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Abstract

This Article reviews the history and current status of Legal Anthropology, a subfield of the general field of Sociocultural Anthropology. It describes successive transformations in the anthropological study of law and law-like systems across cultures and through time.
Electronic copy available at: http://ssrn.com/abstract=1988908
Legal Studies Research Paper Series Paper No. 1184
in Comparative Law and Society Elgar Series:
Research Handbooks in Comparative Law (2012)
Comparative Anthropology of Law
Elizabeth E. Mertz
and
Mark Goodale
This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection at:
http://ssrn.com/abstract=1988908
Electronic copy available at: http://ssrn.com/abstract=1988908
Prepublication version of article to appear in
David Clark (ed.), Comparative Law and Society
Elgar Series: Research Handbooks in Comparative Law (2012)
Comparative anthropology of law
Elizabeth Mertz and Mark Goodale*
1. Introduction and definitions
1.1 Legal anthropology as a subfield of anthropology
Like other subfields of sociocultural anthropology, the anthropology of law is an inherently
comparative area of study. As the American Anthropological Association has explained,
sociocultural anthropology examines ‘social patterns and practices across cultures, with a special
interest in how people live in particular places and how they organize, govern, and create
meaning’.1 The anthropology of law—also known as legal anthropology—focuses in particular
on legal systems, law, and law-like social phenomena across cultures. In recent years,
anthropology’s emphasis on ‘particular places’ has expanded to new kinds of locations (for
example, virtual or global) in which human interaction now takes place. For legal
anthropologists, this also entails attention to the many forms in which legal regulation occurs
from momentary encounters to interactions structured around institutions and texts.
Like most social science fields, the anthropology of law embraces a variety of schools of
thought regarding goals, theories, epistemologies and sometimes, even methods. Scholars in this
area nevertheless share a commitment to intensive and rigorous field methodologies requiring
extensive involvement in the communities and social fields under study. The results of these
studies frequently take the form of ‘ethnographies’, written reports of fieldwork that include
substantial detail as to everyday practices and beliefs. In addition, legal anthropologists share
another general foundational precept of their discipline, which requires that fieldworkers attempt
to bracket their own categories and presumptions to some degree, so as to generate a more
accurate picture of their informants’ lived experiences. To the degree that there are unavoidable
effects on field research of anthropologists’ own positions vis-à-vis their informants,
ethnographers have worked to develop ‘reflexive’ accounts of those effects as well.
* Elizabeth Mertz is the John and Rylla Bosshard Professor of Law, University of Wisconsin-Madison and a
Senior Research Professor at the American Bar Foundation.
Mark Goodale is an Associate Professor of Conflict Analysis and Anthropology, George Mason University and
MS Program Coordinator at its Institute for Conflict Analysis and Resolution.
1 See American Anthropological Association, What is Anthropology?
http://www.aaanet.org/about/whatisanthropology.cfm.
Electronic copy available at: http://ssrn.com/abstract=1988908
1.2 Growth in anthropological research on law
Legal anthropology is a recognized subdiscipline of anthropology in the United States, with
its own distinct section, the Association of Political and Legal Anthropology (APLA).2 A
subgroup under the umbrella organization of the American Anthropological Association, APLA
recruits a steady stream of younger anthropologists and runs its own journal, PoLAR: Political
and Legal Anthropology Review.3 New generations of anthropologists continue to conduct
research on law and legal processes, and to self-identify as legal anthropologists. Indeed, the
anthropology of law has arguably become more central to the discipline of anthropology as a
whole in recent decades, especially in light of growing general interest among anthropologists in
topics that fit squarely within the legal anthropological tradition. Examples of such topics include
the state and governance in colonial, post-colonial and post-socialist societies; international
human rights; war, violence and post-conflict processes; global legal processes; and transnational
(often legal) institutions.
In the first two decades of a new millennium, this growth in overall anthropological interest
is evident in the scholarship of anthropologists from around the globe. It can be seen in the stated
interests and topics listed by formal associations of professional anthropologists from many parts
of the world, even when these association do not have sections devoted to particular subfields
such as legal anthropology. A brief survey of these associations’ websites reveals a pervasive
shared concern with legal anthropological questions. In India, for example, anthropological
seminars and conferences have focused on tribal rights to natural resources; on women,
HIV/AIDS and human rights; and on state policies vis-à-vis NGOs.4 The Australian
Anthropological Association’s ‘E.Publications’ list has included topics such as bureaucracy,
governance and the state; police culture; Aboriginal Land Councils and Native title
representative bodies; and anthropologists as expert witnesses.5 The Pan-African
Anthropological Association (PAAA) publishes The African Anthropologist,6 which announced
an ongoing resurgence of African anthropology that reconceived the anthropological project in
response to critiques of its colonial roots;7 classic legal anthropological topics such as the state
and violence against women are part of this newly emerging African anthropological agenda.8
As we will see, along with some predictable divergences in perspective and emphasis, we also
find considerable overlap around the world in shared anthropological concerns with law, legal
institutions and law-like processes.
