Anthropology and Law: an overview of the field

Leonardo Marcondes Alves

Introduction

This paper aims to deal with the interaction of anthropology and law, surveying the historical and theoretical resulted from this interdisciplinary encounter.

On this work the discussed discipline is preferably treated as “anthropology and law”; yet I recognize as enriching the different nuances of terms such juridical anthropology, legal anthropology, ethnojurisprudence, forensic cultural anthropology, anthropology of right, anthropology of justice, ethnology of law, legal ethnology,  and anthropology of law, as are commonly referred in the specialized literature. Mechanisms for dispute resolution, social norms and control – from Inuit song contest through bloody Sicilian vendetta to prenuptial contracts – are found in every society and are intrinsically connected to political organization, and a proper definition of law encompassing all those mechanisms demonstrated to be problematic in the history of anthropology and law. For that reason, a binding term on law (and consequently the anthropology and law subject) would be with reason suspicious of bias. Anthropology and law has a postmodern outlook by contesting fixed definitions, blurring categories, and being interdisciplinary[1]. As a working designation for this paper, anthropology and law is the study from an empirical perspective of human rules and practices to secure justice in a society.

 Historical overview of Anthropology and Law

“There is a real sense in which anthropology as we know it began with law.” Alan Barnard

Vox populi vox Dei – is a Roman law maxim that can be used to legitimate political power, hence law. But it also provides openness for the empirical inquiry on the legal systems, process proceedings, and law applications by looking to the people through anthropological methods.

While the classical Greco-Roman juridical scholarship was theoretically very advanced and aware of legal difference among people, we cannot say they evolved in an even proto-ethnological analysis of realities of law. In the Western Middle Ages and Renaissance the “natural law” concept (Barnard 2004 ) appeared in the thought of Christian theologians and jurists, asserting that there are universals about law, which can be discovered by reasoning.

The quest for the universality of natural law among mankind is one of the contributors to make anthropology a discipline under the influence of the Enlightenment. Locke (1988 [1690]) regarded law as rules of conduct widely accepted by a given society, and such could be scrutinized. Not all agreed with a natural law doctrine, Hobbes (1973 [1651]) on his contractualist perspective maintained that no proper law would exist without state authority, setting a road for the legal positivism and social contract theories.

A proponent of natural law theory, Montesquieu with his massive The Spirit of Laws (1748) has lasting influences on political world as well as on academic spheres. He was for anthropology of law a truly forerunner, with a holist approach, using both historical and theoretical discussions and dealing with law from a variety of societies: Romans, Greeks, England, Spain, China and even law of the people “who do not cultivate the earth” (The Spirit of Laws Book XVIII: 12). He tried also a typology differing savages (hunters) from the barbarians (pastoralists).  (1748)

Also during the Enlightenment occurred a legal anthropology debate on definition of humanity between Lord Kames and Lord Monboddo, two Scotland’s Court of Session judges. The eccentric James Burnett Lord Monboddo (1714– 1799) argued for the humanity of “orang outangs” and non-European natives (Barnard 2004). Since then, anthropology evolved as an academic discipline in engagement with law.

A consistent theoretical ground for anthropology of law can be traced to the German legal historian Carl Friedrich von Savigny (1779– 1861) who focused on the transition of the Roman law between the fall of the Empire and the emergence of the modern European law system. Von Savigny was unique on his scrutiny on courts and legal ceremonies and not on texts, an approach employed a century later by scientific anthropologists of law.  Von Savigny opposed the natural law claims, but his legal realism made him to reject the primacy of the state as the law-giver and led him to seek the roots of law in folk customary practices through history. On his pamphlet Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814) von Savigny opposed the adoption of Napoleonic civil codes for the German states, contending that law emerged from local custom and not the jurist scholastic reasoning. For the process of change and consolidating law, von Savigny employed an evolutionary schema, an idea prevalent on the nineteenth century theories of law.

The brothers Wilhelm (1786–1859) and Jacob Grimm (1785–1863) studied under Savigny and departed into a real fieldwork looking for folk law. The resulting outcome was larger than expected, with the impressive contributions of registering folkloric tales, elaborating the Grimm’s Law on linguistics, and the juridical treatise Deutsch Rechtsaltertuemer in 1828.

Savigny influenced other notable works in the late nineteenth century which combined anthropology, law, and social organization within an evolutionary framework. One of his pupils was the Swiss jurist Johann Jakob Bachofen (1815 – 1887) who published Mutterrecht in 1861 comparing different cultures to suggest that the primal humanity was religiously, morally, and legally matriarchal.  Another evolutionary work assessing ethnological and historical data appeared in 1861 published by Sir Henry Maine (1822 –1888), a British lawyer with experience of living in colonial India and a defender of a cross-cultural comparative method for legal theory investigation. In Maine’s Ancient Law Maine argued that status as the main trait for social relations in primitive societies based on kinship and status, later would have evolved into contract in complex societies. The Scottish jurist John McLennan (1827–1881) added further complexity on the evolutionary family law subject on his Primitive Marriage (1865), and different from Bachofen, supported a patriarchy schema of social relations, coined the terms exogamy and endogamy. Perhaps McLennan hypothesis on marriage by rapture might be the source for the vignette where the pre-historic man captures his wife with a club and pulls her by the hair to his cave.

The European lawyer-ethnologist influenced another colleague in the then-remote upstate New York frontier. Like the previous ethnologists the American Lewis Henry Morgan (1818–1881) was a lawyer and had interest in the primitive’s family structure, but he differed in having experience of fieldwork life among the Iroquois.  However, Morgan made his reflection on law from massive comparative ethnologies and not on fieldnotes and published Ancient Society in 1871 employing Roman legal terminology for the treatment of family organization. Morgan would also a pioneer on advocacy of indigenous rights by campaigning with the Bureau of Indian Affairs.

