Legal anthropology is one of those sciences that are currently in their infancy. She studies the features of legal forms of human life in various historical periods and in completely different conditions. For researchers, the development of this direction is of great importance, as it helps to get acquainted with the legal diversity of the world and look at the law through the prism of perception by representatives of various nationalities and cultures.
What is this discipline
A substantive study of the problems of legal anthropology through the management and coordination of various spheres of public life, their relationship with proven practices, gives scientists the opportunity to build a clear structure of the legal system, to reveal the internal mechanisms of development and symbiosis of social groups. In the current conditions, great interest is shown in scientific research of this type, especially in terms of studying the sources of law represented by customs and traditions.
In the 21st century, the legal sciences are under the strongest influence of social practice. With the introduction of regular phenomena in the socio-economic, political and cultural environment, new questions have arisen that require precise answers. Many scholars are of the opinion that the formation of legal anthropology as a science is the result of a misunderstanding of further steps in the development of society. In this case, the anthropology of law would be wrong to consider an independent discipline. In the structure of this theoretical institute lies the identical conceptual apparatus inherent in any of the legal branches - law, freedoms, obligations, responsibility, citizenship, property, ownership, etc.
At the same time, this scientific direction touches upon the fundamental aspects of the philosophical field of statehood and the ethnographic origins of society. Briefly about legal anthropology in Russia we can say this: it is a science that deals with issues related to the features of human evolution, the formation of society in the sphere of state and law.
The main principle of the formation of this industry can be considered the combination of relevant scientific paradigms, the development of more effective methods for the implementation of any type of legal activity (law-making, law enforcement, etc.), the introduction of new terms and the elimination of outdated conceptual structures.
Legal anthropology system
The structure of legal anthropology includes the following sections of this discipline:
- Theoretical information about the state and law. The study of epistemological, methodological aspects with the aim of subsequent application of the results in practice is implied.
- The ontology of law, which is an area of scientific knowledge about the existence of a person in state-legal relations, his rights, freedoms, privileges and duties, which play an important role in shaping the legal culture of society.
- Ethnographic anthropology as a branch of jurisprudence. The ultimate goal of this scientific field is to describe the changes that occur in human behavior and activities with the evolution of legal norms, customs adopted by traditional and archaic societies, legal relations and mutual conflicts, as well as a comparative analysis of outdated and latest systems taking into account their perception by a person.
The mechanism of anthropology
Information about the relationships of participants in any field of law arise as a result of fixing the same relations between subjects in a specific legal form in the presence of legally significant events, actions and procedures. Thus, anthropological scientific conclusions are paramount for the application of such legal sciences as sociology of law, philosophy of law, psychology of law, legal deontology.
For clarity, we give an example from the current Family Code of the Russian Federation. If you read article 17, it becomes clear that the legislator, when it was created, was able to take into account the specifics of the bodily and emotional state of a person. The content of this legal provision states that the spouse will not be able to break the marriage with his wife without her consent if one of the following conditions exists:
- pregnancy
- until the youngest child turns 1 year old.
In fact, norms of this type are completely new, unlike previous legal models. In this case, the main emphasis is placed on the uniqueness of overcoming the natural state of a person, in particular the desire to dissolve the marriage, and the inability to get rid of certain obligations. Clarification of these features made it possible to negate the rationality of legal restrictions on a specific type of human activity.
As a result of the comparison of legal norms and specific activities through the implementation of logical operations (conclusions), the content of the legal norm takes on a different meaning, meaning, function. Consequently, legal norms are interpreted in an anthropological framework, as a result of confirmation of the need to comply with humanistic principles. Thus, a new legal anthropological knowledge arises, expressed in conclusions and text signs of a legal norm.
Functions and Purpose of Legal Anthropology
Scientific research in this industry is the result of an in-depth differentiation of existing laws and theoretical aspects of law. Anthropology in this sense is a two-level discipline:
- the first stage is a logical and philosophical block of information about law and the state;
- the second stage is a practically applied complex, the development of which is necessary for the direct application of the acquired knowledge in real legal activity.
Anthropological knowledge is inherently formed in sections of the first part of jurisprudence, but in fact should be used in specific legal areas. According to the principle of scientific validity, law-making, law enforcement and law enforcement activities need to use the subject, methods, structure and functions of legal anthropology.
The purpose of the discipline is its functions. In jurisprudence in relation to legal and social practice, anthropology performs the following functions:
- diagnostic;
- prognostic
- control;
- demonstrative;
- axiological;
- the function of institutionalizing legislative principles;
- the function of humanization in dispositive jurisprudence;
- individualization function.
The subject of anthropology in legal science is considered to be separate social and legal institutions - a person, citizen, state, law, etc. Humanistic aspects and derivatives of domestic activities, in particular legal culture, the perception of power by society, the degree of readiness to observe social norms, are equally important. national, racial and ethnic characteristics of state legal influence.
Principles of Anthropological Knowledge in Law
Most studies in this area are conducted within the framework of philosophical methodology. At first glance, this may not be enough, since it is far from always possible to reveal all the nuances of legal activity. So the need arose to create a different, more accurate methodology, based on a specific legal analysis of human phenomena, the existence of a person, individual and citizen in the legal system of society.
The corresponding theoretical technology was discovered in legal anthropology. The methodology of this scientific direction is based on the principles of cognition of a person as a connecting link between biological and social:
- interpretation of man as an independent universe in conditions of biosocial coexistence;
- the meaning of life in the physical-material aspect;
- the role of spiritual and physical unity in the development of society;
- community of individual and social;
- stratification and the principle of personality typing.
All these principles serve as general grounds for indicating the diversity of areas of anthropology in the legal branches. The methodology of legal anthropology is to enable researchers to obtain a unified position in their views on the legal system through the establishment of a basic element - a person. Here he is seen as an active participant in social relations, endowed with the ability to apply, acquire and obey legal norms, as well as fulfill obligations.
