DHDIgroupe de travail Droits de l'Homme et Dialogue Interculturel
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Un passeur entre les mondes. Le livre des Anthropologues du Droit disciples et amis du Recteur Michel Alliot, (Etienne et Jacqueline Le Roy (éds.), France, Publications de la Sorbonne, 357 p.) |
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Christoph Eberhard 25/02/1998
E-mail : c.eberhard@free.fr
Cet ouvrage est dédié à Michel Alliot, fondateur du Laboratoire d’Anthropologie Juridique de Paris. La diversité des contributions permet de se faire une idée de la richesse des terrains de l’anthropologie du droit (autant géographiques qu’intellectuels) et permet d’en saisir les grands enjeux. Il permet aussi au lecteur de se familiariser avec les recherches menées au Laboratoire d’Anthropologie Juridique de Paris depuis plus d’une trentaine d’années en les replaçant dans leurs dynamiques, genèses et évolutions.
Mais, lisez vous même les résumés des différentes contributions pour vous faire votre propre idée. Les résumés des textes originaux français sont en anglais, ceux des textes originaux anglais en français. Un bon petit exercice de dialogue interculturel !
Vous retrouverez aussi ces résumés à la fin du Liber Amicorum (p 347-357).
Michel Alliot : Adresse au Prince Dika Akwa nya Bonambela
Michel Alliot pays tribute to the prince Dika Akwa nya Bonambela who taught us that in order to think different worlds we had to learn to think differently which means for us to cease to see beings where there are flows of energy, to cease to oppose to the group the individual who creates it and receives his/her status from it, to cease to oppose to the Universe Man who generates it and receives his dignity from it, to cease to oppose to God men who come from him and return to him. It meant to learn that opposites do not exclude or annihilate each other but that they unite dialectically in order to give rise to the future, and to know that there is no chance and that Man who constructs the world can only do so by following the rigorous logic of a universal order which structures this world. To think differently does not consist in rejecting the rational logics of our time but to know that these logics like others were born in the lap of mythical thought. Thinking differently consists in refusing the splendid isolation of thought and in knowing that all thought is organisation and that all organisation is thought. Invisible Africa, millenary Africa is waiting. And so is the West.
Michel Alliot : Histoire de quelques passages
The author illustrates the title of the book through elements of his biography (which are not merely drawn from his research career) ranging from the beginning of his higher education to the present day. He presents his discovery of African cultures and his approach to legal anthropology as a path of successive initiations, questionings and repositionings. After a critique of the implicit anthropology of his masters he redefines the preconditions for an anthropology of law : how is it possible to see in a different light the relationships between cultures which are based on different premisses and logics ? Relating his initial legal knowledge to his subsequent experiences, he explains the origin of concepts like that of "archetypes", what role models play in traditional societies and how important world visions are in the process of the creation and of the use of law. Finally he draws two conclusions : first, law neither merely consists of rules or institutions but of what the actors make of them ; second, he notes the "blindness" of the Europeans and the "Europeanized" confronted to African social reality ... and to the aspects of our own social reality which we keep quiet.
Pierre-Louis Agondjo-Okawé : Nkala n’onèro are nim’ogoni
The title is a Omyèné (language of the myèné populations in Gabon) expression meaning : in the village where there is an old person the fire does not extinguish. In his contribution, the author explains the meaning of this proverb by carrying out a semantic research on the terms nkala (the village), onèro (the elder, the old person, the sage), nima (extinguish, blow out) and ogoni (fire, a log of wood). He especially focuses on the explanation of nkala by presenting a typology of villages and of the village’s functions which are territorial, jurisdictional, political, socio-economical and cultural. He then says a few words on the status of the elder and of the sage before reflecting on the blowing out of the fire which can be a natural or an immaterial one as he shows through the example of the expression ni’m’inyemba (blowing out the vampire). Finally he explains the concept of ogoni by first giving an overview of the role fire plays in the myèné world view followed by a reflection on its materialized form, the log of wood (also called ogoni).
