ANTH330 Justice and Development
Unit Guide, Semester 1, 2012
ANTH330 Unit Guide 2012 1 ANTH330 Unit Guide 2012 2 General information
Unit convenor
Dr Jaap Timmer
Email: [email protected] Phone: 02 9850 8077 or 8121 Office: Building W6A, Level 6, Room 603 Consultation hour: Thursdays 13:30 – 14:30 (during semester), and by appointment
General inquiries
Payel Ray
Email: [email protected] Phone: 02 9850 8077 Office: Building W6A, Level 6, Room 615
Students in this unit should read this Unit Guide carefully. Although the unit convenor reserves the right to make minor alterations during the course of the semester, most essential information for this unit is in this guide. Please contact the convenor if you have any questions.
ANTH330 Unit Guide 2012 3 Academic Contents
In Kafka’s parable “Before the Law” we see, quite famously, that the story’s protagonist (known only as “the man from the country”) is forced to wait before the gate of law for his whole life. The gatekeeper, whose only purpose seems to be to bar the man’s way, keeps him sitting on a stool just before the gate. As the man is dying from old age, he has this well- known exchange with the gatekeeper:
“Everyone strives to attain the Law,” answers the man, “how does it come about, then, that in all these years no one has come seeking admittance but me?” The doorkeeper . . . bellows in his ear: “No one but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it.”
We see here a famous parable that epitomizes our relationship to the law and thereby to politics more generally. Although Kafka does not mention justice here, it seems to underlie the concept of law described here. Justice is what is promised by law; its possibility is what keeps us obedient, patient, and hopeful. In the face of the law, the man from the country spends his life (just as we in turn spend our lives) waiting for a justice that never arrives. He is rendered an obedient subject, subordinate to and reflective of an absolute, sovereign authority in whose name he continues to wait. Yet, while it never arrives, the idea of justice does not seem to leave the practice of law itself unaffected. Indeed, the law can itself be said to be a product of our expectation for justice. Although the man from the country never gets “access” to law in its perfect and fullest sense (a law infused with justice, we could call this Law, with a capital L), it permeates and regulates his life nonetheless. The gatekeeper is effectively a lawmaker to the man from the country; he does not allow him entry, and he exercises authority over him, even as the basis of his power lies in what happens beyond the gate. It is his own (purported) access to and relationship with Law that makes the gatekeeper a figure to be reckoned with. The respect and deference that the man from the country displays to him are due to this imagined connection. As is his wont, Kafka’s parable about the law describes the way that we experience and understand law and justice even as it also playfully subverts our expectations. Insofar as the parable demonstrates both the immanence of Law and its nonarrival, it suggests that the nature of waiting in this case may not be what we think it is. Kafka’s parable invites us to think about what the law (in its ordinary “small l” sense) is when it is not connected to the Law, when it is experienced only in its banal ordinariness, its day-to-day mediocrity. What if, Kafka seems to be asking us, there were nothing behind that gate? Or perhaps more accurately, what if we knew that we were never going to get through it (something the man from the country finds out only at the very end of his life, when it is too late)? Would that change our relationship to law and to our idea of justice? Would it alter the quality of our political obedience?
From: Martel, James 2011. “Waiting for Justice: Benjamin and Derrida on Sovereignty and Immanence.” Republics of Letters: A Journal for the Study of Knowledge, Politics, and the Arts 2(2): 158-172.
ANTH330 Unit Guide 2012 4 Development, law reform and access to justice are emerging and connected issues throughout the developing world. Many so-called developed countries too have in the last decade decided to remake their constitutions, partly as a condition of their entry into supra- national 'blocs' like the European Union. Underlying both these developments is a bourgeoning tradition of legal reform that aims to facilitate development and modernization on the assumption that prosperity and justice follow judicially affirmed rights. But there is surprisingly little evidence that legal reform is effective in furthering development.
In this unit we survey the theoretical literature concerning the relationship between law and development. We will see that anthropology offers valuable insights into the circumstances and conditions in which people evaluate justice and development. And a novel perspective will be offered by exploring different theories of justice and investigating their presumptions about what it is to be human.
This unit targets students interested in development, the anthropology of the state, legal anthropology, legal pluralism, legal reform, and access to justice. It brings to life the ways in which the institutions and interactions of human society shape regulations and laws. It also invites students to learn more about development efforts that promote legal reform and advocate the rule of law while recognizing the need to work with non-state justice systems.
Topics of study include
• The idea of justice • Good governance and development • Legal pluralism • Non-state and customary justice systems • The anthropology of the state • Constitutionalism • Citizenship
Unit Outcomes
1. analyse and discuss anthropological and other scholarly literature on the subjects of justice, law, development, legal anthropology, and the anthropology of the state. 2. analyse and discuss claims about justice and development made in the media and from other public sources 3. gather, arrange and analyse media sources on a particular topic or topics in a portfolio format 4. participate in discussions making use of anthropological writing and theories
ANTH330 Unit Guide 2012 5 Graduate Capabilities
1. Discipline Specific Knowledge and Skills
Our graduates will take with them the intellectual development, depth and breadth of knowledge, scholarly understanding, and specific subject content in their chosen fields to make them competent and confident in their subject or profession. They will be able to demonstrate, where relevant, professional technical competence and meet professional standards. They will be able to articulate the structure of knowledge of their discipline, be able to adapt discipline-specific knowledge to novel situations, and be able to contribute from their discipline to inter-disciplinary solutions to problems.
2. Critical, Analytical and Integrative Thinking
We want our graduates to be capable of reasoning, questioning and analysing, and to integrate and synthesise learning and knowledge from a range of sources and environments; to be able to critique constraints, assumptions and limitations; to be able to think independently and systemically in relation to scholarly activity, in the workplace, and in the world. We want them to have a level of scientific and information technology literacy.
