Cultural Expertise and Law: An Historical Overview

Holden, Livia

doi:10.1017/s073824801900049x

Cited by 12 publications

(8 citation statements)

References 40 publications

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“…Thus, positivist evolutionism (E. B. Taylor, J. Fraser, L. G. Morgan) helps to explain the diversity of legal cultures based on the laws of natural-historical evolution, identifying the common principles of any legal culture and the prerequisites for individualization of each of them -that is, based on a broad view of the context in which legal phenomena exist [11,12]. Taylor E. B. believed that culture consists of knowledge, beliefs, morals, laws, customs, and habits through which a person is socialized [13].…”

Section: Discussionmentioning

confidence: 99%

Socio-anthropological approach to the study of legal cultures: evolutionism and functionalism

Zinkovsky

2021

SHS Web Conf.

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The purpose of the study is to substantiate the productivity of the socio-anthropological approach to the study of legal culture. In the study of legal cultures, the methodology of legal science involves going beyond both the special legal sciences and, in general, the social sciences. This actualizes the assessment of the productivity of the socio-anthropological approach to law and the justification of its evolutionist and functionalist directions for the conceptualization of legal phenomena. Their methodology in identifying the characteristics of legal culture is based on a) the recognition of its integral organism, whose elements are functionally connected and based on common principles; b) the principle of organicism, which involves the spread of methods, tools, and patterns of scientific knowledge, characteristic of the biological sciences, to social phenomena. This approach identifies the relationships between human thoughts and behavioral acts, biological and social processes, and various stages of the historical development of legal cultures. The result of the research is a structural scheme developed by the author, which demonstrates the productivity of the socio-anthropological approach to the study of legal culture, reflecting the main forms of manifestation of the reductionism of legal research from narrow methodological positions and ways to overcome it with the help of the socio-anthropological approach of evolutionist and functionalist orientation. The novelty of the work is due to the evolutionist and functionalist study of legal cultures applied by the author, which contributes to overcoming the limitations of criteria for the critical assessment of the laws of their development, contexts that allow characterizing legal phenomena from an interdisciplinary perspective, offer substantive and methodological alternatives to explain them and assess the importance of social communication processes in their dynamics.

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Section: Discussionmentioning

confidence: 99%

Socio-anthropological approach to the study of legal cultures: evolutionism and functionalism

Zinkovsky

2021

SHS Web Conf.

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“…In this context, the importance of local genius cannot be separated from the regional context, location, or locality of the wisdom/genius, such that local genius is much broader than traditional genius, considering that local genius includes new genius or contemporary genius [31]. Thus, local genius encompasses both traditional genius or old genius (derived from previous generations) and contemporary genius or current genius (derived from environmental and social experiences [32].…”

Section: Indonesia Law Reform As the Part Of National Resilience With Implementing Hindu Law And Pancasila Valuesmentioning

confidence: 99%

Law Reform as the Part of National Resilience: Discovering Hindu and Pancasila Values in Indonesia’s Legal Development Plan

Yusa¹,

Hermanto²,

Ardani³

2021

Proceedings of the International Conference for Democracy and National Resilience (ICDNR 2021)

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The Indonesian legal system encountered several challenges due to corruption, inherited colonial compendiums/codifications, ineffective and inefficient arrangements, and a complex bureaucratic structure that occasionally contradicted the Pancasila, the 1945 Constitution, and common legal requirements. Majapahit's success story demonstrates that reforming Hindu law following legal requirements and conditions or society's demands effectively strengthens their national resilience. The purpose of this paper is to identify and reintroduce the successful history of Majapahit and their national resilience as a result of Hindu law, as well as its connections to the current Indonesian legal system, in the context of national law reform as a component of national resilience. Based on the normative legal research conducted for this paper, a concept was proposed to reintroduce and implement Hindu values into the national legal system consistent with Pancasila, the 1945 Constitution's Preamble, and current legal needs. It should be created based on a shared belief that national resilience can be defended if Indonesia's legal system is reformed; this can be accomplished if lawmakers consider the values of Hindu and other religions, adat law, and diverse conditions that are still compatible with Pancasila and the 1945 Constitution.

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“…Cultural expertise was envisioned in 2009 as "the special knowledge that enables socio-legal scholars, or, more generally speaking, cultural mediators-the so-called cultural brokers-to locate and describe relevant facts in light of the particular background of the claimants and litigants and for the use of the court" (Holden 2011, 2). In 2019 the concept of cultural expertise was further expanded as an umbrella concept that includes all kinds of use of social sciences knowledge by social scientists for the resolution of conflicts and the ascertainment of rights in court and out of court (Holden 2019). However, until the conceptualization of cultural expertise in 2009 and its expansion as an umbrella concept in 2019, the focus was more on the relationship between law and culture and less on the ways anthropologists engage with the legal process as well as with claims or ascertainment of rights and conflict resolution.…”

Section: Introductionmentioning

confidence: 99%

“…However, until the conceptualization of cultural expertise in 2009 and its expansion as an umbrella concept in 2019, the focus was more on the relationship between law and culture and less on the ways anthropologists engage with the legal process as well as with claims or ascertainment of rights and conflict resolution. As I have outlined elsewhere in a short historical survey of cultural expertise (Holden 2020), many instances of involvement of social scientists with law have at some point been problematic. Whilst cultural expertise as an umbrella concept concerns the involvement of all kinds of social scientists with law, this article will focus on the involvement of anthropologists, which has already met with criticism and skepticism from within the discipline of anthropology.…”

Section: Introductionmentioning

confidence: 99%

Anthropologists as Experts: Cultural Expertise, Colonialism, and Positionality

Holden¹

2021

Law Soc. Inq.

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This article addresses the positionality of anthropologists and the impact of anthropological theories in cultural expertise with the help of three case studies that highlight the engagement of anthropologists with law and governance during colonialism and in the wake of it: a well-known case of witchcraft in Kenya, Volkekunde theories in Africa, and the Rwandan genocide. The article starts with a short genesis of the concept of cultural expertise and its cognate concepts of culturally motivated crimes and cultural defense, to introduce the main question of this article: What can we learn from the use of cultural expertise in the colonial past? Today, as much as in the colonial past, anthropologists have been torn between action and abstention. The article’s three case studies show that neither action nor abstention is free from ethical responsibility. This article argues that the concept of procedural neutrality and its reformulation in the form of critical affirmation help anthropologists to carve out an independent role for themselves in the legal process. Procedural neutrality and its reformulation as critical affirmation make it possible to comply with the ethics and deontologies of the disciplines across which anthropologists operate when providing cultural expertise.

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Cultural Expertise and Law: An Historical Overview

Cited by 12 publications

References 40 publications

Socio-anthropological approach to the study of legal cultures: evolutionism and functionalism

Socio-anthropological approach to the study of legal cultures: evolutionism and functionalism

Law Reform as the Part of National Resilience: Discovering Hindu and Pancasila Values in Indonesia’s Legal Development Plan

Anthropologists as Experts: Cultural Expertise, Colonialism, and Positionality

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