Illustration for TIME by Olaf Hajek
Dear students,
next week will be devoted to the issue of Law and Anthroplogy, with prof. Kaius Tuori from the University of Helsinki.
Abstract
Legal
anthropology attempts to give a different view of law. Through the examination of culture and
tradition, legal anthropology has studied both the traditional others, such as indigenous
peoples, as well as more familiar subjects such as Western lawyers. The
lectures offer three viewpoints of law and anthropology, the first historical,
the second and third contemporary. The historical part examines how lawyers and
anthropologists struggled to study societies without law, whereas the second
illustrates the tensions between traditionalism and the modern human rights
discourse. The final instalment discusses the rights of indigenous peoples
through the issue of land tenure.
Class Schedule
1) Legal
Anthropology: Disputes and Culture
2) Claiming
Rights Against Tradition: Activism in and around Science
3) How the
Natives Lost Their Land: Customary Land Tenure and Colonialism
Each class
consists of two parts: a) an introductory lecture, followed by a discussion,
and b) a case study involving the reading material and discussion.
Readings
1)
Bronislaw Malinowski, ‘Primitive Law and Order’, Nature 117 (1926), pp. 9-16
2) Sally
Engle Merry and Rachel E. Stern, ‘The Female Inheritance Movement in Hong Kong:
Theorizing the Local/Global Interface’, Current
Anthropology 46 (2005), 387-409.
3) Pauline
Peters, ‘Challenges in Land Tenure and Land Reform in Africa: Anthropological
Contributions’, World Development 37
(2009), pp. 1317–1325.
Prof. Tuori's CV
Dr. Kaius Tuori holds a doctorate in Law and a M.A. in History from his studies at the universities of Helsinki, Finland, and La Sapienza in Rome, Italy. His research interests include legal history, Roman law, legal anthropology, and classical archaeology. In his work on intellectual history he has studied how modern law affected the history of ancient Roman law during the nineteenth century and how American Legal Realism influenced the study of early law during the mid-20th century. Currently he is finishing a book project on the early history of legal anthropology. He is now Academy of Finland Research Fellow. His work has been published in the Journal of Legal Pluralism, Law, Culture and the Humanities, The Journal of Legal History, Revue Internationale des Droits de l'Antiquite and the Legal History Review.
Prof. Tuori's CV
Dr. Kaius Tuori holds a doctorate in Law and a M.A. in History from his studies at the universities of Helsinki, Finland, and La Sapienza in Rome, Italy. His research interests include legal history, Roman law, legal anthropology, and classical archaeology. In his work on intellectual history he has studied how modern law affected the history of ancient Roman law during the nineteenth century and how American Legal Realism influenced the study of early law during the mid-20th century. Currently he is finishing a book project on the early history of legal anthropology. He is now Academy of Finland Research Fellow. His work has been published in the Journal of Legal Pluralism, Law, Culture and the Humanities, The Journal of Legal History, Revue Internationale des Droits de l'Antiquite and the Legal History Review.
After the lesson, I inquired about Bronilw Manlinowski’s life and his works, in particular about his first book, ”Argonauts of the Western Pacific”, that he composed in 1922. This is a very important book about anthropology. The story is the result of fieldwork conducted in Trobriand islands and talks about the particular ceremony which took place among the various tribes of the area. In that ceremony, named Kula, there was an exchange of gifts, in particular bracelets or necklaces, among populations. This exchange was founded on a relationship of trust, because the object must circulate continuously and remained in the hands of the owner for a limited period.
ReplyDeleteThe analysis conducted by the writer arrived at the conclusion that in the primitive tribe relationships among populations were based on the concept of “principle of reciprocity”, that tended to promote the social solidarity.
This concept for me is very current because I think that the decline of the society in which we live, is caused by a lack of faith among people and by an individualistic imaginary, unlike what happened in ancient societies, founded on collective imaginary and common good.
Professor Kaius Tuori, in his lessons about law and anthropology,has mentioned Bronislaw Malinowski:he was born in Poland in 1884 and died in 1942; he was one of the most important 20th-century anthropologists and he was also a sociologist and ethnografer.
ReplyDeleteFrom 1910 he studied exchange and economics at the London School of Economics,analysing patterns of exchange in aboriginal Australia through ethnographic documents. In 1914 he travelled to New Guinea and then to Trobriand Islands in Malanesia where he stayed for several years,studying the indigenous culture. His texts regard the anthropological field methods that are foundational.