3. Problem Solving and Research Capability
Our graduates should be capable of researching; of analysing, and interpreting and assessing data and information in various forms; of drawing connections across fields of knowledge; and they should be able to relate their knowledge to complex situations at work or in the world, in order to diagnose and solve problems. We want them to have the confidence to take the initiative in doing so, within an awareness of their own limitations.
4. Creative and Innovative
Our graduates will also be capable of creative thinking and of creating knowledge. They will be imaginative and open to experience and capable of innovation at work and in the community. We want them to be engaged in applying their critical, creative thinking.
5. Effective Communication
We want to develop in our students the ability to communicate and convey their views in forms effective with different audiences. We want our graduates to take with them the capability to read, listen, question, gather and evaluate information resources in a variety of formats, assess, write clearly, speak effectively, and to use visual communication and communication technologies as appropriate.
6. Engaged and Ethical Local and Global citizens
As local citizens our graduates will be aware of indigenous perspectives and of the nation’s historical context. They will be engaged with the challenges of contemporary society and with knowledge and ideas. We want our graduates to have respect for diversity, to be open- minded, sensitive to others and inclusive, and to be open to other cultures and perspectives:
ANTH330 Unit Guide 2012 6 they should have a level of cultural literacy. Our graduates should be aware of disadvantage and social justice, and be willing to participate to help create a wiser and better society.
7. Socially and Environmentally Active and Responsible
We want our graduates to be aware of and have respect for self and others; to be able to work with others as a leader and a team player; to have a sense of connectedness with others and country; and to have a sense of mutual obligation. Our graduates should be informed and active participants in moving society towards sustainability.
8. Capable of Professional and Personal Judgement and Initiative
We want our graduates to have emotional intelligence and sound interpersonal skills and to demonstrate discernment and common sense in their professional and personal judgement. They will exercise initiative as needed. They will be capable of risk assessment, and be able to handle ambiguity and complexity, enabling them to be adaptable in diverse and changing environments.
9. Commitment to Continuous Learning
Our graduates will have enquiring minds and a literate curiosity, which will lead them to pursue knowledge for its own sake. They will continue to pursue learning in their careers and as they participate in the world. They will be capable of reflecting on their experiences and relationships with others and the environment, learning from them, and growing - personally, professionally and socially.
ANTH330 Unit Guide 2012 7 Assessment at a Glance
Task Weight Due Linked Unit Linked Brief Description (%) Date Outcomes Graduate Capabilities Short Essay 20 27 1, 2 All Short Essay of 1,500 words March on a set topic Major Essay 40 8 May 2, 3 All 3,000-word Major Essay chosen from a range of topics and based on research Media 20 5 June 4 All compilation and discussion Portfolio of a portfolio of media representations Unit 20 Weekly 5 1, 2, 4, 5, 6, active attendance and participation 7, 8, 9 engagement with lecture and tutorial materials, discussions, and tutorial presentation
Assessment Tasks
Short Essay
Students will all complete a Short Essay on the same topic. The essay question and a list of associated readings are made available on iLearn. An assessment rubric will be included.
The purpose of this essay is to give students an opportunity to formulate ideas justice and development early in the unit. Essays will be returned before the mid-semester break in order to provide feedback that will be useful for the work on their Major Essay.
The word limit for this essay is 1,500 words +/- 10%. Essays falling outside this range will be penalized at 1% per 10 words outside the range. Please include a word count with your essay.
The short essays should be submitted by 27 March in the appropriate box on Level 1 of Building W6A, and must have a cover sheet.
Some useful comments on writing essays can be found at www.ling.mq.edu.au/support/writing_skills/intro_seminar_notes.htm, and in the Howard S. Becker, Writing for Social Scientists: How to Start and Finish Your Thesis, Book, or Article, Chicago and London: The University of Chicago Press, 1986 (available in the library).
The essay should present a clear argument and be written in good academic English. Poor style, vague or inaccurate formulations will be detrimental to the argument and will result in
ANTH330 Unit Guide 2012 8 a lower mark. Students who require help with academic writing are encouraged to consult the university’s specialist support services.
When summarising the materials try to first of all sum up the reading in a motto and then continue giving a concise overview of the content. For discussing the materials you may find the following questions helpful:
• What particular details seem especially significant to you? These may include: a statement, the setting, the title, the situation, an irony, or anything of interest to you. Try to formulate a question to answer in the discussion. ‘How…’ and ‘why…’ questions are the most obvious and work well. • How would your relate this material to other sources you have read, to materials you have studies in other courses, or to something you learned outside school? • What is your opinion of this selection? Give your reason for your opinion. • What did you learn from this literature? Be specific and concrete.
Major Essay
A set of essay questions for a Major Essay and the related Assessment Rubric is made available on iLearn. The word limit for this essay is 3,000 words +/- 10%. Essays falling outside this range will be penalised at 1% per 10 words outside the range. Please include a word count with your essay.
Essays should be submitted by 8 May in the appropriate box on Level 1 of Building W6A and must have a cover sheet.
Essays will be returned in the last tutorials on 1 June or earlier.
Media Portfolio
Over the semester students will gather media representations relating to one or more core themes of the course.
Media representations such as articles and images should be compiled in a folder and grouped into themes or categories. Exactly what you choose to focus on is up to you but you will need to justify your choices and why you have grouped them in the way you have. Please provide a 500-word justification for why you have chosen the articles you have, and why you have grouped them in the way you have.
Media portfolios should be brought to your tutorials of week 13 (5 June), where we will discuss what you have gathered in groups, before you submit them for assessment.
