Legal Ethnography Research Articles

Impossible Realities and Intellectual Property: Specters of Value in Amie Siegel’s Provenance

Abstract In this essay, I treat intellectual property claims as “impossible realities,” as these have recently been defined by Susan Coutin and Barbara Yngvesson. Drawing from their joint legal ethnography of migration, deportation, and transnational adoption, I extend their observations about the routine mismatch between personal history, physical location, and legal description in order to understand the shifting value of design objects under various regimes of law and heritage. I trace how legal claims, aesthetic judgments, and historical understandings combine and conflict to create the contemporary value of furniture produced in the 1950s and 60s for the Indian modernist city of Chandigarh, and explore further shifts of value as the furniture circulates in a global market for what might be called “modernist antiquities,” and is potentially subject (in Europe) to copyright and trademark claims by the descendants of the designer Pierre Jeanneret. Further, a recent film by the artist Amie Siegel (American, b. 1974) explores the provenance and value of this furniture and provides a novel means of analyzing these shifts. Siegel has put her film up for sale at the same kind of auction where this furniture is sold, offering a reflexive critique of the paradoxes and (legal) impossibilities created by the relocation, restoration, and revaluation of this furniture. The history of the Chandigarh furniture and Siegel’s film together provide an avenue of commentary on the categories of IP, emerging subjects of regulation (like design copyrights), and the fraught relation of IP claims to both capitalist and postcolonial histories that make objects (and persons) bear different values in different locations.

Hungarian Legal Ethnography in Light of the Oeuvre of Ernő Tárkány Szücs

AbstractErnő Tárkány Szücs (1921–1984) was a researcher who created a synthesis of Hungarian legal ethnography, a mediator of his results for European legal ethnographic research, and his scientific work is still an essential part of Hungarian research history. During the most intensive period (1939–1948) of Hungarian legal folklore research — which was delayed compared to European legal customs research — he became a lawyer and a researcher of Hungarian legal ethnography along with legal history professor György Bónis from Kolozsvár (nowdays Cluj-Napoca). Although in the next phase of his life (1950–1975), during the decades of socialism in Hungary, as a practicing lawyer, he could not professionally engage in legal ethnographic research, when he finally had the opportunity to do so in 1975 in the Ethnographic Research Group of the Hungarian Academy of Sciences, he presented a series of results of Hungarian legal ethnography. One of the most important of these was the publication of a monograph (Tárkány Szücs 1981), which is still considered to be the fundamental work of Hungarian legal ethnography, the conceptual and methodological foundation of the research field, the summary of research findings and at the same time its legitimation. Although the institutionalization of legal ethnographic research had not yet taken place at that time, Hungarian ethnography recognized Ernő Tárkány Szücs's research on legal folk customs as a “one-man” research field. During his research career, Tárkány Szücs continued to take an active role in international scientific life. He always considered it his task to make the findings of European legal ethnography known throughout Hungary, as well as to publish the findings of Hungarian legal ethnographic research in international scientific forums. The 2021 jubilee professional programs and publications of the Tárkány Szücs Ernő Legal Cultural Historical and Legal Ethnographical Research Group — an interdisciplinary research workshop established in 2011 with the aim of processing and enriching his research legacy and publications — were an opportunity to publish new research findings and formulate the ongoing tasks of Hungarian legal ethnography, beyond the evaluation of his research career and Hungarian legal ethnography from the dogmatic and methodological perspective.

Ernő Tárkány Szücs's Legal Ethnographic Research and International Ethnography (1967–1994)

AbstractIn 1967, Ernő Tárkány Szücs published his article summarizing the results and tasks of European legal ethnography in the columns of Ethnologica Europeana in Paris (under the title Results and Task of Legal Ethnology in Europe). With this, he revived an important tradition of Hungarian legal ethnography: Károly Tagányi published his summary of international research history in German in 1922 (Lebende Rechtsgewohnheiten und ihre Sammlung in Ungarn. Ungarische Bibliothek. Für das Ungarische Institut an der Universität Berlin. Erste Reihe. Vereinigung wissenschaftlicher Verleger. Berlin und Leipzig). At the time of the publication of Ernő Tárkány Szücs's article, he was working as a ministerial official, but in Hungarian academic life he took a backseat. At the same time, however, he was in constant contact with several European representatives of legal folklore. As soon as he had the opportunity, Tárkány Szücs opened up to international scholarship, and became not only an active participant but also a prime mover of the international discourse on legal folk custom research. His recognition was indicated by the fact that throughout Europe, not only his studies published in various world languages but also his papers exclusively in Hungarian were often cited. Although the science policy in his country was not able to integrate the specifically interdisciplinary scientific research of Ernő Tárkány Szücs, or only haltingly, his international recognition was unquestionable all along.

