In developed countries, indigenous peoples are often portrayed as (noble) savages or as remnants from an other age. However, they are neither. While being different from the majority population, and all too often having been (and often continuing to be) oppressed, in recent years a change has become visible in the attitude towards indigenous peoples. Indigenous peoples are first of all that, peoples - with their own cultures and histories. It is because of their particular lifestyle and relationship with an other culture, that they are seen as different. However, more and more indigenous peoples are taken more seriously in their own right.
In this essay the research of indigenous legal norms by outsiders is investigated from the perspective of indigenous rights. Based on a premise of respect for indigenous norms, issues such as benefit sharing and access to research results are discussed, as well as research ethics.
Table of Content
1. Introduction
a) Perceptions of indigenous peoples in majority societies
b) Indigenous Law as an Area of Research
c) Legal Anthropology or Comparative Law?
2. Access and Benefit Sharing
a) General remarks
b) Character of the duty to ensure ABS
3. Beyond ABS: A duty to publish?
a) General remarks
b) A role for indigenous law in national law
c) Differences between legal and anthropological research regarding the publication of all data
d) Rule of law and the right to a fair trial
4. Conclusions: Consequences for research funding
Research Objectives & Topics
The paper examines the intersection of research methodology and indigenous rights, arguing that the ethical and legal obligations to indigenous communities necessitate specific approaches to the accessibility and publication of research findings, particularly concerning indigenous customary law.
- Methodological paradigms: Legal anthropology vs. Comparative law vs. Practical legal research.
- The application of Access and Benefit Sharing (ABS) principles to indigenous legal knowledge.
- The nexus between the rule of law, the right to a fair trial, and accessible legal information.
- Institutional responsibilities in funding research and ensuring open access for indigenous communities.
Excerpt from the Book
Legal Anthropology or Comparative Law?
Indigenous law research can be conducted from two perspectives which are fundamentally different in nature but, due to their shared research objects will necessarily have to be seen as closely related to each other. Research into indigenous legal rules can be in the form of legal anthropology. In this case, law is merely one expression of the social structure of an indigenous group, not that much different from religious practices or traditions or customs. Indeed, there might be significant overlaps (although not every practice is religious in nature, not every custom amounts to the observance of legal rules) which make it easy for anthropologists to treat law as an expression also of indigenous identity, not dissimilar from indigenous culture. From this perspective, the indigenous society as a whole is likely to be somewhat present in the mind of the researcher and he or she will have knowledge about other aspects of the indigenous people in question, beyond their laws.
The alternative is to understand indigenous law research as a form of comparative law. While other information about the people who are governed by legal rules, their lives, economies, politics etc. might be of some interest for the researcher, such additional information is not necessarily decisive. Rather than asking how laws fit into the description of the people as such, the comparative lawyer’s interest goes to problems he or she might already have encountered in his or her own legal system. The comparative law researcher is a lawyer, hence somebody who is familiar with legal tools in general. The anthropologist’s view is wider and while an anthropologist might have in-depth knowledge e.g. about indigenous art, he or she does not have to be an artist - nor a lawyer, for that matter. The professional connection is likely to bring the comparative law researcher closer to the research subject while the anthropologist’s wider view is made possible by standing a step behind.
Summary of Chapters
1. Introduction: This chapter contextualizes the evolving perception of indigenous peoples and introduces indigenous law as a critical, distinct field of academic research.
2. Access and Benefit Sharing: This section explores the application of ABS concepts to traditional legal knowledge, asserting that research must benefit the subject communities.
3. Beyond ABS: A duty to publish?: This chapter analyzes the ethical and legal imperatives for making research findings on indigenous law publicly accessible to ensure equality of arms in legal contexts.
4. Conclusions: Consequences for research funding: The final chapter summarizes the necessity for publicly funded, open-access research to protect the rights of indigenous peoples and integrate their legal systems into national frameworks.
Keywords
Indigenous Law, Legal Anthropology, Comparative Law, Access and Benefit Sharing, Open Access, Human Rights, Customary Law, Research Ethics, Rule of Law, Fair Trial, Public Funding, Indigenous Peoples, Legal Evidence.
Frequently Asked Questions
What is the primary focus of this academic work?
The work focuses on how indigenous law is researched and published, arguing that these activities are tied to the ethical and legal rights of indigenous communities to benefit from research concerning their own legal systems.
What are the central thematic fields addressed?
The text traverses the fields of legal theory, research ethics, human rights law, and institutional policy regarding research funding and accessibility.
What is the main research objective?
The primary goal is to explain how research into indigenous law is subject to specific ethical requirements and how general legal rules might necessitate state-supported open access to such findings.
Which scientific methodologies are contrasted in the text?
The author contrasts the methods of legal anthropology, comparative law, and what he defines as "practical legal research," practiced by members of indigenous communities themselves.
What is the focus of the main section of the book?
The main part analyzes the "duty to publish," arguing that because such research can serve as evidence in legal proceedings, there is a systemic requirement for it to be publicly accessible.
Which keywords best characterize the paper?
Key terms include Indigenous Law, Access and Benefit Sharing (ABS), Open Access, and Rule of Law.
Why does the author advocate for publicly funded open access?
He argues that if research on indigenous law is publicly funded, the resulting knowledge must be accessible to the public—and especially to indigenous persons—to satisfy the requirement of a fair trial and the rule of law.
How does the author define the difference between anthropological and legal research?
He suggests that while anthropologists view law as a component of social culture and identity, comparative lawyers approach indigenous law by relating it to legal problems they encounter within their own established legal systems.
- Arbeit zitieren
- Dr. Stefan Kirchner (Autor:in), 2015, Researching Indigenous Law. Legal Anthropology or Comparative Law?, München, GRIN Verlag, https://www.hausarbeiten.de/document/301201
