Legal anthropology
The legal anthropology examines the content and modes of legal structures of people of different cultural traditions of tribes and peoples. Moreover, this term refers to a legal research direction, which is dedicated to the naturalen basic constants of legislation and case law.
Overview
As a pioneer font can be named here from the year 1955, the classic study of Max Gluckman's The Judicial Process among the Barotse of Northern Rhodesia (Manchester Univ. Press, Manchester ² 1967).
In the German-speaking area, the scientific is young; the Faculty of Law of the University of Vienna has played a pioneering role here. As a " red thread " running through the field of legal anthropology as well as by the professional culture of the legal concept of "culture", although this is researched different cultural rights as in the anthropology of law. It is concerned in this context with the following, becoming increasingly important worldwide issues:
- Legal Pluralism;
- Rights of Indigenous Peoples;
- Law of development cooperation;
- Intercultural Conflict Management.
In terms of content, the anthropology of law its object next to all offers of anthropology, alongside those of cultural anthropology also to those of philosophical anthropology and social anthropology. With the related legal sociology, legal anthropology shares her interest in the results of sociobiology. Overall, the anthropology of law constitutes a naturalistic expression of the general philosophy of law. In the background is a kind of cultural dualism of If ( the law ) and the His ( the natural and social sciences).
The anthropology of law has the task of picking up the elements of the human image, which provide the empirical sciences of "homo sapiens ", and to connect with the human ideal of Western legal systems. The major Western legal and constitutional ideas such as those of the sovereign entity and autonomy, civil liberties and the consequent personal responsibility, the state form of democracy and the old legal institution of contract etc based on the unprovable assumption of free in the will ( individual ) people ( free will). In contrast, the natural sciences tend to interpret the human from nature determined by others, as it is about the discussion of the neuro- philosophy. The social real level of culture opened the dual way, at least until the full proof of the other-directedness of the people and the recognition of the evidence by the Western society from the assumption ( of fiction, the axiom ) to go the free will and yet to respect the natural condition of man.
History and theorists
Already Plato explains his idea of the state and his idea of justice, after everyone has to perform his according to his ways and his talent, with his doctrine of the three parts of the soul ( the seeker, the Muthaften and the rational ). For Aristotle, man is a political animal - a social being.
Arthur Kaufmann, in his " problem history of legal philosophy " an overview of the development of legal anthropology since the early modern era. In modern natural law, Hobbes, Spinoza, Locke, Thomasius, Bentham and Rousseau had discussed quite anthropological questions. However, they still had " no Herauslösbarkeit of people from the given world order" known.
On the basis of the phenomenological method of Edmund Husserl, Max Scheler had then discussed the ( philosophical ) anthropology for the first time. Driven had Ludwig Klages, Hermuth Plessner, Erich Rothacker, Adolf Portmann, and not least by Arnold Gehlen general Anthropology in Germany. With its ethology, Konrad Lorenz have then created a new basis.
The anthropology of law was for the German legal philosophy in the 60 - to - 80 years a big issue. Large font for legal anthropology have presented from different directions Broekmann Jan M., Leopold Pospísil and Herbert Zemen and Joachim lamp. The Sociology of Law Hans Ryffel has also beaten to the bridge to political science. His 1969 published book entitled " Basic Problems of law and political philosophy. Philosophical anthropology of politics ." Individual articles have been published at this time, the legal philosopher Thomas Wuertenberger, Werner Maihofer, Peter Noll, Erik Wolf, Heinz Müller- Dietz and Reinhold Zippelius.
The philosopher Klaus Hammacher dedicated to work with a wide age law and justice from the perspective of anthropology. "The idea of justice ... is the experience of transcendence, which is a religious ... and which we find in all legal relationships as wallpaper in the conditional nature of being human. "
Individual approaches
The fundamental relationship between law and culture has already Gustav Radbruch has highlighted in his famous philosophy of law from 1932. He has the right philosophy understood as a " philosophy of culture " and increases the dualism to methodological Trialism: "So the transition is performed by a dualism to a Trialism the perspectives ( if we disregard here the fourth, the religious approach once). This Trialism makes the philosophy of law to a cultural philosophy of law. " Radbruch's view is probably after 1949 in the context of the processing of Nazism long remained hidden and finds late again input into the general legal-philosophical discussion.
Also, the constitutional lawyer Peter Haeberle now strongly suggested especially constitutional law as a part of the " Cultural Studies " and deals with the corresponding human image of the Constitution.
An anthropology of law in the strict sense presents Axel Montenbruck. His writing, he plays the title: " civilization. An anthropology of law " and thereby selects the right near term culture of civilization (of civis, the citizen Roman law ). From the perspective of a senior secular civilization " domesticate " ( verhäusliche ) man " himself." Here, " he appears as a creator of his own artificial worlds. The cave, the city, the font and now the electronic information network embody these worlds. " In addition, within the meaning of Elias ( process of civilizing ) the change from foreign religious compulsion to moral self-constraint was taking place. " Western man internalized its link back to the idea of an animated world, whether he has previously understood with or without a personales Creator Being, he must set and optionally also understand themselves as creators on a special highest human spirit. But when the price of this type of privatization same person also has the responsibility to " humanize " and to cultivate in this way at the same time his self-control. " The colorful individual aspects which determine the western ( secular ) civilization, looking Montenbruck to arrange with three great pair of terms, a subjectivist, objectivist and a holistic one. So is the subtitle: ". Government and people, violence and law, culture and nature" " State and Man", he understands both as " legal persons" and as "free agents ", which is why they are communicating and cooperating with each other could. Among the different aspects of the human image included in general: the man of culture, information man and the man of nature, the latter with, among others, as the genetic evolution carrier, also in the west of the civil man, among other things, as a political and as abstracting nature as well as forensic decision, which his world of standards the nature and mindset of the rational teaching nursing. The collective side of Western civilization coined the terms such as " community, the public and democracy ', which are partly due to " community network and the common good. "
Dirk Fabricius bridges the gap between criminology from the anthropology of law. Because the mind has been producing Plato a key element of the image of man is and the findings of evolutionary biology to give man a new image basis. As part of his two -volume work on the Criminal Justice Fabricius followed, among others, the aspects of "psychoanalysis" and considered the " evolutionary positions ", in each case on the topics " crime, law, guilt, punishment, Standard, causes".
Björn Burckhardt engaged in a series of writings with the "experience" of freedom with which the existence of free will is often justified.