25/07/2002
Dialogue with Jacques
Vanderlinden
Part 1
Christoph Eberhard
Laboratoire dユAnthropologie Juridique de Paris
(first draft of a text
published in the Newsletter of the Commission on Folk Law and Legal
Pluralism, n。
37)
To start, I would like to thank Melanie Wiber
for her invitation to host an open debate on approaches to the anthropology of
Law in the Newsletter and Jacques Vanderlinden for the time he has taken to
react to my two papers (the second co-written with Nidhi Gupta). I am
especially grateful to his open criticisms as I feel that these can permit to
deepen our mutual understanding. Indeed, they will permit me in my reply to
clarify some points which may not have been very clear in their formulation in
the two texts. But they will also be a good occasion to give some further
background information which can put these contributions into perspective. The
readers will thus be enriched through this dialogical approach where our different topoi of discourse can better be understood, and
thus also Jacquesユ and my respective myths. Hopefully, the dialogue will also contribute to help the readers get
aware of their more or less conscious epistemological positionings and be thus
an invitation for further dialogical dialogues in the field of the anthropology
of Law. In this paper, I will rather take up the general issues raised by
Jacquesユs comments and by his reflexions on ヌ Challenges and Prospects for the Anthropology
of Law. A Francophone Perspective ネ (2002b). But I feel it is important that we
make a second response in collaboration with Nidhi Gupta on his comment of our
second article related to Womenユs rights in India. This will be for the next
issue of the Newsletter. Before starting now, I would like to add that my
intent in my reply is not to minimize imperfections of my contributions. I am
aware of some of them, and I agree completely that it was for example a quite
big メind四icatesseモ and also scientific lack not to mention Raymond Verdierユs
work in my first paper as the paper could be, and has been perceived, as a
statement on メFrancophone anthropology of Lawモ. But this last point, already
introduces us to the core of my reactions.
1)
The need
to locate our perspectives and discourses, or the need of diatopism, in order
to engage in dialogical dialogues
Let me very briefly sum up what Raimon Panikkar
means with メdialogical dialogueモ, as this is the method which underlies all my
endeavours in the field of the anthropology of Law. For Panikkar (1984),
メdialectial dialogueモ is a dialogue on objetcs, where we consider that truth is
objective and can be approached through the lights of Reason alone. If you are
right, I am wrong and it is through eliminating all the inconsistencies of our
respective positions that we move little by little closer to メtruthモ. Thus
Reason or logos, is seen as
the ultimate and sufficient horizon of intelligibility. This method is useful
when the premises of the debate are shared, but it becomes counterproductive
when this is not the case anymore as in all メinter-situationsモ like
intercultural, interdisciplinary, メinter-traditions of knowledgeモ situations.
In these cases it is important to move to another kind of dialogue, the
dialogical dialogue, which is rather a dialogue between subjects. The important
thing is to unveil through the dialogue, the respective myths of the partners of the dialogue, their
unconscious presuppositions. It is through the awareness of the otherユs
presupposition that one little by little gets aware of oneユs owns. And by
revealing our respective myths, a diatopical approach becomes then possible
which consists to try to understand from one topos the constructs of another topos. Recognition of the dimension of mythos, of this horizon of メthings we believe so much
that we do not believe that we believe themモ, puts a safeguard against what we
could call the totalitarianism of Reason or logos[1]. If we take it seriously, it has serious
consequences on our way to do research.
As far as I am aware of, Jacques has a tendency
to underplay the diversities of epistemological groundings - not that he is
unaware of them, on the contrary, but for him the most important thing
according to his writings is to stay critical and not to get caught up in
sterile fights between メschools メor メtraditionsモ, or even in the definition of
what this schools could be[2].
