Working with Law at the Ground Level
Somewhat related to my last post (just minutes ago) on developing rule of law in post-conflict situations, I reflect upon a conversation I had after a rugby match between BC Law and Yale:
I was talking with a Yale graduate student in archeology about his work in the Mediterranean and Eastern Europe. From my own experiences in East Africa, I always wondered about how people go about and research ancient history in places so unexplored such as East Africa.
He basically confirmed my suspicions and said, “You just go into towns and talk to people and ask about their grandparents.”
And so I believe that in developing reforms such as rule of law (and especially IP-related law in terms of corporate investment) you really need to go in and figure out what’s been going on per a cultural basis–and that needs to happen not by asking theorists or by positing your own assumptions as to how things should be, but rather talking to the people and seeing what their thoughts are first.
In my experience, the thickest barrier between this type of anthropological and humanistic work and the work desired of the “development set” is that you have to get “down and dirty” with the culture. Unfortunately, many of the “development set” find it difficult to sit in a mud hut sitting on seasons of cow shit and work through the culture into understanding what has happened before their Nikes have touched the ground.
But to develop legal systems it takes time to figure out what has happened before–socially, culturally, and psychologically–for modern patterns and practices to take hold.
IP, International, Low Technology | paul | 
November 13, 2006 2:27 am
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By gerry, January 14, 2007 @ 12:59 pm
You’re absolutely right. To understand a legal system — or any system, for that matter — a person can’t just look to the theorists. You can’t just look to what people have written about a subject. You have to see what people are doing, see what they’re thinking, see what they’re saying. You have to — like you said — get down and dirty with the culture.
History proves your point, Paul. Take Sally Hemmings, for example. She was a slave of Thomas Jefferson. She gave birth to a son who looked surprisingly similar to Jefferson, and so there were rumors ever since that Jefferson was the boy’s father. http://en.wikipedia.org/wiki/Sally_Hemings
Having lionized Jefferson, many historians were unwilling to accept that Jefferson had taken a slave as his mistress. Therefore, “official”, written histories denied his paternity, while “unofficial”, oral histories said he was the father. Recently, DNA testing proved the oral, unofficial history correct, and the written, official history incorrect. His slave was his mistress.
Had people relied only on the written history, they would have missed out on the real story. It may sometimes be easier — and more comfortable — to rely on the written word. But the written word only goes so far — in history, in archeology, and in intellectual property.
The best studies are informed both by the written word and by that more uncomfortable, more complicated, and more interesting world beyond the written word.
By Jeremy, February 8, 2007 @ 12:35 am
Uh oh– we meet again. I was thinking about the theory as it applies in the West African setting too. What is the law when you have so many overlapping systems– colonial, tribal, “international” for what good it does. I have been cooking up a long term plan to figure out what the law is in SL, sort of a peace-corps-meets-westlaw outfit that places clerks in SL and Liberian courts, actually writing down case law for the first time in god knows how long (well, actually, I know how long– forty years). If it works in the government systems, then to extend it to the tribal areas so that tribal law that decides more day-to-day matters can be “normalized”, and start to assume some of The Law’s more positive qualities– predictability and so forth. But, until Bill Gates or George Soros forks over 25 million dollars and a decade of extra time for me, I suppose it’s only a pipe dream.
By paul, February 9, 2007 @ 12:20 pm
Jeremy, I think that’s an awesome idea to try and collect case law in Sierra Leone (SL?) and Liberia. What do you think about doing a Wikipedia-like collection of whatever rules or laws people might know or have?
By Jeremy, March 13, 2007 @ 2:20 pm
I’d love to do something like that. I am working on an article (in my head, right now) concerning probate/intestate succession in rural WA– while the material available for thinking about this is “small” as they say, I think there could be useful comparative law references to those african states with more developed judicial systems (I would say, Ghana– still publishing law reports annually, Kenya– online!, and Uganda would be likely candidates). By referencing how those systems are coping with tribal law/national law conflicts, one might be able to predict what direction SL/L might head in.