2 See APLA, Home Page, http://www.aaanet.org/sections/apla/index.htm.
3 See Wiley Online Library, PoLAR, http://onlinelibrary.wiley.com/journal/10.1111/%28ISSN%291555-2934.
4 See Indian Anthropological Association, Events, http://www.indiananthropology.org/Events4.asp. The legal
focus of some of these events is evident in specific sessions addressing issues such as ‘draft national policy on
tribes’ and ‘revisiting constitutional provisions’.
5 See Australian Anthropological Association, AAS Electronic Publications,
http://www.aas.asn.au/aas_workingpapers.php.
6 See CODESRIA, The African Anthropologist, http://www.codesria.org/spip.php?rubrique66&lang=en.
7 Paul Nchoji Nkwi, ‘Editorial: Resurgence of Anthropology at African Universities’, 14 The African
Anthropologist v-vii (2007).
8 O. M. Njikam Savage, ‘Reflections on the Challenges of Anthropology in Contemporary Times and Future
Prospects: The Douala Experience’, 14 The African Anthropologist 101–07 (2007).
2. History
2.1 Early scholarship: comparative and evolutionary approaches
It is difficult to say with any certainty when the anthropology of law began; scholars were
conducting what today would be classified as anthropological studies of law and legal systems
long before there was any self-consciousness of ‘legal anthropology’ as a distinct and legitimate
sphere for research and writing. Some might even point as far back as the fifth century BCE in
Greece (Herodotus) or eighteenth-century France (Baron Charles-Louis de Montesquieu, 1689-
1755) in tracing the roots of comparative anthropological scholarship on law and political
systems.9 Another notable early writer in this area was Friedrich Karl von Savigny (1779-1861),
the German legal scholar whose 1814 anti-codification pamphlet, The Vocation of Our Time for
Legislation and Jurisprudence, made the argument that law and legal institutions are the unique
expressions of a people’s culture and history and cannot be understood apart from them.10
Nevertheless, within the European and US traditions, the mid-nineteenth century marked the
high point of what one can call proto-legal anthropology. Within twenty years of each other, four
anthropological studies of law and legal institutions were published that had, collectively, a
profound influence on a growing body of theory about the origins and nature of human societies.
In 1861, Johann Jakob Bachofen (1815-1887), a Swiss scholar, published his seminal Mother
Right: An Investigation of the Religious and Juridical Character of Matriarchy in the Ancient
World.11 Bachofen drew from a wide range of comparative materials in order to argue that
human institutions, including law and morality, were originally conceived within matriarchies.
In this same year, Henry Maine (1822-1888) published Ancient Law, another landmark
study.12 Like Bachofen, Maine used a wide range of information about different societies and
historical epochs—in this case attempting to prove that cultural evolution is universally marked
by a progression from status, based on kinship, to contract, which emerges with the rise of larger
and more complex societies. John McLennan’s (1827-1881) Primitive Marriage (1865) made an
even more explicit link between anthropological studies of law and evolutionary theories of
society, basing his argument for female-centered social rules on the effects of selective pressures
that purportedly resulted from early conditions of material scarcity.13 Indeed, McLennan carried
9 On the comparative and ethnographic character of Herodotus’s writings about political-legal systems and
society, see Rosalind Thomas, Herodotus in Context: Ethnography, Science, and the Art of Persuasion (Cambridge:
Cambridge University Press 2000). British social anthropologist Alan Macfarlane makes the case for Montesquieu’s
crucial role in the development of social thought regarding politics and law. Alan Macfarlane, The Riddle of the
Modern World: Of Liberty, Wealth, and Equality (Basingstoke: Macmillan 2000). See Macfarlane’s lecture on
Montesquieu and Social Anthropology (2007), http://www.youtube.com/watch?v=kfDHUqL0Rqc.
10 Frederick Charles von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence (London:
Littlewood, Abraham Hayward trans. 1831, reprinted Union, NJ: The Lawbook Exchange 2002, German orig.
1814).
11 Johann Jakob Bachofen, Das Mutterrecht. Eine Untersuchung ub
̈
er die Gynaikokratie der alten Welt nach
ihrer religiösen und rechtlichen Natur (Stuttgart: Verlag von Krais & Hoffmann 1861).
12 Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to
Modern Ideas (London: John Murray 1861).
13 John F. McLennan, Primitive Marriage: An Inquiry into the Origin of the Form of Capture in Marriage
Ceremonies (Chicago: University of Chicago Press 1970, orig. 1865).
on a regular correspondence with Charles Darwin (1809-1882), whose Origin of Species had
been published in 1859.14
Finally, the American lawyer Lewis Henry Morgan (1818-1881), who was himself
influenced by Bachofen, published his famous work Ancient Society in 1877, which established
the relationship between law, cultural evolution, and comparative research.15 The shift to
evolutionary models in these early works itself marked a turn toward historical context and away
from abstract, timeless analyses of social contract’ or sovereignty, which were not adequate to
understanding the complexity and variability found in actual societies. This convergence in
understanding emerged despite otherwise stark theoretical and political differences between
scholars such as Maine and Morgan.