Gérard Conac : La modernisation des droits en Afrique :
du droit de l’Etat à l’Etat de Droit
Modernization of law, through the evolution of customs, of court law and of statute law reflecting the evolution of lifestyles, is inevitable in every open society. After the independances, the states of francophone Africa - in the continuity of French legal culture - privileged the latter as a creative source of law, especially as it seemed easy to edict laws and that quick effects were expected. Nevertheless the legislative policies appeared more pedagogic than normative and revealed the lack of hold that public authorities had over civil society. Inspired by developmentalist theories, they soon turned to the eradication of behaviours that were seen as obstacles to development. Law also became an instrument of control for authoritarian regimes. The proliferation of norms turned out to be counterproductive to the aims of modernization and the necessity of political ideological motors - like "authenticity", socialism, or marxism-leninism - was felt to support legislation. The Popular Republic of Congo (1969-1990) and the Ethiopian revolution are presented to illustrate these trends. The end of the cold war, by discrediting the role of the one-party system and by posing the question of the role of the state concerning the life of the civil societies and the economy, led to the renewal of constitutionalist pluralism, revaluing parlamentary debate and the judicial control of public policies, and thus of constitutional law. Increasingly, the African supreme courts play a crucial role in the modernization of law and the judges seem to be the central actors for the reconciliation of tradition and modernity which leads the way to an African modernity.
Maurice Gléglé : Le renouveau constitutionnel du Bénin : une énigme ?
The democratic renewal in Benin since 1990 is rooted in a crisis of the national political and civic conscience. It translates into the progressive installment of a rule of law founded on the respect of human rights and of "public liberties". The Beninese National Conference was the first one in Africa which was to lead from a State-Party / Party-State system to democratic pluralism. This peaceful revolution cannot be seen as Western mimetism. It rather shows an assimilation by the Beninese of Western concepts. It is a reaction against the marxist-leninist experience and expresses the will to found a new society as well as the adhesion of a people to principles which become more and more universal (human dignity ...). The new Beninese constitution stresses the instalment of a rule of law and the separation of powers. The "Cour Constitutionnelle" is the "keystone" of the new political/legal order. The evolution since 1990 is encouraging and it seems that Benin and its populations increasingly put their trust in law and the rule of law as a means for national unification and development for all.
Alain Bissonnette : Comment parler d’héritage chez les fils prodigues
The author spent one year at the LAJP in 1983 which was decisive for him. He discovered an approach to law as legal phenomenon which always links the latter to the general conceptions of the society which gives rise to it and to the society’s reproduction. This allows to go beyond more positivistic approaches to law and to take into account different legal experiences. Although the author left legal anthropology to become a lawyer, his anthropological experience and interest nevertheless continued to influence his work, especially while working on the recognition of the autochtonous people in Canada. The notion of legal pluralism appeared to offer ways to think the articulation between the autochtonous and the Canadian legal worlds. It seems that increasingly lawyers have to learn to think in multiple and flexible ways (while linking this thinking with the requirement of cohesion. In intercultural contexts, drawing on the different archetypes worked out by Michel Alliot and putting them into dialogue may prove helpful.
Marie-Claire Foblets : La femme sud-africaine entre la tradition, la nouvelle Constitution et les exigences du droit international. Pistes de réflexion à partir de la South African Law Commission
The theme of the legal position of women in South Africa is interesting as it is at the heart of the complex debate on the rearrangement of legal pluralism in a contemporary African society. It deals with the search of equilibrium by the legislative and judiciary authorities between the respect of traditions and the protection of human rights. The paper focuses on the international dimension of women’s rights. It is based on the conclusions of a document edited by the South African Law Commission in 1997 in the frame of a vast research project on the harmonisation of the common law system and the various systems inherited from the precolonial period. How can the international obligations stemming from the adoption of the "Convention on the Elimination of all forms of Discriminations against Women" be reconciled with the content of the multiple customary/autochtonous laws ? The suggestions of the report only leave little room for custom. The focus on fundamental rights prevails. The originality of the approach is nevertheless that the report will be submitted for criticism to women - this may open the path to a real harmonisation which is not just integration of the traditional laws into the modern frame.
