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The Department ‘Law & Anthropology’
Since its launch in 2012, the Law & Anthropology Department has endeavoured, as its name suggests, to bring together the disciplines of law and anthropology. The idea behind the effort to bring these two disciplines under one institutional roof is the conviction that, for an increasing number of highly topical themes, there is much to be gained from in-depth interdisciplinary research that draws on both legal and anthropological approaches.
Legal and cultural interweaving in an increasingly interconnected world
We live in an age when, thanks in no small part to dazzling technological advances, human societies the world over are becoming increasingly interconnected, whether voluntarily or involuntarily.
One major aspect of this global interconnectivity that requires further critical investigation is how legal systems and cultural worlds overlap and intersect, creating ever more densely interwoven social fabrics. For several decades now, numerous instruments in international law have been developed to regulate the interdependencies between sovereign states in a wide variety of fields. But interconnectedness also raises new legal questions on a level that is more complex to analyse, namely, the multifaceted reality of the most disparate normative systems – be they religious, ethnic, or in any other sense ‘cultural’ – bumping up against one another, often in unfamiliar contexts and without the requisite knowledge of the other value system to engage in genuine exchange on an equal footing.
One policy concept often cited when it comes to reconciling and regulating such collisions of diverging value systems is human rights and the protection of fundamental liberties they seek to ensure. Many anthropologists, particularly legal anthropologists, are highly critical of the universalist assumptions underlying the concept of human rights. The reasons behind this critical stance are twofold. First, until recently, supposedly ‘universal’ human rights instruments were negotiated chiefly by countries of the global North that, in the post-war period, had agreed among themselves on the definition and interpretation of human rights. Second, and more specifically, anthropologists in the field have observed and studied alternative value systems that are not necessarily aligned with the dominant conception of human rights, but in specific contexts offer equivalent (if not more sustainable) protections to the persons involved.
These value systems shape community life in many parts of the world, and each in its own right constitutes a system of binding law. Today's extremely rapidly advancing interconnectivity is making many such systems more interdependent than they have ever been, with the need to find workable solutions in the event of misunderstanding, friction, or even open conflict.
A new rationale for deeply interdisciplinary research
There is great potential for law and anthropology to mutually reinforce and enrich one another. One of the undeniable strengths of anthropology is that it gives voice to people and/or communities who are rarely heard when it comes to the realities they experience. By virtue of their proximity to the field, anthropologists are in a position to offer invaluable knowledge and contribute to formulating appropriate legal solutions that do justice to the complexity of concrete situations that cry out for greater awareness of and sensitivity to the different perspectives of population groups. In this way anthropology can not only enable formal law to stay in touch with realities on the ground, it can also contribute to strengthening formal law and, ultimately, the rule of law.
Moreover, an anthropological undertaking that is truly aware of and takes into account the constraints imposed by the requirements of formal law considerably increases its chances of being heard by legal professionals and policy-makers and, in so doing, of having a genuine societal impact. At a time when some question the viability of anthropology as a scientific discipline, in-depth anthropological research that engages seriously with formal law and the way it addresses concrete legal issues may well compellingly articulate a new rationale for why social and cultural anthropology matters.
Bringing law and anthropology together: a highly demanding exercise
The Department offers researchers the support they need to explore the extent to which bringing the disciplines of law and anthropology together enables them to grasp their subject matter with increased acuity. The effort can go in either – or both – directions, and the scale of the challenge is not to be underestimated. Researchers with formal training in both disciplines are the exception. This means that the vast majority of our researchers must push themselves beyond their comfort zones and find their way in a discipline that is not their own.