The initial impact of Bachofen, Maine, McLennan, and Morgan works, seemingly more legal fictions than anthropological facts, was obliterated by the French and German sociologies inquiries on law around 1880. Reviewing the earlier anthropologists concepts on primitive marriage and based on Totemism as original form of social-religious organization, the German jurist Josef Köhler (1849–1919) claimed the weight of society upon the individual’s behavior as a controlling force, idea in many ways taken by Émile Durkheim (1858–1917), Ferdinand Tönnies (1855–1936), and the law-trained Max Weber (1864–1920) and thus sociology of law became prominent in the turning of the century analysis on society and law.  The anthropological inquiry of law would regain a renewed attention later with empirical attempt of Bronislaw Malinowski. (Donovan 2008)

Drawing from his fieldwork on the Tobriand Islands Malinowski on his Crime and Custom in Savage Society (1926) criticized both the evolutionary schemes and the assumption on the law of the primitive peoples where the community dominates the individual by collective intimidation and taboos with fears of supernatural punishment[2].

“The binding forces of Melanesian civil law are to be found in the concatenation of the obligations, in the fact that they are arranged into chains of mutual services, a give and take extending over long periods of time and covering wide aspects of interest and activity.” (Malinowski 1926:67)

Using an ethnographic approach and regarding law –as every component of social structure –interlinked functionally with the whole of a given society, Malinowski proposed the importance of reciprocity, reinforced by public ceremonial exchanges which enhanced prestige, as the basis for the Trobriand law system. He observed that the substance of law might be draw from conflicts, and later emerge into social relationships and obligations. However, for Malinowski the extent of the primitive law was not only on criminal offenses, but also ruling economic, kinship, and religious life.

“civil law” the positive law governing all the phase of tribal life, consists then of a body of binding obligations, regarded as a right by one party and acknowledged as duty by the other, kept in force by a specific mechanism of reciprocity.” (Malinowski 1926:58)

The above view on law of Malinowski was quite latitudinarian and implies in a universality of presence of law in all societies. Yet, another anthropologist disagreed, for A. R. Radcliffe-Brown (1881–1955) law is institutionalized as social process and supports stratified social order, where “social control through the systematic application of the (physical) force of politically organize society” (Radcliff-Brown 1933:202). Radcliff-Brown distinguishes law from other social control forms: deviant conduct would face negative sanctions, but general disapproval and ritual uncleanness are distinct of penal sanction imposed by community recognized authority. The presence of organized law-enforcing mechanism would characterize the existence of law in a given society. And some societies, such as the Andamanese which Radcliffe-Brown studied, by lacking political complex authority would therefore have no laws according to his conception. The research method on study of law devised by Radcliffe-Brown is still current:

“Let us consider, for example, the study of law. If you examine the literature on jurisprudence you will find that legal institutions are studied for the most part in more or less complete abstraction from the rest of the social system of which they are a part. This is doubtless the most convenient method for lawyers in their professional studies. But for any scientific investigation of the nature of law it is insufficient. The data with which a scientism us deal are events which occur and ca be observed. In the field of law, the events which the social scientist can observe and thus take as his data are the proceedings that take place in court of justice. (Radcliffe-Brown 1940:10)

Time vindicated Malinowski view on law as the prevalent among anthropologists and after him the next remarkable initiative[3] on anthropology of law was Isaac Schapera (1905–2003) codification of a non-literate society law. Commissioned by the colonial Bechuanaland Protectorate Administration, Schapera compiled A handbook of Tswana law and custom (1938) based on customary law to be used in the local administration and courts and as of present still consulted by Tswana courts in Botswana (Held 2003)

Another attempt of codifying a non-literate society body of law was done by one of Franz Boas Columbia University’s student E. Adamson Hoebel (1906–1993). After having difficulty to understand and codifying the laws of the Comanche, Boas teamed Hoebel with a jurist and professor at Columbia, Karl Llewellyn (1893–1962). Grounded in a legal realism, a precept that law is the way a given case is dealt, Hoebel sought narratives of “trouble cases” among the Cheyenne and Llewellyn provided the legal interpretation. The joint result was the widely celebrated The Cheyenne Way (1941). That work represented a departure from anthropological focus on definition of law, since then dispute process played a major role on juridical researches both as method and object of investigation.

Applying his acquired experiences with the Cheyenne, Hoebel went to codify the law of the Ifugao in the Philippines, based on the ethnographic records of Barton (1919), summarizing it into six basic postulates and 17 derivate corollaries. In this work Hoebel defined “a social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the social recognized privilege of so acting.” (Hoebel 1954:28)

While the anthropological codification of a local society proved to be very productive, soon arouse disagreement how to frame native law in a paradigm. The Manchester school anthropologist Max Gluckman (1911–1975) with his The Judicial Process Among the Barotse of Northern Rhodesia (1955) defended use of abstract categories of Western jurisprudence as a way to produce a comparative anthropology of law. In the other hand the American anthropologist Paul Bohannan (1920 – 2007) from his fieldwork experience published in Justice and Judgment Among the Tiv (1957) argued that the terminology of law and analysis through be the local society conceptualization.  Underlining the Gluckman-Bohannan debate was the conflict of two doctrines: the universal legalism of Gluckman and the relativism of Bohannan. It might be noticed that on Gluckman observations of the Lozi courts in the Barotse province[4], he examined both the recognized social norms and the judge reasoning, while on the politically decentralized Tiv courts there were not appeals to explicit rules when making a judgment as noticed by Bohannan (Bohannan 1957:19). This contradiction of systems might only be apparent, since both ethnographers were employing different definitions for court rituals and processes and in Bohannan work he did not seek out the Tiv notion of justice. A reflecting ramification of the Gluckman-Bohannan debate on anthropological theory is to value emic description and analysis as well as etic. (Donovan 2008)

Another opponent of Bohannan was the Czech-American Leopold Pospíšil (1923–) who dismissed Bohannan concept on law and his argument was based on the attributes of law which are common to across societies.