Attendance
ANTH330 Unit Guide 2012 9
Attendance at tutorials is compulsory. Failure to attend without medical certificate or another form of ‘unavoidable disruption’ (see Student Handbook) will lower your mark or result in failing. Each week, you must fill out a Discussion Preparation Guide and bring it to your tutorial class.
Participation in lectures and tutorials involves more than just showing up. Students are expected to be active participants in class and demonstrate that they have read and engaged with the readings at some level.
Students are expected to do a 15-minute presentation during a tutorial. The schedule and distribution of topics among the students will be done during the first tutorial. In the presentation you are expected to engage critically with the literature of the week you choose. Your presentation should be lively and stimulate debate.
Participation also means contributing to a general atmosphere of scholarly enquiry, showing respect for the opinions of others. Thus talking too much and not allowing other students adequate time to contribute could count against you.
Participation in the online forums is also a way of contributing to this section of your assessment. Although not replacing the need to come to tutorials, your involvement in the online forums will also be taken into account in the final mark.
A sample Discussion Preparation Guide (DPG) is found on iLearn. I will hand out a guide in the first week of tutorials, and after that, you should print and copy and fill one out each week. You will bring this to class and use it to inform class discussions. When you first come to class each week, you should show it to me so that I can give you credit for completing it.
ANTH330 Unit Guide 2012 10 Examination
There is no formal examination in this unit.
Assignment Submission
The Discussion Preparation Guide should be brought to the tutorial every week.
Unless otherwise noted, all assignments should be submitted in the appropriate ANTH box on level 1 of Building W6A, and must have a cover sheet.
The Media Portfolio should be brought to the lecture of Week 13 and handed in there.
Extensions and Penalties
Late submissions on any assignment will incur a penalty, unless the unit convenor has granted an extension due to certificated medical problems or to 'unavoidable disruption' (see Undergraduate Student Handbook). Failure to attend class when you are scheduled to present (either to moderate class discussion or on the last day when you will present your research results) will result in no marks for that assessment task, unless you can document absence because of medical problems or 'unavoidable disruption.'
You will receive a penalty for exceeding the word limits for the assignments. You will be deducted 1 percentage point for each 10 words you exceed the word limit. Please take the word limit seriously and try to make your argument concisely and clearly. It is unfair to fellow students if one person has much more space to argue their case while another student sticks firmly to the length guidelines. The word limit is designed to level the essay- writing field, so to speak. You should provide a word count on the cover page when you submit your work.
Returning Assignments
Student work will usually be marked and returned within three weeks of receipt. Students who hand their work in before the due date will not have it returned until at least two weeks after the due date. If you believe that your assignment has been lost, please contact the Student Enquiry Office on the Ground Floor of Building W6A. Your claim will be logged and tracked in a database of lost assignment claims and kept on file for up to five years.
ANTH330 Unit Guide 2012 11 Delivery
Delivery mode: Day
This unit will use iLearn
Lecture and tutorial times, and locations
For current updates, lecture times and classrooms please consult the MQ Timetables website: http://timetables.mq.edu.au/2012/
Lecture
• Tuesdays, 14-16, in E7B 200
Tutorials
• Tuesdays, 11-12, in W5C 211 • Tuesdays, 12-13, in W5C 311
Required and Recommended Resources
Required reading
Students are advised to purchase and read:
• Moore, Sally Falk 2004. Law and Anthropology: A Reader. Malden, MA: Wiley and Blackwell. (Available in Co-op bookshop and/or in reserve in the library.) This volume has been assembled with a magisterial knowledge of legal anthropology by one of its most respected scholars, Sally Falk Moore. It brings together some of the most influential, most challenging, most insightful texts in a field that, as we will discuss in this unit, is undergoing a welcome, exciting renaissance.
• Crowe, Jonathan 2009. Legal Theory. Pyrmont, NSW: Thomson Reuters. (Available in Co-op bookshop and/or in reserve in the library.) This small book provides concise outlines of the principles of legal theory and will be useful for students not familiar with concepts in field of legal studies.
Other required texts are in the course reader or available online, or through the journal finder of the library, with the exception of those key texts that, for copyright reasons, we cannot provide in full. The latter can be purchased at the university bookstore and are also available on special reserve at the library. Missing or additional materials will be made available on iLearn.
ANTH330 Unit Guide 2012 12 Recommended works (available in Co-op bookshop and/or on reserve in the library)
• Carothers, Thomas 2006. Promoting the Rule of Law Abroad: In Search of Knowledge. Washington, D.C.: Carnegie Endowment for International Peace.
• Das, Veena, and Deborah Poole (eds.) 1991. Anthropology in the Margins of the State. Santa Fe: School of American Research Press.
• Ferguson, James 2006. Global Shadows: Africa in the Neoliberal World Order. Durham and London: Duke University Press.
• Holston, James 2008. Insurgent Citizenship: Disjunctions of Democracy and Modernity in Brazil. Princeton, NJ: Princeton University Press.
• Merry, Sally Engle 2000. Colonizing Hawai’i: The Cultural Power of Law. Princeton: Princeton University Press.
• Merry, Sally Engle, and Donald Brenneis (eds.) 2004. Law and Empire in the Pacific: Hawai’i and Fiji. Santa Fe: School of American Research Press.
• Scott, James 2009. The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia. New Haven and London: Yale University Press.
• Sen, Amartya 2009. The Idea of Justice. Cambridge, MA: Harvard University Press.
• Starr, June, and Mark Goodale, eds. 2002. Practicing Ethnography in Law: New Dialogues, Enduring Methods. New York: Palgrave Macmillan.
