Constitution Making

Be it in established democracies or in countries emerging from violent political conflict, constitution-making processes have become a key activity in moments of profound political and social change. Over the last three decades, the field of constitution making has witnessed an explosion of academic research from a variety of disciplines. This chapter sketches recent developments in the field, both in academia and in practice, and offers an overview of the conceptual and methodological approaches that have informed the study of such processes so far. The aim of the chapter is to introduce the reader to nascent anthropological research on constitution making and to explore how anthropological methods and theory can serve to address existing knowledge gaps and complement, nuance, and perhaps challenge existing approaches to constitution making.

Global Legal Institutions

Global legal institutions such as UN agencies, the World Bank, and the World Trade Organization have become sites of some of the most innovative research in the social sciences, with implications that carry over into the methods and perspectives of legal scholarship. This chapter presents an outline of the history and methods of ethnography in global legal institutions as well as an account of the main findings of ethnographic work in this context. One of the key findings of ethnographic inquiry is that the structural failings and disenchantment of these institutions are at variance with persistent expressions of hope that are at the foundation of institutional ethics and self-representation. This hope is now being channelled into possibilities opened up by new information and communication technologies. These institutions are capitalizing on digitalization and innovations in technology as sources of decision-making. At the same time, new spaces have been created for private sector involvement in global governance initiatives, most prominently the UN Forum on Business and Human Rights. The UN, together with its corporate partners, is developing powerful information and communications technologies that present both important opportunities and risks in the administration of programmes in which artificial intelligence (AI) and machine learning are essential tools. These initiatives also present an important place for ethnographic research in presenting a clearer picture of the new geography of global governance and its legal frameworks.

South African Legal Culture and its Dis/Empowerment Paradox

Twenty-five years since becoming a constitutional democracy, South Africa presents the perplexing paradox of arguably having the most progressive constitution in the world, marked by full-throated socioeconomic rights protection, while also being the most unequal country in the world. This chapter makes the argument that this alarming paradox can be at least partly understood in terms of a ‘dis/empowerment paradox’ endemic to South Africa’s legal culture. It takes a historical view of the formation and impact of South African legal culture and the various levels and ways in which the dis/empowerment paradox argued for has been, and continues to be, characteristic thereof. The chapter traces the contributions of the judiciary to shaping the country’s legally pluralistic culture over the course of history and into the present. It ultimately points to judicial complicity in restraining the full realization of freedom and justice under the law—both before and after the dawn of South Africa’s modern-day Constitution—by under-utilizing law’s potential for liberation. Tracing this historical arc is aimed at helping legal, anthropological, and wider readers not familiar with South Africa’s particular circumstances to better understand the concluding argument: namely, that the purported solution to South Africa’s problems described as ‘transformative constitutionalism’ presents notable pitfalls. While the chapter does not argue that the judiciary is solely, or even mainly, responsible for the dis/empowerment paradox of law, it does argue that the judiciary is somewhat complicit in the limited socioeconomic transformation seen subsequent to adoption of the country’s progressive Constitution.

Rights and Social Inclusion

Anthropological research played an important role in tracing the ethnographic contours of the rise and transformation of rights in the post-Cold War period. This chapter surveys some of the most important currents in the anthropology of rights as an enduring context for the wider field of anthropology and law. First, the chapter examines key developments in the anthropology of human rights, which served as a methodological and conceptual anchor for the post-Cold War anthropology of rights more generally. The chapter then turns to another category of rights with which anthropologists have been closely associated, both as researchers and as engaged scholars: Indigenous Peoples’ rights. Next, the chapter examines anthropological research that has revealed the importance of what might be called non-liberal categories of rights, that is, rights that are not based, historically or conceptually, in the development of liberal rights within the Western philosophical and political tradition. The chapter concludes by looking to the future: how will the anthropology of rights evolve in the coming years, both in preserving certain core concerns and in moving in new directions?

The Anthropology of Indigenous Australia and Native Title Claims

While most anthropological analyses of native title remain in an applied mode of assisting anthropologists to better perform their role as expert witnesses in claims, recent research has sought to move beyond this professional discourse by drawing on Bordieuan concepts supplemented by ideas of individual agency in resolving key indeterminate requirements in the legal formulation of native title. In considering the interaction of law and anthropology in native title claims as the interaction of distinct social fields, each with its own habitus, submerged issues are brought to light concerning the differential reception of anthropological expertise and the willingness of some judges to overrule a disciplinary consensus. Anthropological analyses have also been broadened to include the effects of the native title process on the Indigenous participants, including tendencies towards a more rapid objectification and regimentation of traditional culture, intensification of disputes, and juridification of Indigenous lifeworlds. Some macro analyses attempt to situate native title claims as a particular statecraft of late liberalism. There remains plenty of scope for further research to link the analysis of native title to the perennial themes of legal anthropology.