Pospíšil had a legal education in Prague before immigrating to the United States and dedicate himself to anthropology. Pospíšil published some notable works, Kapauku Papuans and Their Law (1958) and Anthropology of Law (1971), the latter widely read in anthropology of law courses, and he is credited for analyzing the attributes of law in four components: Legal authority, Intention of universal application, Obligatio (the imposition of a disinterested authority ruling), and Sanction. This four-fold attributes relived the dispute for a precise definition of law, providing a workable concept for legal anthropologists. Another contribution of Pospíšil is his finding on the overlapping categories of law spheres that a person is included: family, lineage, local community, private entities, and state rules. Although those different subgroup systems may sometimes lead to conflicting and contradictory legal usage, it opened the practical possibility for legal pluralism, fostering the dialogue among different social regulators within a society.

Since 1960’s anthropology in general passed through specialization and as consequence anthropology of law consolidated as a subfield. The Wenner-Gren Foundation sponsored research on the subject and many colleges and universities, mainly in North America, started to offer courses on anthropology and law. The Association for Political and Legal Anthropology was founded in 1976 and this section of the American Anthropological Association has been publishing the academic journal Political and Legal Anthropology Review (PoLAR). Cultural forensic anthropology studies were commissioned on themes such as on protest politics, crime, prisons, riots, and administration of justice. Minority and indigenous rights advocacy employing knowledge produced by anthropology of law emerged. A trend to ethnographic research shift from non-literate to industrial societies. (Nader 2002)

Another trend since the 1960’s on the anthropology and law is the focus on process rather than rules. The American anthropologist Laura Nader (1930–) conducted fieldwork in a Zapote village in Mexico and noticed that the local inhabitants sought to resolve their dispute without appealing to the formal courts of the Mexican State (Nader 1990). Nader interpreted that attitude as a way to avoid state and outsider interference on local affairs. Nader continued to specialize into anthropology and law, focusing on alternative dispute resolution and its “harmony ideology”.  In spite her studies on non-formal court administration of justice, she remains critical on the alternative dispute resolution (ADR), like private mediators in the United States, as a way to limit the access of the poor to the established court system. (Nader 2002)

Nader is not alone on the criticism of law as instrument for domination. In the same lines examined power plays in transnational legal issues like immigration (Coutin 2000), the working-class religious avoidance of secular courts in the US south (Greenhouse 1986), and  postcolonial violence and disorder (Comaroff & Comaroff 2006).

As discussed above, the main themes on anthropology and law for the second half of twentieth century treated law as culture, as domination, or as problem solver, as it is neatly summarized by Sally Falk Moore on her Huxley Memorial Lecture given in 1999. Besides those foci there are also other lines of theoretical discussions, like the anthropological dealing on justice.

The pursuit of justice seems to be a universal present at any legal system, but the definitions on justice varies. On the western jurisprudence it still heard the echo of Plato conception of justice as an instrument to maintain societal order by each individual fulfilling the required roles[5], and Aristotle definition that justice is about keeping fairness through the classic division of justice in distributive, commutative, and corrective measures[6]. The classical philosophy analysis on justice can be seen in the current anthropological theories on justice, and provide guidance to anthropological militancy for human rights, ethical research, and social critique.

In general, the canonical monographs on anthropology and law see justice through one of the three lens: functionalist, conflict, pluralism (Dupret 2007). The functionalist theory is Platonic in the sense of seeking the community harmony; justice would serve to uphold societal order (i.e. Malinowski). The conflict perspective weights the power role in a Marxist way where the dominators create and impose laws at their benefit – justice is what the powerful says (i.e. Nader). Finally the pluralist view maps the different interest groups and their ideal of justice which may enter into conflict when negotiating between them (i.e. Pospíšil).

A brief scrutiny of historian Henri Locard (2010) lecture on the recent trial of Khmer Rouge prison ward Comrade Duch under the three paradigms reveals his public trial as 1) functionally seeking public national reconciliation, even through embodying all the regime atrocity upon one condemned leader; 2) a conflict theory demonstration on who is power now, validating the present Cambodian government; 3) a pluralistic defense plead, where Duch was only following the order – law – of a specific diachronic group in the scenario, the Khmer Rouge.

Yet on same matter on justice, Clifford Geertz (1926–2006) delivered the 1981 Storrs Lecture at Yale University [7] and pointed out the distinct cultural aims for justice. When a case is presented in court, “facts” are believed to be judged as objective and independent from human representation, but even “legal facts” are socially constructed. Geertz demonstrated also the grand legal systems seek different goals for justice: whereas the Islamic law system seeks haqq (truth), the Indian dharma system emphasizes duty, and the Malay-Polynesian adat (custom) which is the proper etiquette of a socially acceptable behavior. Those theoretical differences among legal systems are used in Geertz’s argument for the interpretation of “law” and “fact” in local contexts, as well as justice.