Most contemporary anthropologists of law would not accept the validity of the armchair
methodologies employed by these earlier scholars, nor, in most cases, the unilineal evolutionary
conclusions reached throughout these important early works. Particularly problematic under
current anthropological approaches would be older evolutionary models that erroneously viewed
modern Western society as the pinnacle of an evolutionary development whose earlier stages
were exemplified by contemporaneous so-called primitivesocieties. Nevertheless, the
nineteenth-century scholars established one important foundation that connects their work with
much contemporary research and theorizing in legal anthropology: the requirement that
researchers study and analyze law in its cultural and historical contexts.
2.2. Beginnings of legal ethnography and theories of structural-functionalism
Despite the fact that Morgan spent time with the Iroquois in upstate New York and then
used his experiences in his first writings, he was arguably not the first legal ethnographer. The
bulk of his most important work, Ancient Society, was derived from his comparative reading and
analysis in ancient history rather than from what today would be recognized as ethnographic
research. On the other hand, the canonical view that Bronislaw Malinowski (1884-1942) was the
first ethnographer of law (rather than Morgan) is perhaps growing less persuasive, in light of
changing views within anthropology during the last twenty years on what constitutes
ethnography, fieldwork, and the locations where anthropological knowledge is produced.
Yet Malinowski, a Polish-born British social anthropologist, nonetheless transformed the
anthropological study of law both theoretically and methodologically.16 Malinowski broke with
the great armchair polymaths of the nineteenth century by demanding that any scientific study of
law be done, not through the extremely detailed comparativism that had defined the field until
that time, but through the application of three innovative methods. These were: (1) participation
in the day-to-day life of the people in order to gain deeper understanding of their culture and
14 Charles Darwin, On the Origin of Species by Means of Natural Selection (London: John Murray 1859).
15 Lewis H. Morgan, Ancient Society: Researches in the Lines of Human Progress from Savagery through
Barbarism to Civilization (New York: Henry Holt & Co. 1877).
16 Rhoda Metraux, ‘Bronislaw Malinowski’, in David L. Sills (ed.), 9 International Encyclopedia of the Social
Sciences 541-49 (New York: Macmillan 1968); George Peter Murdock, ‘Bronislaw Malinowski’, 45 American
Anthropologist 441-51 (1943); George W. Stocking, Jr., ‘From Fieldwork to Functionalism: Malinowski and the
Emergence of British Social Anthropology’, in George W. Stocking, Jr, After Tylor: British Social Anthropology
1888-1951 (Madison: University of Wisconsin Press 1995).
institutions; (2) long-term residence to get a sense of patterns over time; and (3) mastery of the
local language sufficient to conduct research without using translators. Using these ethnographic
methods in the Trobriand Islands (1915-1918), Malinowski developed a theory of law that
moved away from the cultural evolutionary approach of the nineteenth century and instead
focused on how sanctions within society functioned in relation to wider social relations.17
As Laura Nader notes in her own general overview of legal anthropology, Malinowski’s
work ‘foreshadow[ed] a generation of anthropological research on how order could be achieved
in societies lacking central authority, codes, and constables’.18 This focus moved legal
anthropology away from Western-based equations of law with formal institutional ‘legal’
structures, and toward a more functionally based interest in social ordering and control, however
achieved, across different societies. In espousing functionalism, Malinowski brought
anthropology closer to then-current French sociology, particularly as in the functionalist
approach to law espoused by Émile Durkheim (1858-1917)19—although Malinowski also
notably departed from Durkheim’s more sociological formulation in his focus on individual
biological needs.
A.R. Radcliffe-Brown (1881-1955), a contemporary of Malinowski, was also an early
ethnographer who contributed to a theory of law based in ethnographic fieldwork.20 However,
whereas Malinowski adopted what one can understand as an ethno-jurisprudence in arguing that
all societies embed social control within wider social relations, Radcliffe-Brown developed a
more formal definition of law that required the existence of political institutions capable of
enforcing sanctions.21 Because some societies, like the Andaman Islanders and the Trobrianders,
lacked these structural entities, Radcliffe-Brown concluded that some societies lacked law. In
this, he perhaps unintentionally evoked the legacy of legal evolutionary theory; however as time
passed, it was to be Malinowski, not Radcliffe-Brown, who had the more palpable influence on
later anthropologists of law in this regard.
2.3. Law, culture and legal pluralism
For the next thirty years, scholars worked to refine and expand parameters for the
anthropological study of law. Central concerns included questions about the nature of law, the
relationship of law to other social institutions, and the proper ways to access law as an object for
research. An important early example of this was the pioneering collaboration between the
anthropologist, E. Adamson Hoebel (1906–1993), and the legal scholar, Karl Llewellyn (1893-
1962). This association was perhaps less unusual than it might seem because during the first part
of the twentieth century legal realists like Llewellyn had been openly searching for non-
17 Bronislaw Malinowski, Crime and Custom in Savage Society (London: Routledge & Kegan Paul 1926).
18 Laura Nader, The Life of the Law: Anthropological Projects 85 (Berkeley: University of California Press
2002).