He is often referred to as the first researcher to bring anthropology "off the verandah".
Malinowski emphasized the importance of detailed participant observation and argued that anthropologists must have daily contact with their informants. He stated that the goal of the anthropoligist is to "grasp the native's point of view, his relation to life, to realize his vision of his world".
The task of the anthropologist is also to construct the picture of the big institution, very much as the physicist constructs his theory from the experimental data, which always have been within reach of everybody, but needed a consistent interpretation.
He focused on the distinction between description and analysis, and between the views of actors and analysts.
Part 1:
Diana Cecconi
I read Malinowski's work "CRIME AND CUSTOM IN SAVAGE SOCIETY"(1926) and in my opinion is useful reading some lines for understanding his ideas.
ReplyDeleteIn the Preface he states that:"the modern anthropological explorer,who goes into the field fully trained in theory,charged with problems,interests and maybe preconceptions,is neither able nor well-advised to keep his observations within the limits of concrete facts and detailed data..";according to Malinowski is necessary an unbiased observation of the reality.
Then he writes:"in the writing up of his results the modern anthropologist is naturally tempted to add his wider,somewhat diffused and intangible experiences to his description of definitive fact;to present the details of custom,belief,and organization against the black-ground of a general theory of primitive culture.This little book is the outcome of a field workers's yielding to such temptation".
"..there is the subject of primitive law,the study of the various forces which make for order,uniformity and cohesion in a savage tribe".
Malinowski points out that even in primitive tribes the law is the basis of daily life;the fact that they have different rules and customs from ours,doesn't mean they ever had.
"law and order pervade the tribal usages of primitive races,they govern all the hundrum course of daily existence,as well as the leading acts of public life.."
"..in primitive societies the individual is completely dominated by the group(th clan or the tribe) that he obeys the commands of his community,its traditons,its public opinion,its decreees,with a passive obedience".
"it is true that present-day anthropology neglects primitive law just because it has an exaggerated,and i will add,a mistaken idea of its perfection".
Part 2
Diana Cecconi
Significant is the first part of the book entitled "PRIMITIVE LAW AND ORDER": "The savage has a deep reverence for tradition and custom,and automatic submission to their biddings. He obeys them SPONTANEOUSLY,through MENTAL INERTIA, combined with the fear of public opinion or of supernatural punishment..the savage is far from being the free creature of Rousseau's imagination..he is bound in the chains of immemorial tradition in his religion,in his medicine,in every aspect of his life".
ReplyDeleteMalinowski asks to him:"it is not contrary to human nature to accept any constraint as a matter of course,and does man,whether civilized or savage,every carry out cruel regulations and taboos without being compelled to? and compelled by some force or motive which he cannot resist?
This automatic acquiescence,this instinctive submission of every member of the tribes to its laws,is the fundamental axiom laid at the basis of the inquiry into primitive order and adherence to rule".
"The fact is that no society can work in an efficient manner unless laws are obeyed 'willingly' and 'spontaneously'. The threat of coercion and the fear of punishment do not touch the average man,whether 'savage' or 'civilized',while,on the other hand,they are indispensable with regard to certain turbulent or criminal elements in either society".
"...the criminal law is the only law of savages".
The primitive law is described in this article with these catch-words:'communism','promiscuity','clan-solidarity','spontaneous obedience'.
In my opinion Malinowski in these lines wants to focus the attention on the fact that the savage law system is cruel,but is more efficient than our one;the savage has few,certain rules at which he obeyes.
This 'blind-obedience' ensures legal certainty and the right administration of justice.
This system infact,guarantees order in the community with fear of a divine punishment.
The main reason of savage law efficiency,is that savages believe their legal rules as compulsory.
Even if the savages haven't written rules,they have the idea of law bonded with their religion and tradition.
The fear of some divine reaction is much more efficient than the punishment in itself.
Part 3:
Diana Cecconi
I have found very interesting what Diana wrote about Malinowski and very curious about the issue I decided to discover more about it.
