The Law’s Legal Anthropology

The Law’s Legal Anthropology University Press Scholarship Online Oxford Scholarship Online Human Rights at the Crossroads Mark Goodale Print publication date: 2014 Print ISBN-13: 9780199376414 Published to Oxford Scholarship Online: April 2015 DOI: 10.1093/acprof:osobl/9780199376414.001.0001 The Law’s Legal Anthropology Ronald Niezen DOI:10.1093/acprof:osobl/9780199376414.003.0014 Abstract and Keywords This chapter examines the way in which international human rights law has become a “strategic epistemology” through which certain categories of belonging and accounts of personhood are legitimated while others are excluded. It argues that the new forms of knowledge created through international law have altered both participation in social and political life and our understanding of the grounds of moral practice. The chapter also discusses how the constitutive logics of international human rights are most starkly revealed, and have been most problematic, within the international indigenous rights movement. Keywords: international law, human rights law, strategic epistemology, belonging, personhood, indigenous rights movement Page 1 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology A Parallel Universe The field of study sometimes referred to as the anthropology of law has a rival, an alter ego or doppelganger, which emanates from the law itself, with human rights as its most fertile generative source. It is not quite an “evil twin” in the sense of an alternative disciplinary identity, as described by James Ferguson (1997) in his critique of development anthropology, but quite literally a parallel universe, or at least a parallel conceptual geography of humanity, with epistemological foundations in legal activism. Legal anthropology’s doppelganger achieves the global currency of its ideas—a kind of vernacularization writ large—by plugging into transnational networks of activist organizations without having to initially struggle for recognition and legitimacy. As one outcome of this unprecedented representation of ideas, it has created an anthropology of peace and liberation that appeals broadly to sympathetic publics as it draws from stereotypes and attempts to persuade through a combination of bureaucratic language and “spin.” As Gabriel Tarde presciently wrote more than a century ago, “the public is in the midst of becoming, in the contemporary theatre, like the chorus in a Greek tragedy, the principal interlocutor that one addresses and who responds—or fails to respond” (1893: 120).1 And, as with all prescient observations, the subsequent course of history has augmented its truth, with public ideas and activism having become central to the legitimacy, effectiveness, and (p.186) conceptual reach of human rights. While most academic authors, even the most successful ones, would readily acknowledge the relatively narrow limits of their influence, the UN—before it even produces an idea—has available to it the attention of the world’s media; and more than this, it has all the legitimacy and visibility of the human rights movement behind it from the outset, all the commitments and starry-eyed memberships of NGOs, all the energy of activists in global networks of human betterment, consuming and acting on the ideas that appear in its reports and press releases. In other words, human rights have introduced to the world not just a body of universal norms to which states, in widely varying degrees, have committed themselves; they have also produced their own distinct legal anthropology, a body of rights-oriented knowledge that includes an understanding of Page 2 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology the essence of humanity and the legitimate forms and categories of human belonging. International law provides the clearest examples of a strategic epistemology that is reinterpreting common understandings of human life and, through the feedback loop of identity, redefining human experience. This paper is intended to serve as an introduction to that epistemology, which should be seen as fundamentally distinct from critical legal anthropology. Disambiguation I am secondarily offering an argument for disambiguation, for the conceptual and methodological separation of the social study of human rights from the study of the anthropology produced by human rights. The term “word sense disambiguation” is used in computational linguistics to describe the effort to create processing languages that can deal consistently with words that have multiple meanings. An example is the difficulty a computer language might have in distinguishing, say, a case that went to trial and a case of champagne (perhaps ordered in celebration of an acquittal). Similarly, I am making an effort here to identify and to separate the elements that make up the polysemy of legal and social science epistemologies of human belonging. We can begin this effort with the most fundamental category in the human rights conceptual system: the idea of humanity itself, one of the most basic, universally legitimate sources of self-definition. The concept of humanity at the foundation of human rights is unique in its inclusiveness. Even those who refuse to populate the category of humanity and who remain (or place themselves) outside the institutional and conceptual structures of human rights are still human, with rights. There is no frontier to the empire, beyond which lies the realm of the inhumani. If there is a sense in which membership in the human community is marked by a boundary of inclusion and exclusion, it is not conceptually determined but runs along the lines of voluntary engagement. One of the implicit goals of the human rights movement has been the cultivation of evergreater participation in human projects from among communities of rights