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THE STUDY OF AFRICAN LAW AT THE AFRICAN STUDIES CENTRE, LEIDEN: IN REACTION TO JOHN GRIFFITHS' OVERVIEW OF THE ANTHROPOLOGY OF LAW IN THE NETHERLANDS IN THE 1970's
by Wim M.J. van Binsbergen
This article was originally published as: van Binsbergen, W.M.J., 1984b., ‘The study of African law at the African Studies Centre, Leiden: In reaction to John Griffiths’ overview of the anthropology of law in the Netherlands in the 1970’s’, Nieuwsbrief van Nederlandstalige Rechtssociologen, Rechtsantropologen, Rechtsantropologen, Rechtspsychologen (NRR) (Rotterdam), 5, 2: 199-207
Professor
John Griffiths (an American occupying the chair of sociology of
law at the University of Groningen, The Netherlands) has
published, in a recent issue of NRR ('Newsletter for
Dutch-language sociologists of law, anthropologist of law and
psychologists of law') a critical overview of the anthropology of
law in the Netherlands in the 1970s. This review exceeds 100
pages, and includes what Griffiths (1983: 224) claims to be 'a
complete bibliography of Dutch legal anthropology in that
period'.
The production of such overviews has become rather fashionable in
Dutch anthropology in recent years (cf. Kloos & Claessen
1975, 1981); and Dutch sociologists are now involved in a similar
exercise, by means of a conference convened for spring, 1984. In
the current climate of financial cutbacks and government-imposed
restructuring of the organization of research, in the Netherlands
and elsewhere, it is only understandable that one tries to create
and exploit new intellectual and institutional boundaries,
mobilizing potential friends and stressing if not inventing
cleavages and feuds, for the sake of competition over funds,
personnel establishment, institutional recognition, and academic
esteem.
Griffiths joined a Dutch law faculty in 1977 from abroad, and
during the period covered by his review his personal contribution
to legal anthropology and related fields has been on the level of
legal theory and the philosophy of law, rather than empirical
socio-legal studies (see his bibliography, Griffiths 1983: 229).
Griffiths thus has the advantage of being an impartial outside
observer, from a national and to some extent also from a
disciplinary point of view. No doubt work on the review was for
him a highly rewarding familiarization tour across the Dutch
intellectual landscape and its history. The fact that he writes
in English presumably makes his extensive summaries of
publications and of colleagues's biographies rather useful to
other outsiders.
At
the same time, his outsidership may have been an impediment. One
wonders whether the task of reviewing and, with the powers of
hindsight, structuring and restructuring the national outlines of
what he claims to be a subdiscipline, should not have been left
to someone more solidly rooted in that field over a longer period
of time, someone who could match his bibliographical, synthetic
and theoretical skills (such as Griffiths obviously possesses)
with personal experiences of the period described.
Admittedly
Griffiths's picture of Dutch legal anthropology in the 1970s is
on the whole extremely gratifying: the 1970s are claimed to have
witnessed the rather unexpected rebirth of the subdiscipline, in
the Netherlands, from the ashes of a honourable but unfortunately
declined tradition featuring such great names as Ter Haar and Van
Vollenhove. However, not so much the data but the author's
treatment falls short of being totally convincing. The same few
names and projects come back time and again in this excessively
long and repetitive overview. Far too much attention is paid to
insignificant, even unpublished, articles and lectures. Far too
few colleagues are praised far too highly. Far too little is
shown of a historical sense (as is best demonstrated by the very
unfair, for anachronistic, treatment of Andre KSbben's seminal
work -Griffiths 1983: 164-65). The author has hardly any
understanding let alone appreciation of the institutional,
intellectual and social preconceptions that underlie academic
life in the Netherlands. Increasingly, one has the feeling of
reading not a scholarly study but a political or even religious
pamphlet, whose aim is not so much describing and analysing a
recent past but evoking the illusion of an imminent golden age.