ReplyDeleteIn class we talk about Functionalism and so I've thought to seek the strong relation between Malinowski and Functionalism: Malinowski was looking for clues about how all societies worked. "His observations led him to conclude that all aspects of social life and institutions were designed to serve the fundamental needs of human beings, primarily biological needs for food, shelter, and reproduction." This theory of human society became know as functionalism, and now I quote:
"The functional method recognizes, perhaps above all, that the satisfaction of biological needs implies and develops a system of derivative requirements. Man, living under conditions of culture, obtains his bread indirectly through cooperation and exchange. He has to procure it in complicated economic pursuits. Culture, therefore, creates new requirements for implements, weapons and means of transport, for social cooperation, for institutions that can ensure a normal and local ordering of human groups which allow an organized cooperation.
Malinowski was less interested how societies have evolved and more in how a society worked at the time the anthropologist was observing it. Thus, his work was a departure from the evolutionist theories that hitherto consumed the field of anthropology."
Part 1
Chiara Lombardi
I was also intrigued by the notion that Diana used to describe the way in wich Malinowski has brought anthropology "off of the veranda", and I discovered a document really interesting about an episode that Malinowski experienced at the 1914 meeting of the British Association for the Advancement of Science, a really influential moment in his career.
ReplyDelete"The people (especially W.H. Rivers, Baldwin Spencer, and Alfred Haddon) he met at this conference and their work really convince him that the next step in anthropology was a "thorough in depth study of native life" because "someone had to get to know what these savages were really like."
Shortly after, Malinowski departed to do research among the Mailu on Two Long Island off the coast of New Guinea. He brought with him the most recent edition of Notes and Query on Anthropology in which William Rivers had laid out substantial methods for how anthropologists could go about collecting information. The idea of going out amongst the "natives" to do fieldwork was a truly revolutionary idea at this time. However, Malinowski took this process one step further by making, a move "from the armchair out on to the verandah" thus developing the idea of the participant observer who would live amongst the people he was studying. This is very possibly seen as the most important contribution that Malinowski made to the discipline of anthropology. "
Ovviously I never thought that there might be a book, as "Notes and queries on anthropology" in which there were written all the questions that a Anthropologist could ask to himself when studying other cultures and populations, but there is and I downloaded it and it is very interesting to understand how Anthropologist used to worked at that time.. I add the address in which you can find the ebook about it
http://archive.org/stream/notesandqueries00readgoog#page/n175/mode/2up
at pag 150 there are all the questions that probably Malinowski read about "law" and in the next page (151) there is, I think, the most important think that I would like to underline in my post: the difference about LAW and CUSTOMS.
We debate a lot upon this difference about law, written and unwritten, customs and personally I was confused about this topic: take a look!
“the distinction between a law and an authoritative custom may be best drawn with reference to the manner in wich society compels obedience to it. If a judge or tribunal declares the rule, and punishes its infraction, it is a LAW; if it is left loosely to public opinion to practically accept the rule, and to visit those who disobey with blame, insult, and social exclusion, it is a CUSTOM. Many customs are mere habits without authority. Many exist whose original meaning is hardly known or doubtful. All customs should be recorded, and not least carefully, the obscure ones, in the expectation that close examination and comparison with those of other districts will disclose their real meaning. The ethnological principle is daily growing more certain, that all customs soever had originally a real and rational meaning; they may have now lost or altered this by passing into survivals, but when analogous examples have been collected from several districts, it is usually possible to trace the common cause to which all were originally due”.
This underline maybe what we said on Wednesday about the necessity for an unwritten law to be defense by court and institutional structures.
Chiara Lombardi
In his lessons Prof. Karl Tuori explained the Grand theories of anthropology: Ladder theory and Mosaic theory. The first is characterized by the hypothesis of an evolutionary development: all societies have advanced from one original basic form. The second one by the hypothesis of uniqueness of human experience. So we can find different currents: intellectual history, legal anthropology…
ReplyDeleteRegarding the latter Laws and anthropology are interlinked: anthropologists study society and law in it. It was very important for the current of legal anthropology the contribution of the Manchester school. The exponents of this school added a radical change for the anthropology sciences, moving away from previous views on the functioning of society. The theme of cultural change and the conflict has been able to combine many young anthropologists, thanks to the historical situation in which found several African countries, victims of a colonial policy and destructive conflict. Already some students of Malinowski had focused their interest in the problems arising from contact between different cultures, denouncing danger that traditional societies risk in front of the aggressiveness political-military European countries. The same Polish anthropologist proposed a theory of change, trying to make coexist the theme of change with the theme functionalist, after a period of study in Africa. In fact, the African societies, involved in rapid processes of "forced acculturation," could stimulate a type of dynamic vision of phenomena, offering a lot of attention to the historical facts.