claimants. And it is in the various definitions of these rights claimants that the human rights system ventures most (p.187) clearly into sociological construction. It adds detail to the basic concept of humanity by Page 3 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology elaborating the categories and innermost qualities of those humans who are particularly noteworthy as the potential subjects of rights and reconciliation. The social worlds described by human rights are constructions that, through the popular legitimacy of the human rights system, have a heightened capacity to transcend their origins in words and become the reality so described. This vision of humanity tries to achieve clarity because it is at once legal and universally moral in outlook and because in representing uncomfortable facts in the face of rights abuses (and abusers), it must be factually grounded and convincing. The central challenge for this approach to knowledge of the human is to achieve a practically useful, rights-oriented one-to-one correspondence between reality and the official accounts of it, to make the unknown known, to bring light to darkness, and in so doing to bring the protections of the law to those on the margins of it, to empower the disempowered and return rightful heritages to the dispossessed. But this sought-after correspondence, with its implications for justice and liberation, can sometimes be achieved through a kind of epistemological reversal: by having reality conform to it. Distinct peoples (be they indigenous or minority), communities, refugees, states, civilizations, world heritage, and humanity itself—each representative group of each category of human belonging has an essence that can be described and understood. This category is usually provisionally defined, enumerated, and inventoried. And then, by bringing the right people in front of a microphone in the right setting, it can be brought to life: ceremonialized, celebrated, infused with emotion, and preserved for posterity. The greatest advantage of the anthropology of law that emanates from human rights processes is that the concepts it constructs have the potential to become part of the day-to-day reality in which we (meaning virtually every languageendowed being on the planet) live. Its ideas are able to go a step or two beyond mere currency, to define and then to populate the categories and identities of collective life. In taking the leap from description to the creation of social worlds, those who argue for a construction—jurists and rights claimants alike—inevitably face the challenge of persuasion, of convincing public audiences that reality justifiably corresponds with their account of it. They are successful when their ideas are naturalized, when they are accepted as the way Page 4 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology things have always been, or are at least unquestioned as part of a natural order. And they fail when reality itself refuses to comply, when few are sufficiently persuaded to take up the cause, act in the manner described, and bring the construction to life with their own compliant, tangible participation in it. Disambiguating the two anthropologies boils down to distinguishing the study from the use of categories of belonging that originate in institutional/legal process. The boundary between interpretive/analytic and strategic social constructions is not always clear; and consequently many selfidentifying academic anthropologists are blithely unaware of the extent of the influence of their competitor. Scholars engaged in the social study of law often take up the ideas produced by human rights experts, without awareness or acknowledgment that these are part of a body of knowledge (p.188) with its own logic, in which goals of human betterment are prioritized over descriptive or analytical accounts of human reality. They participate in the use of its concepts (and sometimes its socially generative activist processes) without self-examination or interrogation. They imagine that their professional activity involves describing a social reality— sometimes a complex, paradoxical, ambiguous, shifting reality —of which the law is a central part. This inclination toward relative straightforwardness leaves out of the field of inquiry the influence of those who are actually defining and promoting (and sometimes populating) the law. Harri Englund comes close to making this very point when he condemns a central limitation in the study of international human rights activism: “Critical analysis subverts its own objectives if it does not include activists’ contradictory position in regard to human rights” (2006 145). But to this we can add that activists, broadly defined, reach to the highest echelons of global governance, including those who occupy the closed meeting rooms from which some very influential ideas about human belonging emanate. To make a preliminary effort toward depicting this legal-legal anthropology, we should start with the obvious: conceptions of belonging are necessarily built into or follow from the elaboration and enforcement of any regime of collective rights or recognition. Ideas about group membership follow directly out of the concern with the law for certainty and clarity in the application of law. Elaborating the rights of a people calls for an unambiguous description of the beneficiaries of those Page 5 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology rights. Who belongs to the community of rights holders, and who does not? So, for example, when Raphael Lemkin (2008: 79) proposes the concept of genocide, as a “coordinated plan of different actions aiming at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves,” he is at the same time implicitly summoning into being an effort to define the beneficiaries of protection