Marc Gumbert : Australian Aboriginal Kinship Systems
Dans ses contributions les plus importantes à l’anthropologie concernant l’organisation locale et le régime foncier chez les aborigènes d’Australie, Radcliffe-Brown développe le concept de "horde" pour désigner un groupe remarquablement simple patrilinéaire et patrilocalement exogame qui constituerait l’unité politique de base de la société aborigène. La simplicité de ce modèle d’organisation locale contraste avec la supposée complexité du système de parenté. Ayant montré autre part que Radcliffe-Browne s’était complètement trompé dans son concept de "horde" et après avoir rapidement rappelé ses critiques, l’auteur se propose ici de montrer que les systèmes de parenté aborigènes sont en fait assez faciles à comprendre et s’accordent parfaitement avec sa théorie alternative. Pour ce faire il explicite sa nouvelle grille de lecture sur le "système Aranda à 8 sections" d’Australie centrale, réputé le plus compliqué de tous. Il conclut que la simplicité du système de parenté tel qu’il apparaît est idéale pour un système - antithèse absolue de la "horde" / "mini état" Radcliffe-Brownienne - où un peuple vit dans des groupements hautement mobiles et dispersés et en permanente reformation.
Robert Jaulin : Michel Alliot, mon témoignage
The author recalls the places and events where his and Michel Alliot’s paths crossed, united, became one. Central to this process was an openness to dialogue, as well on the level of the university and of its communication with the outside as between different cultures. Both share the conviction that each time a culture dies, every other culture is also affected and partly dies. For both, the living cultures, the perpetuation of the invention of living as the relationship of Man to himself and the world are what matters. Thus they privilege "immediateness" : the relation to meaning is the universe of meaning itself and such a universe does only exist insofar as it is spelled out, lived. Central is the constant invention of our lives and our responsibility for them. They thus try to be "provokers of responsibilisation" and of "liberty". It is in this perspective that the UER of ethnology was created at the University Paris 7 while Michel Alliot was its president. Unfortunately the space of liberty it constituted was soon asphyxiated but it was in such brief moments of liberty that the author’s and Michel Alliot’s paths became one.
Philippe Laburthe-Tolra : Déontologie médicale et tradition africaine. Croix rouge et serment d’Hippocrate en droit coutumier chez les Beti du Cameroun
For the Beti in Cameroun personal and collective harmony is centered on the prosperity and the physical blossoming of all the members of the group. Disease is seen as being due to moral transgression, to the breaking of the laws of the universe by a member of it. Thus medicine plays an important role in Beti religion. To become a healer one has to have suffered from the disease one wants to heal and be initiated. During initiation deep deontological principles are passed on concerning the practice of medicine and its teaching. Honoraries for being healed or taught medicine are fixed according to tradition. No doctor is allowed to refuse his services to anyone who accepts to pay the honoraries. The cure is always asked for and supported by a family. But it is open to any one passing by and wanting to join it. The period of the cure is also a kind of neutral space - what is said during it should be forgotten outside. The healer always keeps deep respect for his master and has to deal with his patients with great humanity. It appears thus that medical deontology is not a Greek monopoly.
Joseph John-Nambo : Religion et Droit traditionnel africain
One cannot isolate traditional African law and religion. Both are intermingled : Law is in religion and religion is in Law although both accomplish specific functions. The African conception of an immanent God, an energy manifesting differently in different times and places to accomplish specific but nevertheless complementary and interdependent functions inspires a particular view of Law centered on the complementarity of differences and giving rise to a communitarian model. Nevertheless African religion has evolved through its contacts with Islam since the 14th century and more recently with Christianity. This has led to mutations in its traditional Law. Major influences of both religions are on marriage and successions and for Islam on penal law. Further one should not forget the role modern legislations play in the process of acculturation of traditional African Law. Nevertheless it should be noted that despite the transformations, traditional African conceptions of Law are still very much alive and will certainly continue to shape African Law for a very long time.