Human Rights Activism, Sexuality, and Gender

This chapter introduces an anthropological inquiry into human rights activism, sexuality, and gender, and proposes taking an ethnographic approach grounded in love, agency, and humanity to do so. Such an inquiry brings together queer anthropology and the anthropology of human rights to analyse the intersection of human rights and social justice activism for people with non-normative sexualities and genders. Although queer anthropology has illuminated the contingent and multiple ways of doing sexuality and gender, it usually does not examine the processes and patterns that arise out of human rights or the actions and experiences of activists. On the other hand, anthropologists of human rights have generally not focused on non-normative genders or sexualities. The proposed ethnographic approach does not merely pay attention to the interpretation, adaptation, and circulation of the substantive meanings of human rights and such affiliated identities as lesbian, gay, bisexual, and transgender (LGBT); it also analyses the emotions and interpersonal relations that give rise to and emerge from those processes and treats them as inherent to the practices of human rights and LGBT identities. Additionally, this approach is motivated by compassion for the agency and empirical realities of their research subjects. Taking this approach to develop research at the intersection of human rights activism, sexuality, and gender, the field of anthropology can further influence theories of social movements and collective action in the broader social sciences.

Norm Creation beyond the State

The generation of law beyond the state is an unbroken dynamic. In international and transnational relations, the formulation and strategic use of rules through an increasing number of actors in diverse settings and across almost all fields of societal ordering provides a particularly fascinating and rich, but also contested field of inquiry for scholars of legal anthropology and law. We interrogate this dynamic of increasing deterritorialization of law production, which brings particular questions to the centre of our enquiries: Who are the actors involved in such norm creation? What are the conditions of participation in these norm-producing processes? How do such norms gain authority? To address these questions, we claim that the combination of anthropological and legal reservoirs of knowledge is particularly fruitful. What is more, we conclude that an important common task of anthropological and legal scholarship should be to ‘de-naturalize’ legal concepts and categories in order to make room for critical perspectives and interrogate, if not destabilize, structures of power and domination.

Encountering Indigenous Law in Canada

This chapter reflects on the work happening at the intersection of anthropology and law in Canada with respect to Indigenous peoples’ rights, title, governance, and legal orders. Indigenous legal scholars have ignited an important new engagement with Indigenous legal orders that are reshaping mainstream Canadian legal discourses. The chapter reviews how this work has profound implications for the direction of the recognition of Indigenous land title, territorial rights, and Indigenous jurisdictions. It argues that anthropologists have the opportunity to shift their engagement with Indigenous law from essentialized production of traditional cultures to ethnographically engaging with the logics and practices of Indigenous legal orders. The chapter develops a brief ethnographic case-study involving several closely related Island Hul’q’umi’num’ (Coast Salish) communities on the east coast of Vancouver Island (British Columbia) as they work to mobilize longstanding Indigenous principles and understandings of land tenure and harvest rights among themselves in a complex, state-regulated environment of shellfish harvesting. The purpose of the case-study is to highlight a path of anthropological engagement with contemporary Indigenous law, working both to appreciate the ways Indigenous and state legal orders are brought to life concurrently over time, and to reflect on the on-the-ground ways legal pluralism is experienced. The case also offers conceptual opportunities to transcend problematic state discourses of ‘overlapping claims’ and makes space for workable principles of co-existence through Indigenous legal sensibility.

The Persistence of Chinese Rights Defenders

Scholars have recently critiqued human rights as a purely Eurocentric construct that has failed to find wider appeal and is now on the decline. Some cite the apparent success of China’s repressive political regime in support of this argument, but depicting China as uniformly authoritarian risks missing the persistence of domestic forms of human rights advocacy and mobilization. This chapter reviews the history of civil society mobilization in China since 2000, including actions taken in domestic courts, in non-governmental organizations, and through social media. Despite repeated crackdowns, the arrest and disappearance of leading human rights defenders, and Chinese authorities’ interference with UN human rights mechanisms, some Chinese human rights defenders do find innovative ways to persist in rights-based advocacy, such as the practice of weiguan (public counterveillance during political trials). The author argues that the world has entered a more intense phase of struggle over the meaning and application of human rights norms in diverse local contexts, and that the human rights framework facilitates transnational solidarity.

Legalism: Rules, Categories, and Texts

Laws, rules, and texts, this chapter argues, deserve more sustained attention by legal anthropologists. They have tended to turn their backs on doctrine and texts, but law and legal phenomena have taken legalistic forms practically since the invention of writing. Historical and anthropological examples indicate that legalism – that is, the use of general rules and abstract categories – is typical of law as a social form. Paying attention to this aspect of law helps to explain legal phenomena that have long puzzled anthropologists, in particular, an enduring fascination with law, despite its repeated use to enact and legitimate power. A focus on legalism, moreover, allows scholars to compare diverse empirical examples from the rich corpus of historical legal studies with more contemporary ethnographic work in order to reflect upon the nature of law as a social form.