19 Émile Durkheim, The Division of Labor in Society (New York: Free Press 1997, French orig. 1893).
20 Meyer Fortes, ‘Radcliffe-Brown’s Contributions to the Study of Social Organization’, 6 The British Journal
of Sociology 16-30 (1955).
21 A.R Radcliffe-Brown, The Andaman Islanders (New York: Free Press 1964); A.R. Radcliffe-Brown,
Structure and Function in Primitive Society (New York: Free Press 1965). For a seminal anthropological work that
developed a functionalist view of political systems, see Meyer Fortes and E.E. Evans-Pritchard (eds.), African
Political Systems (London: Oxford University Press 1940).
jurisprudential techniques to use in analyzing the indeterminacy of law and its social content—
and anthropologists of law had already been studying these topics.
In The Cheyenne Way, Hoebel and Llewellyn utilized the legal realist case method—which
had entered American jurisprudence and legal education via the German historical jurisprudence
of von Savigny—in order to distill the essence of the Cheyenne ‘wayof life, as expressed in
Cheyenne law.22 To do this, the scholars focused on what they called ‘trouble cases’, meaning
conflicts resolved in public forums. They argued that trouble cases were a better window into the
core of local legal principles than were other possible types of law (that is, administrative or
regulatory); this assumption was to become methodologically conventional for many legal
anthropologists even as theoretical frameworks shifted.
The general idea that law reflects culture continued as a major theme in legal anthropology,
eloquently crystallized later in the work of Clifford Geertz (1926-2006) and his followers.23
Fieldwork conducted in the 1950s by noted legal anthropologists such as Elizabeth Colson and
Leopold Pospíšil expanded the scope of research into disputed cases, asking wider questions
about how resolution of these cases was tied to the overall structure of societies.24
During the 1940s and 1950s, the anthropology of law emerged as a distinct subdiscipline
within American cultural and British social anthropology. Two major figures from this time,
Max Gluckman (1911-1975) and Paul Bohannan (1920-2007), each pursued ethnographic
studies of law and social control that eventually led to quite distinct theoretical positions, and to
a debate over the terms within which legal anthropologists should represent local legal categories
and concepts. Gluckman maintained that legal categories from Western jurisprudence could be
used when abstracting from research findings on indigenous legal ideas and practices; he felt that
without the use of general and abstract categories, comparative legal anthropology would not be
possible.25 Bohannan, on the other hand, expressed the relativist position that indigenous legal
categories were largely irreducible; thus, the legal anthropologist’s task was to explain local legal
categories in their own terms.26 The Gluckman-Bohannan debate, which extended through the
1960s, served to expand theory in legal anthropology. It also prefigured many of the later
controversies within anthropology more generally over issues of representation and
epistemology.
In addition, the 1940s and 1950s were important for the anthropology of law for another
quite different reason. During what would be, in retrospect, the waning years of colonialism, the
research conducted by many legal anthropologists had either direct or indirect links with colonial
22 Karl Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive
Jurisprudence (Norman, OK: University of Oklahoma Press 1941).
23 Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books
1983).
24 See, e.g., Elizabeth Colson, Tradition and Contract: The Problem of Order. The 1973 Lewis Henry Morgan
Lectures, University of Rochester (Chicago: Aldine 1974); and Leopold Pospíšil, Anthropology of Law: A
Comparative Perspective (New York: Harper & Row 1971).
25 Max Gluckman, The Judicial Process among the Barotse of Northern Rhodesia (Manchester: Manchester
University Press 1955).
26 Paul Bohannan, Justice and Judgment among the Tiv (London: International African Institute and Oxford
University Press 1957).
institutions and their purposes. Colonial administrators had frequently established dual legal
systems, in which some matters were adjudicated using the colonial power’s law, while other
matters would be handled under ‘customary law’. Legal anthropologists would later understand
this kind of situation, where two or more legal systems coexist within the same region, as a form
of ‘legal pluralism’.
‘Customary law’ was supposedly the indigenous system that predated colonial intervention.
However, key aspects of the indigenous system were often much changed in the translation in
colonial contexts, as was the distribution of power. In validating certain versions of ‘customary
law’, colonial administrators drew upon ethnographic information provided by anthropologists.
While some might debate whether or not legal anthropologists at this time directly aided the
colonial enterprise, it is clear that (especially for the colonial powers pursuing policies of indirect
rule, like the British in West Africa and the Dutch in parts of Indonesia), the information gleaned
from on-the-ground studies was a substantial help to colonial administrators. Although many
anthropologists of the time were clearly aware of the influence of colonialism on the indigenous
practices they studied, it was not until later that legal anthropologists turned the spotlight on this
part of the picture and developed more self-conscious analyses of ‘customary law’ and the role
of colonial powers in co-constructing ‘tradition’.27 This sometimes intentional, sometimes
unintentional, collusion with colonial authorities – and erasure of the effects of colonialism in
many anthropological accounts – led to a later period of self-criticism and doubt within the field.
