Examining Law from the Perspective of Cultural Anthropology
- Sayaka Takano
- Associate Professor, Faculty of Policy Studies, Chuo University
Areas of Specialization: Cultural Anthropology and Folklore Studies
What is legal anthropology?
My area of expertise is the academic field of legal anthropology. For many readers, it may be difficult to conceptualize this field. To the best of my knowledge, the Faculty of Policy Studies at Chuo University is the only one of Japan's many universities to offer the subject of legal anthropology every year. In that respect, legal anthropology is one of the elements contributing to the uniqueness of the faculty. It also raises important issues in terms of the faculty's philosophy of integrating policy and culture.
Legal anthropology is a discipline which uses the academic perspective and methods of cultural anthropology to handle law in a broad sense. When watching overseas television dramas or movies, some of my readers may have seen researchers who wear lab coats and cooperate in criminal investigations. These researchers are from another academic field called forensic anthropology, although sometimes the same word "houjinruigaku" could be used in Japanese context.
Some of my readers may have heard of ethnography, which is a survey method used in cultural anthropology. Recently, this method has been applied to fields such as marketing, and it is sometimes featured in business and tech magazines. In the first place, cultural anthropology is a discipline that uses long and in-depth field surveys in an effort to clarify the various social mechanisms around the world, as well as the way of life of the people who live in different countries and regions. Personally, as I will discuss later in this article, I stayed in Indonesia for two years and did fieldwork in the Indonesian language.
The reason why I stated that legal anthropology handles law in a broad sense is to emphasize the consideration of law beyond the image of laws and regulations related to areas such as policy and business. Upon hearing the term of law, many people may think of law based on the state (national law); for example, constitution, criminal law, and civil law. Nevertheless, if we examine how people with diverse interests in society avoid unnecessary pitfalls and achieve a relatively smooth lifestyle, we will notice the existence of many accepted mechanisms in society, even if they are not in the form of legal articles. Such mechanisms are called customary law, social norms, practice, reason, or culture. These mechanisms fulfill a certain role in maintaining order and dealing with conflicts. Legal anthropology has explored the relationship between society and law in a broad sense, including customary law in addition to so-called state law.
One very interesting site for such legal anthropology research is Indonesia, a country where I conducted research. The law in Indonesia can be described as being multi-layered. Indonesia is a major power in Southeast Asia, with more than 10,000 islands and more than 200 ethnic groups, but the country's legal system is strongly influenced by its former colonial rule. Even after the country gained its independence as the Republic of Indonesia after World War Two, national law was based on law enacted during the colonial period. The Dutch language is still used as formal notation for civil law and criminal law. On the other hand, among Muslims who compose 90% of the population in Indonesia, referring to Islamic law is a well-established act. This is especially true in areas such as marriage, divorce, and inheritance, which are under the jurisdiction of the Religious Court. Furthermore, we cannot ignore the influence of customary law (adat) of ethnic groups. In the midst of the democratization and decentralization that progressed after the collapse of President Suharto's long-term government in 1998, there was a debate that adat should be officially approved. Since then, it has been pointed out that the rights of communities based on adat tend to be respected, especially in terms of resource management such as forests.
The coexistence of multiple laws based on this historical background is very interesting in terms of the relationship between people and law. Previous studies have often focused solely on describing adat (≒culture) or discussing how to reform the corrupt judicial system under a long-term government (≒policy). However, I first wanted to understand how law is treated in Indonesia, so I decided to conduct a survey in the district court. The location of my research was Medan, which is located in North Sumatra and is the third largest city in Indonesia.
Daily work in a district court
For many of us, courts seem like an unusual place outside the scope of daily life. The same is true in Indonesia. However, upon actually visiting a court, you will see that countless people such as judges, court officials, lawyers, newspaper reporters, and even vendors are entering and exiting the solemn building. Furthermore, you will see that various documents and buzz come and go on a daily basis. I have heard a song being sung at loud volume from an open window, and even seen a stray cat walking across the courtroom.
The cases addressed at the district court where I conducted my survey were criminal cases (theft, drug violations, etc.), divorce litigation (a necessary procedure for a formal divorce for non-Muslims), and civil cases (leasing contracts, land ownership and sales contracts).
So, how does the law relate to the processing of these cases? For example, there was a lawsuit over land that was once expropriated by the government. The parties to the proceedings then claimed ownership under adat and appealed the legitimacy of their claim to the judge, relying on the framework of the judicial system for contracts consummated during the colonial period. Such cases show a complex relationship between state law and adat. However, there were cases in which I glimpsed more trivial technique for smoothly conducting a proceeding. In divorce cases, the judge gave advice to the married couple based on life experience rather than adat.
These cases seem like sporadic episodes. However, it is suggestive to consider that a provincial city with a population of over 2 million has people of diverse backgrounds, and that the residents share no particular code of adat. In other words, there is state law on the one hand and adat or Islamic law on the other, and the courts do not use either one to pass judgments. Instead, it seems that there is an ambiguous area between the two.
Beyond the segregation applied to law
At first glance, state law, customary law, social norms, religious ethics, and other codes can be seen as different rules that do not mix with each other. However, the district court showed me that in the practice of law, these various codes continue to change their form while referring to each other, confronting each other, or assuming complementary positions. This form of law differs from assumed images such as "the introduction of state law of Western origin to customary law" or "despite customary law appearing absent under the influence of state law, it is still shared among the people."
From this perspective, we can point out the importance of distinguishing between state law (≒policy) and customary law (≒culture). Moreover, instead of treating the two separately, we must consider the relationship between the two while taking both aspects into consideration. For example, a person's age and position will cause significant difference in what can be envisioned as customary law, and in what types of customary law will be found persuasive. This phenomenon is not limited to Indonesia. The categories related to legal norms in people's lives are inseparably intertwined and are constantly changing. Since the discipline of legal anthropology is taught in the Faculty of Policy Studies, I will continue to consider the significance of such phenomena and convey them to students who will lead our world in the future.
Associate Professor, Faculty of Policy Studies, Chuo University
Areas of Specialization: Cultural Anthropology and Folklore Studies
In 2001, she graduated from the College of Arts and Sciences, The University of Tokyo.
In 2003, she completed the Master’s Program in the Graduate School of Arts and Sciences, The University of Tokyo.
In 2010, she completed the Doctoral Program in the Graduate School of Arts and Sciences, The University of Tokyo. She holds a Ph.D. in interdisciplinary academics.
She served as Assistant Professor in the Graduate School of Arts and Sciences, The University of Tokyo and as a Research Fellow for Young Scientists at the Japan Society for the Promotion of Science before assumed her current position in 2016.
Her current research themes include reexamination of customary legal concepts in legal anthropology, and ethnographic studies of law and development.
Her major written works include Indonesia: The Challenge to Democratization and Globalization, (co-authored, Junposha, 2020), Law and Society in Post-Suharto Indonesia: An Ethnographic Approach to Judging and Not Judging (Sangensha, 2015), and more.