If
this is what the editors and subscribers of NRR like to print
respectively read, let them go ahead. In reality, of course,
legal anthropology in the Netherlands scarcely exists as a
distinct subdiscipline. It is amorphous, floating, historically
heterogeneous, largely determined by conventions of Dutch
academic subculture which Griffiths shows no signs of having
internalized, and by and large it is so parochial that personal
network contacts and personal rivalries determine it more than
anything else. Griffiths covers himself nicely by claiming that
his review is 'still a more or less provisional version' (1983:
132), and invites critical remarks. Now that his version has
already been published, Griffiths regrettably has forced the
hands of those wishing to comment on the more controversial parts
of his paper: they have no option but engaging in published
debate, thus risking to overstate points which would perhaps be
better discussed in a more informal and relaxed way.
Incidentally, the same would apply to some of Griffiths's own
remarks, e.g. those concerning the 'scandalous1 ('in the
technical sense of the word'; Griffiths 1983: 213) ignorance of
Dutch anthropologists, who according to him fail to recognize
legal anthropology as the cornerstone of their discipline; or the
alleged absurdity of national procedures of research funds
allocation. Such general attacks on Dutch conditions as
Griffiths's review contain, are not not my concern here. However,
he also levels a very specific and violent attack on research and
research policy at the African Studies Centre, Leiden; and as
head of one of this institution's two research departments, it is
my duty to reply to his challenge.
Griffiths's picture (1983: 156, 160-63, 168-70, 185-91, 221) of
work at the African Studies Centre during the 1970s, and
subsequent developments in the 1980s there, can be summarized as
follows. As an aftermath of Holleman's leadership (whose formal
link with the African Studies Centre was severed in 1969), the
Centre is claimed to have been prominent in the study of African
law right through the 1970s, successfully embarking on all sorts
of activities (research, conferences, publications) in which over
the years more than ten different researchers are said to have
been involved. While going into excessive detail in some cases,
Griffiths underexposes the work of some other African Studies
Centre researchers in the 1970s. Thus on the basis of his review
the uninformed reader would scarcely suspect that it was
Harrell-Bond and Rijnsdorp who, during much of the period
covered, carried the lion's share of legal research at our
institution. Their Sierra Leone project was rather more
successful than Griffiths suggests; its output includes for
instance one major book overlooked by Griffiths (Harrell-Bond et
al. 1978). Anyway, in 1983, one of the African Studies Centre
researchers, E. van Rouveroy van Nieuwaal, saw his activities in
the field of legal anthropology rewarded by a part-time chair in
African constitutional law at Leiden University. But one swallow
does not make summer. For Griffiths signals at the same time
'a
well-advanced proposal to eliminate the Law section and
"integrate" it in a Department of Political Development
and History, headed by a (sic) anthropologist. When one considers
the lack of interest in or knowledge of legal anthropology (or
matters legal in general) which have been long typical of Dutch
social science — a generalization to which the current
leaderschip (58) of the African Studies Center is no exception
— it seems safe to translate "integrate" out of
bureaucratic jargon into "eliminate" in plain language.
Certainly there is no reason to suppose that anthropology of law
will fare better in the surrounding of such a Department than it
does in any other social science department in the country. (...)
what a shame such a (gradual) death will be' (Griffiths 1983:
160).
Earlier it was scandal, and now shame; again, presumably, in the
:hnical sense of the word? Fortunately, the truth is both more
complex 1 more balanced; and in view of the excessive length and
repetitiveness
Griffiths's
overview, one can hardly suspect that sheer limitations of ice
made him hold back essential information which however was at his
sposal.
In 1980 (cf. Grootenhuis 1983; van Binsbergen 1981) the African
idies Centre decided to reorganize its research activities. The
struc-re of about ten small sections - one among them the African
law section ?as supplanted by two major interdisciplinary
research departments, one icentrating on rural development, the
other on state and society in both ilstorical and a contemporary
perspective. Research activities came to
structured,
no longer by academic discipline, but around these two jad
themes. As a transitional measure, only too common in cases of
stitutional reorganization, this shift was not immediately
implemented
the
full extent, and the small law section was allowed to persist for
ne time as a monodisciplinary anomaly; this anomaly has recently
been rminated by the Board, thus making definitive what Griffiths
still Eers to as a proposal (the dissolution of the law section).