As “legal facts” are often in dissonance with social reality (or let me dare: “anthropological facts”) the role of the anthropologist, not only to examine law but also be an instrument of justice is very important. This is exemplified by the lawyer and anthropologist Robert Redfield (1897–1958) as expert testimony on Sweatt v. Painter. It was a 1950 US Supreme Court landmark case which became crucial for the Civil Rights movement and Redfield report served to balance favorable against racial segregation. (Rosen 1977)

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[1]  Clifford Geertz described very well this indefiniteness: “the forensic approach to juridical analysis and the ethnographic have been unusefully set against one another, so that the stream of books and articles with such titles as law without lawyers, law without sanctions, law without courts, or law without precedent would seem to be appropriately concluded only by one called law without law.” (Geertz 1983: 163)

[2]  Michel Foucault panopticon idea (Foucault 1975) of a surveillance society seems to be a today’s remnant of this view.

[3] It is worth to mention the researches of Westermarck in Morocco (1947), Barton among the Ifugao (1919), Rattray on the Ashanti (1929), and Hogbin in Polynesia (1934), all are early works devoted to the anthropology and law which left good contributions to the subject.

[4] Different of previous ethnographies of law Gluckman observed on-going cases in court and did not rely in informant’s reminiscences of cases or investigated what the customary legal norms were.

[5] Republic  Book IV

[6]  Nichomachean Ethics Book V

[7]  Later Geertz published his lecture on Local Knowledge (1983).

References 

Aristotle. Nichomachean Ethics

Bachofen, Johann Jakob.  (1861). Mutterrecht. English title Mother Right: An Investigation of the Religious and Juridical Character of Matriarchy in the Ancient World. Original edition available online at http://book.googles.com.

Barnard , Alan. History and Theory in Anthropology. Cambridge: Cambridge University Press, 2004

Barton, Roy Franklin (1919) Ifugao Law. University of California Publications in American Archaeology and Ethnology, vol. 15.

Bohannan, Paul (1957) Justice and law among the Tiv. London: Oxford University Press.

Caldeira, Teresa P.R. “I Came to Sabotage Your Reasoning! Violence and Resignifications of Justice in Brazil” in Jean Comaroff Jean and John Comaroff (Eds.) Law and Disorder in the Postcolony. Chicago, IL: University of Chicago Press.

Coutin, Susan Bibler (2000) Legalizing Moves: Salvadoran Immigrants’ Struggle for U.S. Residency. Ann Arbor: University of Michigan Press.

Donovan, James M. (2008) Legal Anthropology: an Introduction. Walnut Creek, California: AltaMira Press.

Dupret, Baudouin (2007) “Legal Pluralism, Plurality of Laws, and Legal Practices: Theories, Critiques, and Praxiological Re-specification” in European Journal of Legal Studies, 1 Available at http://www.ejls.eu/index.php?mode=htmlarticle&filename=./issues/2007-04/dupretUK.htm.

Foucault, Michel (1975) Surveiller et punir: Naissance de la Prison. Paris: Éditions Gallimard.

Geertz, Clifford (1983) “Local Knowledge: Fact and Law in Comparative Perspective” in Local Knowledge: Further Essays in Interpretive Anthropology. New York: Basic Books.

Gluckman, Max (1955) The judicial process among the Barotse of northern Rhodesia. Manchester, UK: University Press for the Rhodes–Livingston Institute.

Greenhouse, Carol J. (1986) Praying for Justice: Faith, Order, and Community in an American Town. Ithaca, NY: Cornell University Press.

Heald, Suzette (2003) “The legacy of Isaac Schapera (1905–2003)” in Anthropology Today Vol. 19 No. 6, December 2003: 18-19.

Hobbes, Thomas (1973 [1651]) Leviathan. London: J. M. Dent & Sons.

Hoebel, Adamson E. (1954) The Law of Primitive Man. Harvard, MA: Atheneum.

Hogbin, H. Ian (1934). Law and Order in Polynesia: a study of primitive legal institutions. London: Christophers.

Llewellyn, Karl; Hoebel, E. A. (1941) The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence. Norman, OK: University of Oklahoma Press.

Locard, Henry (2010). The Khmer Rouge on Trial: The Court of Law as an Instrument For Understanding and Reconciliation? Lecture given at Uppsala University in September 2nd 2010.

Locke, John (1988 [1690]) Two Treatises of Government. Cambridge: Cambridge Press.

Maine, Sir Henry (1861) Ancient Law. New York: Dutton.

Malinowski, Bronislaw (1926) Crime and custom in Savage Society. Totowa, NJ: Littlefield, Adams.

McLennan, John Ferguson (1865) Primitive Marriage. Edinburgh: Adam and Charles Black. Edition available online at http://book.googles.com.

Montesquieu, Charles L. de Secondat, Baron de la Brede et de (1748) De l’esprit des lois.  Available online at http://book.googles.com

Moore, Sally Falk (2001) Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949-1999. Huxley Memorial Lecture given by Sally Falk Moore.

Morgan, Lewis Henry (1871) Ancient Society. First edition transcribed online at http://www.marxists.org/reference/archive/morgan-lewis/ancient-society/

Nader, Laura (1965) “The Anthropological Study of Law” in American Anthropologist 6:3.

________ (1990) Harmony Ideology: Justice and Control in a Zapotec Mountain Village. Stanford: Stanford University Press.

________ (2002) The Life of the Law: Anthropological Projects. Berkeley: University of California Press.

Plato. Republic.

Pigliaru, Antonio (1959) Il Banditismo in Sardegna: La vendetta barbaricina come ordinamento giuridico. Milan: Giuffre Editore.

Pospíšil, Leopold (1958) Kapauku Papuans and Their Law. New Haven: Yale University Press.

________ (1971)  Anthropology of Law: A Comparative Theory. New York: Harper & Row.

Radcliffe-Brown, Alfred Reginald (1933) The Andaman islanders. Cambridge: Cambridge University Press.

