Für den Abschluss des Wahlmoduls «Introduction to Law & Anthropology» unter Leitung von Prof. Dr. iur. Alice Margaria durfte ich unter anderem ein Essay schreiben zum folgenden Thema:
Reflect on your understanding of law prior to taking this course and how it has evolved through your engagement with anthropological approaches. Provide concrete examples from the themes and sources we covered in class to illustrate how anthropological insights have made you rethink and / or reshaped your approach to studying law.
Das Resultat davon ist dieser Essay, bei dem ich das Bedürfnis hatte dieses hier auf meinem Blog zu veröffentlichen.
Gutes Lesen!
My first real encounter with the law was probably when I was a child and had to appear in court—not because of anything I had done, but because of my parents. There, I was asked questions like: “How are you doing these days?”, “What do you enjoy doing with your mother or your father?”, and most importantly: “Who would you rather live with?” As a young child, I didn’t really understand either the divorce or the law. I understand the former better now; the latter (even as a law student) perhaps still not entirely. But what I can say with certainty is that the module Law & Anthropology opened up a perspective on my studies that no other module could have come close to offering. In the following, I will outline how I understood the law before my studies, during my studies and finally now after taking the Law & Anthropology module.
“As Schlegel points out, this creates an uneasy paradox in which courts must all the time make decisions about issues that they are incapable of thoroughly grasping.”
Mertz, p. 206. The Language of Law School
As a child, the law meant nothing to me, why should it have? I was busy discovering the world and playing. Something was only fair if I had won. It was unfair on the other hand, when my father won yet another round of UNO (he always just got lucky). That changed when I became a teenager: you start to learn that you have rights like the right to privacy, for example, or that at sixteen you’re finally allowed to drink beer legally.
Personally, I completed vocational training in healthcare. In that field, you come into contact with the law without really noticing it. You ask the patient if it’s okay to pierce their skin with a needle now. You record the narcotics you intend to use on a separate list. You document every nursing service for the health insurance providers so that it can be covered. During that time, I realized I wanted to do more than “just” provide care. It’s a beautiful profession, but for me, it wasn’t enough. I wanted to make more of this life, a life marked by privilege. By opportunities that very few receive. I didn’t want to waste them. It was a time when I began reading the newspaper regularly. I saw the injustice in a world where everyone claimed to be acting justly. I started to realize that not everything in life is fair.
“Justice is the complete virtue to the highest degree, because the person who possesses it is able to exercise virtue not only in relation to himself but also in relation to others.”
Aristotle, Nicomachean Ethics.
It would be easy to say that I chose to study law because I wanted to stand up for justice in the world, or because everyone has the right to develop freely—and looking back, that was indeed the answer I most often gave when someone asked me. But today, I struggle a little every time I try to answer that question. Of course, everyone would understand if I said it was because of the potential six-figure salary, the many doors that a law degree opens, or the social respect that lawyers receive. But none of that really has anything to do with the law itself. These are pleasant side effects that are well received in a performance-driven society, a society where success counts for more than almost anything else. To name the true reason why I study law, I still have to listen deeply within myself.
“Instead, law students begin to accept a form of moral reasoning in which context and normativity are read only through the exigencies of legal tests and texts. Social context is unmoored and thinned, rendered in almost commodified form.”
Mertz, p. 205. The Language of Law School
The reason why it is much harder for me to answer this question today than it was before I started studying is mainly because my way of thinking has changed. Before university, it was easy to say when something felt unjust. It was a gut feeling—this uncomfortable sensation you get when you read that Selam from Eritrea is being deported, even though he faces no job, no money, and no future there. Today, it’s “X,” who fails to meet a requirement of their asylum application under Art. 44 para. 1 of the Asylum Act and does not constitute a hardship case under Art. 44 para. 2—therefore, the application is rejected in the conclusion. That’s not unjust. I reached the correct legal solution.
“Your job is to ignore as much of the emotional content as you can while hunting for the details that are relevant to the legal tests and frames, …“
Mertz, p. 10. The Language of Law School
Luckily, that solution earned me a full three points—just enough to reach the 22 out of 130 points I needed to pass the module. Had I failed that exam, my self-confidence would likely have taken a magnitude 5 hit. I would have had to read through the corrections and try to understand why I hadn’t grasped the question properly. Why my argument made no sense. Why I had interpreted the legal assessment completely differently from the examiner—even though we were both looking at the same law. Because if I had failed that exam, it would have meant I clearly misunderstood the law. Otherwise, I’d be in Public Law II by now—instead of repeating Public Law I.