For the researcher trained in law, adopting anthropology's open, inductive, yet profoundly empirical approach that puts aside pre-established frames of reference can be like taking a plunge into unknown depths, disorienting and truly frightening. The epistemological attitude of anthropology is fundamentally different from that of law: the primary aim is to understand, not to qualify or judge. Anthropology is an inherently critical discipline. We at the Department endeavour to complement this critical impulse with genuine respect for the work of legal practitioners and for the discipline of law, ensuring that this criticism is scrupulously based on a sound grasp of both the empirical data revealed by the fieldwork and the legal system in question, and is presented in a spirit of constructive engagement. The jurist's approach, on the other hand, is by definition normative and, as such, deductive. If a jurist is to be critical, he or she must start from a deep understanding of and even respect for the logic and historical development of existing law – which is the requisite frame of reference – and demonstrate how its application in a given case fails to provide adequate answers. With this mind, some of the Department’s core activities include not only research, but also the creation of resources for judges, legal practitioners, and academics (see, e.g., the CUREDI database project), as well as trainings for judges both in Germany and within the framework of the European Judicial Training Network.
For anthropologists who examine themes that are in one way or another connected to the law, and who seek to document this connection, the difficulty lies in identifying the legal instruments that apply to the issues they are studying and familiarizing themselves with their significance in the law as it is currently practised. Some instruments have indeed become obsolete over time, even if they are still part of the formal law in force; others, such as certain international conventions, have above all a symbolic value, but are not directly applicable. All this requires that anthropologists familiarize themselves with the more strictly legal approach, as much in the manner of a legal practitioner as possible, if they are to be taken seriously and heard by the legal experts, who are often in the position of decision-makers.
A wide range of themes
One would like to believe that, with the intensified interdependencies that prevail in today’s global environment, the smooth running of adequate mechanisms of protection and conflict resolution – for countries, for groups, for communities and, not least, for individuals – would be a top priority. But the reality is deceiving: if the manifold interconnected networks have in some way ‘shrunk’ and profoundly reshaped the world, there is little to indicate that this rapprochement is leading to increased access to security and greater justice for all.
Issues that have been the subject of recent research supported by the Department include: the protection of the individual dignity of unhoused people in urban settings; de facto family situations that are not recognized in law (surrogacy; limping situations in private international law and that are legally difficult to resolve; gender transformations that are not granted formal legal effect, etc.); the many challenges associated with ensuring the culturally inclusive application of the law in the vast field of contractual relations between private individuals; the reception outside the European context of European efforts to protect human rights and fundamental freedoms; the transgenerational memory of communities that have experienced extreme violence or even crimes against humanity, and which even after several decades are still seeking formal recognition of their suffering and some kind of legal and societal redress.
Support for research: various formats
Over the years, the Department has forged a profoundly interdisciplinary profile. Researchers from all corners of the globe have benefitted from its support in various forms: doctoral training and research; post-doctoral projects; more or less prolonged stays by visiting scholars, including dissertation writing-up fellows; and the hosting of projects funded by such external sources as the European Research Council (VULNER), the Volkswagen Foundation (Labour Governance in the Shipping Industry: An Anthropological Study of the ILO Maritime Labour Convention, 2006; Environmental Rights in Cultural Context), and the Emmy Noether Programme (The Bureaucratization of Islam and its Socio-Legal Dimensions in Southeast Asia). Emphasis is generally placed on the European context as a regional framework that illustrates in a multitude of ways the specific legal difficulties that come with the accommodation of ever more divergent value systems under state law. The focus on Europe is not designed to restrict the field of research, but to allow the Department to specialize and develop expertise that will be recognized and called upon beyond academia.
An ongoing project
The result of all these efforts cannot be summed up in a single word, and to be able to speak of success would require agreement on what constitutes the criteria for such success. There are tangible, quantifiable successes, such as publications, scientific awards, and academic chairs, and less visible successes, such as more profound reflections, the broadening of perspectives, or the adoption of an angle of approach that would not have been possible without recourse to an intrinsically interdisciplinary exercise (see, for example, the Oxford Handbook of Law and Anthropology; the German Law Journal). After a little more than a decade of sustained effort, the Department can boast impressive achievements of both kinds, as can be seen from the individual profiles presented in greater detail in the following pages of the Department's website. But such a project can never be considered finished. We are committed to training the next generation of anthropologists and legal scholars so that they can continue this experiment in intense interdisciplinary collaboration between law and anthropology.