Étienne et Jacqueline Le Roy : Introductions
The scientific editors of the book justify the choices which have guided its preparation. They have chosen to emphasize Michel Alliot’s work as a researcher devoted to "the dialogue between cultures understood sometimes as traditions, sometimes as civilizations and most of the time as ‘worlds’ which have the tendency to close themselves to the outside". They then unroll the history of the research carried out at the Laboratory of Legal Anthropology of Paris. Being initially centered around the problematic of legal aculturation and ‘kinship and development’, the Laboratory then focused on the manifestations of the legal phenomenon (la juridicité) and on the conditions of transfers of law (announcing the Lab’s growing interest for applied research) which in turn lead to the research on legal "archetypes" initiated by Michel Alliot. The latter constituted a major contribution to the anthropological spirit of diatopism (positioning of our respective perspectives) and dialogism (putting their different logics into dialogue) and opened the contemporary period. In their presentation, the authors also insist on Michel Alliot’s human and intellectual qualities which have turned the Laboratory into a centre of intercultural dialogue and encounter on an international scale.
Kéba M’Baye : Conséquences sur les droits de l’homme des progrès de la génétique
In his article, the author addresses the issue of genetic research confronted to human rights. He starts by reflecting on the dangers carried by the progress of research on the human genome and especially highlights the dangers for individual rights stemming from the huge financial stakes of this research. He then reviews French legislation on the subject noting that it solves two main issues : according to it human cells cannot be sold and discoveries made through the examination of cells cannot be patented. Another issue is the conflict between the obligation of professional confidentiality of the doctor and the emerging right of a spouse to be informed of the sexually transmissible disease of his/her partner, especially concerning AIDS. An analysis of current legislation and debates shows that the latter seems to be gaining the upper hand. Finally he brushes a short picture of the "universal declaration on the human genome and human rights" adopted under the auspices of UNESCO on November 11th 1997.
Sarah Ben Néfissa : Pluralisme juridique et ordre politique urbain au Caire :
les faux semblants des Majaliss Orfia.
The text deals with the Jalassat Orfia or Majaliss Orfia in Cairo which can be translated as "sessions or assemblies of conciliation". They are processes of conflict resolution and conciliation privileging negotiation and constitute alternative modes of conflict resolution. Until now they have been apprehended as "customary", societal, communitarian, popular and local legal orders based on autochtonous cultural and religious values. They have been opposed to the state legal order which was supposed to be perceived by the actors as far away, exogenous, profane and defending the interests of the well-off classes. The aim of the article is to moderate these propositions. After having described the phenomenon, the author shows on the hand of examples that Majaliss Orfia result from imperatives of social and political efficacy linked to the interests and strategies of the concerned actors rather than being the mere outcome of social predispositions ; that the societal and the state legal orders far from being opposed to each other are rather complementary or at least interdependent and interactive ; and that the stakes in these processes are not only social or legal but also, and maybe predominantly, political.
Isaac Nguema : De la violence en Afrique
There are two streams of thought concerning the roots of violence in Africa. One sees violence as inherent to Africa, as an expression of prelogical and primitive instincts characterizing "Homo Africanus". The other sees Africa’s problems as largely due to its contacts with the exterior world. This debate seems nowadays outdated and a new perspective needed. A lot can be learned here from ancestral African thought which postulates the primacy of function over being, the importance of negotiation, cohesion through complementarity of differences ... Reasons for the failure to control violence in Africa at the end of the 20th century seem to be the laxist attitudes adopted by the states, a wrong perception of the nature of violence leading to a search for scapegoats, a lack of understanding of its meaning leading to the search of its eradication instead of the solving of the underlying social problems and the underestimation of the expectations of the Africans for a genuine change of the system. It seems that only an autocentered development in relation with a new project of society can stop violence. This project must build on the values, needs and aspirations of the populations in order to enable an African democracy and rule of law.
Mamadou Niang : Bilan de trente années de recherches sur le Droit africain :
concepts et réalités
After the independances and following the colonial model, the African states have focused on Law as the central tool to achieve political, economical and social progress. The borrowing of the colonial concepts and techniques to shape public policies has masked the realities which these policies had to face and has led to submit realities to concepts completely foreign to them. Nowadays the assessment of public policies in Senegal reveals the great difficulties to which this practice has led. The author shows these inadequacies through an assessment of different public policies (policies of cooperation, policies of "encadrement", land policies and family policies) before moving on to the assessment of the political life where he shows the difficulties inherent to the concepts of "democracy", "civil society" and "citizenship" in the African context.
