Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Lately it seems as though I’ve been reading a lot about the need for anthropologists to work hand in hand with rule of law practitioners. A recent book by Deborah Isser on ‘Customary Justice and the Rule of Law in War-Torn Societies’ also includes articles co-written by anthropologists. My curiosity to understand their contributions to the rule of law sector led me to reach out to Dr. Stephen Lubkemann,
an Assistant Professor of Anthropology and International Affairs at the George Washington University. In addition to researching and writing about justice issues in Liberia and Mozambique, he’s also done some interesting work on Diasporas in Africa. Check out the interview below!
Recently, you co-authored two articles on your work in Liberia and Mozambique in the book ‘Customary Justice and the Rule of Law in War-Torn Societies.’ Can you talk a little about the work you did in Liberia as an anthropologist?
In Liberia, we were interested in what were people’s preferred ways of resolving certain types of disputes, dealing with different types of justice issues, and also how they perceived the different institutions that were available to them. In Liberia, as in Mozambique, it is a post conflict context, where even the institutions, regardless of whether they were working or not, were largely destroyed both physically and in terms of human resources by long periods of war.
The way we approached this is we took particular types of disputes such as land disputes, gender violence, and violence that could lead to murder and we allowed people to define what they thought to be a justice issue, which we might not. So what we did in different parts of the country, using locally trained interviewers, we tried to trace individual cases through the process of their resolution and it gave us a sense of where people are taking them and what their experience was and why they would necessarily move from one forum to another. So by tracing cases we get a pretty concrete picture both of how justice is sought in a place in which both formal and many informal institutions or traditional institutions have been devastated by long-term conflict. And we also got a sense of how people are approaching these issues and what it is that they want. What kind of resolution do people regard as fair. What are they striving for? That itself can be very different than what we might think about justice here.
[To read more about their findings, you can find the report here.]
I can give you an example, if we’re to look at somebody who’s committed a violent crime in the US and if I was to ask what is an appropriate punishment, many people would say long-term incarceration. It’s really about punishing the perpetrator but it doesn’t restore the condition of the victim. Say the person is an arsonist, they burnt down a house. Our justice system doesn’t do anything to address the person whose house was burnt down, we relegate that sphere to insurance, if you have it. In punishing the perpetrator, we might not be taking into account other people that may suffer from the perpetrator being in prison. Say that perpetrator has 6 kids, we don’t assess that. That’s not seen as part of the justice system.
In the Liberian context, I’m not trying to overgeneralize, but there is a fundamental difference. It’s important to make sure the arsonist doesn’t burn down the house again but the first priority may not be punishing the arsonist again but making sure that person plays a role in rebuilding the house they burned down. In thinking about punishment for that person or what is just, they might also take into account the fact that that person is the only provider for those 6 kids. This is a hypothetical, but it’s a different notion of what constitutes a good solution. Why is this important to understand? If you have a system that comes in and you’re doing rule of law reform, the laws you’re changing or the policies you’re instituting are ones based on our notions of justice. They may not speak to what people regard as fair in that context and it’s an interesting reflective commentary on our own justice system. We live in a society, I think, that has the 1st or 2nd highest rate of incarceration and pretty horrendous rates of recidivism. Why should we inherently assume that a punitive solution is better than a restorative one?
What an Anthropological Background Brings to Rule of Law Work
I think what informs the anthropological perspective here is there is a lot of work on rule of law reform but it tends to be and is understandably done primarily by lawyers. What is the lawyerly, for lack of a better word, approach to rule of law reform? Lawyers come in and say this law is problematic and they change the law and in an ideal world you change the law and you change behavior but that’s not actually what happens and often they don’t understand how is it that the law is perceived from a local level. How do local people interact with the authorities and view the authorities that are supposedly enforcing the law? What is the actual experience people have in engaging with institutions, like courts or other authorities like the police who are enforcing the law? What are the assumptions? How is it that people themselves perceive these institutions? Lawyers or other policymakers lacking any experience in the local context, will tend to assume that things operate the same way things do in their own society. They’ll implicitly fill in the experience gap with their own experience.
Say in rural Liberia, you throw someone through a window, why is it that people won’t go and get the police or why would that be the last thing thing they do? If you’re in a situation where the police are going to extort bribes from you or the assumption is that the police are going to basically do the bidding of the most powerful, then all of a sudden it begins to make sense that people aren’t rejecting the police for the same reason they might in the US. What anthropology tries to do is look at people’s behavior which may be considerably different from our own and try to understand the rationality behind that. I think that when you start looking at why is it that people in rural Liberia are really focused on restorative justice solutions as opposed to punitive ones, the more you contextualize the behavior the more rational it seems. Hopefully that then provides a basis for different policy making which takes those realities into account.
Dr. Rachel Kleinfeld, an expert in the rule of law sector, has stated that more anthropologists are needed in the field because “the rule of law is fundamentally about power and culture…and is about far more than legal and institutional reform. Therefore, it needs to augment legal professionals with those from other disciplines who think more frequently in terms of power and culture.” How do you think your work in Liberia has assessed power and culture and in what ways do you think this contributes to better rule of law programming?
The example that I just provided about different conceptions of justice, you can talk about that in some sense as cultural. I think one of the dangers in that term is that when they invoke the term culture, they’re assuming people simply do it in an unthinking way. All of us work with categories that we’ve been socialized into but in Liberia as in here, those are constantly changing and there is a rationale behind that. For example, in the previous example, restorative justice might make a lot of sense in a context in which punitive solutions can’t be enforced. If the police are corrupt and you can buy your way out of prison, then what’s the point? It’s not an option. You have to think about what do we do without these types of institutions. It might be a good solution to try to restore the person back into the community. You also have economic systems that are more interdependent. So yes, there’s a cultural element, but I think you have to think carefully in what the culture is grounded in and not simply stop and say oh culture is the explanation.
