Towards an Intercultural Legal Theory: The Dialogical Challenge
| Date | 01 June 2001 |
| DOI | 10.1177/a017400 |
| Published date | 01 June 2001 |
| Author | Christoph Eberhard |
| Subject Matter | Articles |
TOWARDS AN INTERCULTURAL
LEGAL THEORY:
THE DIALOGICAL CHALLENGE
CHRISTOPH EBERHARD
Scientific Collaborator of the FNRS, Belgium
Laboratoire d’Anthropologie Juridique de Paris/Facultés Universitaires Saint Louis,
Bruxelles
ABSTRACT
The aim of the article is to present to a predominantly Anglophone audience current
work in French/Quebecois legal anthropology. This work attempts to build an epis-
temology for an intercultural legal theory and is opening up a dialogical approach to
Law, which goes beyond the mere project of an intercultural legal theory. In order to
do so, the article presents the LAJP’s (Laboratory of Legal Anthropology of Paris)
move towards a non-ethnocentric science of Law followed by a presentation of
Panikkar’s and Vachon’s contributions on the ‘dialogical method’ which clarify the
epistemological foundations of a pluralist approach to Law and lead to a presentation
of Etienne Le Roy’s theory of ‘multilegalism’ [multijuridisme]. The whole approach
and its relevance are then illustrated through examples on the local, national and
global planes in the fields of youth justice, French legal cooperation, land law and
human rights and international penal law.
INTRODUCTION
MORE THAN20 years ago, Etienne Le Roy (1979), in an article
reacting from a French perspective to the newly published collec-
tive work Social Anthropology and Law dedicated to Max Gluck-
man, stressed the importance of a dialogue between Anglo-Saxon and French
perspectives on legal anthropology. He noted
From a French standpoint the major conclusion that may be drawn from the
book is the relative continuity in Anglophonic legal anthropology of the con-
ceptual and methodological categories inherited both from the functional and
cultural schools in anthropology and from Common Law legal practice. [ . . . ]
On the whole, the authors appear to underestimate the importance of the
SOCIAL & LEGAL STUDIES 0964 6639 (200106) 10:2 Copyright © 2001
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 10(2), 171–201; 017400
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epistemological aspects of a truly comparative approach. The task of trans-
forming the ‘anthropology of conflict’ into a real anthropology of law therefore
still remains to be accomplished. Conversely, the richness of empirical data and
the advantages of monographic study that these papers demonstrate should
contribute to a reevaluation of French legal anthropology, which doubtless has
suffered in the past from equally unjustified excesses in the opposite direction.
It is thus by a dialogue between our complementary perspectives that the most
fruitful work may be done in the future. (Le Roy, 1979: 69–70)1
Nowadays, as we are more and more confronted by the challenges of
approaching complex legal phenomena, and invited – to use André-Jean
Arnaud’s terms (1990) – to ‘rethink Law for a postmodern era’, Le Roy’s
invitation has lost nothing of its relevance. On the contrary, the creation of
institutions such as the European Academy of Legal Theory in Brussels2
(which has now been followed by the creation of an African Academy of Legal
Theory), the International Institute for the Sociology of Law in Oñati and the
Réseau Européen Droit et Société3 all bear witness to the need for interdisci-
plinary and intercultural approaches to law. In these institutions, seeds for new,
dialogical approaches to Law are planted. Taking the example of the European
Academy of Legal Theory in Brussels: its students and professors come from
all over the world; teaching is bilingual in English and French; subjects taught
range from theory of law and legal semiotics to legal anthropology or econ-
omic analysis of law. What emerges are ‘inter-’ approaches stemming from a
confrontation between different disciplines and legal cultures. As Roger Cot-
terrell (1996: 48) notes, these confrontations ‘not merely add to knowledge but
ultimately transform the terms in which knowledge is sought and conveyed by
disrupting the taken-for-granted foundations of the disciplines involved’.