from genocide, those collectivities that might qualify as a “national group.” This almost selfevident quality of rights-based approaches to human existence has an important, though oft en unrecognized, consequence: ethnonyms, constitutions, cadastres, and censuses have become as much tools for the construction of social worlds as they are for the elaboration and application of rights. Having laid out an argument that encompasses rival interpretations of the entire range of human experience, there is a limit to the distance I can go toward giving it shape and substance. It is not possible here to assemble the entire history and scope of the dissociative identity disorder that characterizes current interpretations of collective human experience. I can only hope to achieve a partial and preliminary account of the epistemological divide by providing two manifestations of it at different levels of abstraction: one in the account of an African people, the Acholi of northern Uganda; and another in a global category—indigenous peoples —that encompasses (at least potentially) the entire range of human experience in subsistence economies, traditional territories, nature spiritualities, and the loss of the intergenerational transmission of these things at the hands of state and industry. Together, these examples illustrate in the most economical way possible (p.189) the epistemological foundations of the rights-based dualism in contemporary categorizations of humanity. Page 6 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology Conceptual Peacemaking The legal anthropology of human rights is not limited to defining and identifying the human categories that result from standard setting, but also (and perhaps above all) from the application of those standards to the mobilization of shame, public persuasion, and education, and the remedial interventions of ideas in peacemaking and transitional justice. The revamped categories of human belonging that emanate from human rights initiatives usually begin as little more than hopeful abstractions; but they acquire a certain measure of tangibility by the strategic persuasion of those community leaders who see themselves and their constituents as the subjects of rights and reconciliation, who take hold of formally inscribed categories of human belonging and situate their people within them as claimants. This calls for public visibility and persuasion from another source, from that direction sometimes referred to as “below.” This is easiest to see in the aftermath of protracted violence, in those efforts toward reconstructing social worlds that can be seen as the intellectual disarmament of hate-driven combatants. Conceptual peacemaking is that approach to describing the essence of a people that selectively and often strategically emphasizes virtues conducive to mutual understanding and forgiveness among those in conflict. In some cases, protracted conflicts occur with a background of ideological abuse that—sometimes over decades—inflames hatred and violence, in which the enemy alien Other is repeatedly portrayed as a source of pollution, thereby intellectually and emotionally facilitating the work of “ethnic cleansing.” The simple logic of conceptual peacemaking is stated up front in the 1945 constitution of UNESCO: “That since wars begin in the minds of men, it is in the minds of men that the defenses of peace must be constructed” (UNESCO 1945). In other words, intellectual disarmament has to take place before any legal arrangements for peace have a chance of durably ending a situation of conflict. For peace to be lasting in circumstances of systematically cultivated hatred, there has to be more than an imposed political solution. The ideological foundations of hate also have to be disengaged, the incommensurable made knowable, the condition of pollution Page 7 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology restored to purity (or at least neutrality), the humanity of the enemy Other restored (Niezen 2010: 18). This can be illustrated with one of the most challenging recent efforts at conceptual peacemaking: a process of communitylevel “truth-telling” in Uganda under circumstances in which it was impossible to disentangle the categories of victim and perpetrator. In the course of the 21 years of conflict between the Lord’s Resistance Army (LRA) and the government of Uganda, some 30,000 children and youth were abducted by the LRA and forced to become soldiers and/or sexual slaves. Others were recruited by local militias and the Ugandan army (UPDF) to fight against the LRA, creating a situation of (p.190) “brother against brother” in an entrenched struggle for personal protection or economic advantage. The situation prior to transitional justice initiatives is described by the report of an NGO forum, the Justice and Reconciliation Project (2007: 4), as one in which the trademarks were “Rape, mutilation, humiliation, torture, murder, massacres, beatings, arson, looting, abduction and forced enslavement and internment…. Up to 90 percent of the population in Acholiland are confined to ‘internally displaced persons’ (IDP) camps, cut off from agricultural production of their land and dependant [sic] entirely on food assistance from the United Nations.” Under these circumstances, the public image of the northern Ugandans as warrior-like—in part an outcome of the northerners’ preferential recruitment under British rule to posts in the police and military—became a marker of distinctiveness. Ethnic stereo-typing that emphasized the Acholi’s inherent lack of respect for human life abounded in Ugandan press coverage of the conflict during the 1990s, framing the situation as one in which the Acholi were victimizing one another, wantonly plundering and shedding blood, with the central government in the role of referee, and