________ (1940) “On Social Structure” address, later published in Structure and Function in Primitive Society. London: Routledge & Kegan Paul, 1952.

Rattray, Robert Sutherland (1929) Ashanti Law and Constitution. Oxford, Clarendon Press.

Rosen, Lawrence (1977) “The Anthropologist as Expert Witness” in American anthropologist 79(3): 5－57.

Schapera, Isaac (1938) A Handbook of Tswana Law and Custom, London: Oxford University Press.

Von Savigny, Charles Friederich (1814) Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft. English title Of the location of Our Age for Legislation and Jurisprudence.  Original edition available online at http://book.googles.com.

Westermarck, Edvard (1947). “Customs Connected with Homicide in Morocco” in Transactions of the Westermarck Society. Helsinki.

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(c) 2010 by Leonardo Marcondes. It may be freely used as long as it is properly cited and the textual integrity preserved.

Part of a term paper for Advanced Study of Anthropological Theory course. Uppsala, November 2010

Why aren’t they a single language?

The linguistic proximity among Scandinavian languages — Danish, Norwegian, and Swedish — is so striking that it better be termed as a dialect continuum of a macro language.  The same happens to the Romance-Iberian languages — Portuguese, Castilian (Spanish), and Catalan.

Both Scandinavian and Iberian languages present a similar history. They evolved from shared ancestors, Old Norse and Vulgar Latin, respectively. And received influences from other European languages, from French, academic and ecclesiastical Latin, to today English. Their original areas  have also non-Indo-European linguistic minorities: Sami, Finns, Basque. It is worthy to mention the Roma people and their languages present in those both extremes of Europe.

In some point in history — before media, national state formation (blame schooling and monolingual tax forms!), and trade advancement — one could travel from village to village and perceive slight and progressive variations in speech until becoming distinct languages.

Whether considering a local tongue a language or dialect in large zonal linguistic areas is more a political fact than a scientific one. All the national vernaculars of modern Arabic are regarded as variations of a common language, except the Maghrebi variant spoken in Malta, which holds the status of language. On the other hand, a non-native speaker needs to be an expert to differentiate spoken Portuguese, Gallician and Fala da Xálima, yet the three are considered three distinct languages. The phenomena is similar to Jamtlandic, and the surrounding Swedish Norrländska and Norwegian Trøndersk dialects: their the linguistic boundaries are blurred.

Basically, the modern national languages are dialect clusters with national standardization.

If the Kalmar Union and Iberian Union had succeeded or the Iberian Federalism and Scandinavism political projects merge those peninsulas, probably a common zonal language would evolve.

How would the zonal language be like?

There are some hints of how a common Iberian and a common Scandinavian would be. Some conlang enthusiasts devote time to design constructed zonal languages and there are instance of pidgins natural languages — emerging from contact.

An early essay, Universalspråket for Scandinavian lands (1918) by K.G.F. Kejhser proposed more a philosophical code than a common zonal language. Recent projects, like Almensk, Skandinaviska,  and SamSkandinavisk aim to form a naturalistic auxiliary language for  Scandinavians.

Even though I haven’t heard similar zonal constructed language projects for the Iberian languages, there are plenty of natural contact dialects:  the Portuñol along Brazilian borders, the Portuguese dialects of Uruguay, the Barranquenho in Spain, the Castelanismos in Gallician, and the mix spoken by Portuguese and Brazilian immigrants in Andorra. The SAS language or Svorsk would be the Nordic equivalent.

I did my own attempts. The premise is to use only vocabulary and grammatical features common at least in two of the source languages. Here you can see a translation a Brazilian legend into two of those hypothetical common languages.

UIRAPURU : Legenda Tupi
En iberio.

Un joven guerrero nomeado Uirapuru se enamorò de la esposa de un gran chefe i no podia acercarse a ella. Elle vai a pedir a Tupã que convertalo en un pássaro. Tupã lo concede el seu deseo per transformar en una ave vermello-tella que canta a la note a la sua amada.
No obstante elles en la villa no han escotado, pero el chefe se habia dado conta, fascinado va perseguir a la ave per capturarla. Pero el Uirapuru se escondiò en las entrañas de la forestra i el chefe alí se perdò. Nunca mas se volvò.
A la note el Uirapuru canta a la sua amada, esperando que ella descobra la sua forma de cantar.
Assí el Uirapuru trae la felicidade en el amor i en los negocios.

UIRAPURU: Tupi fortelling
På skanska

En ung kriger, Uirapuru kallas, forelsker sig i hustruen til en stor hövding.
Fordi han ikke kan nærme sig henne, beder Uirapuru til guden Tupã, han vil bli til en fugl. Tupã hörer hans önske og forvandlar ham til en jordig röd sangfugl.
De natten til hans elskede synger han, men de i by har ikke hört Uirapuru sin sang. Likevel hövdingen gjorde, og den treffer ham så fascineret at han önsker at fange fuglen. Han forfölger fuglen inne i jungeln, men Uirapuru gemte sig och hövdingen mistet der. Og han aldrig komme tilbake igen fra skogen.
Om natten Uirapuru synger til en elsker i håp om at hun hörer ham.
Så Uirapuru bringer lycka i kærlig og handel.

I hope you can understand it, because I won’t translate into English.  :p

The Iberian zonal language ended up sounding as an archaic Portuguese spoken with Spanish phonology and a Catalan syntax.  And for my surprise, the Scandinavian zonal language looks like a variety of Norwegian.

Insular sovereignty

Thirty years passed since the Falklands (Or Malvinas) War and rumors that the archipelago lies over a gigantic petroleum basin led to an increasingly whining from Argentine government, and marked by the symbolic presence of the British royalty in the island to reassert their sovereignty.

