The Center for the History and Anthropology of Law (CHAD) in Nanterre (92), a merger of the Law and Culture Center and the Gédéon Center, develops anthropological research on ancient rights. Its researchers work on the rights of Antiquity or the Middle Ages, the origins of common law, but also on the rights of minorities, particularly religious ones. Soazick Kerneis, its director, professor of history of law-Roman law at the University of Paris Nanterre, deciphers the work carried out by the eight teachers and the twenty doctoral students in her research unit. Interview.
Actu-Juridique: How do researchers at the Center for the History and Anthropology of Law (CHAD) in Nanterre have access to sources? And what kind of sources?
Soazik Kerneis : With the new reforms, researchers are increasingly encouraged to complete their thesis in three or four years. But the first step is sometimes to learn a rare, ancient language to have access to the sources. This takes time and the time allowed is insufficient. One of our researchers had to learn Old Irish to gain access to his sources. Similarly, a researcher who worked on Chinese law had to learn Chinese and the Mongolian language in order to have access to the customary codes he studied. It’s all a learning process. If you don’t learn the language yourself, the work done is “second-hand” work that does not have the same reliability.
AJ: Are these sources all digitized? Are there field trips? Many new sources?
Soazik Kerneis : The problem is sometimes to spot their existence. These discoveries can be the result of chance, a mention at the bottom of the page that refers to a source that no one talks about. Most often, you have to go into the field, as one of our doctoral students did, who went to Dakar for his thesis on colonial law. In the end, it is as much a matter of taking sources head-on as of proposing a new look in the face of sources already available. In order to shed light on the law, it is indeed necessary to take an interest in legal sources, but what also counts are the practices. It is therefore necessary to go through popular sources. I, who work on the Roman Empire, work little on legal sources, as presented in the codes, but rather on popular sources discovered by archaeologists. I am thinking of a tile found in an old temple in the greater Paris region, fifteen years ago. It carries ten lines in Gaulish. This matrimonial form sheds light on the matrimonial practices of the Gauls in Gallo-Roman Gaul. This is what we do with the anthropology of law, because we are interested in law as it is practiced.
AJ: Does this anthropological perspective allow us to understand the whole evolution of law?
Soazik Kerneis : I think it is always good to situate an institution in its evolution. This does not make it possible to understand everything but sometimes makes it possible to situate developments in the law or to put the problematic sides of certain subjects into perspective. Here are two examples. The first concerns amicable dispute resolution methods. Today, we tend to see it as an innovation. But if we look at the past, we realize that it has always existed, and then this practice was silenced. The view of the historian is then interesting: people, throughout time, have often preferred to settle among themselves, without going through the action of a third party. The other example concerns developments in the area of kinship, marriage, gender. The anthropologist’s gaze allows us to put things into perspective in order to “appease” certain concerns, because here again, a certain fluidity has always existed. In Albania, there is the phenomenon of “boyish” girls: when a couple did not have a boy, a girl could take an oath never to marry. And then, in Africa, in certain communities (the Azande warriors documented by E. Evans-Pritchard), the amount of the dowry provided by the man is so high, that initially, the man will have a sexual life with a young man and it is only when he has collected the amount of the dowry that he will marry a woman.
AJ: This look is therefore important to counter certain received ideas. But also to show that the law is updated according to societal changes?
Soazik Kerneis : Yes, for example, Roman law, which was hidden for centuries, was re-studied during what was called the renaissance of Roman law and reinterpreted. These are cycles to be highlighted, which also make it possible to put into perspective what is meant by law. For lawyers, law is often thought of with a capital D. But ultimately under the word “law”, there are many normative systems.
AJ: What about customary law in New Caledonia?
Soazik Kerneis : We do not work specifically on New Caledonia but we are interested in legal pluralism in general. In Rennes, a colleague, Professor Sylvain Soleil, launched a research program funded by the Institute for Studies and Research on Law and Justice (IERD) on the drafting of customs around the world, in France, but also in Africa, Asia (Taiwan, China) to show how the coexistence between state law and customary law is organized. This can also be linked to the question of the environment, in connection with the declaration of the rights of indigenous peoples which defends access to their justice and asserts their ancestral rights in South America, Canada, Australia, etc. This question, also studied by colleagues in public law, is very topical.