2.4. From law to disputing
During the 1960s and early 1970s, the anthropology of law underwent a major shift in
focus. By that time, anthropologists had nearly exhausted the usefulness of researching the
nature of law as such, the characteristics of legal systems in comparative perspective, and other
issues within ethnological jurisprudence.28 During the mid-1960s, Nader and other
anthropologists moved still more decisively outside of the formal boundaries of law and legal
institutions to study disputes as part of wider social and cultural processes. Instead of being
limited to the study of formal court proceedings, legal anthropologists now looked at the multiple
mechanisms through which disputes could be resolved across cultures. In a remarkable feat of
legal anthropological coordination, the Berkeley Village Law Project sent researchers into the
field across a wide range of regions over a 20-year period. The Project was launched, in part, to
demonstrate the possibilities of the paradigmatic shift from rules to disputing, but also to develop
new questions about the relationship between dispute processes and the state—and, as Nader
explains in her history of this time within the field of anthropology, to explore the connections
between agency, power relationships, and the resolution of disputes.29 A concern with agency
can be seen as well in work by noted legal anthropologist Jane Collier. She analyzed Zinacanteco
law as a resource on which individuals drew in pursuing their own strategies and goals.30
27 See, e.g., Sally Falk Moore, Law as Process: An Anthropological Approach (New York: Routledge 1986);
John Comaroff and Jean Comaroff, Of Revelation and Revolution: Christianity, Colonialism, and Consciousness in
South Africa (Chicago: University of Chicago Press, vol. 1, 1991); Martin Chanock, Law, Custom and Social Order:
The Colonial Experience in Malawi and Zambia (Cambridge: Cambridge University Press 1985).
28 Pospíšil (note 24).
29 Nader (note 18).
30 Jane Fishburne Collier, Law and Social Change in Zinacantan (Stanford: Stanford University Press 1973).
The focus on disputes brought with it interest in processual models for studying law, a
direction articulated with clarity in books such as Rules and Processes by John Comaroff and
Simon Roberts31 and Law as Process by Sally Falk Moore.32 Along with this concern with law
as process came more emphasis on law’s distinctively local character, a point on which
anthropologists with otherwise different perspectives converged. Moore introduced the
influential concept of the ‘semi-autonomous field’, urging anthropologists to consider the ways
in which local subgroups within societies developed their own partially autonomous legal
dynamics.33 In Local Knowledge, Geertz argued that there are dramatically divergent local
‘sensibilities’ beneath the conceptualizations of ‘fact’ and ‘law’ across different cultures.34
Lawrence Rosen demonstrated the underlying cultural logics at work as participants in legal
proceedings ‘bargained for reality’.35
The late 1970s and early 1980s also marked a transition in the anthropology of law,
especially in the United States, in another way: researchers ‘came home’, employing methods
developed for research in non-Western locations to study law and culture in Western societies
(encroaching on areas of the world that were the traditional domain of sociologists, legal
scholars, and political scientists).36 Sally Merry, for example, studied conceptions of urban
danger as they reflected and reinforced ethnic divisions in a major US metropolis, and then later
explored the topic of working-class legal consciousness in the United States.37 Carol Greenhouse
conducted ethnographic fieldwork in a Georgia community and found that religion, alongside
local ideas about insiders and outsiders, played a crucial role in how some US citizens utilized
(or chose not utilize) the legal system.38 In addition, Laura Nader studied the responses of
American consumers who had suffered ‘little injustices’, but were forced to seek alternatives to
the formal legal system because it denied them access.39
Of course, legal anthropologists continued to work outside their own—usually Western
countries, and to produce works of importance.40 At the same time, this shift toward the study of
problems within major industrialized nation-states signaled the emergence of an important trend,
31 John Comaroff and Simon Roberts, Rules and Processes: The Cultural Logic of Dispute in an African
Context (Chicago: University of Chicago Press 1981).
32 Moore (note 27).
33, Sally Falk Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject
of Study’, 7 Law & Society Review 719-46 (1973).
34 Geertz (note 23).
35 Lawrence Rosen, Bargaining for Reality: The Construction of Social Relations in a Muslim Community
(Chicago: University of Chicago Press 1984).
36 Although it should be noted that there was earlier ethnographic work in the United States which, while it did
not form a recognized movement within the field, nonetheless had lasting influence. One example is the work of
Zora Neale Hurston, who studied with Boas, Mead, and Benedict, and produced ethnographic work on the American
South.
37 Sally Engle Merry, Urban Danger: Life in a Neighborhood of Strangers (Philadelphia: Temple University
Press 1981); Sally Engle Merry, Getting Justice and Getting Even: Legal Consciousness among Working Class
Americans (Chicago: University of Chicago Press 1990).
38 Carol Greenhouse, Praying for Justice: Faith, Order, and Community in an American Town (Ithaca, NY:
Cornell University Press 1986).