Administering Justice — Without State Courts1

AbstractMany of the drafts and notes of Ernő Szücs Tárkány are in manuscript, and they can offer valuable clues for European legal ethnography. One of them is a manuscript by Tárkány Szücs, both in Hungarian and English, in the Archives of the Institute of Ethnology of the Research Centre for the Humanities, dated 1982 and titled Administering Justice — without State Courts, which has been awaiting publication for forty years. This study is an important milestone, as it demonstrates, based on a broad international perspective, that even in a field that was monopolized by the state very early on, such as administering justice, legal customs have survived to a great extent; and that legal ethnographic approaches make it possible to arrive at valid conclusions of practical importance through an expert comparison of legal phenomena that are distinct in time and space but have common characteristics. The English-language version of the study is being published verbatim (first publication).

New Results of Hungarian Legal Ethnography •

New Results of Hungarian Legal Ethnography •

Right of the “Above” and the “Below”. On the Border of Customary Law and Custom: The Legal Customs

AbstractRecalling certain aspects of the research on Hungarian legal ethnography, the study deals with the relationship between law, customary law and legal custom. Customs of law is a significant field of law, inherited from the ancient legal order and created in the feudal-order society, which existed at the border of custom and formal law. The importance of the living conditions it governed gave rise to the institution of community coercion, which gave its rules a legal character. Eventually, it evolved in the “below” space left to it from the “above” and over time it acquired a tenacity that made it capable of maintaining a legal system in competition with the state, in response to a regulatory question not accepted by “official law.” The compliance and adherence to legal customs was based on the conviction of a community recognizing the need to adopt established rules and not on the competence, prestige, authority, legislative power and privilege of a legislative body.

The Contribution of Ernő Tárkány Szücs to Hungarian Ethnography

AbstractErnő Tárkány Szücs was a prominent figure in Hungarian social ethnography between 1944 and 1984. His involvement in the movement for collecting legal folk customs began as a university student in 1941. Among his professors and mentors, he was particularly influenced by György Bónis, Károly Viski, and József Venczel. His first large-scale study, published in 1944, was a presentation of legal folklore from the village of Mártély. At the same time, he investigated the folk laws related to sheep farming and the legal customs with respect to inheritance in the Hungarian villages in Transylvania. He published two substantial volumes containing the wills of peasant citizens of Hódmezővásárhely written between 1730 and 1796, and later the testaments of serf farmers from the town of Makó. He published a data collection containing around 10,000 ownership certificates and an analytical study in German on the branding of horses and cattle, accompanied by illustrations. He carried out research on the legal customs associated with Hungarian mining in the 17th to 19th centuries and elaborated Hungary's draft mining law. His principal work — on Hungarian Legal Folk Customs — is a substantial, comprehensive, and incomparably rich corpus of legal ethnography and the history of law. His work also gained recognition abroad: he spoke at many international conferences and was elected as a member of several international organizations.

Legal Customs and Customary Law in the Jászkun District 1682–1876

AbstractBased on archival documents and supplementary ethnographic collections, this study reviews the autonomous community customs and legal traditions of the Jászkun people, starting in the 17th century and autonomously evolving among the jász [Jassic] and kun [Cuman] people in Hungary for centuries and preserved in certain peculiar Jászkun terms and vernacular expressions up until the 20th century. In view of legal ethnography and activity-oriented social history, my study has been divided into four parts: Kun, Jász, Jászkun; Legal customs and customary law before the Redemption (1745); The legal culture of the Jászkun District after the Redemption; The enacted customary law of the Jászkun: the Jászkun Statute. I specifically focused on the 18th century, for at the end of it the Jászkun Statute, the written customary law of the district, approved by the palatine, had been promulgated. The statute incorporated the legal customs practiced by the people of the Jászkun District before 1799 and facilitated the long-term survival of the specific unique features of local society and the high degree of differentiation of their legal practice. The customary laws of the Jászkun are history now, but in more than one aspect they still affect the everyday lives of late descendants.