thereby benefiting from diminished responsibility (Armstrong 2010: 145–146; Leopold 1999). Such coverage set the tone for global perceptions of the conflict, while reinforcing the prejudices of southern Ugandans, and quite possibly influencing the Acholi’s own understanding of themselves. This was not at all the element of the available cultural repertoire that lent itself readily to peace. Nor was it a narrative of the conflict that the Acholi leadership was prepared to accept as a premise in preparation for peace talks. Page 8 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology For them, the foundations of Acholi identity had to be restored, both in the interest of pride and in resistance to government control (Armstrong 2010: 220). More broadly, for NGO advocates of traditional forms of reconciliation, the narrative of violence as an essential quality of the Acholi had to be replaced with mechanisms that might provide an alternative to the imposed, context-neutral interventions of the International Criminal Court. Hence, the core principles of traditional justice—identified by a coalition of Civil Society Organizations of Northern Uganda as “trust, truth-telling, acceptance of guilt, voluntarism, compensation, [and] use of symbolic rituals and restoration”—were to be “codified and used as yardsticks for reconciliation and healing in victim communities” (Declaration 2007: para. 29). In particular, the ideas and attitudes surrounding mato oput, an Acholi process of dispute resolution that addresses situations of violence between clans and ceremonially marks an end to anger, was identified as the cultural mechanism for “accountability and reconciliation” in the 2007 Juba Peace Talks (Victor 2011). This goal was articulated in Paragraph 1 of the Lira Declaration, a document assembled by representatives of Civil Society Organizations in preparation for the Talks. Here the Declaration recognizes “[t]hat traditional approaches to justice and reconciliation in northern and eastern Uganda [mato oput of Acholi, kayocuk of Lango, ailuc of Teso and tolu koka of Madi, among others] share similar principles including truth telling, confession, mediation, and reparation and resulting in reconciliation and the restoration of relations, and that such traditional mechanisms are therefore locally and (p.191) culturally relevant to meeting the justice needs of victims of the conflict” (Lira Declaration 2007: para. 1). But how is an amalgam of oral traditions to provide consistent guidance to a formal process of truth and reconciliation? In particular, how could mato oput, a process based on personal inter-clan, intra-community relationships, apply usefully to reconciliation in the aftermath of a mostly anonymous, diffuse, seemingly chaotic profusion of violence? The logic of the formal use of culture calls for the most useful concepts in the repertoires of the peoples of northern Uganda to be identified, articulated, and recorded for immediate use and for posterity. With this goal in mind, the Civil Society Organizations further recommended that “a team of technocrats should be set up to Page 9 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology guide traditional justice courts … so that traditional leaders are able to document laws” (Declaration 2007: para. 32). It was thus that the essence of what it means to be Acholi was redefined for both judicial process and (inseparable from this process) the popular imagination. The legal-an-thropological reconstruction of Acholi identity began with the strategic identification, isolation, rearticulation, and recontextualization of key practices and their corresponding core attributes. The challenge that followed the assemblage of ideas that constituted the peaceful northern Ugandans was cultivating the resulting cultural complex to the point at which it corresponded with public images of self and others—a course of action that is ongoing, and in the process reshaping the categories and conceptions of social membership in the context of Africa’s peace initiatives. Efforts to reform Acholi identity reveal some of the most important qualities of the law’s anthropology as it is applied to those who are identified as distinct peoples. Research guided by the goals of conceptual peacemaking tends to reduce the objects of its attention (which, incidentally, have in some ways been objectified through its attention) to their most basic qualities and applying them generally to situations of conflict, with little regard for the individuality of those communities, clans, and individuals included in peacemaking initiatives. Regardless of the degree of reality and authenticity reflected by the customs chosen by experts engaged in conceptual peacemaking, the possible effects of ideological and cultural intervention are the ultimate ends of knowledge. The way to recognize the law’s legal anthropology in conceptual peacemaking is to look for change as the focal point that guides and motivates research efforts, change toward an ideal situation of reconciliation and peace, usually enacted through a process of persuasion using reified and decontextualized versions of the participants’ own histories and traditions. In short, conceptual peacemaking involves the strategic reeducation of the members of distinct societies, conducted with a view to assimilating them into their own essence. Indigenous Peoples and Their Knowledge Most of the sociological or anthropological ideas produced by international or state agencies are intended to circulate internally in the form of legal-conceptual systems. They are Page 10 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology usually meant to identify with some precision those who are involved in situations of conflict or political and economic marginalization. But the goal of world reform