• Tamanaha, Brian Z. 2001. A General Jurisprudence of Law and Society. Oxford: Oxford University Press. And read the review essay of this book by William Twining 2003, A Post-Westphalian Conception of Law. Law & Society Review 37(1): 199-257.
Journals
When doing research for your essays, it is always good to search journals on the topic you are interested in. The following are journals that likely feature articles dealing with the intersection of anthropology and law:
• Law and Social Inquiry features both empirical and theoretical studies of law that make original contributions to the understanding of socio-legal processes. http://www.wiley.com/bw/journal.asp?ref=0897-6546&site=1
• Law & Society Review is regarded by socio-legal scholars worldwide as a leading journal in the field. It is for work bearing on the relationship between society and the
ANTH330 Unit Guide 2012 13 legal process. http://www.wiley.com/bw/journal.asp?ref=0023-9216
• Journal of Legal Anthropology publishes ethnographic writing and related work on a wide range of issues exploring the significance and presence of legal phenomena in human life worlds. http://www.anthropologies-in- translation.org/index.php?option=com_content&view=article&id=166&Itemid=110
• Journal of Legal Pluralism is devoted to scholarly writing, documentation, information on current developments, and related communications concerning all aspects of legal pluralism and unofficial law anywhere in the world and at any time. http://www.jlp.bham.ac.uk/
• Law Text Culture is a trans-continental journal that publishes critical thinking and creative writing across a range of genres - from artwork and fiction to the traditional scholarly essay. http://www.uow.edu.au/law/LIRC/LTC/index.html
Policies and Procedures
Macquarie University has a range of policies that relate to learning and teaching, including
• Assessment • Unit guide • Special consideration
They can be found at Policy Central, http://www.mq.edu.au/policy
Macquarie's procedures relating to plagiarism can be found at http://www.student.mq.edu.au/plagiarism
Feedback and Unit Evaluation
In this unit you will receive a range of verbal and written feedback on your assessment tasks and work in class or online.
To monitor how successful we are in providing quality teaching and learning, the Faculty of Arts also seeks feedback from students. One of the key formal ways students have to provide feedback is through unit and teacher evaluation surveys. The feedback is anonymous and provides the Faculty with evidence of aspects that students are satisfied with and areas for improvement. The Faculty of Arts also holds two student feedback meetings per year. Please watch for advertisements for these meetings and take the opportunity to share your suggestions for improvement.
ANTH330 Unit Guide 2012 14 Unit Schedule
Date Lecture Tutorial Assessment Week 1 28 February Koriam’s Law (film) No tutorial 2 6 March Law and Anthropology The Early Classics of Legal Ethnography 3 13 March Legal Pluralism Law and Anthropology 4 20 March Customary and Legal Pluralism Environmental Justice 5 27 March Justice and Development Customary and Short Essay due 27 Environmental March Justice 6 3 April Nation-building and Justice and Intervention Development Semester Break 7 24 April Access to Justice Nation-building and Intervention 8 1 May Citizenship Access to Justice 9 8 May State-Society Interactions Citizenship Major Essay due 7 May 10 15 May Sovereign Bodies State-Society Interactions 11 22 May Religion and the State Sovereign Bodies 12 29 May The Idea of Justice Religion and the State 13 5 June Review and consolidation Media portfolios Media portfolio due 4 June
ANTH330 Unit Guide 2012 15 Tutorial Topics
Given that the tutorials are run at the same days as the lecture, tutorial topics have been set where possible to follow the corresponding lecture topic by one week.
Outline of Lectures
This part includes a short description of each class followed by a listing of the most essential readings for each week. Some of the readings are included in the unit reader while others are available online or through the journal finder of the library, with the exception of those key texts that, for copyright reasons, we cannot provide in full. The latter can be purchased at the university bookstore and are also available on special reserve at the library.
Week 1: Koriam’s Law
Film: Koriam’s Law, directed by Gary Kildea and Andrea Simon, Australia, 2006, 110 min.
This award-winning documentary focuses on the rites and understandings of a popular religious and social movement in Papua New Guinea. The Pomio Kivung movement was founded in 1964 by the late Michael Koriam Urekit in East New Britain province. The movement’s leaders are keen to show that it has nothing to do with ‘waiting for cargo’. Over the years, Kivung thinkers have scrutinized the revelations of missionaries for hidden codes and they have examined forms of colonial governance for clues to the source of white man’s formidable power. Koriam’s central question was how to find a way back from the ancient problems that put his people in a state of subjugation. The Kivung movement incorporated and localized parts of Christianity whilst seeking an ever-closer embrace of the beloved dead - inducing and imploring ancestral spirits to help them overcome the deprivations and humiliations of racial inequality. In the meantime, the twin organs of white power, Mission and Government, needed to be carefully kept on side. In the face of official condemnation, the Kivung’s political and religious philosophy seeks to uncover that secret path to a perfect existence which whites seemed to have found but, ever since, have selfishly monopolized.
The film allows us to sketch the content of the course and show how the subjects of all classes come together and relate to one dominant theme, that is, the need to look into the circumstances and conditions in which people evaluate justice and development.
Required reading
• Part II (The Early Classics of Legal Ethnography) of Sally Falk Moore (ed.), 2005. Law and Anthropology: A Reader, pp. 65-100. Malden, MA: Blackwell Publishing.
ANTH330 Unit Guide 2012 16 Week 2 – Law and Anthropology
What does an anthropological approach to law entail? What perspective would it develop on enforceable norms? Obviously anthropologists look further than what Western governments and courts define as law. Anthropology is also concerned with local, traditional or customary normative systems begin that encompass law-like activities and processes of establishing order. This week we will look into some early classics of legal anthropology and ponder what the postcolonial, globalizing and transnational world requires us to understand when it comes to questions like: who makes the rules, who can undo them, how are they normalised and enforced, and how are they morally justified?