Personally, I focused my research on the South African anthropologic who is considered the founder of the Manchester school: Max Gluckman (1911-1975). He was born in Johannesburg of Russian-Jewish parents and grew up in South Africa. He studied law and social anthropology from 1928 through 1934 at the University of Witwatersrand under Winifred Hoernlé and later under Alfred R. Radcliffe-Brown, where he analyzed the social realities to trace important confirmation for his theories. In 1934, he was granted to Transvaal Rhodes Scholarship and continued his studies at the University of Oxford, Exeter College. Gluckman was an anthropological assistant at the Rhodes-Livingstone Institute (RLI), founded only one year earlier. The institute was the first Anthropological research institution in British colonial Africa and was planned to provide knowledge to the colonial administration. Sir Hubert Young, then governor of Northern Rhodesia and an instigator of its foundation, wrote this that the institute was “a contribution to the scientific efforts now being made in various quarters to examine the effect upon native African society of the impact of European civilization”. The initial research agenda was set by Hence colonialism. During his time as "research officer" for the Rhodes-Livingstone Institute, Gluckman conducted field research among the Lozi of Barotseland. So we can see once again the importance of studies about colonialism, in order to creation of a knowledge and idea of emancipation. Gluckman was very sensible to the contradictions of high colonialism. He was a radical critic of colonial ideologies and racism. Due to his experience at the RLI, he also became a major critic of Bronislaw Malinowski. He rejected in particular Malinowski's conceptualization of "culture contact" as the main force of social change. He argued that the division of internal and external forces has obscured the fact that colonialism has forced many African in new economic, social and cultural situations. Through the system of migrant labor, Africans and Europeans in Africa were ready to be part of a "single social system." Gluckman, unlike Malinowski, but unlike the classical position of Oxford anthropology, has insisted that the conflict was an essential part of every society. According to him, there was not stable society (Gluckman 1940 in his contribution to African Political Systems).
(continue...)
He said that any analysis, that did not considered the presence of colonial domination, would not be able to explain the contemporary political organization in Africa. In 1940, his basic belief was extraordinary, now it appears almost "obvious".
ReplyDeleteBecause the equilibrium must not be taken for granted, said Gluckman. For he, the groups had a tendency to divide the internal (or segment), but could also fall apart, forming different entities with different types of social organization. The conflicts were real and not simply the expression of an internal opposition.
Recognizing the possibility of breaking and fragmentation led away from the image of Malinowski of modernity as alienation. Gluckman, thanks to previous studies in law, realized that social processes could lead to a final separation of social units. In fact Gluckman initially looked for factors that guarantee cohesion and equilibrium in social situations. However, unlike his teacher Radcliffe Brown, according to Gluckman social equilibrium was not tracked in the interdependence of social phenomena, but in their conflicting relationships. The opinion of Gluckman was that the operation of a society depended on two opposing forces, operating within a system able to self-regulate, through continuous phenomena of breakage and readjustments. Characteristic elements of society were therefore forms of recurrent instability, interspersed by periods of equilibrium. The idea of aggregate that functioned as a living organism gave way to a new idea on human groups, through the use of new concepts in anthropology (conflict, tension, conflict, deconstruction, change ..).
Only with the term "contradiction", Gluckman designed the possibility that an internal tension could lead to a radical change in the social structure, while the other moments of conflict would be, once absorbed by regulatory mechanisms, removed to a new equilibrium.
Among the main tools used by social groups to oppose the internal tensions, there was certainly the religious and magical sphere. In particular, the ritual performed a convoy function of disruptive energies with the ritualization of the struggles, we ended up downloading their own outbursts of rebellion. For example, the power of a leader who could inspire feelings of envy on the part of members of the group, ended up being strengthened just by inserting it into a ritual, through its use as a system of convoy of dangerous energy that could threaten the order existing.
In 1949, Max Gluckman was appointed first professor of social anthropology at the University of Manchester and became the founding father of the Manchester School. Among his students were many anthropologists that considerably changed the course of the disciplines from the 1950 through the early 1980s. Between the best known were Elizabeth Colson, Anthony L. Epstein, J. Clyde Mitchell, Victor Turner, Bruce Kapferer, and William Watson, a little less closely associated with Gluckman, Edmund Leach, Frederik Barth and Richard B. Werbner.
As a school, a group of researchers, were held together by a common approach: a style of shared writing, a culture of debate and common discussions, mutual citations, reanalysis of previous publications ethnographic and also for being fans of the football team Manchester United :)!