Restorative Justice: Positivization of Customary Law in Resolving Land Disputes Based on Local Wisdom of Papuan Citizens

The positivization of customary law is the process of turning the source of customary law into various laws and regulations. The unwritten customary laws are obeyed by the people because they originate from social values and agreements to live together. Settlement of land disputes in communities where customary law is still strong, such as Papua, which is known for its local wisdom, is carried out through its own customary institution. To fulfill the element of justice, the dispute resolution approach is carried out by means of deliberations outside the court or non-litigation dispute resolution based on local wisdom. The overall manifestation of this settlement leads to restorative justice. The statutory approach, the conceptual approach, the socio-legal approach, the comparative approach, and the case approach are used in this research, which is a normative judicial and sociological judicial study. In conclusion, it is stated that the existence of Papuan customary law is based on its own legal ethnography, pluralism in social capabilities such as social structure and culture according to its character, types of customary leadership, and social interaction relations in different traditional economies. Recognition of indigenous Papuans is based on the Constitution of the Republic of Indonesia 1945, Article 18 B, Paragraph 2; UUPA Articles 3 and 5; and the Papua Special Autonomy Law in Chapter XI concerning Protection of the Rights of Indigenous Peoples. The Provincial Government of Papua is obliged to recognize, respect, protect, empower, and develop the rights of indigenous peoples based on the provisions of applicable laws and regulations. Keywords: positivism, customary law, restorative justice DOI: 10.7176/JLPG/127-01 Publication date: December 31 st 2022

Hungarian Legal Ethnography from the Perspective of Theoretical Legal Thought

Abstract The object of folk law research are the customs that prevail in areas covered, or theoretically covered, by state law, which effectively ensure permanent respect for them, largely in a less formalized way. In the respective historical stratum, (folk) legal customs fulfil functions equivalent to the law where, due to the logic of historical development or for other specific reasons, (a) there is a lack of state and legal organization; (b) the state and legal organization fails to reach significant social groups due to its paucity and indifference; or (c) the law fails to be transformed into practice that would lead to the fulfillment of its true functions. In its present-day version, a legal (folk) custom emerges when the state and legal organization has wholly fulfilled the functions in question, and it survives merely within the framework and vestiges of that organization, as a component of the ongoing system of customs, as a complement and embellishment to the state and legal organization, and perhaps with content of only symbolic significance. Against a background of a living peasant society, this was, and to some extent remains, a peculiarity of Central Europe, while in other contexts, starting from different traditions, the related research comes under the domain of legal anthropology, legal ethnology, and legal pluralism. Legal ethnography contributes to the investigation of social ethnographic issues by examining the instruments and institutions of the social order and the way they function. However, in terms of jurisprudence it is simultaneously both strong and weak, since although the idea of living law has revolutionized legal thought, European legal mentality, which rests on the rule-based objectification of modern formal law, nevertheless seeks to reject both the openness that characterizes the primordial quest for peace and the formlessness familiar to peoples living close to nature. In any case, an ethnography with social-theoretical foundations, which would take into account not only legal anthropology but also the socio-ethnographic lessons of legal ethnography, remains a task for the future.

Právní etnografie a „právo a etnografie“. Dva přístupy k etnografickému výzkumu práva

Until recently, legal ethnography has been understood as an integral part of legal anthropology and its studies of law in particular societies and cultures. In some older national traditions of European legal ethnology, including the Czech tradition, it has been considered a legal rather than a social science. Recent shifts in the perception of ethnography, which is increasingly understood as an autonomous methodology or a technology of knowledge production, are an opportunity to re-think the specific position of legal ethnography. This paper therefore explores the difference between ethnography as it is understood in the anthropology of law and the new relationship of “law and ethnography” as two autonomous variables. On the basis of several recent legal-ethnographic studies, it also seeks to identify the persistent common denominators of both approaches and attempts to show their possible contribution to the traditional methodology of legal research.

