A close look at the socio-cultural contexts of jural expressions enhances our understanding of them

1. “A close look at the socio-cultural contexts of jural expressions enhances our understanding of them.”

Both laws and politics have a genetic dimension, with rolls simultaneously repressive and creative that become more understandable if one faces them as socio-cultural forms with dynamic characteristics and specially if taken in context together in their greater social environments where they take part and are a part.

A jural system becomes more understandable the more we re-insert it in its political, religious, economic, cultural and social contexts.

Jural systems are simultaneously systems of social action and systems of significance. A jural system always provides a body of ways to harmonize particular social interests and abstract cultural meanings. This makes possible to unveil some internal logic of practices and particular social theories

A social manifestation which nature we recognize as juridical is always more understandable if faced, simultaneously, as a way of cultural expression, as given body to forms of power and domination and if seen as an entity dedicated to express rational mechanisms towards conflict resolution problems.

“law, rather than a mere technical add-on to a morality (or immorally) finished society, is, along of course with a whole range of other cultural realities from the symbolics of faith to the means of production, an active part of it.” CLIFFORD GEERTZ

More than just mere reflexes, the jural creates at the internal part of communities, vivid images of values, social categories, motivations, wills, duties, behaviors, that follow the social actors actions and influence them actively in the process.

With the jural comes a variety of the same type of that we recognize in beliefs, religious practices and rituals.

For any anthropologist, complexity is always taken as a structural property of situations occurred in social life as it introduces changes which the observer has no control on.

Each case is a case and as much richer and multidimensional their description is, more elucidative the explanations about are.

Sistema de significados.

Paul Bohannan and the TIV – case method + conclusion + cultural influence: “only so have I been able to see ‘law’ not as something universal but as the tremendous cultural achievement that it is”

Importância da observação participante

Falar da cultura dos Tiv e dos sonhos dos Atta (AMG: “sustento que as interpretações colectivas dos sonhos dos indivíduos adultos evocam e articulam, por um lado, o que são, no fundo, expressões simbólicas centrais a algumas imagens sustidas como modelações ideais do comportamento social. Neste sentido tratar-se ia assim de uma espécie de idioma, como que duma linguagem dos Atta relativa aos sonhos. Uma esquematização conceptual que, de uma maneira abstracta e idealizada, daria corpo a uma sistemática desvalorização de valores sociais e morais negativos e, bem assim, a uma valorização correlativa de valores ideias positivos. Um mecanismo ético, normativo, de algum modo”

In the context of a practice endemic within a cultural área (headhunting in Southeast Asia), this session breaks up various convergent analytical strands w that enhance its intelligibility. The role of interpretation and the structure of anthropological explanations. The social place of the legal and the political. The observer, the observer, and observation.

Malinowski explained how “brainless” societies were able to maintain order “without courts and constables” specifying in his opinion that “law ought to be defined by function and not by form, that is we ought to see what are the arrangements, the sociological realities, the cultural mechanism” which underlay its application. “The study of the various forces which make for order, uniformity and cohesion in a savage tribe” such as “reciprocal obligations built-in to kinship systems”, fear of witchcraft or other forms of social and outcast pressure.

Sally Falk-Moore + Simon Roberts + John Comaroff: more than just “law” or “norm” the investigators focus was in the “maintenance of social order”, and more than systematic mechanisms by its own, the formulations produced were added by a recognition intensified of the creative roll and even discretionary, of social actors, individuals or collective ones.

Formal definitions were thus substituted by a renovated concerned with local notions and concepts, behavior regularities and institutional interactions.

Lawrence Rosen (analysis of the quadi courts in a small town in Morocco): “the analysis of legal systems, like the analysis of social systems, requires at its base an understanding of the categories of meaning by which participants themselves comprehend their experience and orient themselves toward one another in their everyday lives”. He demonstrated that despite its so-called “power”, a contemporary quadi judge assumes positions and makes regular decisions, predictable and highly standardized, which “regularity lies in the fit between the decisions of the Muslim judge and the cultural concepts and social relations to which they are inextricably tied”.

2. The few studies published by jurists are so embedded in the so-called ‘lawyers models’ used to analyze conflict resolution mechanisms that they become useless.

Bohannan vs Gluckman – conflito das metodologias

Bohannan starting point: Tiv notions that work up to generalization

Gluckman starting point: already translate Barotse notions to western battery of concepts

Foundational tension between those who privilege the study of law as it self and legal forms associated, and those who look at those data focusing on its essential as mechanism part of general institutions of social control and order maintenance.

Until Max Gluckman book, “The Judicial Process among the Barotse of Northern Rhodesia”, the jural studies about traditional African societies consisted in little more tham extensive compendiums of ‘rules’ and ‘principles’ taken by, sometimes indirect, data collection of missionaries, colonial employees or occasional travelers.

During the 1950s and 1960s, legal anthropologists were largely concerned with law as an aspect of social control through the imposition of sanctions, and saw legal procedures as the means of enforcing social rules. Following Malinowski, legal anthropologists generally viewed mechanisms of dispute resolution as rational.

A crucial debate emerged during this time about the relationship between legal and anthropological methods, and particularly over the question of whether legal anthropologists should apply Anglo-American legal categories to the study of non-Western societies. This debate centered primarily on two leading figures in legal anthropology during this period;

Max Gluckman and Paul Bohannan, though by no means was it limited to these two. Indeed, during this same period the number of scholars who identified themselves as legal anthropologists grew considerably. Bohannan believed that using universal legal categories serves as a barrier to understanding and representing another culture and advocated the liberal use of native legal terms. While these terms could not be easily translated into English, their meanings could be explained within an ethnographic context.

Gluckman considered Bohannan’s approach to be both overcautious and a barrier to fruitful comparative analysis. It is apparent that their debate was not so much about the nature of law itself, but rather the nature of legal anthropology, raising issues about representation, language, and cultural comparison.

Even though Gluckman used lots of lozi language terms, the terminology used in the ethnographic systematization of it was the one of Legal Theories common at the universities where he worked.

Simon Roberts: useless of spending energy in an “effort to isolate ‘legal data for separate examination, which is characteristic of law-centered studies. Given the nature of social control institutions in small-scale societies, such works must necessarily involve ultimately unsatisfactory efforts to extract differentiated legal materials from an undifferentiated mass of data found in the society concerned.”