract

In Class

We view parts of the documentary film American Gypsy, A Stranger in Everybody’s Land, Jasmine Dellal, 1999 + parts of ‘Volk zonder eigen land’, Bob Entrop, 2008.

 

11. Islamic and Jewish Law in Europe (7 February)

Goals

Based on two researches into religious law in modern society develop an understanding of how important religious law can be for minorities in a dominant secular environment; get insight in the moments of possible clashes with and possible accommodations of state law, as seen from the perspective of the people concerned.

Recommended reading in advance

Download text Samia Bano – Islamic Family Arbitration, Justice and Human Rights in Britain. In: 2007 (1) Law, Social Justice & Global Development Journal (LGD). Download from: http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2007_1/bano/

LawWeb text Samuel Blackett – The status of religious “courts” in English law. In Decisions: Dispute Resolution & International Arbitration Newsletter, Dec 2009, pp. 11-19. On LawWeb.

Download text John Bowen – How Could English Courts Recognize Shariah?, St. Thomas Law Review, 7 (3): 411-35. Download from: https://anthropology.artsci.wustl.edu/files/anthropology/imce/How_Could_English_Courts.pdf

Download text Kusters – It’s Not Just a Good Idea, it’s The Law. In: Legal Anthropology from the Low Countries, pp. 183-203. Download from: https://rechtensamenlevingdotorg.files.wordpress.com/2012/03/rdw2009-3-legal-anthropology-from-the-low-countries.pdf

 

12. The fight against FGM/C (10 February)

Goals

Problematize the idea of female genital mutilation/cutting, understand the role of stereotypes and common knowledge, the role of NGO’s using human rights as a sword, and local culture brokers paying attention to local culture in their ‘holistic approach’ to fight fgm/c.

Recommended reading in advance

Download text Bettina Shell-Duncan et.al. – Legislating Change? Responses to Criminalizing Female Genital Cutting in Senegal. In Law & Society Review, Volume 47, Number 4 (2013), pp 804-835. Download from: http://tostan.org/sites/default/files/resources/legislatingchange2013_-_bettina_shell-duncan.pdf

Download text Richard Shweder – Disputing the myth of the sexual dysfunction of circumcised women, An interview with Fuambai S. Ahmadu. In: Anthropology Today, vol. 25 no 6, December 2009, pp. 14-17. Download from: https://humdev.uchicago.edu/sites/humdev.uchicago.edu/files/uploads/shweder/Disputing%20The%20Myth%20of%20the%20sexual%20dysfunction%20of%20cicumcised%20women.pdf

Download text Christine Walley – Searching for ‘Voices’: Feminism, Anthropology, and the Global Debate over Female Genital Operations. In Cultural Anthropology, Vol. 12, No. 3, Aug., 1997, pp. 405-438. Download from https://anthropology.mit.edu/sites/default/files/documents/walley_searchingvoicespdfrad.pdf

Internet text WHO on Female genital mutilation, see http://www.who.int/mediacentre/factsheets/fs241/en/

In class

We view parts of the documentary film by Kim Longinotto, The Day I Will Never Forget.

 

2.6 Exam and resit

The exam consists of two parts, both 50% of the final grade:

a. A written exam based on 1. Donovan and 2. the text for class 1-8, on XX February

b. A paper (in English or Dutch)

Details of the exams will be made available later.

Resit is on an individual basis.

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