Contemporary anthropologists, I think, are very sensitive to the fact that people act in different ways but there’s a rationality to that and you have to study that in its historical and specific social context and not simply assume that your own experience is in some way similar and is sufficient for making sense of what people do. In that sense, using culture as a conceptual tool for trying to go and understand why is it people are behaving different or why is it that they react to police in this way or why is it that people have a different preference for a different hierarchy of priorities, when they define justice.
I think power is also something we’re very sensitive to in that what values is in play at one particular time and one particular place is often reflective of a particular social configuration of power. If you have a traditional inheritance law that discriminates against women. Well, of course, that upholds certain interests over others and anthropologists have gone past earlier iterations of culture that saw everybody as necessarily thinking the same way to understand that particular ways of thinking are enmeshed in power relations. There are also other levels of power relations. If you look at post-conflict societies like Mozambique in 1992, there was a post conflict development apparatus, kind of a toolkit that was given, but rule of law was not part of that. And now rule of law is often invoked as one of the 4 or 5 pillars along with other things in almost every post conflict society. And with that has come a set of techniques and assumptions and a set of ways to deal with those topics in post conflict societies that all have unintended consequences. If you look at the study that we did in Liberia, what’s interesting is that many of the assumptions the international community brings to bear and uses resources for, and in that sense exercises power, doesn’t necessarily reflect what local people think or take into account local realities.
Let me give you an example. If you have a human rights or rule of law program that tries to go out to rural Liberia and tell people you should not have your children working in the field and they should go to school. They can’t understand why it is that of all people, the mothers are so outraged with this human rights organization. So what’s the response? Oh they must be ignorant or they don’t understand their own interests, or some variant. So the solution is mount a civic education campaign. These are people who have survived 15 years of war, they clearly understand things and they’re not ignorant. If you go in and try to look at things on their own terms, all of a sudden you realize you’re in a situation if the children don’t work with their parents in the field, they actually don’t have enough food to subsist on. This is the economic system as it works there and if they don’t have enough crops in the field, how are they going to pay the fees required of them to go to school. The mothers are reacting to a prescription that could eventually be enshrined in law, that is depriving them of the means of feeding or educating their children while demanding that they educate them. It doesn’t mean you’re not moving towards the possibility of eventually not having child labor there, but it makes the problem more difficult than one of simply ‘educating people who don’t understand the way things should be’ without addressing the fundamental underpinnings and say they do this because it’s their ‘culture’. Yes, they think about this, but those are grounded in realities and those are realities I would propose that if we were there and under similar circumstances, might not be ones we see much differently.
You’ve also done some work on Diaspora’s. Do you see a role for the Diaspora in the rule of law sector?
The role Liberians abroad are playing politically, economically, and socially in Liberia continues to be something that is at the center of my work. And to be quite honest, I initially did not see any intersection and gradually I have come to see some intersection. The more obvious one is the question what role do Diaspora’s play potentially in staffing rule of law reform efforts. For example, if I look in Liberia, you see women who have come back and are lending their expertise and trying to devise new ways in which women who are confronting rape can necessarily find recourse for that. The Diasporan women are playing a role in the Ministry of Gender and are at the forefront of that. On the other hand, you have Diasporan’s who are going back and availing themselves of the formal court system and are making land claims that undermine stability. I’ve started to look at the role of Diaspora’s who often have more resources in land disputes. Are they potentially utilizing formal courts, not to achieve justice, but in order to perpetrate injustice? And what does that mean in Liberia where land is the single thing that could reignite that conflict. That opens up broader questions about the justice system.
What are things the rule of law community should be conscious of going forward?
In Liberia, Mozambique, Angola, or in any number of different places, not just in rule of law, there is what I would call the imperial rule of the rapid assessment. They fly together a few people, who are international experts, and they grab the symbolic local representative, without necessarily having a full grasp of how local they are. Then they go do a 10 or 45 day assessment. If you really want to understand local perspectives, then invest the time and resources to do it well. Because what you’ll have, at the end of 5 years, is a large number of very expensive rapid assessments that when you disentangle them, largely reference each other and/or the same people that were met and talked to in the same hotels in the capital with these little jaunts out ‘to the field’. So what kind of knowledge does that produce? It doesn’t produce the kind of real insight into what people think. If you want a model, we spent a year, and in that year we spent considerably less than those rapid assessments. But it took time, it took a year, but the type of knowledge we were able to produce was much more in depth. If you really want to understand local perspective and context, then get out of this time frame and mindset of rapid assessments and try to put something together that actually has the potential to get at that. It may take a little more time and resources, but in the long run it’s going to be a heck of a lot more expensive and a whole hell of a lot more flawed.
The word empirical, it means what? It means experience based. The question is not whether a policy is based on evidence or has an empirical basis, that’s not the question. Every policy is based on some form of experience.The question is on whose experience? If it’s not based on an understanding of the context, the evidence, the experience of the people and what they do, it’s still going to be based on some form of experience. Whose experience? It’s going to be implicitly those of the policymakers who bring their own experience to bear, their own view of the world. The interesting thing is that view of the world may have nothing to do with the people they’re interacting with and yet they’re projecting that on them. So it’s like everything, you have to be willing to do it right.