Required reading
• Clifford, James 1988. Identity in Mashpee. In The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art, pp. 277-346. (in reader)
• Part II (The Early Classics of Legal Ethnography) of Sally Falk Moore (ed.), 2005. Law and Anthropology: A Reader, pp. 65-100. Malden, MA: Blackwell Publishing.
Week 3 – Legal Pluralism
Guest lecture by Dr Michael Goddard.
Modern law is the law of the sovereign – it attributes to the state those transcendent capabilities that had formerly been invested in kings, who themselves were understood as deriving authority from God. As such, it must be all-encompassing; it cannot abide with the possibility that other, equally authoritative legal orders might co-exist alongside it. That modern law is necessarily understood as transcendent and hence, all-encompassing, presents the most serious obstacle to the recognition of other, most notably indigenous, legal orders in the west (Buchanan 2010: 308).
All postcolonial states inherited this understanding of the law from the former colonizers and at the same time these new states have to deal with new forms of legal pluralism from a number of traditions including the colonial experiment. Instead of assuming that the state is the supreme holder of power and as the body that deploys that power exclusively to dominate and rule, the discussion in this week seeks to offer a lens to understand how power is exercised in society through varied social relations, institutions, and bodies that do not automatically fit under the rubric of ‘the state.’
Required reading
• Buchanan, Ruth M. 2010. ‘‘Passing through the Mirror’’: Dead Man, Legal Pluralism and the De-territorialization of the West. Law, Culture and the Humanities 7(2): 289-309. (e-Reserve or Journal Finder)
ANTH330 Unit Guide 2012 17
• Tamanaha, Brian Z. 1993. The Folly of the “Social Scientific” Concept of Legal Pluralism. Journal of Law and Society 20: 192-217. (e-Reserve or Journal Finder)
• Von Benda-Beckmann, Franz 2006. The Multiple Edges of Law: Dealing with Legal Pluralism in Development Practice. In The World Bank Legal Review: Law, Equity, and Development Vol 2, C. M. Sage and M. Woolcock (eds.), pp.51-86. Martinus Nijhoff Publishers. (in reader)
Further reading
• Evans, Daniel, Michael Goddard, and Don Patterson 2010. The Hybrid Courts of Melanesia: A Comparative Analysis of Village Courts of Papua New Guinea, Island Courts of Vanuata and Local Courts of Solomon Islands. Justice & Development Working Paper Series 13/2011. Washington, D.C.: Justice Reform Practice Group, The Legal Vice Presidency, The World Bank. Available online at http://go.worldbank.org/CRKZJ6DO30
• Merry, Sally Engle 1988. Legal Pluralism. Law & Society Review 22(5): 869-896.
Week 4 – Customary and Environmental Justice
Customary justice systems are increasingly recognized by international development organizations as critical in the provision of access to justice in particular in the context of legal reform and development in general. However, donor organizations struggle to understand customary justice systems other than incompatible with the modern nation- state and therefore as something to be discouraged or ignored rather than strengthened or engaged with. But what is it that they should understand? This week we will try to answer that broad question by exploring justice in relation to ownership, land tenure, and the (natural) environment.
Required reading
• Ballard, Chris 1997. ‘It’s the Land Stupid! The Moral Economy of Resource Ownership in Papua New Guinea.’ In The Governance of Common Property in the Pacific Region, P. Larmour (ed.), pp. 47-65. Canberra: National Centre for Development Studies. (in reader)
• Banks, Glenn 2002. Mining and the Environment in Melanesia: Contemporary Debates Revisited. The Contemporary Pacific 14(1): 39-67. (e-Reserve or Journal Finder)
• Holston, James 1991. The Misrule of Law: Land and Usurpation in Brazil. Comparative Studies in Society and History 33(4): 695-725. (e-Reserve or Journal
ANTH330 Unit Guide 2012 18 Finder)
Further reading
• Akin, David 1999. Compensation and the Melanesian State: Why the Kwaio Keep Claiming. The Contemporary Pacific 11(1): 35–67. (e-Reserve or Journal Finder)
• Holston, James 2008. Insurgent Citizenship: Disjunctions of Democracy and Modernity in Brazil. Princeton, NJ: Princeton University Press.
Week 5 – Justice and Development
It is often argued that the international aid field of law and development focuses too much on law, lawyers and state institutions, and too little on development, the poor and civil society. Nowadays even institutions like the World Bank doubt whether "rule of law orthodoxy," the dominant paradigm pursued by many international agencies, should be the central means for integrating law and development. This week we will look at alternatives, including legal empowerment (the use of legal services and related development activities to increase disadvantaged populations' control over their lives) and working with indigenous governance. And what does it mean to work with local elites?
