Featured: Internationalizing Custom and Localizing Law

Many issues of PoLAR: Political and Legal Anthropology Review feature a special symposium on an important or emergent topic in political and legal anthropology. In 2015, PoLAR published a symposium on Internationalizing Custom and Localizing Law, which is free to access through May 22nd.

In the introduction to the symposium, Melissa Demian writes,

This symposium is an endeavor to re-evaluate and update what may at first blush appear to be a thoroughly old-fashioned or folkloristic set of ideas for anthropologists: the concept of custom, particularly as it is deployed in relation to the concept of law. The presumed shrinking of the contemporary world has had interesting and documentable implications for the anthropology of law. Throughout the twentieth century, much of the energy of this subdiscipline was concentrated in finding practices that looked like law in societies that were presumed either to have no law or to be subject to legal regimes that were deemed alien to the principles of Euro-American jurisprudence, that is, religious, tribal, or “customary law.” Much of the development of legal anthropology, and the early theoretical debates within it, had to do with exploring the limits of this analogy between custom and law. Decolonization saw a shift away from these debates, as they seemed very much of their time and place in the late years of the colonial period.
The project at the turn of the recent century changed due both to this shift in focus and to the migration of the categories of law and custom out of the domains in which they had once formally been located. Anthropologists have moved from tracking analogies between their own legal systems and those of categorical others, to tracking the ways these analogies have been appropriated by postcolonial governments, international courts and treaties, and legal professionals and politicians debating over whether multiculturalism invigorates or threatens the course of justice. Custom crops up periodically in such debates, sometimes simply as a version of culture, at other times as a more nuanced category of practices or moral principles, but nearly always as a marker of what people deem to be their patrimonial or authentic models for resolving disputes, ending conflicts, and staking claims
If customary law is to continue as an item in the repertoire of legal anthropology, it cannot only be custom but law that becomes a pluralized artifact.
The articles in this issue offer some cases in point… The range of political contexts covered in this issue illustrates how versatile custom has become, invoked in settler states (Cohen and Gershon, Nesper), former socialist vassal states (Beyer), postcolonial states (Demian), and non-state contested territories (Wilson). This extraordinary political flexibility of custom demonstrates the importance of attending to the particularities of environments in which it is enrolled as an adjunct, replacement, or obstacle to law and what thereby happens to law in the process. Custom may be regarded positively as a means of asserting nationhood or culture-based claims, or problematically as a hindrance to the universal applicability of a body of national or international law. In either case not only has the custom concept not declined in relevance, but as the authors in this issue show, it may actually have become a far more credible or real ethnographic artifact than it ever was during the colonial period. Which is to say, if custom had no discernible epistemological form prior to the colonial era, it certainly does now. It provides an object lesson to anthropologists in not losing sight of concepts that may have become academically unfashionable but that our interlocutors are still using, and often using in surprising ways or to unanticipated ends.

The five articles in the symposium elaborate upon Demian’s points in different ways. They are:

When the State Tries to See Like a Family: Cultural Pluralism and the Family Group Conference in New Zealand by Amy J. Cohen and Ilana Gershon

Ordering Legal Plurality: Allocating Jurisdiction in State and Tribal Courts in Wisconsin by Larry Nesper

Customizations of Law: Courts of Elders (Aksakal Courts) in Rural and Urban Kyrgyzstan by Judith Beyer

Refracting Custom in Western Sahara’s Quest for Statehood by Alice Wilson

Dislocating Custom by Melissa Demian

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