„Language is the primary mechanism by which we act out the power relations in our society.“
Conley & O’Barr, p. 18. Just Words, Law, Language and Power
Every now and then, there is something to feed my hunger for justice. Sometimes a professor even asks whether the Federal Supreme Court might have argued incorrectly in a particular case. In such moments, as a student, you come unusually close to the question of justice. But the hunger is never fully satisfied. Because in the end, you’re not arguing with justice, but with the wording of the law saying something different from how the Court interpreted it. With the legal code’s structure speaking another language. With the legislative materials indicating something else. With case law that has become inconsistent.
Lex iniusta non est lex – an unjust law is no law at all.
Augustine of Hippo, De libero arbitrio.
These legal disputes can be quite fascinating. You deal with two or three opinions that can be completely contradictory. This is especially the case in written assignments. You learn how to write such a paper very early on in your studies. At my university, there’s even a dedicated module for that. There, you’re quickly taught what legal language is, how to cite correctly, and—above all—that you should never use words like “obviously” or “evidently.” As a first-year law student, you’re certainly not supposed to presume to know what is considered obvious—especially not when addressing a professor who graduated summa cum laude at every academic level and won an award like the Golden Gloss for particularly loyal-to-the-line thinking (i.e. dissertation prize).
„Law students sometimes speak as though they learned nothing in school.“
Duncan, p. 595. Legal Education and the Reproduction of Hierarchy, Association of American Law Schools
Of course, professors aren’t all machines. Through their work, they’ve helped shape the law. Many of them have spent their entire lives trying to understand the law—and bending it in ways that align with their own sense of justice. As a student, you can’t help but wonder whether you’re even cut out for this. Is it worth studying a subject that changes so quickly, that what you achieve today might no longer hold any value in fifty years?
Less than a hundred years ago, Nazi law prevailed in our neighboring country. The Führer’s word defined the law—just as the Bible had done a thousand years earlier. So when I finish my degree, what will my accomplishments be worth? Will a society in a hundred years just shake its head in disbelief at our current legal system and its moral foundations?
Astrophysics, by contrast, feels stable. What is discovered there becomes law in a different sense. A discovery remains present in every lecture, is cited in every paper, and fills TV schedules with documentaries. I, on the other hand—should I ever help shape a landmark decision—will probably be filed away with the next revision of the law in some archive, basement level three, row E3.
Amid all the exam stress and the pressure to meet expectations, it’s comforting to know that there are other fields of study out there that interest me. That law is many things, but not everything in life. And that if this pursuit of justice doesn’t work out, there’s always something like astrophysics—something far removed from justice and legal codes (though the exam stress would still remain, of course).
It’s also reassuring to know that I’m not alone in all this stress. I think I realized that for the first time in the Law & Anthropology module. That students in the United States are subject to the same—if not even stronger—forms of schematic thinking. That your sense of justice is gradually, almost subconsciously, taken away from you.
“You are informed that your grade for the entire semester will depend on one exam, graded anonymously, given at the end of the term.”
Mertz, p. 7. The Language of Law School
In general, I learned a great deal in Law & Anthropology. I have to admit: in the first lecture, I found the module pleasant enough—but nothing more. Only over time did I realize that what I was reading and hearing was exactly what I had signed up for: to recognize how law is not just written down, but negotiated in social life—and how, perhaps, that is exactly where the lever for change lies.
Law must be more than just written statutes. Law doesn’t mean defending someone simply because the Code of Criminal Procedure demands it—it means doing so because that person has the right not to be imprisoned until their guilt has been proven beyond doubt.
Studying law must be more than practicing exam structures. It must teach you how to cope when you’re the lawyer of a man who has committed four murders—a person the entire world has turned against—and you are the last person he still trusts. The one who ensures that, despite everything, he is still regarded as a human being.
Law doesn’t mean accepting a law just because it went through a formally correct process. Law means standing up when a law so completely contradicts your gut feeling—when it violates everything that should be good and right. That’s when you must be ready to take to the streets and shake the very foundations upon which the legal system stands. Because a hundred “good” laws cannot make up for even a single “bad” one.
“Yet, as we have seen, this abstract level of legal discourse can also conceal the injustices and power inequalities that continue to be enacted through the legal system.”
Mertz p.213. The Language of Law School
From an anthropological perspective, law also means not placing your own legal system above that of others. Is it truly just to impose our legal system—however modern it may be—on a cultural group that lives peacefully on an island?
Who gives us the right to believe our law is better?