I do agree with him, that all approaches are contextual and that one should not
essentialize them and imprison them in some artificial cages. Nevertheless, I
do think that it is important to also note differences and to render them
explicit so that fruitful exchange can follow. When I titled my contribution to
the workshop in Halle, メChallenges and Prospects for the Anthropology of Law. A
Francophone Perspectiveモ, the subtitle was, in my mind, intended to locate my
approach in a context I was more or less the only one to be located in, in
this particular meeting (except
Marie-Claire Foblets who was also present). For me, referring to メa
perspectiveモ and not メthe perspectiveモ added to the footnote where I
explicitely stated that this was but my perspective on what the challenges and
prospects of an anthropology of Law, seemed to make clear that I just wanted to
hint at my topos of speech.
And I still feel that on the メmacro-levelモ of comparison between メAnglophoneモ
and メFrancophoneモ approaches, there are differences in approaches which it is
useful to remind - although there is obviously a great diversity in both
メtraditionsモ. The aim was not to freeze any approach, but rather to ease
dialogue by trying to point out what may appear as fruitful differences of
perspective when anthropologists from diverse backgrounds come together. In a
different meeting, held for example in India, it could have been useful to
stress the differences of approaches between anthropologists who carry out
research on their own societies and those who do research on different
societies.
To sum up this point : I do not share the view
that we can all just do メscienceモ and that staying メcriticalモ on a dialectical
plane is enough for being メscientificモ. For me a major requirement, especially
in all fields where we have to deal with メinter-situationsモ, is the requirement
of diatopism which is the basis for any - in my eyes - truly dialogical
approach. And I would even add, that if this is メespeciallyモ important in these
fields, it is more generally in all our endeavours to understand the others and
the world surrounding us. To give an example : for a few years I could not
explicitely differentiate Robert Vachonユs (for example 1990) and フienne Le
Royユs (for example 1990) use of the diatopical and dialogical method - they
were using the same terms but at the same time obviously did something quite
different with them, but which again did not really seem to be in an
opposition. As for me, I was somehow attracted to both usages, but at the same
time it really got on my nerves not to be able to identify what both were
doing, what these different usages in fact consisted in, and so to get clear
with my own positioning. It is only after lots of メdialogical endeavourモ that I
managed to understand that Robert Vachon was using the method more in order to
move to an intercultural approach to Law, whereas フienne Le Roy was more
interested in the striving for an intercultural theory of Law[3].
I give this example as for me I do consider both フienne Le Roy and Robert
Vachon as my masters, and as Jacques Vanderlinden even has a tendency to
perceive Le Roy as メmy Godモ. Just to say that we do definitely share many
things and from an external point of view are without doubt part of the same
メtraditionモ. And nevertheless inside of this メtraditionモ I could only further
understanding in some respects through the diatopical and dialogical endeavour.
A purely dialectical approach could not have brought me further in that
respect.
2. Law with a capital メLモ
Here we find another issue, where it is
important to differentiate approaches inside a same tradition. Interestingly,
as I have started to be trained at the Laboratoire dユAnthropologie Juridique de
Paris in 1995, almost a dozen of years after Alliotユs presentation of a theory
of legal archetypes (1983), for me it always seemed clear that when Alliot or
le Roy wrote Droit (Law)
with a capital メDモ it was in order to refer not to state linked droit, but to the Droit as ph始om熟e juridique (メlegal phenomenon) or juridicit, of which state law is but one aspect. It is
only little by little that I realized that this was not the case, and that
Alliot for example wrote about メDroitモ, mit einem grossen D,
as Jacques likes to write,
before coming up with his non-ethnocentric science of Law and the legal
archetypes[4].
It is not my role to try to justify their choices and their evolutions but I
thus nowadays usually mention in my writings that whenever I write メDroitモ, I
very consciously use this spelling in order to refer to the larger メlegal
phenomenonモ and not just to law, メmodern styleモ[5].
In that perspective メLaw with a capital Lモ, does not at all refer to メa single
abstract entity which stands isolated from societyモ (Vanderlinden 2002 : 70).
Ironically, instead of putting メLawモ apart from society, the capital メLモ in my
usage is intended to link it more closely to society : it is this mystery which
permits putting into forms the reproduction of our societies and which can only
be approached from the point of view of society as whole, necessitating in our
modern social sciencesユ framework an interdisciplinary approach similar to the
one developped in Le Royユs Jeu des lois. Indeed, as all societies do not know our distinctions which therefore
have no universal validity (eg. into politics, law, economics etc.) the mystery
of the reproduction of your societies must be asked from the point of view of
the society as a whole, and not from the point of view of one perspective on it.