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Gluckman's students directed their attention to those social situations that could create situations could lead to a radical change in the existing structure. In particular, Turner, studied conflicts that characterized the society according to a dynamic view of the facts and away from structural-functionalist conceptions of Brown. Turner was interested in understanding the way in which individuals in a group were able to manipulate the regulatory apparatus of a society, for personal gain. According to him, the conflict was existing within a society, but the main innovation of this anthropologist was to consider the individuals as such, their behavior and their internal strategies and the ways in which it could cause a gap between norm and behavior.
ReplyDeleteIn any case, Manchester School is probably the largest group company that has ever existed in social anthropology. It has attracted many scholars from Great Britain and other countries and remains a great source of study for contemporary anthropologists.
Ylenia Coronas
I found very interesting the lessons of Prof. Tuori about the relationship between anthropology and law. In particular i liked the way he talked about a topic so difficult and the fact that he used a funny approach. I believe in the power of images, i think that sometimes a picture or a painting can be more explicative than 100 words. In fact i really realized the importance of malinowski's work, the meaning of his method (named fieldwork) when PROF.TUORI showed us some photos. Especially that one which portrays malinowski in the midst of a tribe: people physically so different but so close as human beings. Bronislaw Malinovski was a pioneer in the field of anthropology, his role and his activity have shown a new path for other scholars.He said that the goal of the anthropologist is "to grasp the native's point of view, his relation to life, to realize his vision of his world".
ReplyDeleteI was looking for further readings on our week's topic "Law and Anthropology" and I tried to find out more information about it when I've faced this book named "Anthropology and Law" by James M. Donovan and H.Edwin Anderson III.
ReplyDeleteIn the very first pages of the book the authors try to explain the interactions between Law and Anthropology and the different fields where the two subjects are connected.
It is curious to figure out that the first example that you can find in this writing is an instance based on a law school torts exam.
"The test hypothetical set the scene with Cain and Abel. Cain pointed a blowgun at Abel's head,thinking him to be a statue of a Canaanite deity.
Was Cain thereby liable to Abel for an intentional tort assault?"
The authors sustain that the correct answer in the professor's mind was "No" because assault is a tort against a person and Cain did not intend to assault a person, he lacked the requisite frame of mind required for culpability.
But this is not the professor's aim, this is not the exam's purpose.
The professor would like to focus students' attention on the adjective "Caananite".
Why so?
I'll try to explain to you the professor's reasons and so we will better understand how in this case Law and Anthropology are bonded.
First of all we have to clarify the definition of "Cannanite"; this religion was one of the ancient Semitic religions and one of its most famous researcher is William Robertson Smith a 19th Century scottish anthropologist.
Smith concluded that the "savages" of that primitive society were unable "to distinguish between phenomenal and nominal existence, between organic and inorganic nature and between animals and plants. Reasoning wholly bu analogy,therefore, savages ascribed to all material objects a life similar to their own; and 'the more incomprehensible any form of life seems to them,the more wonderful and worthy of reverence do they take to be".
Smith sustain that "the sacred object was the EMBODIMENT of the god himself", and not the temporary HABITATION of the god.
In a nutshell, the statue of a Caananite deity is more than a nonliving depiction of the god; to a Caananite it would have been equivalent to the god himself.
Looking back on the torts exam's question we could sustain that the professor though of the Cannanite statue only in terms of its metaphorical meaning because this is the viewpoint according to our customary tradition.
But if the professor puts a western customary attitude in his test he might lost and undermined the enlightening aim of is question.
Contrary to the very easy answer to this exam an argument could exist that a statue of a Canaanite deity was, for a member like Cain of the ancient Semitic culture, not merely "a" person, but the most strong exemplar of humanity in his experience.
According to the last viewpoint that I have just explained, Cain WOULD have been liable for an assault on Abel because he DID intend an assault on a person, even if he did not want to assault Abel.
As the authors write in this book in this example maybe elementary and clear at first sight we can find out an unexpected irruption of Anthropology interacting with a legal issue.
But, if we pay attention on almost every legal issue we could notice that, similarly, lawyers remain unaware of the anthropological implications.
On the other hand the anthropologist can be similarly bewildered in discovering legal implications incurred by the practice of his (ore her) activity.
I think that this is a very good example to understand how Law and Anthropology are clearly linked and how one could influence the other and vice versa.