Required reading
• Carothers, Thomas 2003. Promoting the Rule of Law Abroad: The Problem of Knowledge. Carnegie Endowment Working Papers, Number 34. Washington, D.C.: Carnegie Endowment for International Peace. (in reader)
• Golub, Stephen 2003. Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative. Rule of Law Series, Democracy and Rule of Law Project 2003/41. Washington D.C.: Carnegie Endowment of International Peace. (in reader)
• Lawson, Stephanie 2010. Postcolonialism, Neo-colonialism and the “Pacific Way”: A Critique of (un)critical Approaches. State, Society, and Governance in Melanesia Project Discussion Paper 2010/4. Canberra: State, Society, and Governance in Melanesia Project, The Australian National University. (available at http://ips.cap.anu.edu.au/ssgm/papers/discussion_papers/2010_04_lawson.pdf)
• White, Geoffrey 2006. Indigenous Governance in Melanesia. State, Society and Governance Research Paper 2006/6. Canberra: State, Society, and Governance in Melanesia Project, The Australian National University. (available at http://ips.cap.anu.edu.au/ssgm/papers/research/SSGM_IndigenousCustomaryGov ernance_ResearchPaper_06.pdf)
ANTH330 Unit Guide 2012 19 Further reading
• Carothers, Thomas 2006. Promoting the Rule of Law Abroad: In Search of Knowledge. Washington, D.C.: Carnegie Endowment for International Peace (http://carnegieendowment.org/)
Week 6 – Nation-Building and Intervention
Film: Intervention 2 years on, directed by Steve McGregor, 2010, Australia. 22 min.
This impassioned documentary was rejected for broadcast by ABC TV as “biased” and lacking “balance”. John Howard introduced the Intervention legislation in July 2007. Two years later, an official United Nations rapporteur on human rights, Professor James Anaya, described the policy as an “extraordinary measure which infringes on the rights and determinations of Indigenous People”. In this film, two Aboriginal spokespersons – Barbara Shaw from the Mount Nancy Town Camp, Alice Springs, and Richard Downs from the Alyawarr Nation – give their views on the effect of the legislation over its first two years of operation. Their stories are accompanied by archival footage and news broadcasts of key moments in the history of the Intervention.
On the basis of this documentary, we will examine how and why various societies and developing countries have been labeled ‘at-risk’, ‘weak’, ‘fragile’, ‘dysfunctional’, ‘broken- backed’, collapsed, ‘failing’ and ‘failed’. As Nelson (2006) points out:
While some of these terms have been around for over forty years, and attempts have been made to define them, they remain imprecise and have little explanatory value. They have particular disadvantages when applied in the southwest Pacific. In so far as they have become part of social science jargon, they have generally originated elsewhere and are of doubtful descriptive value when applied to the diversity within all Melanesian states. There is simply no uniform ‘weakness’ or ‘risk’ or ‘failure’ across government departments, levels of government or regions. Even where quantitative measures have been introduced into the definitions, they remain arbitrary. The blanket descriptions offend island governments, especially those struggling to carry out reforms declared essential by outside agencies. The most significant failure of these labels is that while they attempt to describe a stage reached in a process, they say nothing about what that process is, what causes it and what forces might accelerate it, slow it down or reverse it.
What then is the purpose of these terms when used in Australian interventions in the Pacific and even in its own country? In other words, we will examine some of the features of Australia’s post-colonial/neo-colonial power, and how its relation to Pacific Island and indigenous authority structures is so central to the forms this power takes.
Required reading
ANTH330 Unit Guide 2012 20
• Dinnen, Sinclair 2008. Beyond state-centrism: external solutions and the governance of security in Melanesia. In Intervention and state-building in the Pacific: The legitimacy of ‘cooperative intervention’, pp. 102-118. Manchester and New York: Manchester University Press. (in reader)
• Nelson, Hank 2006. Governments, States and Labels. State, Society, and Governance in Melanesia Project Discussion Paper 2006/1. Canberra: State, Society, and Governance in Melanesia Project, The Australian National University. (available at http://ips.cap.anu.edu.au/ssgm/papers/discussion_papers/06_01_dp_nelson.pdf)
Further reading
• ASPI, 2011. Our Near Abroad: Australia and Pacific Islands regionalism. Available at http://www.aspi.org.au/publications/publication_details.aspx?ContentID=319. Also watch Anthony Bergin discussing this paper on http://www.aspi.org.au/publications/publication_details.aspx?ContentID=319
Week 7 – Access to Justice
Guest lecture by Matt Zurstrassen
A recent World Bank report entitled Forging the Middle Ground: Engaging Non-State Justice in Indonesia (World Bank Indonesia Justice for the Poor 2008) observes that, in rural communities in Indonesia, nonstate justice, as a domain separate from the state, is the chief mode of dispute resolution and, hence, should receive policy attention alongside attempts at reforming the formal justice sector.
The solution the report advocates is to shape a “middle ground” between the current practices of nonstate justice and the state justice system.
This approach seeks to marry the social accessibility, authority and legitimacy of informal processes with accountability to the community and the state. This approach recognizes the legal pluralist reality of Indonesia and that a blanket for non- state justice would neither be preferable nor feasible. This middle ground, therefore, accommodates different socio-cultural contexts, customs, habits but at the same time introduces common principles to protect the marginalized. (World Bank Indonesia Justice for the Poor 2008: 68)
This week we will explore access to justice in development work and how it recognizes the value of working with the customs, norms, and mores of a people with varied backgrounds and concerns. How can we at the same time want the state to oversee nonstate justice and hold it accountable to a set of minimum standards? Do rule-of-law promoters have the kind
ANTH330 Unit Guide 2012 21 of knowledge about how the rule of law develops in societies and how such development can be stimulated beyond efforts to copy institutional forms?