But here again it remains clear, that even an anthropology of Law as anthropologie
de la juridicit or anthropologie
du ph始om熟e juridique,
remains firmly rooted in its Western modern topos. Indeed, the search for homeomorpic
equivalents, to functional equivalents to our メlawモ, in other societies has led
to the definition of メLawモ as juridicit. But it is obvious that had we started
from another cultureユs point of view where there is no probl士atique of メlawモ
as such, we would not be talking about juridicit, nor, by the way, of for example legal pluralism, which Jacques advocates. Further,
besides the メethnocentricityモ of an analysis in terms of メLawモ, the whole
approach is also biased by our whole social science framework which is
fundamentally logo- and anthropocentred (see for example Vachon 1990). But
these critiques do not in my mind render this kind of comparative approach
useless. If we want to compare, we need models of comparison. They can further
our understanding on how the diverse societies of our world put into forms
their reproduction and can contribute to a more general legal theory which can
also give us a better understanding of modern societies where the メlawモ is also
only one aspect of the メLawモ. But obviously all models have their limits and
that is something we should always be aware of. Recognizing where they are
rooted and what their purpouse is helps to assess their usefulness or their
non-usefullness and helps articulating it with other approaches. In my own work
for example, I see this endeavour towards an intercultural legal theory as
complementary to the endeavour towards intercultural approaches to Law, which
can in the process emancipate themselves from a reference to メlawモ or the
メlegalモ[6].
3. Modernity, postmodernity, transmodernity
and their usefulness as analytical tools
Here again, I think the main reason for using
this terms is to locate our approaches to Law. I would not mind calling the
メmodern approach to Lawモ differently. But I find for example Andr-Jean
Arnaudユs (1998) or Peter Fitzpatrickユs (1992) work in the field of law, or
Zygmunt Baumanユs (1987, 1989, 1991) work on modernity and postmodernity very useful to work out the originality
of this worldvision. This does not imply for me any value-judgement. I do also
not agree with Jacques when he sees the usage of this terms as well as the use
of the term メglobalizationモ merely
as jargon. Maybe that other words could have been chosen, but I think what is
important is the realities to which they refer and also the implications this
words have in our perceptions of the reality we live in. I do think, following
Roland Robertson (1996) or Andr-Jean Arnaud (1998), that globalization as the
メstructuration of the world as a wholeモ is a quite recent and original
phenomenon which cannot be equated to the previous colonizations or
intercultural exchanges in history. Nevertheless, I do agree with the fact that
we should not get trapped in pure rhetorics ノ I feel that often it is not very
appropriate to talk in terms of メpostmodernityモ, メtransmodernityモ,
メpremodernityモ or whatever in intercultural settings. If, in my mind, it does
make sense to use this terms when analyzing societies where one part of its
history and its characterisitics are termed asモ modernモ, it may be inadequate,and
even oppressive, to describe situations in areas where メmodernityモ never was a
core referent as in most non-Western cultures[7].
As far as メpostmodernityモ or メtransmodernityモ are concerned, I feel that the
aim of Boaventura de Sousa Santos (1995) or of Andr-Jean Arnaud (1998) for
example, is to work out the differences of the メemerging paradigmモ in
relationship to the modern one, whereas Le Royユs (1999) aim, who uses the term
メtransmodernityモ is more praxis oriented : he advocates an approach to Law nowadays
in the Western contexts which should be transmodern in the sense that it
articulates the useful premodern and modern available ressources with maybe
some メpostmodernモ ones which are still to be invented.