Jean Poirier : Le dévoiement des Droits de l’Homme. Une situation contrastée :
contradictions, dérives et dysfonctionnements
The postmodern mutation since the 1950’s has opened a new era for humankind. It is characterized by a radical break with the past, a permanent situation of change and the coexistence of extreme progress and regress. Human rights seem to constitute an enormous social and moral progress. But at the same time there is a huge gap between the ideals and their concrete application. There is also a conflict between different cultural visions of Man. And even within a given cultural setting, Europe, difficulties appear. The author illustrates these difficulties through diverse examples. He starts by illustrating the gap between principles and their application (equality of men and women). He then focuses on contradictions within texts and ideologies themselves (préférence nationale, immigration, legislation on the human genome). He further notes the discrepancy between law and lifestyles. Finally he reflects upon the confrontation of justice and morals, of the rights of the guilty party and of the victim in the case of the liberation of insane individuals who are virtually dangerous to society.
Norbert Rouland : Le Droit saisi par l’Anthropologie
The author who started out as a historian of Law relates how he became interested in legal anthropology and how he met Michel Alliot and the Laboratoire d’Anthropologie Juridique de Paris. He reflects upon the aims of an anthropology of law and upon the establishment of this science in France for which the Association française d’anthropologie du droit (AFAD) played an important role. The current situation seems full of promises for legal anthropology as new objects appear in positive law which can be beneficially enlightened by legal anthropology used to deal with legal pluralism, especially those linked to cultural diversity or to the taking into account of the "local". Nevertheless, for the moment legal anthropology is far from being accepted in the legal academic field and plays rather the role of an outsider. The author reflects on ways to emancipate legal anthropology from this position and notes that the plurality of worlds is not only the one distinguishing ours from exotic worlds but also characterizes our own milieu. And the passing between worlds may be equally difficult in both cases.
Francis Snyder : Legal Anthropology and European Union Law
La constitution de l’Union européenne reste difficile à saisir, voire inconnue, malgré les efforts de maints juristes d’élucider son caractère en tant que nouvel ordre juridique.Cet article propose une lecture pluri-disciplinaire de la constitution de l’Union européenne. S’inspirant surtout de l’anthropologie juridique, mais utilisant aussi des apports de la sociologie, de l’économie, des relations internationales et de la science politique, il tente de répondre à une question centrale, à savoir quels sont les facteurs qui détermineront si la constitution de l’Union européenn devient, ou non, une constitution au sens matériel et une constitution au sens subjectif. Ces facteurs déterminant sont de trois groupes : premièrement, les principes juridiques constitutionnels ; deuxièmement, les processus sociaux et politiques de constitutionalisation ; et, troisièmement, le développement d’une culture juridique et constitutionnelle propre à l’Union européenne. En même temps, ils nous permettent de mieux apprécier le rôle primordial des processus sociaux et politiques et de la culture juridique et l’importance toute relative des principes juridiques dans la mutation actuelle de l’intégration européenne. (FGS.)
Mamadou Balla Traoré : Le système des noms propres chez les Manding du Mali :
essai d’analyse socio-anthropologique
In a society a system of names constitutes a semantic field which reflects the systems of social representation that underlie its functioning. The latter can be approached through the way names are used, the situations in which they occur, the functions they accomplish in different circumstances. In societies who have elaborated a set of initiatic systems in order to have a hold over their world, the name does not only have the function of distinguishing different beings but of transmitting a message. For the Manding "Names speak". Two kinds of names, jamu ("surnames") and togo ("first names"), can be distinguished. In this study the author focuses on the latter as an antinomic sign to death and as capitalisation of life energies. He starts by analysing the names given at birth before moving on to names one can acquire during life. By doing so he sheds light on the articulation of kinship discourse and collective opinion in the definition and identification of the person and introduces the reader to the Manding’s cosmology and to their life world where the invisible plays an important part and where the person is seen as a conjunction of forces that evolves during one’s life rather than a solid being.