Law is meant to promote happiness. And that happiness should be shared. But who says that our version of happiness is the greatest? I vividly remember how, in the first year of my studies, I was firmly convinced that our Western democratic order was the only correct one.
Since taking the Law & Anthropology module, however, I no longer think so narrowly. I’ve noticed how my own sense of justice cries out in outrage when I see that an African man has five wives. Yet I don’t feel that same outrage when I read about a Nepali woman who has five husbands.
That has less to do with logic than with conditioning—with Western thinking, with human rights, with capitalism, with liberal feminism. In my worldview, shaped by equality, autonomy, and economic self-sufficiency, it feels wrong for a man to “keep” multiple women—just because he can afford to feed them. And yet: who am I to judge that social order?
The Law & Anthropology module has taught me that such questions are not easy to answer. It’s not about endorsing all cultural practices—but about questioning your own moral framework. Anthropology demands that we do not judge too quickly, but first seek to understand. And law, in this context, does not mean placing one’s own system above others, but recognizing that there are many ways to organize social life—and many concepts of happiness, justice, and coexistence.
„For natural scholars, human rights derive from nature; their universality is therefore a given.“
Dembour p. 9. What are Human Rights? Four Schools of Thought
Over the course of this essay, I have asked many questions. I was able to answer some of them for myself—many others, I was not. But that isn’t because the Law & Anthropology module offered too few answers. On the contrary—it taught me that asking questions is often the real progress. That in law, as in anthropology, uncertainty is not a sign of weakness, but of insight.
Today, I know that what I once took for granted at the beginning of my studies never really was. That many of my moral judgments were not objective, but culturally shaped. That law does not simply “exist,” but is “made”—and made every day. By courts, by legislators, by police officers, by translators, by refugee aid workers, by judges, by me. That realization is uncomfortable—because it means responsibility.
It’s easy to study law like a natural science: with statutes, definitions, and legal schemas. And it can be satisfying to pass an exam, to analyze the facts correctly, to identify the right provisions. But I increasingly realize: that cannot be all. Because if I rely only on legal language and technique, I may learn the “how,” but not the “why.”
What I learned in the Law & Anthropology module is how to look behind the law. The ability to question what seems self-evident. Why is a certain norm considered important? Why does a certain behavior appear “unlawful”? And what does that have to do with power, history, colonialism, or economic interests?
„The procedures, personnel, and organization of the court itself enact a drama which conveys messages about social hierarchy, authority, and order.“
Merry, p. 36. Courts as Performances: Domestic Violence Hearings in A Hawai’i Family Court
I came to realize that what we refer to as “law” often has more to do with social control than with justice. That a good judgment is not always a just one. And that sometimes, within the framework of existing law, a just judgment isn’t even possible.
Of course, this is not a call for nihilism. I’m not saying the entire legal system is worthless. But I am saying that it takes courageous lawyers—those who understand that they don’t merely master a technique, but are part of a cultural apparatus that can either reproduce or dismantle inequality.
Law is complex and often contradictory. Something can be written in black and white in the statute—and yet someone arrives at an entirely different interpretation. Perhaps that’s also why I still don’t fully understand the law. And maybe that’s exactly what defines it.
Contrary to the model answers on exams and the definitions we’re told to memorize, law is one of the few academic fields in which there is no absolute right or wrong.
To study law is to understand that what I say can impact someone’s life. That law is not a fixed construct, but something that must constantly be legitimized—whether by questioning it or standing behind it with conviction.
I don’t know where my path will lead. Whether I’ll become a lawyer, a judge, or a professor. Whether I’ll have to defend someone I know is guilty—or issue a judgment I personally cannot support.
But what I do know for certain is this: I will carry the lessons of legal anthropology with me. That law doesn’t just live in the codebooks, but is lived out anew every day. That one’s attitude alone can move a great deal.
That what matters is how I choose my words in the courtroom—not because it’s the most technically sound argument, but because standing beside me is a human being whose entire life may depend on what I say next.
I don’t study law because I want to earn a six-figure salary or collect good grades.
I study law because what we do can determine whether people are able to live happy lives—or not.
Which is why it may be fitting that my favorite line in any statute isn’t even justiciable:
“…and that the strength of a people is measured by the well-being of its weakest members…”
Preamble to the Swiss Federal Constitution.
Law is not what is right.
Law is what is just.
The path from what is right to what is just is a rocky one—and perhaps a path that is never truly completed.
But it is a path worth walking.
And I am grateful that legal anthropology has given me a good pair of hiking boots for the journey.