4. The tripodic Law and multijuridisme
Above, I have already tried to clarify some
aspects of what the researchers of the Laboratoire dユAntrhopologie Juridique de
Paris, mean with メLawモ. I hope to have conveyed that this approach is but one
which seems to provide a useful working definition in order to build models of
intercultural comparison and of a general Western social sciencesユ approch to
the putting into forms and putting forms to human reproduction in the domains
societies consider as being vital. Let us now say a few words on the
メmultilegalモ (multijuridique)
approach advocated by Le Roy.
For Le Roy, the major requirement to understand
the mystery of Law in given situations is to start the analysis from the
totality of the situation, starting with the identification of the actors and
their statuses, continuing with the identification resources they can use, the
conducts they put in action, the logics which they follow, the spatial and
temporal scales (processes) of their actions, the forums of interaction, the
valued forms of patterning the relationships, or メordersモ (imposed, negotiated,
accepted, contested), and the stakes of the different parties. This then
finally leads to the working out of the rules of the game which are observed in the situation and which
can be formalized in general and impersonal norms, models of conduct and
behaviour and habitus corresponding respectively to more imposed, negotiated or
accepted orderings of social relationships[8].
These three feet of Law are in le Royユs view in no hierarchy. On the level of a
comparison between different cultures it appears that all cultures seem to know
this three feet. But for example Europen Western legal culture values general
and impersonal norms followed by custom (based on models of conduct and
behaviour) and then habitus, whereas for example traditional African societies
rather value custom, before habitus and then general and impersonal rules and
Asian cultures marked by confucianism rather value habitus and an accepted
ordering of social relationships followed by custom as a process of negotiation
based on models of conduct and behaviour over the imposing of general and
impersonal norms (see Le Roy 1999 : 202). It is important to note that these
three feet refer to ways of メputting into formモ social reproduction and
conflict resolution. Multijuridisme thus rather points to the formal pluralism of Law, rather than to the
substantive メlegal pluralismモ of the coexistence of diverse possibilities of
regulation to which an individual may have access. It is a way to direct our
attention to processes which are not taking the form of what we usually
identify as メlawモ, such as written down rules, well identified institutions for
conflict resolution etc. The aspect of substantial legal pluralism is
nevertheless not absent in the multilegal approach : it is dealt with in the
analysis while dealing with the forums to which the actors access, while
dealing with their ressources, their strategies etc. To emphasize the point of
メformal pluralismモ : even if we would imagine a completely homogenous situation,
where the habitus of people would completely correspond to the models of
conduct and behaviour which would be vehiculated in the society and which in
turn would be perfectly reflected in a written law organizing general and
impersonal rules, even then if conflicts would arise, they could be solved
according to these three different ways, either by appealing to a tribunal and
asking for a decision, or by negotiating a solution among each other, or by
acting in accordance with social expectations without even a need for
negotiation. Also, the rules of a game in a given situation may for some of
them belong to one category or to another. So the point of multijuridisme is to recognize the fundamental plural nature
of Law, not only as far as its contents are concerned but also in reference to
its mechanisms and to their complex interplay in given situations.
We will leave our dialogue here today, with
this opening to field study. We will come back to the praxis of legal anthropology as it cristallizes in
its relationship to fieldwork in our second reply to Jacques Vanderlinden and
which will focus more specifically on the questions arising from the paper we
wrote with Nidhi Gupta on womenユs rights in India.
Bibliography :
ALLIOT Michel, 1983a, ヌ Anthropologie et juristique. Sur les conditions de lユ四aboration dユune science du droit ネ, Bulletin de Liaison du Laboratoire dユAnthropologie Juridique de Paris, n。 6, p 83-117
ARNAUD Andr-Jean, 1998, Entre modernit et mondialisation - Cinq le腔ns d'histoire de la philosophie du droit et de l'フat, France, L.G.D.J., Col. Droit et Soci師 n。 20, 185 p
BAUMAN Zygmunt, 1987, Legislators and Interpreters - On Modernity, Post-modernity and Intellectuals, Great Britain, Polity Press, 209 p
BAUMAN Zygmunt, 1989, Modernity and the Holocaust, Great Britain, Polity Press, 238 p
BAUMAN Zygmunt, 1991, Modernity and Ambivalence, Great Britain, Polity Press, 285 p
de
SOUSA SANTOS Boaventura, 1995, Toward a New Commnon Sense - Law, Science and
Politics in the Paradigmatic Transition, New
York-London, Routledge, After the Law Series, 614 p
EBERHARD
Christoph, 1999b, ヌ Les politiques juridiques lユ曳e de la globalisation.