The program-3 of both departments had, from their first
formulation in 1980-81, been Eficiently broad so as to encompass
the study of relevant legal aspects
the
state and/or rural development (Hoorweg 1981; van Binsbergen
1982). as, the programme of the department of political science
and history had am its very inception stressed the importance of
research in constitu-snal law (van Binsbergen 1982: 15).
Griffiths's footnote 58 in the long passage quoted above
(Griffiths 83: 160), placed so as to suggest that it is going to
reveal the name or nes of the current leadership of the African
Studies Centre - allegedly
insensitive
to the study of African law - only mentions Holleman's leadership
up to 1969. Since 1980, the scientific leadership has been in the
hands of Hoorweg and myself, as heads of the two research
departments; the library is managed by Van der Meulen; general
management has for many years been Grootenhuis's province; while
a Board, and a Board of Trustees, check long-term policy
decisions. I am head of the department specifically mentioned by
Griffiths. It is therefore reasonable to conclude that his
devastating criticism is largely directed at me, as one entrusted
with the formulation and implementation of the department's
research policy (2).
However, the real issue is not ray person, scholarly performance,
or the discipline I was trained in, but revolves on the following
questions:
- Is our department a good environment for African law research,
in terms of both personnel and of explicitly stated research
programmes and policies?
- If these conditions are essentially positive, what kind of
African law research should we have in such a department? Only if
the answer to this question would be: 'monodisciplinary law
research', would it be a liability to the department and to legal
research therein if its head were not a lawyer or legal
anthropologist.
Our present department and its composition show that meaningful
law research can be undertaken outside a specific department of
legal studies. The members of our department include Buijtenhuis,
Hesseling and Konings, all of whom feature in Griffiths's account
as having done work in the field of African law studies. Of
these, only Hesseling is a lawyer, while Buijtenhuijs and Konings
have primarily published on revolutionary movements and urban and
rural class struggles within the framework of twentiethcentury
African states. Other members of the department are Baesjou
(whose interest in the history of litigation on the West African
coast has led to a collection of papers, Palaver, co-edited by
him; cf. Baesjou & Ross 1979); de Jong, whose Islamological
studies pay considerable attention to Islamic law particularly in
the context of Muslim mystic associations; cf. de Jong 1978);
February, whose work on language problems and the position of the
so-called Coloureds in South Africa strongly emphasizes legal
aspects (cf. February 1976, 1981, 1983); and finally
Schoenmakers, whose current research in Guinea-Bissau explicitly
includes a study of constitutional processes. Until early 1984,
the department included Van Leynseele, about half of whose Leiden
doctorate, 1979, deals with the legal institutions of Libinza
society, Zaire - another omission in Griffiths bibliography which
however claims to be complete. In short, I could hardly imagine,
in the country, a research department where the study of African
law would find a more stimulating and competent setting -provided
one accepts the view that African legal studies should not be
conducted in a monodisciplinary vacuum but should form part of an
overall interdisciplinary research commitment to the African
continent and its problems.
Admittedly, the existence of such a setting would still only
compensate for the dissolution of the pre-existing African law
section, if within our department specific research projects are
to be undertaken focussing on African law. Griffiths suggests
that this is not the case, but he is wrong.
Now that the Senegal project on land law and state-imposed legal
change is nearing completion, new law projects are being proposed
within the department of political science and history. The
African Studies Centre's commitment to the study of law in Africa
remains as firm as ever. While we agree with Griffiths that
African law research should be undertaken by experienced
professionals (lawyers, legal anthropologists, legal
sociologists), there is no reason why their research should be
undertaken on a monodisciplinary basis, i.e. in a separate law
department or law section. As is the case internationally in the
field of African Studies, disciplinary boundaries are fading at
the African Studies Centre; our record of recent publications,
and list of research projects, may indicate that this is a good
thing. Of course, much of this interdisciplinary work is not
specifically on law in Africa; but why should an approach that
has proved to be productive in such related fields as sociology,
anthropology, political science, history and the science of
literature, be such a bad thing if applied to socio-legal studies
as well?