Judecătorul și fabulistul orheian Alecu Donici, precursor al etnologiei juridice românești

"Paul Valéry said about fables as follows: “Little by little those who loved or liked it, those who were able to understand it disappear. Those who demanded it, those who broke it, those who bantered it died too ... Soon, an instrument of pleasure and emotion will become a school accessory; what used to constitute the truth, what used to constitute the beauty turns into a means of constraint or into an object that arouses curiosity, but a curiosity which forces itself to be curious."" (""Oraison funèbre d´une fable"", in Variétés, apud Sanda Radian, Măștile fabulei. Etape de evoluție în literatura română (The Fable Masks. Stages of Evolution in Romanian Literature), Minerva Publishing House, Bucharest, 1983, p. 5) In a recent conference, held in Suceava[1], I expressed some regrets in relation to the absence of scientific concerns in the vast and important field of legal ethnography and ethnology in Romania, as follows: ""Legal ethnography and ethnology are not obviously, in particular, delimited in Simeon Florea Marian's grandiose work. General science was in the course of being established; it was not the time for particularistic developments. It was late when by means of another pioneering work, that of the Romanian scholar and anthropologist Romulus Vulcănescu, some issues of concern for our jurists, for law sociologists and anthropologists started to be reflected in the Romanian legal culture. Very few. Even the great ethnologist Petru Ursache acknowledged that the domain was deficient, in his very impressive creation of ethnosophy"". ⁂ As for the fable, apparently a minor literary genre, so much lamented, as we have seen above, by Paul Valéry, as an object of historical contemplation only, the intersection of the legal culture with the sapiential, moral and literary spirit of the people increases considerably; so much that it becomes a valuable scientific landmark in the emergent legal ethnology twinned with legal sociology, with legal anthropology and with legal folklore[2]. In the most serious way, even if, isn’t it true, with hilarious and caricaturizing weapons, with a playful and clever spirit, the fable decrypts a people's propensity for truth and justice or, conversely, for gregarious fatalism in relation to the vices that corrupt the nation psychologically and morally. Its role is didactic. The young jurists would become scientifically and culturally ennobled if they took over the case law, the ""cases"", from the fables ... Or if, their masters guided them towards associating the case law with the comic and fabulising spirit of the wise judge ... [1] Pagini de etnografie juridico-morală în opera fondatoare a bucovineanului polimat Simeon Florea Marian, cronicar al sufletelor românești în pragul Marii Uniri. Remarcabila lui contribuție la înfăptuirea milenarului ideal (Pages of legal-moral ethnography in the founding work of the polymath from Bucovina Simeon Florea Marian, chronicler of Romanian souls on the verge of the Great Union. His remarkable contribution to the achievement of the ideal millennial), conference held during the Scientific Session ""The contribution of the lawyers from Bucovina to the accomplishment of the Great Union"", November 28, 2018, ""Stefan cel Mare"" University from Suceava & Suceava Bar Association. The text of the conference was delivered for publication in ""Analale Muzeului Memorial Simion Florea Marian” from Suceava, under the guidance of Mrs. Aura Brădățan, 2019. [2] Romulus Vulcănescu, Etnologie juridică (Legal Ethnology), Editura Academiei, Bucharest, 1970, p. 9 : ""The following subjects deal with the study of the legal aspects of primitive and popular civilization and culture as constitutive parts of the conception about existence and the world and of the ways of normative organization of life, partially and with unequal theoretical resources: ""legal geography"", ""legal anthropology"", ""legal sociology"" and ""legal ethnology"". """

'The Life of the Law Has Not Been Logic; It Has Been Experience:' International Legal Ethnography and the New Legal Realism

Scholars in law and the social sciences are calling into question the conventional doctrinal account of how international law works. We join this chorus by extolling the virtues of a new method for studying the social life of international law: international legal ethnography. Ethnographic approaches advance the project of the New Legal Realism by explaining legal outcomes through a multidisciplinary study of concrete institutional practices and the subjectivity of legal actors in international justice institutions. A full understanding of why international courts produce influential legal precedent as well as incoherent law and failed prosecutions requires a grasp of both international legal doctrine as well as the organizational culture and quotidian practice of international organizations. International justice institutions are neither insulated from the vagaries of global politics, nor simply reducible to them. Because of their unique and structurally-fragile position betwixt and between national legal cultures, international criminal tribunals have of necessity created a socialization process that inculcates distinctive norms, practices and values among its staff, a process that has identifiable consequences for legal process and outcomes. Our ultimate goal is neither naive faith in the probity of international tribunals, nor a reflexively moral dystopian-ism, but a clear-eyed assessment of both the successes and shortcomings of international justice institutions.