Required reading
• Cappelletti, Mauro 1992. Access To Justice as a Theoretical Approach to Law and a Practical Programme for Reform. South African Law Journal 22: 22-39. (e-Reserve or Journal Finder)
• World Bank Indonesia Justice for the Poor 2008. Forging the Middle Ground: Engaging Non-State Justice in Indonesia. Jakarta: World Bank Indonesia, Social Development Unit, Justice for the Poor Program. (available at http://go.worldbank.org/LLLJVNCHC0)
Further reading
• Sage, Caroline, Nicholas Menzies, and Michael Woolcock 2009. Taking the Rules of the Game Seriously: Mainstreaming Justice in Development, The World Bank’s Justice for the Poor Program. Justice & Development Working Paper Series 7/2009. Washington, D.C.: Justice Reform Practice Group, The Legal Vice Presidency, The World Bank. (available at http://go.worldbank.org/0ZLUNJ7RU0)
Week 8 – Citizenship
So far the focus has been on states and nation perceived as bounded and more or less isolated units. The evolution of transnational migration creates great challenges to the set ideas on citizenship. Migrants aspire to be citizens and this aspiration confronts the well- established rules on states´ sovereignty over citizenship. This week will look into the denationalization of citizenship and explore a set of ideas on citizenship as the exclusive domestic jurisdiction and its relation with globalization and transnational migration.
Required reading
• Comaroff, Jean, and John L. Comaroff 2005. Naturing the State: Aliens, Apocalypse, and the Postcolonial State. In Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World, Thomas Blom Hansen and Finn Stepputat (eds.), pp. 120-147. Princeton and Oxford: Princeton University Press. (in reader)
• Hindess, Barry 2005. Citizenship and Empire. In Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World, Thomas Blom Hansen and Finn Stepputat (eds.), pp. 241-256. Princeton and Oxford: Princeton University Press. (in reader)
• Tilly, Charles 2005. Why Worry About Citizenship? In Identities, Boundaries, and Social Ties, pp. 187-198. Boulder and London: Paradigm Publishers. (in reader)
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Further reading
• Das, Veena and Deborah Poole (eds.) 1991. Anthropology in the Margins of the State. Santa Fe: School of American Research Press. Particularly interesting is Veena Das’s chapter entitled ‘The Signature of the State: The Paradox of Illegibility’ (pp. 225-252). (in reader)
• Holston, James 2008. Insurgent Citizenship: Disjunctions of Democracy and Modernity in Brazil. Princeton, NJ: Princeton University Press.
• Kapferer, Bruce 1998. Legends of People, Myths of State: Violence, Intolerance, and Political Culture in Sri Lanka and Australia. Washington and London: Smithsonian Institution Press.
Week 9 – State-Society Interactions
Over the past two decades, a wide range of works have endeavoured to illuminate the workings of state power, to deconstruct and articulate its particular characteristics and to make the state’s apparatuses as a key instrument for development a focus of ethnographic investigation. Such works build on a long history of anthropological engagement with the state – one that has approached its object through forms of ritual performance and spectacle but also through efforts to historicize the formation (and failures) of postcolonial states. Amidst this broader interest a number of scholars have suggested a dispersal of the state and a focus on its margins, on the performances and appropriations of ‘stateness’ that can be seen both in efforts to secure new urban settlement as well as to underwrite the authority of the police (Das and Poole 2005; Holston 2008; Hansen and Stepputat 2001). This perspective suggests a radical de-essentialisation of state power that often figures the state's 'magic' as a phantasmic effect of its historically specific technologies, practices, and institutions.
This week we will explore the anthropological insight that the state and the nonstate semantically overlap when the state’s boundaries are taken to be culturally meaningful (Hall 1986). More specifically, we will explore the anthropology of the state (Das and Poole 2004; Hansen and Stepputat 2001; Sharma and Gupta 2006; Taussig 1997) as contributing to the following challenging agenda proposed by Ferguson and Gupta:
What is necessary … is not simply more or better study of “state-society interactions”—to put matters in this way would be to assume the very opposition that calls for interrogation. Rather, the need is for an ethnography of encompassment, an approach that would take as its central problem the understanding of processes through which governmentality (by state and nonstate actors) is both legitimated and undermined by reference to claims of superior spatial reach and vertical height (2002: 995)
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Required readings
• Demian, Melissa 2003. Custom in the Courtroom, Law in the Village: Legal Transformations in Papua New Guinea. Journal of the Royal Anthropological Institute 9: 97-115. (e-Reserve or Journal Finder)
• Sharma, Aradhana and Akhil Gupta 2006. Introduction. In The Anthropology of the State: A Reader, Aradhana Gupta and Akhil Gupta, eds., pp. 1-41. Malden, MA: Blackwell. (in reader)
• Timmer, Jaap 2010. Being Seen Like the State: Emulations of Legal Culture in Customary Labor and Tenure Arrangements in East Kalimantan, Indonesia. American Ethnologist 37(4): 703-712. (e-Reserve or Journal Finder)
Further reading
• Clark, Jeffrey 1997. Imagining the State, or Tribalism and the Arts of Memory in the Highlands of Papua New Guinea. In Narratives of Nation in the South Pacific, Ton Otto and Nicholas Thomas, eds., pp. 65-90. Amsterdam: Harwood Academic Publishers. (in reader)
• Hansen, Thomas Blom, and Finn Stepputat 2001. States of Imagination: Ethnographic Explorations of the Postcolonial State. Durham, NC: Duke University Press.
• Scott, James 2009. The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia. New Haven and London: Yale University Press.
Week 10 – Sovereign Bodies
Sovereignty has returned as a central concern in anthropology. Hansen and Stepputat (2006) see that this reinvention seeks to explore de facto sovereignty, i.e., the ability to kill, punish, and discipline with impunity. The central proposition is a call to abandon sovereignty as an ontological ground of power and order in favor of a view of sovereignty as a tentative and always emergent form of authority grounded in violence. After a brief account of why the classical work on kingship failed to provide an adequate matrix for understanding the political imaginations of a world after colonialism, Hansen and Stepputat (ibid.) develop three theses on sovereignty. They argue that although effective legal sovereignty is always an unattainable ideal, it is particularly tenuous in many postcolonial societies where sovereign power historically was distributed among many forms of local authority. In this week we will also look into vigilante groups, strongmen, insurgents, and illegal networks.