At the same time it should be emphasized that African law studies
are by no means to be confined to legal anthropology. Law in
Africa today exists not only, not even primarily, at the level of
villages and of chiefs' traditional courts. The interaction
between historical judicial forms on the one hand, and modern law
as formulated by the state on the other (a topic on which the
research programme of our previous law section revolved) may be
important, but again it is by no means the only topic worthy of
Africanist legal research. Thus if one concentrates on land
tenure and land reform, one soon learns that legal
anthropologists (mainly trained to work at the level of
face-to-face social relations) are not optimally equipped to
study the intricate formal legal procedures African bureaucracies
generate and impose at the national and regional level. This is
why the execution of our Senegal land reform project has been
primarily entrusted to an experienced constitutional lawyer
(Hesseling), while the work of the more junior anthropologist
(Sypkens-Smit) was confined to the village level. In our
department of political science and history, where research
focusses on the economic and ideological dimensions of the state
in precolonial, colonial and postcolonial Africa, we may well
contemplate topics in the study of African law which Griffiths
(1983: 163) would deem "marginal" from a
legal-anthropological point of view: national constitutional
processes, as both creating and reflecting power structures and
ideological tendencies in the society at large; the legal
constraints governing processes of information and participation,
including forms of political and religious association (political
parties, Islamic pious associations, Christian churches), the
press and other media; legal aspects of the organization of
economic life, from Islamic banking corporations such as have
recently been established throughout West Africa, via a large
variety of parastatal bodies, to labour legislation, trade
unions, land reform and the legal-organizational structure of
rural development projects; the challenges which established
constitutional structures are facing from the part of
revolutionary movements and liberation movements (e.g. Chad,
South Africa); interstatal interactions in the way of treaties,
international bodies, armed conflict; and legal aspects of such
pressing national and international African problems as famine,
refugees etc.
If we agree that the study of law should form an integral part
of African studies, we should strive towards the selection of
research topics that combine scientific and societal relevance to
the highest possible degree (cf. van Binsbergen 1982: 7-11); we
should also maintain and expand relations of intellectual
exchange within and across our national boundaries. Regretfully,
the tone and content of Griffiths's review suggest that in this
process we can expect very little help from him and his
associates.
NOTES
(1)
I am indebted to several of my colleagues for criticism of
earlier drafts; however, the responsibility for the views
expressed here is entirely mine.
(2)
Being only human, I cannot repress the temptation to produce here
summarily my (admittedly limited) credentials in the field of
African legal studies (cf. Griffiths 1983: 169; van Binsbergen
1977; 1981: 51f, 57f; Hesseling 1982: 2; Doornbos, Hesseling
& van Binsbergen, in press). I would readily agree with
Griffiths that this is not enough to qualify as a legal
anthropologist; but that is immaterial. One cannot expect the
leadership of a multidisciplinary research structure to be fully
qualified in all disciplines involved - the essential thing is
the existence of explicit policy that provides room and stimulus
for these various dis ciplines.
(1)
The
African Studies Centre
207
REFERENCES
Baesjou,
R., & R. Ross (eds) (1979), Palaver; European Interference in
African
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Jong, F. (1978), Turuq and Turuq-linked Institutions in
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M.R., G.S.C.M. Hesseling & W.M.J. van Binsbergen, (in press),
'Content and Process of French-language Constitutional Preambles
in Africa1, in: Van Binsbergen & Hesseling, in press.
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V.A. (ed.) (1976), White Minorities Black Majorities, African
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February,
V.A. (1981), Mind Your Colour, London/Boston: Kegan Paul
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J. (1983), 'Anthropology of law in the Netherlands in the 1970s',
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Binsbergen, W.M.J. (1982), 'Department of Political Science and
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Van
Leynseele, P. (1979), 'Les Libinza de la Ngizi', doctoral
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