The Interrelation Between International Law and Legal Anthropology: An Analysis in the Context of Primitive Law

Uluslararası Hukuk ile Hukuk Antropolojisi Arasındaki İlişki: İlkel Hukuk Bağlamında Bir Değerlendirme

Sezercan BEKTAŞ, Naziye DİRİKGİL

Key works in international law often refer to the primitive societies in their attempts at studying the foundations and history of international law. However, the idea that international law has such foundations in early human history has mostly remained an assumption in the literature on international law and has not been explicitly addressed. This article aims to examine whether this assumption can be supported by evidence provided by the discipline of legal anthropology. Towards this objective, the article first discusses key approaches to the concept of ‘law’. It reveals how certain authors assume that primitive legal functions can be identified across key definitions of law. After analyzing the definitions of primitive law, the study focuses on comparing the features of primitive law and international law. The article concludes by supporting the proposition that international law reflects some elements of primitive law, but essentially it is not primitive law but a rather more complex and multi-faceted system of social life.

Anthropology, International Law, Primitive Law, International Society, Primitive Society.

Uluslararası hukuk literatüründe yer alan önemli bazı eserler, uluslararası hukukun temellerini ve tarihi yapısını inceleme girişimlerinde genellikle ilkel toplumlara atıfta bulunur. Bununla birlikte, uluslararası hukukun erken insanlık tarihinde yer alan ilkel toplum ilişkilerinden kaynaklanan bu tür temellere sahip olduğu fikrinin uluslararası hukuk literatüründe çoğunlukla bir varsayım olarak kaldığı ve açıkça ele alınmadığı gözlenmektedir. Bu makale, bu varsayımın hukuk antropolojisi disiplini tarafından sağlanan kanıtlarla desteklenip desteklenmediğini incelemeyi amaçlamaktadır. Bu amaca yönelik olarak, bu çalışma ilk olarak ‘hukuk’ kavramına ilişkin temel yaklaşımları tartıştıktan sonra bazı yazarların ilkel yasal işlevlerin hukukun temel tanımları arasında tanımlanabileceği varsayımını nasıl ileri sürdürdüklerini ortaya koymaktadır. Çalışma, ilkel hukukun genel tanımlarını analiz ettikten sonra, ilkel hukuk ile uluslararası hukukun özellikleri arasında bir karşılaştırma yapmaya odaklanmaktadır. Netice itibariyle çalışma, uluslararası hukukun ilkel hukuka ilişkin bazı unsurları yansıttığını kabul etmektedir. Ancak uluslararası hukukun, özünde ilkel hukuk niteliğinde olmadığını; daha karmaşık ve çok yönlü yapısı ile uluslararası toplumsal yaşamı düzenleyen bir hukuk sistemi olduğu önermesini destekleyerek sona ermektedir.

Antropoloji, Uluslararası Hukuk, İlkel Hukuk, Uluslararası Toplum, İlkel Toplum.

I. Introduction

The concept of ‘law’ has been the subject of many discussions among academics for years. Major developments such as the end of the Second World War, the Cold War, and economic and political developments in the aftermath of wars, are construed as the transformation of relationship between law and society. These dramatic changes have influenced each society’s understanding of law in variety of ways. Every society has a perspective and perception of law that is formed within its culture. This is the kind of transformation that legal anthropologists cannot ignore, and it provides fertile ground for an anthropology of law. The concept of ‘law’ can be identified as a set of binding rules that are enacted, supported, and enforced by a centralized authority. However, its origin can’t be kept separate from the traditional understanding of culture. Therefore, the law should be assessed more broadly. This includes various means of establishing or maintaining social order, social norms and customs, and processes of handling disputes in societies. From the viewpoint of international law, legal anthropology has performed a critical role in current debates in international law, and in particular in debates regarding international human rights law. This also leads a growing body of scholars to enlarge their scope of studies from small-scale societies to analyzing the role of international institutions and the role of legal processes across national borders. In this way, the anthropology of law, with its focus on the complexities and particularities of socio-cultural activities and interactions, can greatly contribute to the academic inquiry into the changing nature of international law.

The nature of international law is a problem that has been widely discussed in legal philosophy too. Apart from natural law scholars such as Grotius, legal positivists also discuss international law differently. These changing definitions of law give rise to discussions of the specificities of international law, and the feeds the debates whether international law is actually a law. Austin is the best-known example of this. Following him, legal positivists such as Kelsen and Hart defined international law as ‘primitive’ law because the international legal system lacks a centralized authority. This means that international law lacks juridical powers to settle disputes and agencies to enforce the law. This definition also derives from the meaning that authors give to the concept of law. The relevance of international law to primitive law enables us to think that scholars’ use of the term ‘primitive’ is not only meant to impose negativity on the meaning of international law. This relevance is the source of international law’s unique structure. This structure adapts to the functioning of modern societies by taking primitive legal feature to address new circumstances. Many works on international law often refer to primitive societies in their introduction. This aims to inform about the foundation and history of international law. It is stated that the foundations of international law can be based on eras earlier than Rome, and anthropology can further reveal this. However, the arguments of these studies are left blank at this point. The argument that primitive law is the basis of international law is not developed further than as an assumption.

This study aims to investigate the proposition that international law is a primitive law through the use of legal anthropology studies. The prerequisite for this study is to deal with the concept of ‘law’ in studies of the above-mentioned scholars and to reveal deficiencies they see in international law. This will help to clarify the assumptions of authors regarding primitive law. After analyzing such definitions, the study will reveal the features of primitive law in a general sense. Then, the study presents a comparison of primitive law and international law features. Three possible outcomes can emerge from this comparison: (1) The proposition that international law is primitive law; (2) The proposition that international law reflects some elements of primitive law, but remains essentially different; (3) The rejection of both of these propositions. In the conclusion, the outcomes of the analysis of international law will be discussed.

II. The Concept of Law and Features of Primitive Law

To understand the concept of law, one should be aware of its social nexus. This close interaction with the social nexus reveals how the law has been shaped by different ideals across social, geographical, and cultural divides. This variety of different factors across human history explains the reason for ongoing debates over the definition of law. These discussions generate various definitions of law deriving from natural, historical, sociological, and positivistic schools of thought. The first legal philosopher Cicero defines law as: “the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite. This reason, when firmly fixed and fully developed in the human mind, is Law.”¹ For legal positivists, the law has a different meaning. As Austin states: “Law is the aggregate set of rules set by a man as politically superior, or sovereign to men, as political subjects.” According to Kelsen “the law is a free-standing concept” and therefore, an analysis should focus on the law as ‘it is’ laid down, not as ‘it ought to be’. Holland defines law as “a rule of external human action enforced by the sovereign political authority”. The definition of law by Wilson is practically the same as Holland’s and states that “[l]aw is that portion of the established habit and thought of mankind which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of the government”. From the perspective of normative theory, Dworkin argues that law is an interpretative concept which “consists in the best justification of legal practices as a whole.”² This definition seems to be contrasted with positivist theorists because the normative content does not ask about what law is as a social form, but how it ‘ought to be’.