The disenchantment of the lore of law: Jacob Grimm's legal anthropology before anthropology

The legacy of Jacob Grimm, one of the Grimm brothers, is not limited to philological, mythological and folklore studies but also includes significant research into law and legal culture, which was seen as archaeological in his time. This resonated in classics of social and legal anthropology but was largely repudiated due to the anti–German sentiments raised around the World Wars. Some scholars have praised Jacob as the founder of legal ethnography and archaeology as well as legal pluralism, while others have criticized him as a nationalist inventor of a single German customary law. This paper argues that while Jacob’s legal research was tightly related to the German politics of self–determination; it is a distinct scholarly work whose many aspects are pertinent even for more recent socio–legal ethnographies. It points out especially the philological origins of his concept of law and the idea of legal poetry as a key factor in the formation of anthropological legal pluralism. Finally, Jacob’s attempt to understand the law in the past is seen as a transitional scholarly moment of the disenchantment of the law, which was closed before in theological and philological forms, that inaugurated the road to contemporary legal anthropology.

Networks of Resilience: Legal Precarity and Transborder Citizenship among the Karen from Myanmar in Thailand

AbstractThis study probes the relationship between legal precarity and transborder citizenship through the case of the Karen from Myanmar in Thailand. Collected through ethnographic multi-sited fieldwork between 2012 and 2016, interconnected individual life stories evolving across the Myanmar-Thailand border allow the critical interrogation of the political and legal categories of ‘migrancy’, ‘refugeeness’, and ‘citizenship’, teasing out their blurry boundaries in migrants’ experience. Following the recent critical research in legal ethnography, this study demonstrates that legal precarity is not simply an antithesis to citizenship. The social and legal dimensions of citizenship may diverge, creating in-between areas of not-yet-full-citizenship with varying levels of heft (Macklin 2007). The article consists of three parts. First, it offers a theoretical framework to reconcile the Karen legal precarity (even de facto statelessness) and citizenship, even on both sides of the border (legally impossible). Second, it presents the three groups of Karen in Thailand, produced by the interaction of three major waves of Karen eastward migration and tightening Thai citizenship and migration regulations: Thai Karen, refugees, and migrant workers. All three face varying levels of legal precarity of temporary status without full citizenship. However, the last part demonstrates the intertwined nature of those groups. A grassroots transborder perspective reveals the resilience of the Karen networks when pooling together resources of the hubs established on Thai soil by the three waves. Even the most recent arrivals in Thailand use those resources to move from one precarious legal status to another and even to clandestinely obtain citizenship.

Учение Анри Леви-Брюля о праве и формировании юридической науки нового типа

The article is devoted to the investigation of legal ideas of Henri Lévy-Bruhl, a French lawyer and sociologist of the XX century, who is considered to be one of the founders of contemporary sociology of law, legal ethnography and legal anthropology. The author of the article analyzes the late articles of Henri Lévy-Bruhl.
 The author of the article examines the notion “juristique”, introduced by the French professor, and investigates its methodological and substantial peculiarities. As a scientific discipline, “juristique” was supposed to be shaped through the integration of sociology of law, history of law and comparative law into a body.
 The author also pays special attention to H. Lévy-Bruhl’s theoretical views on the question of law and mechanisms of its formation, on subjects of law-making and sources of law. In particular, the author considers Lévy-Bruhl’s views of collective opinion as the only true source of law, customs’ priority over legislation among all forms of law, judicial practice as the modality of a custom. The key role of Durkheim’s sociology in the shaping of Henri Lévy-Bruhl’s legal views is also highlighted. Henri Lévy-Bruhl’s particular ideas are compared with the doctrine of historical school of law.
 The final part of the article is devoted to formulating a series of theses which reflect the peculiarities of Henri Lévy-Bruhl’s legal views and his role in contemporary legal doctrine.