calls upon the institutions of global governance to widely communicate ideals about peace, prosperity, human understanding across boundaries, the innocence of the suffering, and the virtues of human difference. The utopian dimension of governance, which forms its foundation and guiding principles, calls for broad communication, at times organized into campaigns of public outreach. (p.192) Nowhere is this more clearly illustrated than in the history of the international movement of indigenous peoples. In The Origins of Indigenism (2003), I make the argument that the concept of indigenous peoples had in its early development an affinity with the global common experience of settler state domination and the simultaneous extension of the ideals of self-determination that emerged, in turn, out of processes of decolonization and the rise of the human rights movement. The truly astonishing feature of the indigenous peoples’ movement is the effectiveness and rapidity with which these common qualities and ideals were translated into a global identity and regime of human rights, driven by an unprecedented groundswell of popular support. A concept elaborated in the International Labour Organization initiatives of the 1950s developed during the last two decades of the twentieth century into the focal point of a global movement, manifested in the most attended, clamorous, at times rancorous, human rights meetings in the UN system. For the purposes of my argument, there is one transitional moment in the history of the indigenous peoples’ movement that stands out above all others: the event at which the indigenous peoples described in ILO literature and legislation acquired a population of rights claimants: community leaders who introduced themselves in a meeting room of the UN headquarters in Geneva as “indigenous.” Prior to the 1977 International NGO Conference on Discrimination against Indigenous Populations in the Americas, the idea of indigenous populations was mostly words on paper. It was formulated as a legal category in the 1950s in response to ILO concerns about the exclusion of distinct populations from the benefits of the state, above all the benefits of vocational training and labor in the formal economy. A 1946 study used the term “aboriginal groups” in its condemnation of prevailing “conditions of Page 11 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology economic destitution and pronounced cultural and technical backwardness,” that could only be improved by ameliorating the “primitive conditions” in which they were forced to earn their livelihoods (cited in Tennant 1994: 14). “Indigenous populations” is the term of choice (and title) of a report completed in 1952 that identifies the “inferior economic, social and cultural conditions of large groups of ‘Indigenous’ persons” and that goes on to recommend “special action” on behalf of these groups (ILO 1953: 8). Then came the pioneering legislative effort of ILO Convention (No. 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, which urged state governments toward the promotion of “individual usefulness and initiative” (Article 2.3) through their “progressive integration into the life of their respective countries” (p.193) (Article 2.1). This assimilative orientation was explicitly retracted in the preamble to ILO Convention 169 of 1989, which recognizes the aspirations of “these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live.” It is significant that between these two ILO instruments, indigenous representatives themselves attended international meetings and made their own claims to rights of selfdetermination. When indigenous representatives attended the first international NGO meeting in 1977 and voiced their own identities and aspirations, the assimilative orientation of ILO initiatives underwent a challenge. By populating the category brought into being by the ILO, indigenous representatives were able to give it a measure of tangibility, while using their presence to bring about modifications to it. In particular, they dispensed with the categories of Tribal and Semi-Tribal populations, preferring the term “indigenous,” which corresponded better with claims to long-standing occupation of territory and continuity of lifestyle. In keeping with the goals behind this preference, selfdetermination became the single most important theme of the Working Group on Indigenous Populations, which held annual two-week meetings in Geneva from 1982 to 2006. Rather than acquiescing to the goals of assimilation built into the early UN initiatives, indigenous representatives took up the causes of their rights to territory and autonomy. This common objective Page 12 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology was rapidly deployed through emerging networks of NGOs. By the time the Working Group was replaced by the Permanent UN Forum on Indigenous Issues in 2006, it had become far and away the largest human rights meeting in the UN system, consistently attracting well over a thousand delegates from six continents, each with a particular collective identity to represent within the global category of “indigenous peoples.” As soon as they appeared at UN meetings, the ultimate source of influence available to indigenous delegates was their appeal to public audiences. This appeal followed from two of their most essential common qualities, evident in the central themes of a 2009 UN-sponsored film, “Indigenous Peoples and the UN.” First, they were seen to share a common condition of oppression and marginalization, presumably at the hands of the state (though in UN publicity this commonly remains implicit) and industry. Kofi Annan, as Secretary-General of the UN, described indigenous peoples as those who have been ignored, displaced and destroyed. “Their lands have been taken, their cultures