39 Laura Nader, Little Injustices: Laura Nader Looks at the Law’ (Boston: The Public Broadcasting
Associates, 60 min. videocassette, 1981).
40 See, e.g., Comaroff and Roberts (note 31); Sally Falk Moore, Social Facts and Fabrications: Customary
Law on Kilimanjaro, 1880-1980 (Cambridge: Cambridge University Press 1986).
one that would have a lasting impact on the anthropology of law. Additionally, whether by
coincidence or not, at the moment when legal anthropological research was moving into
geographical areas that had been more the province of sociology and other cognate disciplines, a
formal interdisciplinary movement dedicated to the study of ‘law and society’ was beginning to
gain momentum after its initial emergence in the mid-1960s.41 The research and writing of legal
anthropologists appeared in the movement’s journal, the Law & Society Review,42 and legal
anthropologists eventually assumed positions of influence with the Law and Society
Association.43
2.5. Power, history and the language(s) of law
The 1980s were a time of critical self-reflection within anthropology, though more so in the
United States than elsewhere. A postcolonial malaise within anthropology that had set in during
and after the Vietnam War (only partially alleviated through the rise of Marxist anthropology and
political economy more generally) contributed to an intellectual climate in which the role of
anthropology was reconsidered and partly reconstituted. Trenchant commentary from non-
Western scholars on the implicit racism found in Western discourses—including those of
anthropology—forced a painful re-examination of anthropological research and writing.44 As a
result, the discipline opened itself to the influence of social and literary critiques drawn from
outside the social sciences and explored with renewed energy questions of consciousness,
history, and ‘power’ (with ‘power’ being now given a less structural meaning).
Anthropologists of law were well-placed to participate in this series of shifts, especially
since law had always been a means through which power had been exercised and, at times,
resisted. Likewise, because of the earlier movement toward the anthropological study of law and
society within industrialized nations, many legal anthropologists had already broadened their
research to include the use of historical sources to complement more time-restricted
ethnography. These two factors combined to bring legal anthropology to the leading edge of
social research and theory, and made history and power ordering foci for a new generation of
anthropologists.45 As Greenhouse, Barbara Yngvesson and David Engel explain, this initiated a
shift from disputes as a unit of analysis to ‘the systems of knowledge and power that frame
disputes and connect them to social relations’.46 It also focused new attention within legal
anthropology—and anthropology more generally—on the study of the state and of colonialism
itself.
41 See The Law and Society Association, Home Page, http://www.lawandsociety.org.
42 See note 40 (select the Review’s link at left).
43 Their influence can also be seen in the allocation of the LSA’s Kalven Prize for lifetime achievement, which
has been given to or shared by an anthropologist in 7 out of the past 15 years when the Prize was awarded. The
anthropologists on the Kalven Prize list as of 2011 include Laura Nader, Jane Collier, Sally Falk Moore, Sally Engle
Merry, Jean Comaroff, John Comaroff, and Carol Greenhouse.
44 See, e.g., Edward Said, Orientalism (New York: Pantheon 1978); Gayatri Chakravorty Spivak, Donna
Landry, and Gerald M. MacLean (eds.), The Spivak Reader: Selected Works of Gayatri Chakravorty Spivak (New
York: Routledge 1996).
45 June Starr and Jane Collier (eds.), History and Power in the Study of Law: New Directions in Legal
Anthropology (Ithaca, NY: Cornell University Press 1989).
46 Carol J. Greenhouse, Barbara Yngvesson and David M. Engel, Law and Community in Three American
Towns (Ithaca, NY: Cornell University Press 1994).
A parallel response to the postcolonial crisis in anthropology involved a reflexive,
postmodern critique. Anthropologists taking this route urged a more self-conscious consideration
of the entailments of ethnographic writing and the position of the anthropologist vis-à-vis
anthropological subjects. From outside the United States, the writings of scholars from subaltern
studies and other fields drew pointed attention to the erasure of indigenous voices that had
occurred and continued to occur in Western scholarship.47 Concern with positionality (how
anthropologist and anthropological subjects are positioned socially and culturally and vis-à-vis
one another) pointed legal anthropologists to consider how the politics of identity in general are
constructed in, through or in spite of law—and how imposition of law can also flatten or
obliterate alternative viewpoints, frequently those of the disempowered or marginalized. Legal
anthropologists went on to use postmodern perspectives to track the impact of law on identity
and rights claims at an international or global level.48
Another important development within legal anthropology during the 1980s was the
emergence of legal language as a topic for ethnographic research. This was related to the
concomitant rise of power as a theme, because the same body of social theory that redefined and
then elevated power as a central issue for social research also focused on language and discourse,
arguing that language was the key medium through which relationships of power were
mediated—particularly in legal settings.49 Legal discourse studies made important contributions
both within anthropology and within the interdisciplinary law and society community; it would
be accurate to describe this area as a distinct tradition with the subdiscipline of legal
anthropology, one that continued through the 1990s.50
3. Current and future directions
3.1. The integrative study of law across cultures
The period from 1990 through the present has seen the development of an increasingly
complex and integrative approach to studying law within legal anthropology. Where earlier
47 See note 43; see also Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories
(Princeton: Princeton University Press 1993); Rahajit Guha, A Subaltern Studies Reader, 1986-1995 (Minneapolis:
University of Minnesota Press 1997); Homi K. Babha, The Location of Culture (London: Routledge 1994).