Del control (los castigos insurgentes) a la autonomía (las sanciones comunitarias). Elementos para la transición de la Justicia Local en La Sierra de La Macarena

El Sistema Jurídico Local de la Sierra de la Macarena se enfrenta al reto de la transición política en la postguerra colombiana. Puesto que este Sistema Jurídico integra prácticas de justicia insurgente, comunitaria y estatal, tras la dejación de armas que haga la insurgencia la capacidad de coerción que integra la justicia local cesará. Esto implica que las sanciones dispuestas por los Manuales de Convivencia de las comunidades (multas, confiscaciones y trabajos comunitarios) deberán reforzar su legitimidad; así mismo, las sanciones impuestas por la guerrilla para castigar la violación de sus regulaciones y/o mantener el orden (trabajos forzados, destierros, ejecuciones) han de ser superadas. Puesto que tal superación implica una transformación territorial, para hacerla es necesario reconocer las condiciones sociales actuales. En este orden de ideas, se ofrece una caracterización del carácter penal del Sistema Jurídico Local y expone los principales elementos de sus sanciones. El texto se apoya en una etnografía socio jurídica de larga duración realizada en la zona.

Dance Bar Ban: Doing a Feminist Legal Ethnography

This paper explores the methodological journey of undertaking a study of the legal ban on bar dancing in Mumbai and Maharashtra. A Legal Ethnography allows an understanding of the multiple layers involved in the creation of the dance bar ban and a feminist perspective focuses on those most affected by the law i.e. the bar dancers. Through interviews, group discussions and field observations, the study tries to comprehend the women who work in the dance bars and the world they weave for their customers.Yet the study moves beyond the bargirls towards the political actors to ask the question, why the ban? and dwells on not only the legislative process of passing a legislation to ban dancing but also the politics of banning erotic labour in Mumbai.This study coins new terms such as ‘Caste Capital’ to donate the cultural practices, knowledge and behaviour that allows some communities to excel in some modern occupations such as the women from traditional dancing communities within the dance bar industry and ‘Caste Governance’ to explain the actions of the government in curtailing the new found power, status and money of the bargirls.

La urgencia de la etnografía jurídica en América Latina

En el año 2004, la abogada Gina Chávez y el antropólogo Fernando García publicaron con el apoyo financiero de Petroecuador, el auspicio del Consejo de Desarrollo de las Nacionalidades y Pueblos del Ecuador (CODENPE) y la Facultad Latinoamericana de Ciencias Sociales (FLACSO) el libro titulado: El derecho a ser: diversidad, identidad y cambio, Etnografía jurídica indígena y afroecuatoriana.

Annelise Riles. Collateral Knowledge: Legal Reasoning in the Global Financial Markets

Collateral Knowledge: Legal Reasoning in the Global Financial Markets does for collateral, in legal thought and practice, something like what Marcel Duchamp's Fountain did with and for the urinal in artistic thought and practice. The book takes what Annelise Riles calls little sideline (at 1) of mundane use in global financial markets � an item of undeniable practical importance, but typically considered unworthy of serious attention � and encourages us to see it anew. As in the case of Fountain, what we may experience afresh is not just the object and the use of it, but also the order of or, in Riles' terms, knowledge practice (at 10) in which it has been repositioned. Beginning with collateral � secondary assurance or value provided by one or both counterparties to transaction to offer means of satisfying debt in the event of the provider's default upon primary undertaking � Riles tells (perhaps surprisingly) compelling story of global financial markets as a constellation of both theoretical and doctrinal maneuvers and material documents (at 38). Practices of collateralization, in their very marginality, standardization, or taken-for-grantedness, comprise a legal technology that is paradigmatic of global private law solutions (at 41). Prised open under Riles' deft touch, collateral becomes the stuff of dreams (at 37�38 and 138�144) and responsibilities (at 119 and 244); quiet nexus of tremendous political and economic legitimacy (at 4, emphasis in original). The work that Collateral Knowledge performs in this regard is that of legal ethnography, resulting from seventeen months of fieldwork conducted in Tokyo between summer 1997 and fall 2001 and frequent research visits in the years that followed, focused on large financial institutions and those who work with and for them (at ix). It is closely engaged �