denigrated or directly attacked, their customs suppressed, their wisdom and traditional knowledge overlooked and the sustainable ways of developing natural resources dismissed” (2008: 6–54). In the same publicity film, the theme of traditional indigenous knowledge (commonly identified in UN literature under its acronym, TIK) is presented as a fragile treasure that combines environmental stewardship with nature spirituality, and therefore holds the answers to the degradation caused by globalizing industry. Carie Dann, representing the Western Shoshone, is among those who convey the image of indigenous peoples as caretakers of the earth: “Our teachings tell us that the Creator (p.194) places us here as caretakers of the land, the animals, all living things that were placed here with our responsibilities” (UNPFII 2008: 10–33). Together these themes create an improbable understanding of suffering and cultural virtue. Victimization at the hands of dominant powers is not conducive to collective wisdom and spiritual elevation. By amalgamating so much human experience into one encompassing rubric, the agencies of global governance, NGO advocates, and the claimants of indigenous rights and identity have together created a fundamentally incoherent category with global appeal. Impossible standards of resilience are built into the demand for spiritually elevated victimhood. And in circumstances in Page 13 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology which those standards are not met—in which public consumers of rights claims are not persuaded by the ideals of virtuous suffering—attentions will turn, commitments will evaporate, and rights claimants will be left to their own devices. The public supporters of indigenous peoples’ rights are not asked to learn uncomfortable truths about the nature and consequences of oppression. Nor are indigenous leaders themselves afforded the opportunity to imagine futures that extend far beyond the limits of popular romantic idealism. Their primary source of leverage is in public ideas that take the form of hope for public audiences, expressed in ways that correspond with hope for the world. The pursuit of selfdetermination through the legal pathways opened by the concept of indigenous peoples has resulted in its negation by the limits of the popular imagination. Page 14 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology The Paradox of Visibility For those with persistent attachments to critical academic inquiry, all is not lost. The law’s legal anthropology has a fatal weakness, as exemplified by the central themes of the indigenous peoples’ movement: it is incoherent. This incoherence follows from the strategic, often diplomatic origins of its concepts, which aspire toward consistency while emerging from agencies that are not in communication with one another. The anthropology that emanates from human rights will commit itself to descriptions of the inner essence of a people that is completely at variance with their recent history, with no effort made to account for the discrepancy. It will develop ideas in the interest of one initiative that not only defy historical records but have contradictory effects when applied to other realms of human experience. By any standards of critical inquiry, it does not hold together as an overall account of human life—as a system of anthropology. If it were to be collated and peer reviewed by independent experts, it would very likely be rejected as fragmented, inclined toward sentimentalism, and replete with self-evident (and oft en self-serving) falsehoods. This should offer some consolation to those who continue to aspire toward academic anthropology’s ideals of critical inquiry. But the anthropology that emanates from human rights then poses another sort of problem: Given its flaws, how does it command the attention and respect that it does? How does it perform the miracle of populating the (p.195) categories it calls into being? This is another line of inquiry altogether, one that calls for an explicit starting point in the conceptual categories of rights processes, disambiguated from the anthropology that aspires toward implementing human rights through popular persuasion. With this question in mind, the most significant problem shifts from the original construction of institutions as legal innovations to the wider construction of their public acceptance as part of the natural order. From this point of departure, a spate of unresolved issues arises. How do institutions (including categories of people and their traditions) come to be widely recognized as legitimate entities in circumstances in which they have been legally formulated? Why is the incoherence of the law’s anthropology overlooked or forgiven by seemingly indulgent publics? In particular, how Page 15 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology does temporality become suspended or distorted as part of the process of rights recognition? And what gives the human rights system, situated in a wide array of global governance institutions, a privileged place in the reconceptualization and reorganization of human belonging? These related questions call for another chain of reasoning. Collective human rights accrue more readily to peoples and institutions that are successful in both materializing and naturalizing their existence. Separating these two elements makes it possible to recognize that the key problem in the philosophy of language as it relates to legal categories is not the constructed nature of institutions (almost a platitudinous truism) but their naturalization (or secondary construction). How do some constructions (and not others) become readily accepted as normal, as constituting the very nature of reality, as essential features of the world one inhabits? Construction and naturalization