As we debated in class this two fields of study are bonded and I personally thing that if we have an anthropological view point on a legal case we can figure out shades that a casebook or a code could not give us.
ReplyDeleteStudying society's roots and habits, reading about people's customs and traditions is a good way to be not only a goos anthropologist but, for instance ,a good lawyer too.
As Professor Tuori said in his last lecture, a lawyer could be a very good "translator" for people who can not handle the legal language; and to become a very good translator he very first things to do are to research and assimilate a person's heritage, the people's traditional customs and a society's background.
This is a way, I think, to balance common people's requests and needs and written rules and to harmonize people's peculiarity to the legal systems.
Roberta Di Lorenzo
Last week Professor Conte invited an expert in anthropology, from Helsinki, Kaius Tuori, whose work has concentrated on the relationship between anthropology and law. Thursday's lesson focused on Bronislaw Malinoski, a british antropologist (but he was born in Poland in 1884), one of most important twentieth-century. He was the pioneer of functionalism and he argue for all of his life that if we want to understand the social structure of a group of people we have to see “the native’s point of view”, an observation that is impartial. As the professor Tuori said us, Malinowski had an holistic approach. In the opinion of the british antropologist, the customs, usage, life and disputes are all relevant sources. In fact he always been a supporter of the “field work”, because as professor Tuori said, there are more difference between activism and research. For example if you are activist you have an agenda and you see something you want to see, instead if you are a researcher you have no agenda except advancement of knowledge and you are unbiased, neutral because uninvolved. The most important thing is the fieldwork. In “ crime and custom in savage society(1926)” Malinoski speak about the description of Trobriand islands’ people where he lived for many years. In this part of Melanesia in that time there are a lot of indigenous tribes. He was trained as an anthropologist and customs and usages based on local law.In my opinion the most important part of this book is the first, entitled “primitive law and oder” where he speak of the spontaneusly and mental inertia of Trobriand’s people. I agree with diana when says that they attach great importance to public opinion and religion that leads to have good behavior for fear of divine punishment. This system infact, guarantees order in the community because the people see this as compulsory. But this is a system that is good only where there are no science and culture, but there are only religion and tradition.
ReplyDeleteWritten by:
ReplyDeleteMarika Marcantonio
Francesco Renda
Last week there were two interesting lessons of Prof. Tuory about the relationship between law and anthropology.
First he explained the two grand theories of anthropology: the ladder theory and the mosaic theory.
The ladder theory (discredited, but lingers) is based on 19th C. Darwinian social anthropology, and the focal points are:
- the hypothesis of evolutionary development.
- that all socities have advanced from an original basic form.
The mosaic theory (current) is rooted in functionalism, and the focal points are:
- the hypothesis of uniqueness of human life
- there isn't an universal common pattern of development.
Between the 1860 - 1920 Maine, Morgan and Tylor elaborated the universal theories; between the 1920 - 1960 has emerged functionalism, of which the greatest exponents were Boas and Malinowski.
The central issue was: how does one study law in a culture which has none?
We have different possibilities: we can study the legal process and the disputes; the social structures and social roles; the language and discourse.
During the lessons Prof. Tuory spoke about Malinowski.
Malinowski was born in 1884 in Polish and he was a student of E.Westermark; he was a pioneer of functionalism. He thought that the evolutionary theories were incorrect fantasies separated from reality, and that the law was only obsvervable "in situ". He thought too that customs and disputes were all relevant sources.
In the article "Primitive Law and Order", which contains the substance of a discourse delivered before the Royal Institution on February 1925, Malinowski said that the savage has strong admiration and respect for tradition and customs, and an automatic submission to these.
For Malinowski the only way to arrive at a satisfactory classification of the norms and rules of a primitive comunity, at a clear distinction of primitive law from other form of customs, and at a new conception of the social organisation of savages, is to conduct "an inductive examination of facts, carried out without any preconceived idea or ready-made definition".
