This three-part series, Indigenizing International Law, explores the encounter between Western and Indigenous jurisdictions, paying particular attention to the way in which post-colonial rule always entails resistance, hybridity, and accommodation. By studying the emancipatory potential of indigenous thought as a basis for the transformation of international law, the series examines both the strategies used by international law to colonize indigenous jurisdictions, and the practices of resistance used by indigenous peoples to keep their own laws alive. In so doing, it explores the double bind that exists between silencing and listening to indigenous jurisprudences, drawing attention to the interaction between indigenous and non-indigenous worlds.
Towards this goal, the series proposes the idea of indigenizing international law by considering indigenous law as law. It is by directing indigenous jurisprudences to the framework of international law and by recognizing the constitutive relationship between Western and indigenous accounts that the possibility of transforming international law becomes possible. This process through which ‘we’ can learn from indigenous jurisprudences in order to change ‘our’ laws is what I call in this series inverse legal anthropology. In indigenizing international law using an inverse legal anthropology, the series remarks the power of indigenous thinking to counteract international law’s colonial legacies and indigenous peoples’ ongoing genocide.
I contend in my research that the clashes between indigenous jurisprudence and international law should be positioned in terms of anthropology. I understand this turn as a quest to reveal the multiple laws, ontologies, cosmologies, and historical traditions that international law encounters, or clashes with, in its unfolding in the world. Thus, I suggest an exploration of international law in daily life based on an ethnographic rearrangement of the participant observation process inherent to any kind of fieldwork. The first element of this rearrangement responds to mainstream international law narratives—mostly those affecting indigenous nations by reproducing state-centric laws as the only way of legal discernment. The second element, meanwhile, recognizes the emancipatory potential of indigenous thought as the basis for understanding their interaction with international law and post-colonial narratives.
My proposal to indigenize international law, in this way, asserts that the intended process of discerning indigenous thought should not only concentrate on the study of international law on its own terms but also what it silences, for example, indigenous thought and jurisprudence. At the same time, I argue that in paying attention to indigenous jurisprudence the main preoccupation of ethnographic theory is not and should not be to unpack indigenous thought. On the contrary, a serious ethnographic gaze should imagine the representations of indigenous thinking directed at us, which would imply the possibility of transforming mainstream international law storylines on the basis of indigenous perspectives. This practice is what I have termed in my research, following the footsteps of Eduardo Viveiros de Castro, Roy Wagner, and Tim Ingold, inverse legal anthropology.
In foregrounding the need to indigenize legal anthropology my research is constantly involved in a double bind position. For Spivak the double bind is a way to understand the elliptical shuttling between two subject positions that are entwined in a multi-tier social structure in which they can simultaneously oppose yet construct one another. Anarchist feminist, Silvia Rivera Cusicanqui, experiences this aporia in the context of the mestizaje ideology in the Andean world. The term mestizo reminds us of the hybridization of ethnic groups that took place throughout the conquest and colonization of the so-called ‘new world’ through the mix between European and indigenous peoples. Being mixed with the blood of a European progenitor and an indigenous mother, the subject position is determined by questions of identity and belonging. From a point of view of cultural scrutiny, it is a powerful symptom of colonial domination of the mother’s indigenous people, who knows better than most the damages suffered by the world of her ancestors. In this context, the European roots not only operate as an agent of rejection of the mixed child but also as an enhancer of its own conventions.
According to Rivera, it is a Manichean operation in which the nature of the mixture is bypassed in order to assume the European background as dominant, that is, a process of ‘whitening’ that denies the possibility of undertaking the reverse process. Indeed, the logic of a mestizo international law that take into consideration the voices of the lawyers of the global south that narrate the historical record of the international legal order, follows the same process of ‘whitening’ of what Rivera is criticizing. This narrative fully reflects that developments in international legal theory are not only European; nevertheless, most of its terminology belongs to the Western Rule of Law tradition. In this way, an inverse legal anthropology seeks to indigenize international law by considering indigenous vocabularies, as well as approaching international law in anthropological terms.
By appropriating and reappropriating the idea of indigenizing the whitening mestizo culture, the focus of my research is essentially ethnographic. Ethnographic meaning a radical problematization of the so-called ‘human right of interlocution’ associated with the participant observation process that results from the legal anthropological exercise. It is not a matter of condemning the ‘anthropological game’ as a result of the reification of the native’s subjectivity. It is very much the opposite to the extent that the ethnographic procedures depart from the very beginning recognizing the native’s condition as a ‘subject.’ The ethnographer has usually failed to see the native as someone able to dream and project a world of her own. Indeed, de facto equality is here the bedrock in which de jure advantage rests. The legal ethnographer is too familiar with the laws of the native before the game even starts, she is the architect of the native’s legal theory and the geographer that projects the kaleidoscope of their systems of justice.
According to Tim Ingold, the problematization of the aforementioned participant observation process requires an acknowledgement that anthropology’s aims reside in multiplying the multiple living cultures instead of focusing on entities and events. In that regard, the intended holistic aspirations of anthropology should be taken beyond general cultures or traditions. Additionally, it also needs to be stressed that anthropology is the art of scrutinizing ourselves. Ingold’s point here is to expand the Western conceptual borders of the question of who ‘we’ are into a radical diversification of a global ‘we’. In fieldwork, we are disciples and interlocutors of people who, through their practical experience and knowledge, can invigorate our understanding of mankind. This predicament has been the object of philosophical speculation for centuries; nevertheless, philosophers rarely solicit the help of ordinary people to advance in their appraisal. In my research, following Ingold’s definition, anthropology swings between philosophical ideas and daily life activities—two sides of the same coin.
Image Credit: Jeisson Castillo, Maiceros. Transmisión de conocimiento from Chontaduro Ritual / Oil on wood 30 x 40 cm. 2017
The sacred dance of chontaduro is a fertility ritual that takes place every year during the harvest of the peach palm fruit (Bactris gasipaes). During the ritual the medicine men heals the world, while performers dance and sing all day and night; using costumes and masks that are said to turn those who wear into animals and spirits from the jungle (Castillo).
Paulo Ilich Bacca
Paulo Ilich Bacca is a legal ethnographer. He is lecturing anthropology of international law and indigenous peoples’ rights from the global south at the National University of Colombia. Paulo has had the opportunity to interact with indigenous communities of Australia, Bolivia, Colombia, Ecuador, United States, and Perú. His fieldwork experience in these places has become a key component of his research, and the information gathered in his fieldwork journals has allowed him to include an ethnographical methodology in his work, and to use sources generally excluded from the dominant academic circle in his teaching.