48 See, e.g., Rosemary Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation, and
the Law (Durham: Duke University Press 1998); Annelise Riles, The Network Inside Out (Ann Arbor, MI:
University of Michigan Press 2000).
49 See, e.g., James Clifford, The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art
(Cambridge: Harvard University Press 1988); Susan Gooding, ‘Place, Race, and Names: Layered Identities in U.S.
v. Oregon’, 28 Law & Society Review 1181-1229 (1994).
50 William O’Barr, Linguistic Evidence: Language, Power, and Strategy in the Courtroom (New York:
Academic Press 1982); Elizabeth Mertz, ‘Legal Language: Pragmatics, Poetics, and Social Power’, 23 Annual
Review of Anthropology 435-55 (1994). For later scholarship in the area, see John Conley and William M. O’Barr,
Just Words: Law, Language, and Power (Chicago: University of Chicago Press 1998); Susan Hirsch, Pronouncing
and Persevering: Gender and the Discourses of Disputing in an African Islamic Court (Chicago: University of
Chicago Press 1998); Elizabeth Mertz, The Language of Law School: Learning to ‘Think Like a Lawyer’ (Oxford:
Oxford University Press (2007); Kwai Ng, The Common Law in Two Voices: Language, Law and the Post-Colonial
Predicament in Hong Kong (Stanford: Stanford University Press 2009); Susan Philips, Ideology in the Language of
Judges: How Judges Practice Law, Politics, and Courtroom Control (New York: Oxford University Press 1998);
Justin Richland, Arguing with Tradition: The Language of Law in Hopi Tribal Court (Chicago: University of
Chicago Press 2008).
anthropologists spent energy debating whether cultural ideas or social power were primary in
shaping legal developments, the newer generation recognized the importance of both—and set
about studying the complicated picture that emerged from this recognition. In a similar spirit,
legal anthropologists sought to move beyond the division between studying local dynamics and
studying wider—even global—patterns. Their longstanding familiarity with cross-cultural
analysis (and attendant dilemmas) has provided a disciplinary advantage in efforts to decipher
global legal patterns as they play out in local settings.
However, as some of the focus has shifted toward globalization, legal and other
anthropologists have had to develop new methods, integrating the ‘gold standard’ approach
provided by long-term fieldwork with new, creative means for tracking the flow of legal
developments across the world. From this global perspective, anthropologists have also been able
to offer critiques of the spread of Western-influenced legal forms and ideologies—including
ideological approaches to conflict, consensus, and context in legal settings. Finally, all of these
trends in legal anthropology have contributed to growing awareness of the dynamics surrounding
the imposition of power, and resistance to power, that surround law at the nexus of local and
larger patterns. Some have urged a new ‘engaged’ anthropology that situates anthropologists
more actively within these dynamics. In the following sections we will examine each of these
themes, which together point toward future directions for research in legal anthropology.
3.2. Complex visions of law: the dialogue with critical and European social theory and semiotics
In her Huxley Memorial Lecture, ‘Certainties Undone: Fifty Turbulent Years of Legal
Anthropology, 1949-1999’, Sally Falk Moore identified three major approaches to law within
legal anthropology: law as culture, law as domination, and law as problem-solver.51 In addition
to their roots in anthropological research, these diverse conceptualizations draw from different
strains of European social theory. One could look to Durkheim and Max Weber (1864-1920) for
idealist threads that focus on law as culture, to Karl Marx (1818-1883) and his followers for a
materialist emphasis on power and the role of economic factors, and to Weberian analyses of
modernity for rationalist and functionalist visions of law.52 (Of course, this would oversimplify
the work of all three theorists considerably.) The sometimes-fierce divisions within anthropology
between adherents of these approaches through the 1970s have eased to some degree now,
producing interestingly nuanced accounts of how culture and power intertwine in the workings
of law.
Here again we can recognize debts to European social theorists such as Michel Foucault
(1926-1984), Antonio Gramsci (1891-1937), Jacques Derrida (1930-2004), Jürgen Habermas and
Pierre Bourdieu (1930-2002)—but legal anthropologists have made a distinctive contribution in
their ethnographically-grounded accounts of the complex dynamics at work. As part of this
integrative vision, legal anthropologists have also incorporated semiotic and linguistic
perspectives so that they can analyze the interplay of legal and other discourses that so often
51 Sally Falk Moore, Law and Anthropology: A Reader (Oxford: Blackwell 2004).
52 For an overview see, e.g., Stewart Macaulay, Lawrence M. Friedman and Elizabeth Mertz, Law in Action: A
Socio-Legal Reader 186-95 (New York: Foundation Press 2007).
bring law to life on the ground.53 Susan Hirsch, for example, shows how litigants draw on the
discourses of Islamic law, Swahili ethics, spiritual health and state law in negotiating deeply
gendered marital disputes in a Kenyan court.54 Charles Briggs and Clara Mantini-Briggs dissect
the discourses surrounding the prosecution of a young indigenous woman for infanticide in
Venezuela.55 These analyses take culture, power, language, material resources and politics quite
seriously as they work toward an anthropology of law that is adequate to the complex world it
seeks to understand.