The British argument is to respect the right for self-determination. The islanders, called Kelpers, feel and choose  being British subjects and have rights to stay in the land as natives as they are the earliest colonizers.

It would be a great human rights record if the British Crown reconsider and respect the self-determination for the Îlois or Chagos Islanders as well.

The British Crown dumped the inhabitants from these Indian Ocean atolls into Mauritius between 1967 and 1973. The political and legal grounds for such arbitrarity base in the claim that Chagossians are not indigenous, since the islands were first uninhabited when settled in the Eighteenth century. So, does not the same argument apply to the Falklanders?

The UK ceded Chagos to the United States built a military base in Diego Garcia atoll, serving as a strategic position to reach east Africa and south Asia.

All the legal remedies sought by the Chagossians in British courts failed to obtain their homes back. When they received a favorable verdict, the prime-minister employed Royal Prerogative to overrule and later circulated plans to make the atolls into a Marine Protected Area, preventing fishing and other economic activities for the Chagossians. Now the case is pending on the European Court of Human Rights (Chagos Islanders vs. the UK Government, application no. 35622/04).

Brasiliana: Brazil by Brazilians

A reading list for understanding Brazil through the most influential Brazilian interpreters. Unfortunately not all of them are available in English. These canonical authors cover the social, literary, cultural, political, and economic aspects of the country.

• Candido, Antonio. A Formação da Literatura Brasileira [Formation of Brazilian Literature] 1975
• DaMatta, Roberto. Carnivals, Rogues and Heroes: An Interpretation of the Brazilian Dilemma. Published originally in 1979, first English edition in 1991.
• Freyre, Gilberto. The Masters and the Slaves: A Study in the Development of Brazilian Civilization. Published originally in 1933, first English edition in 1946.
• Furtado, Celso. The Economic Growth of Brazil: A Survey from Colonial to Modern Times. Published originally in 1959, first English edition in 1963.
• Holanda, Sérgio Buarque. Raízes do Brasil [The roots of Brazil] 1936.
• Prado Junior, Caio. The Formation of Contemporary Brazil. Published originally in 1942, first English edition in 1967
• Ribeiro, Darcy. O Povo Brasileiro: a formação e o sentido do Brasil [The Brazilians: the formation and the meaning of Brazil] 1995

Difference between Anthropology and…

A nutshell analysis of disciplinary identity.

• Anthropology and Sociology: both study human societies. Sociology is cleaner and you work in an AC room. Anthropology is dirty and gives you diarrhea. Lately sociologists are going wild with qualitative methods; and anthropologists have always stolen insights from bearded sociologists such as Marx, Weber, and Durkheim.
• Anthropology and History:  the former is synchronic and the latter is diachronic. The so-called “ethnographic present” is a theoretical fiction and scares historians. Oral accounts, eating cheese & worms, subaltern narratives are anthropological contributions to History.
• Anthropology and Psychology: both disciplines nose into people’s private lives. Whereas psychologists have to keep silence, anthropologists can stalk and gossip (within a strict academic ethics, of course) about their subjects.
• Anthropology and Social Psychology: Social psychologists explain social behavior, anthropologist make fun of it.
• Anthropology and Social Work: Social workers try to solve peoples’ problems; anthropologists try to convince people they got problems. Problematize is our business.
• Anthropology, Development Studies, and Political Science:  Anthropologists are skeptical, Development Studies dudes are naive, and political scientists are cynical about changing the world for better.  We are grateful to Development Studies folks for using our findings and ignoring our pessimism. “They did not know it was impossible, so they did it.” Mark Twain
• Anthropology and Archaeology:  Anthropology collects trash, er, material culture to explain present societies. Archaeologists dig the backyard for material culture to explain past societies and to find treasure chests.
• Anthropology and Economics:  anthropologists when do something wrong damn whole villages or tribes. Economists when do something wrong damn whole countries and the world.
• Anthropology, Primatology, and Paleontology:  Human paleontologists guess about early hominids lives, Primatologists scrutinize every mammal with frontal eyes and five-fingers, anthropologists are busy with Macaco sapiens, a.k.a. Homos complicatus.  All are geeks about The Planet of the Apes franchise.
• Anthropology and Literary Studies:  Anthropologists read ethnographic data as a text; Literature guys read texts as a text.
• Anthropology and Linguistics: Linguists describe and analyze languages, of which many are agrapha. Anthropologists tell anecdotes about agrapha languages, in those languages.
• Anthropology and Folklore Studies:  Folklorists describe funny costumes, anthropologists wear ridiculous costumes.
• Anthropology and Mythology Studies:  anthropologists believe in every bravado of the village liar. Mythologists cannot be fooled so easy.
• Anthropology and Business Administrators:  Corporate anthropologists do the dirty job in organizational and consumer studies. Business people sign the corporate anthropologist paychecks.
• Anthropology and Ergonomics:  anthropologists are designers that failed at drawing class in the kindergarten and are prone to hear people complain about products. Ergonomists are the kids that learned to draw and can fix things.
• Anthropology and Philosophy: Anthropological philosophers wonder about humanity, anthropologists spoil the philosopher’s fun pointing out obscure exceptions to human universality.
• Anthropology and Religious Studies: A scientist of religion can deal with religion without having to dance, drink nauseous liquids, and being exorcised.
• Anthropology and Ecology: Ecologists explain inter-being relationships, anthropologist complicate that relationship.
• Anthropology and Gender Studies: Gendered scholars are usually engaged in gender issues, anthropologists are too lazy for that.
• Anthropology and Cultural Studies:  Cultural Studies students read Frankfurkians, Gramsci, graphic novels, and love heated debates. Anthropologists love heated debates first, and don’t have time to afford reading as they wish because are too busy deciphering their own fieldwork scribbles.
• Anthropology and Postmodern Thought: Postmodern thinkers sip coffee and discuss paradoxes in Paris. Anthropologists are happy when catching internet signal in Jijoca de Jericoacoara.
• Anthropology and Forensics: Forensics professionals got a better stomach.
• Anthropology and Law: a legal scholar can rip you off but save you from troubles in court. A legal anthropologist won’t help you in court, but will visit you often in prison.
• Anthropology and Cinema producers:  movie makers dreams about winning Oscars, visual anthropologists dreams about winning grants.
• Anthropology and Tourists: Tourists tip better, anthropologists bargain a discount.
• Anthropology and Bartending:  both mix stuff, are high socially skilled professionals, and observe people. Bartenders get good tips at the end of night, anthropologists don’t.
• Anthropology, Social Anthropology, Cultural Anthropology, Ethnology, Volkskunde:  All depends if your teacher is British, American, French, or German. And if you like ALPACA or not.

