1. Preliminary Seminar 1B Law and Anthropology
Prof. Giorgio Fabio COLOMBO

2. Legal Pluralism, Legal Transplants, Legal Ethnology
Lesson n. 3

3. (but before...) Legal Pluralism
Remember?
«The symultaneous presence of more legal orders in the same geographical area or population»
But what is a «legal order»?
Critique to positivism
«Legal positivism is the enemy of understanding in the law. It is a reductionist perspective that artificially excludes from the picture the deeper structure of the law (things like legal culture, language[...]» (Mattei)

4. Legal Pluralism
When do we stop describing a custom and enter into legal rules?
Issue about «primitive» societies
When do we have to protect a legal order?
The issue of cultural defence

5. Legal Pluralism and (Neo)Colonialism
Different according to period, geographical areas and population
The Americas and Australia
India, South East Asia
Attitude towards previously highly-organized states
Try to make use of previous rulers to support colonial power
«Native courts»

6. Practical Uses of Legal Anthropology
Colonialism
Some errors in history: e.g. British Empire in India and the s.c. «Code of Manu»
British conquerors believed it to be «Hindu Law»
They did not possess enough knowledge of local culture
«History of British India» by Mills
«A duly qualified man can obtain more knowledge of India in one year in his closet in England than he could obtain during the course of the longest life, by the use of his eyes and ears in India”

7. Is it still valid today?

8. The Afghan Case Islamic Law War
US (Allied) support to Afghan Administration
Revival of pre-existing traditional law
Revenge
Slavery
Etc.

9. The Waitangi Tribunal

10. The Waitangi Tribunal
There is a long history in New Zealand of Māori protest over instances where the Treaty of Waitangi (1840) was not observed
The Waitangi Tribunal was set up in 1975 at a time when protests about unresolved Treaty grievances were growing
It is a permanent commission of inquiry (not a court of law)
Aims to the to the reconciliation of outstanding issues between Māori and Pākehā

11. The Waitangi Tribunal The Tribunal's process is flexible
The Tribunal is not required to follow the rules of evidence that generally apply in the courts, and it may adapt its procedures as it thinks fit. For example hearsay or oral evidence is routinely accepted
In contrast, the procedure in courts is much less flexible, and there are normally strict rules of evidence to be followed

12. Legal Transplants vs. Legal Ethnic Implants
Theory of legal transplants (Watson et al.)
Is it possible to «transplant» a legal institution to one country to the other?
No? Why?
Yes? If so, under which conditions?
Convergence of Legal Systems
Yes (Eg. Zweigert, David, Zimmerman)
No (E.g. Legrand, Teubner)
«Legal Ethnic Implants»

13. Modern Legal Anthropology

14. Crime and Custom in Savage Society (1926)
Bronislav Malinowski
The first «legal anthropologist»
Fieldwork in the Trobriand Islands in the period
Extensive fieldwork accompained by a solid theoretical framework

15. Before Crime and Custom
The prevailing view was that people obey the law because there are sanctions
Law is connected to the idea of punishment
The State has the monopoly of the coercitive mechanism
But people who live in societies without this mechansim still obey to the rules: why?
Earlier scholars relied more on making hypoteses and then doing fieldwork to verify them  adapting observation to their own categories

16. Observation Rules are observed because of reciprocity
Even in the absence of official sanctioning agents, the fear of being excluded from the group resulted in compliance with the rules
Of course, there could also be other motivations:
Habit
Imitation
Utility

17. Definitions Law Custom Very good at explaining social bonds
Rights and duties enforced by pressures of reciprocal obligation
Custom
Norms enforced by other factors
Very good at explaining social bonds

18. Critique to Malinowski’s Theory
Civil Law and not Criminal Law
Functionalism
Conflict as a negative feature
Interference with the object of studies («Let’s take a picture»)
Eurocentric superiority?