And the challenge is not merely intellectual. As our world is getting smaller
and smaller, it appears that one of the most important tasks of our time is to
address the issue of interculturality in the field of law. This implies an opening
up to genuine intercultural dialogue that permits us to understand and to
articulate the diverse legal experiences of the people(s) of the world. Let us
sketch out here three examples on the global, national and local levels where
to engage in dialogical ‘inter-’ approaches becomes more and more urgent.
We will come back to these examples at the end of the article in order to show
how the dialogical and intercultural approach and theorization we will be
developing can help to shed new light on them.
On the global level, the foundations of the theory of human rights are
shaking as they are more and more questioned by diverse cultural traditions,
especially since the Vienna world conference on human rights in 1993.
Minorities claim their cultural rights to their own identity and to self-determi-
nation, pointing to a contradiction of human rights caught between univer-
salist and relativist tendencies. How is it possible to break the deadlock of the
universalism/relativism paradigm and to engage in a pluralistic approach to
human rights? How can human rights be turned into a symbol truly shared
by all cultures? If we further keep in mind that they are only more or less
respected in western contexts we also need to address the question of how to
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move from a theory of human rights to their praxis. Might it be that it is our
concept of human rights and of law itself that needs rethinking?
On the national levels, the illusions of the realization of the État de Droit
or Rule of Law all over the world, through a transplantation of the western
state model have been shattered. Even those who still believe that the western
model is the answer acknowledge the need to take local traditions into con-
sideration. And more radical approaches are emerging which question the
whole endeavour of an institutional transfer and reflect upon indigenous
alternatives to the État de Droit or Rule of Law. In the French context it
seems paramount to rethink completely French legal cooperation with its
former colonies (Le Roy and Kuyu, 1997). ‘Official justice’ represents only
the tip of the ‘legal’ iceberg in the African states. The judiciary in Francoph-
one Africa is not able to play its role of officially and definitively settling the
conflicts between its citizens, and fails to express the demands of law and
justice of the populations. Further the French centralized and monolithic
system is unable to cope with African pluralism. Again it seems paramount
to open up the approaches to law and justice through a radically different,
intercultural, perspective.
On the very local level, justice can no longer be considered as just if it fails
to take into account the different world visions of the citizens. In western
societies we are more and more confronted by the issue of interculturality
through the need to open up our justice to the representations of immigrant
populations in order to be able to reach solutions that can be understood and
considered as being just by both the host country and the immigrants. This
requirement seems especially important and challenging in a French context
that negates communities and is based on an individual model of integration,
where only the state and the individuals are taken into account (Rouland,
1994). It could be shown in the field of youth justice that in the French
judiciary and legal approach there seems to be a taboo of ‘alterity’ that needs
to be overcome. Here again we thus seem to face a dialogical challenge in
order to open up our theories of Law to interculturality.
A lot still needs to be done to foster interdisciplinary and intercultural legal
research. In that perspective, despite its aim to enlighten the intercultural and
dialogical challenge for legal theory, this article is intended to be an invitation
to dialogue to our Anglophone colleagues. Indeed the gap between Anglo-
phone and Francophone legal research nowadays still seems to need to be
bridged. If lack of communication can partly be understood as the conse-
quence of the difficulty inherent in the dialogue between different cultural
traditions – Anglo-Saxon approaches to Law being formed through a
common law view, the Francophone ones through a continental systemic
view, the Anglophone more ‘down to earth’ and the Francophone more
inclined towards ‘grand theories’ – there seems to be an even more obvious
problem: the language problem.
We will therefore try to present to a predominantly Anglophone audience
current work in Francophone legal anthropology which is attempting to
build an epistemology for an intercultural legal theory in continuity of the
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SOCIAL & LEGAL STUDIES 10(2)
project for a ‘non-ethnocentric science of Law’ advocated by Michel Alliot
(1983a), founder of the Laboratoire d’Anthropologie Juridique de Paris
(LAJP; Laboratory of Legal Anthropology of Paris). We will also present
research advocating an intercultural, dialogical approach to Law, which goes
beyond the project of an intercultural legal theory as we will show. Indeed
the latter is not only aimed at...
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