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Disclaimer:  paraphrasing or bluntly misquoting Karl Popper, all synthesis are dumb because overlooks complexity.

 

Caboclos and the ILO 169

This is a preliminary study on the caboclos of Brazil, whether this groups ought to be covered under ILO Convention 169 about Indigenous and Tribal Peoples in Independent Countries.

Caboclos are people of various ethnic backgrounds employing time-old technologies to live mostly by a subsistence economy in Brazil. Although the cablocos are not a tribe or a single ethnic group or society, they  traditionally have been at margins of a national economy and state participation and protection.

Brazil is a signatory ILO 169 country and it is in force since 2003. Other legal instruments, such as the 1988 Brazilian Constitution, also contemplates indigenous and tribal rights assurance. Whereas Brazil concepts on ethnicity is quite fluid and ambiguous on discrimination, social prejudice finds well-defined victims.

A comprehensive study on the caboclos is still wanted. There are other counterparts in Latin America, like the Cholos of Peru and Bolivia, Garífuna and Miskito of Central America, the Mestizos of Mexico.

Regional Typology

The most known caboclos in English-speaking literature are Amazonian ribeirinhos, but there are other groups also called caboclos throughout Brazil.

• Caipira: people in the inner São Paulo state and the western parts of Minas Gerais, south Goiás, eastern Mato Grosso and Mato Grosso do Sul. Ethnic formation can have White, Mestizo, or African background. For long the caipira lived in a slash-and-burn agriculture and sometimes as tenants or laborers for the large farmers.
• Caiçara: fishermen communities in the coastal São Paulo state to Angra dos Reis. Mostly mixed ancestry of Portuguese and Tupian groups.
• Matuto, Capiau, Capuava:  akin to Paulista Caipira, but living in the hilly areas of Minas Gerais, Espírito Santo, north Rio de Janeiro state, and center-south Bahia. They settled the area during the gold and diamond rush in the eighteen century.
• Sertanejo: the population living in the semi-arid Sertão in Northeast to north Goiás and Tocantins. They either opted to live in infertile drought-stricken regions not suitable for commercial plantations and neither for subsistence economy, or give themselves to a patron-client relationship. Goat and humped cattle are the main sources for living, but at times of famine even the palma cactus (Opuntia cochenillifera)  becomes staple food.
• Caboclo sulista: This group is unique that sometimes absorbed European immigrants of Slavic and German origins besides the Portuguese, Jê and Tupi native, and Bantu ethnicities. In the Pampas grasslands the gaúcho-sem-montarias depended on the favor of ranchers. The Campos Gerais faxinalenses developed a unique commons economy, sharing forest resources and pooling labor, but it was threatened by the colonization projects and land privatization.
• Ribeirinhos: are the population living by the river banks in the Amazon basin. They either were indigenous people  semi-acculturated to Western diffusion, or mixed ancestry.
• Pantaneiro: herders and fishermen living in the Pantanal, the Brazilian Chaco.

Legal Anthropology issues

• Should Caboclos be termed as peasants or tribal people?
• Are Caboclos  ethnic groups or social class?

If assuming the convention applies to the Caboclos:

• What extent the ILO 169 covers the Caboclo?
• How about Caboclo autonomy, if they become assimilated in the market economy society yet retaining identity should they yet be under ILO 169?
• Are the acknowledged ILO 169 rights of self-identification, consultation, decision participation, territorial right and sustainable development de facto and de jure respected?

Notable World Constitutions

Political constitution has been a mark of state societies and it is noteworthy the impact of this type of legal instrument. At this list  I categorized and set chronologically some notable constitutional collections and documents. It is an attempt to adventure in the field of legal studies. So, the typology is my own theoretical proposal, obviously grounded in diverse constitutional theories with roots beginning with Aristotle’s political thought.

Constitutional typology

Bear in mind that there are three fundamental constitutions categories regarding their draft: codified constitutions, and compilations of previous statutes in the basic laws, and the so-called non-written constitutions, but better termed uncodified constitution.

The US constitution is codified sole document. The Fundamental Laws of Sweden[1] are four basic laws in force dating from 1810 to 1974. The only modern states not to have a codified constitution are the United Kingdom, New Zealand, Israel, and Saudi Arabia.

A constitution can be legitimized by three processes:  Covenanted, by selected elite of those subject to it, like the US Constitution[2] and the Magna Carta[3]; Imposed, even if sometimes using plebiscite or other rubber stamp maneuver to ratify, but whose subjects had no a say on its drafting, best examples are the Napoleonic constitutions; and Promulgated, when it is discussed, drafted, and ratified by its subjects or  their elected representatives, what is the case of the most democratic constitutions today.

