This article focuses on efforts to overcome the divide between state legality and local practices. It explores a pragmatic effort to deal with witchcraft accusations and occult-related violence in customary courts among the Miskitu people in Eastern Nicaragua, taking into account both indigenous notions of justice and cosmology, and the laws of the state. In this model, a community court (elected by the community inhabitants and supported by a council of elders), watchmen known as ‘voluntary police’ and a ‘judicial facilitator’ play intermediary roles. Witchcraft is understood and addressed in relation to Miskitu cultural perceptions and notions of illness afflictions, and disputes are settled through negotiations involving divination, healing, signing a legally binding ‘peace’ contract, a fine, and giving protection to alleged witches. This decreases tensions and the risk of vigilante justice is reduced. The focus is on settling disputes, conciliation and recreating harmony instead of retribution.
Customary Courts, Gender Activism and Legal Pluralism in Historical Perspective
Pnina Werbner and Richard Werbner
This article aims to unravel the complex negotiations surrounding property settlements and custody in cases of divorce in customary courts in Botswana today in the light of an earlier legacy of penalising divorce initiators. It argues that women’s attempts to get their husbands to initiate divorce proceedings can entangle women in lengthy negotiations and ultimately frustrate the aim of achieving a divorce. Repeated court hearings can last for years, we show. At the same time, in Botswana’s statutory courts today, an equal division of property irrespective of the causes of marital breakdown has become established practice. In the article, we aim to show that customary laws regarding property settlement in divorce have indeed changed, gradually adjusting to notions of equity in women’s rights in marriage, in response to a wider ideological, critical movement, even though chiefs or headmen presiding over customary courts do not always explicitly acknowledge this change.
Trespass and Honor in Late Medieval English Towns
, combined with their middling size and status and the comparable jurisdictions of the courts, make them ideal towns for comparison of the extant legal evidence. Town courts followed local forms of customary law separate from, yet still influenced by, common
In this article I examine the situation of girls in the North Caucasus, a region that combines features of both a traditional society with its emphasis on the value of religion, family, and older generations, and a modernized society with its emphasis on the economic emancipation of women, and the pursuit of self-development and individual life strategies. The research model used interviews with girls and an analysis of essays written by girls in high school to explore their life values, priorities, and the impact of religion and traditions on their lives. The research also sought to identify girls' place in the gender, age, and status hierarchies of local societies.
Emotion, Law, and Witchcraft Accusations in a Botswana Village Customary Court
Pnina Werbner and Richard Werbner
Legal anthropologists have been latecomers in the debate surrounding law and emotion, a movement responding to the notion that the law is ‘imbued with emotion’. As in the US and Europe, in Botswana cases of public insults are emotionally charged, and this is particularly so in witchcraft insult hearings. Akin to hate crimes, these insults threaten public peace, kinship amity, and decency. Members of a customary court mobilize an elaborate moral lexicon from everyday life in order not simply to ascertain the forensic facts, but to persuade offenders to regain their rational good sense, reach a self-conscious emotional balance, and recover spiritual calmness. The procedure culminates in a dialogue intended to restore public peace and to elicit an apology or show of regret from defendants and forgiveness from insulted plaintiffs.
Between customary law and state law
This article considers factors that have effected and influenced the continuity of the customary law named the Kanun of Lek Dukagjini in some areas of Albanian and Kosovo. It draws on ethnographic data on the border area villages between Albania and Kosovo to discuss the dynamics and tensions that are created between state and non-state law vis-à-vis justice in highly complex and problematic social, economic, and political contexts. Customary law and state law seem to be two conflicting legal ideologies. However, the article considers everyday settings where people make use of both legal systems in order to regulate matters especially related to property issues. The new legal realities create around property ownership imply new type of relations vis-à-vis family and kinship structures which oscillate between the two systems.
Why Anthropology Matters So Little to the Legal Curriculum
Does anthropology matter to law? At first sight, this question might seem redundant: of course, anthropology matters to law, and it does so a great deal. Anthropologists have made important contributions to legal debates. Legal anthropology is a thriving sub-discipline, encompassing an ever-increasing range of topics, from long-standing concerns with customary law and legal culture to areas that have historically been left to lawyers, including corporate law and financial regulation. Anthropology’s relevance to law is also reflected in the world of legal practice. Some anthropologists act as cultural experts in, while others have challenged the workings of, particular legal regimes, including with respect to immigration law and social welfare.
Runaway Brides, Orthodox Missionaries, and the Construction of Empire among the Buriats, 1870s–1917
Jesse D. Murray
This article revisits the trope of the runaway bride, a popular means of narrating the conversion to Orthodoxy of Buriat women during the nineteenth century that depicted women's conversions as pragmatic and lacking religious meaning. Using petitions and memoranda from church archives, Murray finds that encounters between Buriats and missionaries over the conversion and remarriage of Buriat women served as a powerful means of incorporating the Buriats into the Russian Empire by producing new, imperially shaped possibilities for Buriat self-definition. Women seeking conversion and remarriage utilized conceptions about women's individual rights within marriage based in discourses about marriage and patriarchy then widespread in central Russia. Men contesting the remarriage of wives and daughters treated Buriat custom as a formally sanctioned branch of imperial law, transforming flexible custom into codified, inflexible customary law.
Silke von Lewinski
The possible protection of indigenous cultural expressions has reemerged as a topic in international debates in recent years. This article provides a legal perspective on the topic. Existing copyright and neighboring right laws do not apply to such cultural expressions per se, since they do not fulfill the relevant criteria of protection. However, indirect protection is granted to those who record indigenous expressions onto phonograms, films, and photographs, and for those who collect or perform indigenous cultural expressions. Protection concerning authenticity is possible by way of trademarks (in particular collective marks and certification marks) and geographical indications. Particular rules about unfair competition may protect against the disclosure of confidential information. Works based on traditional cultural expressions are regularly protected by copyright. Following early (unsuccessful) attempts for international protection of traditional cultural expressions per se, new ways are currently being developed including sui generis protection regimes which integrate customary laws and practices. Any successful solution will have to be based on better mutual interest and understanding between indigenous peoples and Western users.
Adrian Albano, Els van Dongen, and Shinya Takeda
The Philippines is one of the many countries that currently acknowledge the presence of indigenous peoples (IPs) within their territories. This acknowledgment often comes with a formal recognition of the rights of IPs, including the right to practice their customary laws. Because of the equal existence of overarching state laws, this formally leads to a situation of legal pluralism for IPs. For many forest conservation advocates, legal pluralism for IPs, particularly with regard to land ownership and forest management, is expected to help conserve forests. This expectation, however, is founded on the erroneous assumption that the traditional land use of IPs is nondestructive and that traditional land ownership is communal. Using a relatively long historical perspective, this article demonstrates that these assumptions do not apply to the Kalanguya of Tinoc, the Philippines. In contrast to the notion of IPs being market-averse, this article further demonstrates that many Kalanguya have been and remain “capitalists”. The article favors the inclusion of a market-based forest conservation policy, which is arguably consistent with the reality of value pluralism.