Transcript Naomi Mezey, « Law as Culture

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Anthropology and
Sociology of Law
Nicolas Aubin
Martha Chertkow
Stephanie Clark
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Structure de la présentation
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1- Naomi Mezey, « Law as Culture », (2001)
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2- Garapon, L'âne portant les reliques, 1985
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3- Clifford Geertz, « Local Knowledge: Fact and Law in
Comparative Perspective »
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4- Cas pratiques
1.
2.
Timor-Leste
Canada
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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.”
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Culture
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“Any set of shared, signifying practices –
practices by which meaning is produced,
performed, contested or transformed.”
Unconsciously inhabited way of life or selfconscious appropriation of symbols
Heterogeneous, diverse, internally
contradictory
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Law
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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
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The Analysis of Law as Culture
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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
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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
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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.”
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Antoine Garapon, « L‘Âne portant les
reliques », 1985
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Procès = Rituel
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Appel à l’émotivité et au sens de l’esthétique
plutôt qu’à la rationalité
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« 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)
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Garapon
 Division
en trois points:
1. Espace
2. Temps
3. Robe
judiciaire
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L’Espace: Carte de Paris
(localisation du Palais de Justice)
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L’Espace: Palais de Justice de Paris
(vue de la cour du Mai)
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L’Espace: Palais de Justice de Paris
(façade ouest)
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Le Temps: 12
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Le Temps: l’Urne
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La Robe judiciaire
« L’habit fait le moine »
(si-bas: Robes de la Cour internationale de justice)
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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
Summary
Problem:
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Law is rooted in a web of cultural significance
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Compartmentalization of anthropology and
law
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Lack of appreciation of local knowledge in
legal analysis
+ Geertz- Local Knowledge: Fact and Law in
Comparative Perspective
Summary
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Argument: Law is constitutive, constructive
and formational of local knowledge and
culture
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Eg. Legal sensibilities =set of principles
that give meaning to law
 Haqq, Dharma and Adat
Solution: Cross-fertilization of anthropology
and law, exploring all intersectionalities
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Shift from functional to hermeneutic
thinking
+ Geertz- Local Knowledge: Fact and Law in
Comparative Perspective
Issues
1. Implications of Geertz for ‘Rule of Law’ and Access to Justice
work
2. Explanatory nature:
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What about immoral/unjust components of cultures?
Eg. Bartlett, Female Genital Mutilation
3. International law
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Whose cultural web determines international legal system?
Brierly, Allot
4. Role of law in society
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Distinguishing between ‘culture’ and ‘way of life’
Challenging René David
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Case Study 1: Timor-Leste
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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.
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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)
b)
Which of the following laws would you suggest?
What would be their benefits and consequences?
Martha Chertkow 2011
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Case Study 1: Timor-Leste
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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.
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2. Traditional Justice jurisdiction over domestic violence:
Traditional justice leaders have fully authority over resolving any
form of domestic violence, except that causing death.
Martha Chertkow 2011
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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.
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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?