AJ: Does this right rebalance the opposing forces?
Soazik Kerneis : That’s the goal, but you have to deal with economic contingencies. When in Australia, a community asserts its right to ancestral land, but faces a mining company, the latter will do everything to show that the community in question has lost its rights by breaking with the legacy of ancestors. In Peru, the simple fact of having a pen or a telephone will enable companies to say “you have lost your ancestral rights”. Always when it comes to economic interests…
AJ: Tell us about the most surprising discoveries you have made!
Soazik Kerneis : I have already mentioned the inscribed tile of Châteaubleau discovered by a team of archaeologists from the University of Paris Nanterre, but other sources challenged me. I’m thinking of small lead tablets a few centimeters long bearing a text, written in Latin, which for a long time was believed to be curse tablets, because they all bear a very violent request. But if we look at them more closely – they have been found by the hundreds in the south of England (around Bath) – they turn out to be judicial prayers. In matters of theft, when an object was stolen from a person, he did not always go to the court of the governor but went to the temple. If the conciliation efforts had not worked, she could file a request with the god to seek revenge, in short in an alternative form to the lawsuit but with many legal references. These tablets translate a rather strange adaptation of the law, since here, the place of justice is the temple, the actor of justice is the priest and the chief judge is god.
AJ: Bringing a new analysis, understanding an old practice, what feeling does that give you?
Soazik Kerneis : It’s very pleasant but always a little distressing, because we propose a hypothesis that always involves a part of uncertainty, a part of risk. But it is satisfying, especially when the elements fall into place and the discoveries make sense to each other.
AJ: Are the resources of the Nanterre Center for the History and Anthropology of Law sufficient?
Soazik Kerneis : No way ! We have a budget of 8,000 euros, knowing that we have a lot of doctoral students, our Chadocks, who also need money to attend colloquia, to do publishing, to go into the field. So it’s very little. This necessarily leads us to limit ourselves. So, we can organize conferences with several people, with private law colleagues, in particular, which spreads the costs. But I am quite hostile to dematerialized colloquia, because things are often done “next to the side”. Recently, it was precisely on the train, talking with colleagues that we had a new idea! Certainly, during the confinement, we had meetings with African colleagues behind the screen. There it made sense, but I find that it must remain subsidiary.
AJ: What are your plans for the coming months?
Soazik Kerneis : We organized a symposium on migrations in March-April 2023 in a multidisciplinary perspective with a geneticist, a sociologist, a historian, in order to reflect with specialists from different disciplines. Next year there will be a second part.
We also have a project with private law colleagues, on what forms have done to law throughout history, with the intervention of an Assyriologist colleague, who shows how ancient law was built from forms, but also by showing its current excesses, that is to say the development of what should only be a tool but which is becoming the norm. Members of the NGO ATD Fourth World (specialized in the fight against extreme poverty) will intervene to show how the forms prevent them from accessing their rights, because of their great complexity. We do not stay in our own backyard of historians but we want to be in tune with current events. This meeting will take place in 2024 at the Defender of Rights.
Finally, we will organize a symposium on a Roman source, the Collatio legum Mosaicarum et Romanarum (legal compilation, editor’s note) dating from the 4th-5th century and which compares Roman law and biblical law. One interpretation is that it is a Jewish author trying to show that Roman law does not contradict the Bible.
AJ: How to further democratize the results of your research?
Soazik Kerneis : Promoting research is one of our objectives. It’s not always easy because people imagine that the history of law represents something very dusty! But we try to make our research available to as wide an audience as possible. For three years, a team of philosophers and ATD Fourth World managers worked with people in very precarious situations on themes such as resistance or the law. When I was asked, as a historian of law, to be the respondent for the text on law, I was fascinated by the relevance of the text (ed. Bord de l’eau) which is well worth articles of doctrine. I feel like it was very well received, even by people who don’t have a legal education. I am convinced of this: if we use simple terms, we can deliver a legal message that can be heard.
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