ANTH330 Unit Guide 2012 24 Required reading
• Hansen, Thomas Blom, and Finn Stepputat 2006. Sovereignty Revisited. Annual Review of Anthropology 35: 295-315. (e-Reserve or Journal Finder)
• Chatterjee, Partha 2005. Sovereign Violence and the Domain of the Political. In Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World, Thomas Blom Hansen and Finn Stepputat, eds., pp. 82-100. Princeton and Oxford: Princeton University Press. (in reader)
• Hansen, Thomas Blom 2005. Sovereigns beyond the State: on Legality and Authority in Urban India. In Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World, Thomas Blom Hansen and Finn Stepputat, eds., pp. 169-191. Princeton and Oxford: Princeton University Press. (in reader)
Further reading
• Martel, James 2011. “Waiting for Justice: Benjamin and Derrida on Sovereignty and Immanence.” Republics of Letters: A Journal for the Study of Knowledge, Politics, and the Arts 2(2): 158-172. (e-Reserve or Journal Finder)
Week 11 – Religion and the State
This week we will further investigate conjunctions of state and society by looking at the ways in which state and religion engage in similar ways with modernity in Brazil and Solomon Islands. To bring out this conjunction, we will focus on master plans of the central state and ethno-theologies of ethno-religious movements. The centralized state and marginalized religions often engage in similar kinds of ethical languages and they both tend to present its use as a moral necessity. The similarities between the performances of the state and religious movements are overlooked in the scholarly fields of both state failure and religious change.
Required reading
• Holston, James 2000. Alternative modernities: statecraft and religious imagination in the Valley of the Dawn. American Ethnologist 26(3): 605-631. (e-Reserve or Journal Finder)
• Timmer, Jaap 2008. Kastom and Theocracy: A Reflection on Governance from North Malaita, Solomon Islands. In Sinclair Dinnen and Stewart Firth (eds), Politics and State Building in Solomon Islands, pp. 194-212. Canberra: Asia Pacific Press. (available at http://epress.anu.edu.au/titles/solomon_islands_citation/pdf- download)
ANTH330 Unit Guide 2012 25 Further reading
• Geertz, Clifford 1980. Negara: The Theatre State in Nineteenth Century Bali. Princeton, NJ: Princeton University Press.
• Taussig, Michael 1997. The Magic of the State. New York: Routledge. The atmospheric prose in this book is meant to capture the aura of fantasy and superstition surrounding the state: the way, for example, abstract concepts like ''the economy,'' ''the market,'' and ''the government'' are imbued with human qualities and take on a magical life force of their own.
Week 12 – The Idea of Justice
Guest lecture by Dr Paul Mason
Justice is an immensely important idea that has moved people in the past and will continue to move people in the future. And reasoning and critical scrutiny can indeed offer much to extend the reach and to sharpen the content of this momentous concept. And yet it would be a mistake to expect that every decisional problem for which the idea of justice might conceivably be relevant would, in fact, be resolved through reasoned scrutiny. And it would also be a mistake to assume … that since not all disputes can be resolved through critical scrutiny, we do not have secure enough grounds to use the idea of justice in those cases in which reasoned scrutiny yields a conclusive justice. We go as far as we reasonably can. (Sen 2009: 401)
Kafka teaches us … that the presence of mythology does not prevent us from forming alliances, connections, relationships with one another. It does, however, override and usurp these relationships, making them seem as if they can exist only through more idolatry. When such myths are disrupted, we find that our own political practices do not disappear but become increasingly legible to us. Imagine the moment just before his death when the man from the country finally realized that he would never have entry to the law, that the justice that he expected was not coming. Such a moment exposes not only the mythologies that organize life but also the life that was actually lived. What, Benjamin and Kafka seem to ask us, would we do if we knew such things not only at the moment of death (when it is too late) but all along? What kind of life, what kind of politics, would we pursue in the face of such a realization? (Martel 2011: 171)
Required reading
• Martel, James 2011. “Waiting for Justice: Benjamin and Derrida on Sovereignty and Immanence.” Republics of Letters: A Journal for the Study of Knowledge, Politics, and the Arts 2(2): 158-172. (e-Reserve or Journal Finder)
ANTH330 Unit Guide 2012 26 • Sen, Amartya 2009. Justice and the World. In The Idea of Justice, pp. 388-415. Cambridge, MA: Harvard University Press. (in reader)
Further reading
• Sen, Amartya 2009. Position, Relevance and Illusion. In The Idea of Justice, pp. 155- 173. Cambridge, MA: Harvard University Press. (in reader)
Week 13 – Bamako and Evaluation
Film: Bamako, directed by Abderrachmane Sissako, 111 min.
This last week we will watch bits of this film which show an extraordinary trial taking place in a residential courtyard in Bamako, the capital city of Mali. African citizens have taken proceedings against such international financial institutions as the World Bank and the International Monetary Fund (IMF), whom civil society blames for perpetuating Africa's debt crisis, at the heart of so many of the continent's woes. As numerous trial witnesses (schoolteachers, farmers, writers, etc.) air bracing indictments against the global economic machinery that haunts them, life in the courtyard presses forward. Melé, a lounge singer, and her unemployed husband Chaka are on the verge of breaking up; a security guard's gun goes missing; a young man lies ill; a wedding procession passes through; and women keep everything rolling - dyeing fabric, minding children, spinning cotton, and speaking their minds.
During the discussion we will relate the themes in the film back to the discussion of the preceding week and, by way of an evaluation, the whole course. During the tutorials of this week, students will present their media portfolio before they are submitted for assessment.
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