Of great interest is the functionalism of Bronislaw Malinowski (1884-1942). The year of publication of Argonauts of Western Pacific (1922) represents a break with the past, and marks the birth of a new way of conceiving anthropology. The importance of Malinowski opera in the considered field research as a key moment for the collection of ethnographic data, and in having created a new method of analysis for scientific reading of exotic societies. Participant observation, ie the ratio of deep participation in the community life of the company that was going to study, become a topos essential to the very idea of doing anthropology. Until then, the scholars who were employed population "primitive" had done so based solely on data from the second and third hand, Malinowski on the part on the field research will be thought of as the time needed for a subsequent analysis of the data collected. Malinowski, in fact, it was before a great theorist, a great ethnographer, its ability to enter into symbiosis with the people he visited, through the direct participation of other cultures, will be a final step in the sciences antropologiche.Argonauti Western Pacific is the most important book of Malinowski, in which they are taken out all the theoretical principles of its functionalism. The central core of the book is represented by a specific form of exchange, called Kula, which exists in certain groups of people small islands off the Australian mainland, the archipelago of the Trobriand. The importance that the Kula assumed for the populations involved, so as to be defined by Malinowski as the most important practice in the life of tobriandesi, depended, at a sociological, by its being able to maintain balances the relationships between different groups and create new ones, in a sense unifying and cohesive. The feature of the life of a native, became regulated by a set of rules and obligations concerning mutual assistance behavior, performance and compensatory measures, from the custom of offering gifts and receive in turn, in a continuous flow of interpersonal relationships and intertribal. Social action was to take shape, for Malinowski, as a set of behaviors aimed at ensuring order and cohesion within the group, besides forming the basis of the law in force at the "primitive" societies. the idea of society that Malinowski had theorized since its first research at the tobriandesi will tend to change in the last years of his life, when we get a theory biologistic background, in which the company will be thought of as a functional system to basic human needs. The company, which Malinowski will always continue to be considered as a set of phenomena serve to maintain internal balance, and guided by the principle of reciprocity, will tend to take shape in the writings appeared posthumously, as a simple machine that can create appropriate responses to problems linked to the existence of man, such as reproduction, feeding, socializing, sex. These cultural responses, called primary needs were likely to create, in turn, new needs, in a sense deterministic and behavioral, based on a mechanical stimulus-response. The magic, for example, was, for Malinowski, emotional support regarding situations not technically controllable. Thus theorized, the magic ended up assuming the characteristics of tool use in those moments when, despite all precautions known you were faced with a situation against which it was helpless.
ReplyDeleteAlice Borsacchi
ReplyDeleteDuring the lessons of the Prof. Tuori i was fascinated by the explanation of the relations between the anthropology and the law.
Very interesting was the discussion on the two major theories of anthropology: the so-called Ladder theory and the theory of the mosaic. Ladder theory focuses on the evolution that has occurred from an original base form for each company. The mosaic theory instead on the assumption of a human society characterized by different features but still uniform. The base from which is certainly the assumption that law and anthropology are interconnected and in relation to each other. From this opening words of the Manchester school was a turning point with regard to the relationship between the two disciplines, through the study by anthropologists of the cultural and historical African countries, traditionally oppressed by colonial policies and devastating violence. is the same Malinovsky to inform us of the danger of contact between populations and violent as those advanced western and indigenous populations still underdeveloped as were those in Africa before being brutally colonized. Malinovsky attempted in the studies to develop a theory of change that combined functionalism with colonization and amortizes the encounter between cultures so different. The clash between civilized nations and civilized countries do not have the product in time, however, a phenomenon of forced civilization, a source of study for anthropologists specialized in the relationship between law and anthropology.
But what we mean when we mention the interconnection between law and anthropology, the so-called legal anthropology?
First of all we could identify Legal Anthropology as a sub-discipline of anthropology which specializes in the cross-cultural study of social ordering. This generic definition of the field captures the wide array of research done by legal anthropologists today. Earlier legal anthropological research often focused more narrowly on conflict management, crime, sanctions, or formal regulation. For example Bronisław Malinowski's 1926 work, “Crime and Custom in Savage Society”, scanned law, order, crime, and punishment among the Trobriand Islanders.
So the area of Legal Anthropology is a science and thus all theories should be supported by the basis of empirical facts gathered from a society. The questions that Legal Anthropologists try to answer concern how law is rooted in cultures? In which way does it manifest? In which way anthropologists could contribute to understandings of law?