Entre arch師ypes, logiques, pratiques et ヤprojets de soci師遮. ネ, Bulletin
de liaison du Laboratoire dユAnthropologie Juridique de Paris, n。 24, p 5 - 20
EBERHARD Christoph, 2001a, ヌ Towards an
Intercultural Legal Theory - The Dialogical Challenge ネ, Social &
Legal Studies. An International Journal, n。 10 (2), p 171- 201
EBERHARD
Christoph, 2001b, ヌ Human Rights and Intercultural Dialogue. An
Anthropological Perspective ネ, Indian Socio-Legal Journal, Vol. XXVII, pp. 99-120
EBERHARD Christoph, 2002a, Droits de lユhomme
et dialogue interculturel,
Paris, ヅitions des ツrivains, 398 p
EBERHARD
Christoph, 2002d, ヌChallenges and
Prospects for the Anthropology of Law. A Francophone Perspectiveネ, Newsletter of the
Commission on Folk Law and Legal Pluralism, n。XXXV, p 47-68
FITZPATRICK Peter, 1992, The Mythology of
Modern Law, London, Routledge,
Sociology of Law & Crime, 235 p
LE
ROY フienne, 1990a, ヌ Juristique et anthropologie : Un pari sur
lユavenir ネ, Journal of legal pluralism and unofficial law, number 29, p 5-21
LE
ROY フienne, 1998a, ヌ Lユhypoth峻e du multijuridisme dans un contexte de
sortie de modernit ネ, LAJOIE Andr, MACDONALD Roderick A., JANDA Richard,
ROCHER Guy (仕s.), Th姉ries et 士ergence du droit : pluralisme,
surd師ermination et effectivit, Bruxelles,
Bruylant/Th士is , 266 p (29-43)
LE ROY フienne, 1999, Le jeu des lois. Une
anthropologie ヌ dynamique ネ du Droit, France, LGDJ, Col. Droit et Soci師, S屍ie
anthropologique, 415 p
PANIKKAR
Raimon, 1984c, ヌ The Dialogical Dialogue ネ, WHALING F. (仕.), The
Worldユs Religious Traditions, Edinburgh, T. & T.
Clark, 311 p (201-221)
VACHON
Robert, 1990, ヌ Lユ師ude du pluralisme juridique - une approche diatopique
et dialogale ネ, Journal of Legal Pluralism and Unofficial Law, n。 29, p 163-173
VANDERLINDEN Jacques, 1996, Anthropologie
Juridique, Dalloz, France, 123
p
VANDERLINDEN Jacques, 2002, メSeven Commentaries
on ヤChallenges and Prospects for the Anthropology of Law. A Francophone
Perspectiveユモ, Newsletter of the Commission on Folk Law and Legal Pluralism, n。XXXV, p 69-74
[1] For further clarifications see Eberhard
2001a.
[2] See for example his reaction to the first text but
also the introduction to his Anthropologie Juridique (1996).
[3] For the reader who may be interested,
further developments are available in Eberhard 2001a and 2002a, 124 ss.
[4] On some not very explicit shifts of
terminology in Alliotユs writings ath the beginning of the eighties see Eberhard
1999.
[5] I must admit that I have not inserted a
footnote with this clarification in ヌ Challenges and prospects for the
anthropology of Law ネ as I thought things would become very clear on page
51 where I did explicit what I meant by ヌ Law ネ. I will be more
cautious in the future.
[6] For further developments see especialy
Eberhard 2002a, 98-182.
[7] For further developments on this question
see Eberhard 2002a, 221-253.
[8] For a more detailed presentation in English of such a dynamic anthropology of Law in the form of a jeu des lois or ヌ game of laws ネ see Eberhard 2001b, 113-118.