Samba Traoré : Le voleur, le Marabout et le commandant de cercle ; la cohabitation de logiques contraires dans la recherche de preuves
In the form of a letter written in a dialogical mode and addressed to an interlocutor whom one understands to be the recipient of the book, the author recounts a story which he says he has witnessed in 1972 in the Soninké land, in the North-East of Senegal. The story illustrates legal pluralism and more specifically the cohabitation of contrary logics in the search for proofs. It is about the recourse, after all other investigations had failed, to an ordeal by the pestle in order to find a chest of gold that had been stolen and to identify it’s thief in a context pretending to be modern and thus excluding in principle such a procedure. The author also raises the questions of the competing qualification of the theft either, in the traditional sense, as a disease which can be cured and concerns the whole village or as an offence in the modern sense. The latter having been chosen in this matter, the author wonders if that was the best way to solve this conflict of Laws and if it did justice to the traditional legal order whithout which the thief could not have been discovered.
Jacques Vanderlinden : Au côté de Michel Alliot sur la pente savonneuse
de la définition des droits
Since 1953-1954 Michel Alliot entered the "slippery slope" of another definition of law by approaching custom and myth. Thirty-five years later, with his proposition "Tell me how you think the world : I will tell you how you think Law", things have come full circle. Like Alliot the author was always more interested in the different living laws than in abstract law and ended up taking up the challenge of a definition of Law. In this article he reviews Alliot’s definition and confronts it to his own. The main difference stems from the author’s very empiric approach rooted in the Anglo-saxon school as opposed to Alliot’s "Levy-Bruhlian" approach which emphasizes the role of myth. Alliot’s definition of Law can be summed up in five points : a will to control, an intervention of society as such, practices, a consensus about these practices and a particular domain in which both occur and which is constituted by the vital interests of the given society. If the author agrees with Alliot on the second and third points he disagrees with him on the others. For him law can be identified if there are mechanisms of constraint implemented by society in order to exercise on its members a power which it attributes to itself.
Trutz Von Trotha : De l’Etat à la parasouveraineté. Remarques sur la sociologie du pouvoir dans l ‘Etat colonial et postcolonial en Afrique occidentale
European colonial domination, through its aim to impose everywhere the utopia of state power on the Western model, constituted a radical "revolution of power" for the conquered territories with catastrophic consequences. Starting from this insight the author characterizes the colonial and postcolonial state in Western Africa. He especially focuses on three general concepts of the sociology of power : the "power of violence" revealing the despotic tendencies of the colonial and postcolonial state, the "(external) intermediateness of power" highlightening the deficiencies of administration and bureaucracy which need intermediaries to deal with local situations, and the issue of the "legitimacies from the basis" which have been completely destroyed. His hypothesis is that these characteristics are not specific to Western Africa and that it becomes more and more urgent to reflect upon the global processes of "de-etatisation" and to understand the emerging forms of sovereignty which challenge our current representations. In order to do so he develops the notion of "parasovereignty" through the contemporary examples of the increasing role development NGOs play in Black Africa and of the Touareg conflict in Mali which reveal increasing "informal decentralisation" and "privatisation" of state prerogatives.
Mamadou Wane : La technique de l’empilement dans les sociétés traditionnelles :
le cas de la société pulaar du Fouta-Tooro
The text deals with the "stacking up" technique in traditional societies using the example of the Pulaar society of the Fouta-Tooro region which surrounds the Senegal river. To illustrate this technique the author draws two examples from the Fouta’s history : the Denyanke period and the Almale era. The first one is characterized by the grouping together of the diverse populations of the valley by Kolli Tenguella, first ruler of the Fouta, who superposed his rule over the local rules of the exercice of power, but without destroying them. Nevertheless the foreign origin of the dynasty and it’s tyrannic character lead to opposition by the population. This cristallized in the Torodo movement which found its conclusion in the victory of the maraboutique movement and the installation of the Almamia. The Almamia was essentially preoccupied with solidly installing Islam and if it changed rules at the summit of the exercice of power it only brought about little modifications in social structure and administrative organisation. Thus one can talk of a technique of "stacking up" - or of complementation - of legal spaces and logics. The author illustrates this process through an analysis of the procedures of ediction of legal rules and of the legal logics in play.