Traditionally the English Lawyer Sir Henry Maine is often credited as the precursor of the study of Legal Anthropology through his book titled “Ancient Law”(1861), and although his evolutionary stance has been widely discredited within the discipline, his questions raised have shaped the subsequent discourse of the study. This ethno-centric evolutionary perspective was pre-eminent in early Anthropological discourse on law, evident through terms applied such as ‘proto-law’ and applied by so-called armchair anthropologists. But we had to underline that the turning point of this discipline was the publication in 1926 of the Malinowsy’s already mentioned work “Crime and Custom in Savage Society”. Through focusing the order present in acephelous societies, Malinowski proposed the cross-cultural analysis of law through it’s determined functions as opposed to a discrete entity. This has led to several researchers and ethnographies analysis such aspects as order, quarrel, conflict management, crime and relative punishment, or formal regulation, in addition to law-centred studies, with small-societal studies leading to insightful self-reflections and better understanding of the founding concept of law.
Today Legal Anthropology is consideres as an eventful lively discipline with modern and recent applications including issues such as “Legal Pluralism”, “Political Uprisings”, “Human Rights” and “Civil Rights” …
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ReplyDeleteHowever, expecially in “Primitive Law and Order, Nature 117 (1926)” , Malinowsy explores themes already then in-depth work "Argonauts of the Western Pacific. Magical rites and everyday life in primitive society" as a primitive form of exchange, the kula, practiced by communities living on thirty islands arranged on a circle in a geographical area including accurate. The islands inhabited by groups participating in the exchange circulated two types of objects: red shell necklaces and bracelets of white shells. The first circulated only in a clockwise direction, the latter only in the opposite direction. It followed that the objects belonging to a category could be exchanged only with objects in the other category. The objects circulated continuously, remaining in the hands of the owner thereof only for a limited period of time. The objects were traded during visits that the inhabitants of the islands were exchanged periodically. Both preparations for departure that negotiations and exchanges took place according to specific rituals. During the visits, exchanges of type kula were accompanied by a commerce-type profane by which objects were traded holding a value in use.
The analysis conducted by Malinowski brought out the existence of a network of relationships between individuals, clans and tribes founded on what thereafter would become part of the conceptual repertoire of anthropology as the "principle of reciprocity". All operations related to shipments kula is presented as fact regulated by a social logic in its effects tended to promote social solidarity. More generally, the principle of reciprocity for Malinowski was the basis of social relations and the law in force in primitive societies. The use of the principle of reciprocity as an explanatory principle of social dynamics will migrate into the primitive theory of the gift of Marcel Mauss and from these, as a result, structural anthropology of Claude Lévi-Strauss …
I think that malinowski’s reading was very interesting, so I decided to look for some depth, starting with the search for information on formation and on study method of this famous anthropologist. He revolutionized the methodology and the practical approach of anthropology: no longer an aseptic approach, but participant, with immersion in the life of the populations studied. It was one of the greatest exponent of British functionalism: he gave special attention to the analysis of the factors contributing to the maintenance of internal equilibrium of a company. Malinowski (while maintaining a functionalist view) focused his studies on the individual and not the society.
ReplyDeleteHe believes that every culture is made up of all answers that society gives to the universal needs of human beings. These needs are of two types: basic needs (such as eating, sleeping, reproduction) in which each culture provides its own unique answers; the satisfaction of basic needs then creates secondary needs such as political and economic organization.
There is a third type of needs: cultural needs (such as beliefs, traditions, language). At all these levels of human needs, every culture gives their answers.
Malinowski has based the analysis on a single aspect of the culture of the people to understand the whole of which this issue is a part.
His analysis of the populations of Melanesia focuses on the kula, which is a form of ceremonial exchange: each group organizes regular shipments of canoes to go to visit other islands communities, with which exchange objects. We read on the passage suggested by Prof. Kaius Tuori that the use of the canoes consist of a series of defined obligations and duties uniting a group of people into a working team. It's a complex system of holding property. Each canoes have its owner, while the others act as a crew. All These man are bound each other by mutual obligations: every man must fulfill its duty and is entitled to receive a part of the catch as an equivalent of His service. When the whole community go out fishing, the owner can not refuse his canoes. The master (the owner) has to finance the building of a new craft (When the old one is worn out) and he has to maintain it in a good repair (helped by the rest of his crew).
The kula had the ability to involve various aspects of local life: the construction of the canoes; the preparation of the gifts; the celebration of the sacred rites that accompanied the ceremony. Malinowski sought above all to understand the role played by this institution. He concluded that the kula served as a mechanism of activation of certain forms of social solidarity (based on a principle of collaboration).
This is an example of the organization of these populations, but also in other areas you can identify a set of mutual obligations that allow you to maintain your balance.
Diana Oro Nobili