are part of the same process by which institutions become accepted features of the reality in which people live through reiterations and elaborations of existing ideas. Yet, when it comes to rights claims, the very process of naturalization introduces a state of tension and opposition with the first order of construction. This is because arguments, performances, and symbols that point to permanence, temporal depth, and sacred power tend to solidify claims of distinctiveness and rightful ownership (and hence distinct rights). Conversely, collective rights— articulated through the categories of the law’s legal anthropology—tend to be compromised by historical records that point to adaptation and shallow temporality of current practices and identities, not to mention judicial hostility toward strategic efforts to construct depth. The idea that a group’s claims to distinctiveness are recently, and in particular strategically, constructed tends to be corrosive of that group’s claims to distinct rights. To counter judicial suspicion of the claims of culture, collective rights claimants are called upon to be all the more persuasive in their appeals to publics in support of their cause(s). An implication of this is that performance and testimony have become part of legal process even outside of formal settings, in that they contribute to public perceptions and discourse Page 16 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology that naturalize collective claims and then become (re)translated into judgments and the language of rights. This leads to the most important sense in which the anthropology that emanates from human rights is incoherent. While the central goal of human rights is to better the conditions of those who are most blatantly victimized by states, it in practice empowers those who are most visible to publics. The two do not necessarily correspond. Conditions of great suffering do not always translate into popular compassion. On the contrary, they are regularly accompanied by anonymity, invisibility, and a spiraling descent into the alltoo-human inclination toward replicating the causes of one’s own suffering. Th e human rights movement is beset by failures in the anthropology that it has itself produced, with its ready resort to stereotypes, with its strong preferences for cultural romance and innocence among rights claimants, and, (p.196) where cultural romance has advanced furthest, with its reluctance to sympathetically understand the experience of victims/perpetrators caught up in complex structures of violence. References Cited Bibliography references: Armstrong, Kimberley. 2010. “Contested Peace, Contested Justice: Discourse, Power and International Justice in Northern Uganda.” Unpublished doctoral dissertation, Department of Anthropology, McGill University. Declaration by Northern Uganda Civil Society Organizations on Agenda Item 3 of the Juba Peace Talks (Accountability and Reconciliation), Acholi Lango Teso and West Nile Regions, Gulu Town, September 7, 2007. Englund, Harri. 2006. Prisoners of Freedom: Human Rights and the African Poor. Berkeley: University of California Press. Ferguson, James. 1997. “Anthropology and its Evil Twin: “Development” in the Constitution of a Discipline,” in International Development and the Social Sciences: Essays on the History and Politics of Knowledge (Pp. 150–175), edited by Frederick Cooper and Randall Packard. Berkeley: University of California Press. Page 17 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology International Labour Organization. 1953. Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in Independent Countries. Studies and Reports, No. 35. Geneva: International Labour Office. Justice and Reconciliation Project (JRP). 2007. “The Cooling of Hearts: Community Truth-Telling in Achole-Land,” Gulu District NGO Forum; Liu Institute for Global Issues, Special Report. Lemkin, Raphael. 2008 [1944]. Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress. Second edition. Clark, NJ: The Lawbook Exchange. Raphael, Mark. 1999. “‘The War in the North’: Ethnicity in Ugandan Press Explanations of Conflict, 1996–97,” in The Media of Conflict: War Reporting and Representations of Ethnic Violence (Pp. 218–242), edited by T. Allen and J. Seaton. London: Zed Books. Lira Declaration on Agenda Item 3 of the Juba Peace Talks (Accountability and Reconciliation) by Cultural and Religious Leaders, Women and Youth from Madi, Teso, Lango, and Acholi Sub-Regions; Lira, August 11, 2007. Niezen, Ronald. 2003. The Origins of Indigenism: Human Rights and the Politics of Identity. Berkeley: University of California Press. Niezen, Ronald. 2010. Public Justice and the Anthropology of Law. Cambridge: Cambridge University Press. (p.197) Tarde, Gabriel. 1893. Les Transformations du Droit: Étude Sociologique. Paris: Félix Alcan. Tennant, Chris. 1994. “Indigenous Peoples, International Institutions, and the International Legal Literature from 1945– 1993.” Human Rights Quarterly 16: 1–57. UNESCO 1945. Constitution of the United Nations Educational, Scientific, and Cultural Organization, Geneva, November 16. UNPFII. 2008. “Indigenous Peoples and the United Nations,” Vol 1. Documentary film. Page 18 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017 The Law’s Legal Anthropology Victor, Letha. 2011. “Death Does Not Rot: Women of the Lord’s Resistance Army.” Unpublished MA dissertation, Department of Anthropology, McGill University. Notes: (1) … le public est en train de devenir, dans la comedie contemporaine, comme le choeur de la tragedie grecque, le principal interlocuteur auquel on s’adresse et qui vous repond,--ou ne vous repond pas … (my translation). Access brought to you by: McGill University Page 19 of 19 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: McGill University; date: 02 August 2017