The concept of "legal environment"
In legal anthropology, the production of one's own cognitive tools and terms is allowed. One of these is considered this concept. Given the functions of legal anthropology, the legal environment can be considered all human relations generated by the norms of laws and regulations of legal institutions. Moreover, in this context, it is not a trivial submission to regulatory command settings by the state, but rather the definition of systemic mechanisms for perceiving law and modes derived from it.
In a broader and more widespread sense, the legal environment is considered to be the state, the socio-legal system and individual legal relations, legislation, normative legal (by-laws) acts, real and legal facts. Some scholars include journalism and legal literature, state-political ideology, attitudes, misconceptions, symbols, and other phenomena used to express the values and antivalues of law.
Anthropological paradigms in the field of jurisprudence put a person in the center of law, along with the criteria of social and normative regulation. For a consistent study of this science, it is important to have an idea of the progressive development of basic institutions, be it their progress or regression.
History of Scientific Anthropology in Russia
The legal side of the application of knowledge about a person as an independent unit of society has not been affected for a long time either in Russian or in foreign language literature. Most researchers have been developing in the ontological direction. Particularly noteworthy are the works of such scientists as S. E. Desnitsky, A. Ya. Efimenko, A. G. Voronov, S. A. Muromtsev, M. M. Kovalevsky, B. A. Kistyakovsky, L. I. Petrazhitsky , N. I. Nadezhdin, K. D. Cavelin, L. E. Kubbel, B. Malinovsky, V. A. Zibarev, A. P. Okladnikov, A. B. Vengerov. The history of legal anthropology in Russia most often comes down to the history of sociology and the psychology of law.
In domestic traditions, customary law, as a living phenomenon, was of the greatest importance in the first half of the 19th century. So, for example, in 1822, the creation of the "Charter on the management of foreigners", all foreigners were divided into settled, nomadic and vagrant. At the same time, local orders did not apply to nomadic and vagrant “aliens”. The first steps of legal anthropology in Russia were caused by the peculiarities of the state system, the colonization of the Caucasian, Siberian regions, and the Central Asian region.
At the turn of the 19th and 20th centuries, Russian anthropology of law as an independent discipline did not exist. It developed as a separate area mainly in the theory of state and law, sociology and philosophy. Until the 50s of the last century, the history of the development of legal anthropology as a science was suspended, which cannot be said about ethnography. Since this period, discipline has declared itself in full voice. The most important place in scientific research was taken by the study of the customary law of the peoples of Russia. Despite the fact that most of the work was carried out as part of the analysis of ancient forms of community organization, implying the absence of an institution of family-marriage relations, scientists managed to make a significant contribution to the theory and methodology of normative ethnology.
Today, the concept of legal anthropology in our country contains the same meaning that is laid down in a foreign term. This scientific industry is very popular for the new generation of Russian society. Within the framework of the federal legal personality of territorial units, anthropological knowledge helps to solve the problem of recognition by national minorities of their rights as the highest social value.
Fundamental rights and freedoms of man and citizen
The analysis of the ontological aspects of anthropology, according to lawyers, is to clarify the boundaries of individual freedom, since the right to a person in a philosophical sense and his freedom are the main prerequisites for the spiritual development of the legal culture of society.
The word "freedom" can be interpreted in various ways. The issue of the realization of freedom is referred to the exclusive competence of a person. In view of this feature, legal anthropology is automatically recognized as a conflict industry, since freedom is never unlimited, and therefore all aspects associated with curbing it lead to a revision of moral values. Speaking of social freedom, they often mean the initiative and activity of members of society, which are faced with the goals of satisfying a number of needs, due to the level of development of each person individually and his subjective vision of a particular situation.
Freedom as a subject of legal anthropology is never unlimited, and therefore the rational issue is how to remove restrictions that impede the satisfaction of the interests of society or its members individually, which, in essence, is the main goal of introducing any prohibitions and deterrent actions.
Reform of Modern Anthropology
At the moment, there are several areas in which the reform of legal sciences in Russia is carried out. First of all, we are talking about the humanization of the anthropology of law. It is equally important to focus on the formalization of applied research, which implies the introduction of a formal legal approach in practical projects. The third direction is due to the borrowing of concepts and methods from the related sociology of law, legal ethics, aesthetics, psychology, etc.
Anthropological knowledge is an important tool in the system of assessing the achievements of individual legal fields, especially those that contain new ideas, methods and provisions proposed by Russian jurists. The need for such an evaluation function is due to the need to obtain information on the compliance of the processes taking place in the legal field with the standards obtained as a result of anthropological research.
In recent years, special importance has been given to the formal dogmatic method in jurisprudence. In the field of anthropology of law, it is clearly manifested in the implementation of legal norms and the interpretation of derivative concepts. Interpretations of the rights of individual authors have led to changes in the mass perception of anthropology, and, as a result, the absolutization of the relevant areas in the practice of state structures. In this sense, the task of discipline should be considered the restructuring of the consciousness of jurists.
What problems have yet to be resolved?
At the origins of the projection of the theoretical section of legal anthropology is the concept and practical implementation of the reforms of domestic jurisprudence. According to some researchers, it is worth paying attention to the fact that the state legal system is not perfect, as it has a number of gaps and contradictions, and the applied reforms are not synchronized with it in spatial and temporal periods. Moreover, the implementation of the main ideas of reform is carried out chaotically, leaving civil society virtually aloof.
The goal of legal reforms is to form a socially-legal state and society. The conclusion about the success of the adopted changes can only be made by evaluating individual members of the company. If citizens mostly feel comfortable in the legal environment of their country, then previous perturbations can be considered vain. , , .
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