A modern constitution is the document stating the organization of state and the rights and obligations of its subjects. The modern constitution is the fundamental or the ultimate law, what distinguishes from older legal documents organizing the state, or compilations of law, like the Roman Twelve Tables. Another modern feature is a constitution being grounded in a form of social contract theory rather than divine right.

A modern state can be roughly termed to states with coherent legal statutes with jurisdiction on a definite territory administrated by a professional bureaucracy.  It originated after the European feudal order, as early as the national state Kingdom of Portugal founded in 1139; the state reform of Ming dynasty in China of the fourteenth century; or late reorganization as happened in the post-shogun Meiji Japan since 1868 and the post-Zemene mesanfint Ethiopia since 1855.

Very few states maintained their constitutions for so long. The record of the oldest is that one of San Marino, in use since 1600. In another hand, for almost over two hundred years Haiti had 23 different constitutions.

Classical Civilization Charters

• Greek city-states constitutions. Mostly oral. Uncondified. Aristotle’s analysis of Athenian, Spartan, and Carthage constitutions are good sources.  The fragmentary rock inscription in Chios, dated in the eighth century B.C.E. is one of the oldest known written constitutions.
• Roman Constitutions. Collection of many legal documents, some of them codified. The Greek writer Polybius gives some example on the Roman republican government.
• Edicts of Ashoka uncodified laws of the Buddhist India.

Medieval European Charters

They are characterized by either being charters regulating a specific class, such as nobles and sovereigns, or codices on general laws, than a proper constitution.

• Actas da Cortes de Lamego. A covenanted constitution of Portugal dated from 1139. However, the original manuscript didn’t survive, it became incorporated in the basic laws of Portugal in 1641.
• Magna Carta, 1215. It would be one the first constitutional statutes yet in use in the non-codified constitution of the United Kingdom of Great Britain and Northern Ireland. Nearly all the 37 clauses of 1225 Magna Carta version have been repealed, save the notorious 1, 9, and 29, dealing with the liberty of the church of England, the city of London, and the right of due process.
• Serbian Nomocanon of 1219.  Compiled by Saint Sava and also named Zakonopravilo, it is more a general law code than a constitution, which the Serbs later had in the Tsar Dushan Code.
• Hungarian Golden Bull of 1222
• Sachsenspiegel c.1230 codes that served many German states up to Weimar Constitution.

Non-European pre-modern Charters

• Sahifat al-Medina. Enacted to rule the Islamic Ummah by Muhammad in 622 C.E.
• Gayanashagowa. It was an oral constitution of the Iroquois League.
• Fetha Negest, actually it was more a legal code than a constitutional charter, although it was the country’s higher law, adopted in Ethiopia between 1450 and 1931.

Modern Constitutions

In common they emerged from the Enlightenment period,  sought ratifications from its constituents, and are the highest law of their jurisdiction.

• Leges Statutae Republicae Sancti Marini, or the Statutes of the Most Serene Republic of San Marino is the oldest written constitution in the world, in force since 1600.
• Corsican Republic Constitution. From 1755 to 1769 this republican followed Rousseau’s ideas.
• Articles of Confederation of the United States of America signed in 1777.
• The United States Constitution, from 1787. Still in use. The shortest constitution of the world.
• The Constitution of the Commonwealth of Poland-Lithuania, of 1791.
• Norway‘s constitution is in use since 1814. It has a language problem because of the two official forms of Norwegian.
• Netherlands‘s constitution is in force since 1815, the Dutch Grondwet steems from the Union of Utrecht treaty that set up the early federated Dutch republic in the sixteenth century.
• Belgium‘s constitution is in force since 1831.
• Denmark‘s constitution promulgated during the democratic spring of 1849.
• Argentina constitution is in force since 1853, which is rare for a Latin American country. My country Brazil had six constitutions, or seven if you consider the drastic changes of 1969 a new one,  between 1824 and the current 1988, now with 67 amendments.
• Canada has a basic law type, gathering acts from 1867 to 1982.
• Luxembourg promulgated in 1868 as amendments of earlier constitutional laws.
• Tonga, the Pacific Ocean kingdom, has the same constitution since 1875.
• Japan has the oldest unamended constitution since it was imposed by McArthur[4] in 1947.
• India has the longest constitution, with nearly 400 articles.
• Alabama has the most amended constitution; it is a patchwork of 800 amendments since 1901.
• Libya has been governed without constitution by the Qaddafi regime, however his Green Book is de facto the ultimate written law.
• Iceland‘s constitution is under a revision that can be one of the most democratic process. A commission of 25 delegates are drafting an amendment with suggestions from Icelandic citizens using internet through social networks, such as Facebook. The Iceland Constitutional Council just finished this wiki-constitution and will start its ratifying process soon.

FURTHER INFORMATION

• http://www.servat.unibe.ch/icl/index.html  A collection of most countries’ constitutions in English.

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[1]  In Swedish De fyra grundlagarn. One of the four fundamental laws, the Instrument of Government  (regeringsform) has been ruling Sweden since 1634, with later versions: 1719, 1720, 1772, 1809, 1919, and finally 1974.

[2] The US Constitution of 1787 was an agreement of state delegates elected by white males who fulfilled propriety requirements. Universal suffrage of other subjects, women, poor freemen, slaves and their descendents, came only later. Non-citizens subjects to the constitution are still disfranchised.

[3]  The British Magna Carta (forget the misspelled “charta”)  of 1215 was covenanted by a group of peers.

[4] The jurist Matsumoto Joji drafted the constitution, largely based on the Meiji Constitution, but McArthur rejected much of its text and commissioned Milo Rowell and Courtney Whitney to rewrite the version signed by Emperor Hiroito.