3.3. The globalization of law and of anthropological methods
During the 1990s and into the beginning of the new century, legal anthropologists have also
turned their attention to much larger research frameworks in order to study the relationship
between globalization, transnationalism and law’s currents—following paradigm-shifting work
along these lines within anthropology more generally by scholars such as Arjun Appadurai.56
This research led to contributions to the growing body of critical globalization studies,
sometimes drawing on postmodern approaches.57 It also moved legal anthropologists further in
the ongoing task of finding methods and models for studying the many-leveled links between
local and larger legal processes.
Some scholars have focused on the impact of law in shaping and responding to the
movement of people, capital, and cultural ideologies across national boundaries. Susan Coutin,
for example, studied how Salvadoran immigrants to the United States negotiated their identities
in the United States in light of legal developments in both El Salvador and the US, while
Yngvesson examined the process of transnational adoption.58 Others have focused on the local
impacts of multiple layers of law and legal discourse, from international human rights discourses
to national and local law—often finding that the consequences of law on the ground differ
significantly from stated or intended goals.59 There is also renewed interest in the ways that both
old and new methodologies can be used to track law through its transnational and multi-scalar
articulations.60 Anthropologists whose research questions require them to follow movements of
legal developments beyond local boundaries are experimenting with ‘multi-sited’ methods; these
53 John Bowen, Islam, Law, and Equality in Indonesia: An Anthropology of Public Reasoning (Cambridge:
Cambridge University Press 2003).
54 Hirsch (note 47).
55 Charles Briggs and Clara Mantini-Briggs, ‘“Bad Mothersand the Threat to Civil Society: Race, Cultural
Reasoning, and the Institutionalization of Social Inequality in a Venezuelan Infanticide Trial’, 25 Law and Social
Inquiry 299-354 (2000).
56 Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis: University of
Minnesota Press 1996).
57 William Maurer, Recharting the Caribbean: Land, Law, and Citizenship in the British Virgin Islands (Ann
Arbor: University of Michigan Press 1997); Riles (note 45).
58 Susan Coutin, Legalizing Moves : Salvadoran Immigrants’ Struggle for U.S. Residency (Ann Arbor:
University of Michigan Press 2000); Barbara Yngvesson, ‘Placing the Gift Child in Transnational Adoption’, 36
Law & Society Review 227-56 (2002).
59 Mark Goodale, Surrendering to Utopia: An Anthropology of Human Rights (Stanford: Stanford University
Press 2009); ibid., ‘The Globalization of Sympathetic Law and Its Consequences’, 27 Law and Social Inquiry 401-
15 (2002).
60 See June Starr and Mark Goodale (eds.), Practicing Ethnography in Law: New Dialogues, Enduring
Methods (New York: Palgrave/St. Martin’s Press 2002); Mark Goodale and Sally Engle Merry, (eds.), The Practice
of Human Rights: Tracking Law between the Global and the Local (Cambridge: Cambridge University Press 2007).
methodologies work across multiple locations while still attempting to retain the anthropological
requirement of significant engagement with the local fields under study.61
3.4. Re-thinking conflict, consensus and context
The move to a global level clearly requires some new approaches to theorizing the contexts
of law. Legal anthropologists studying global processes have documented and critiqued the
export of Western legal models to other parts of the world. Nader, for example, has sharply
criticized the export of US-derived ‘harmony’ models to other parts of the world.62 Legal
technologies such as alternative dispute resolution (ADR), including mediation, can act to further
disempower already marginalized people and to silence disputes whose full expression might
further the ends of justice. Western legal exports are also frequently insensitive to local contexts,
and anthropologists are uniquely positioned to analyze the results of this insensitivity.
3.5. Law, resistance and ‘engaged’ anthropology
A continuing challenge for legal anthropologists charting the seemingly unstoppable
imposition of elite and capitalist power and law across the world has been to find modes of
analysis that do not minimize the impact of global capitalism yet also acknowledge points of
resistance and local autonomy. One reason for concern in this regard is the implicit teleology
(and closed structuralism) that inhere in a despairing form of analysis in which all outcomes are
preordained deterministically by the unstoppable domination of capitalism (and accompanying
forms of disenfranchisement and anomie). Anthropologists who have led the way in attempting
to break out of these analytical dead-ends include John and Jean Comaroff, Susan Coutin, and
Mindie Lazarus-Black; the work of political scientist James Scott is also frequently cited on this
point.63 All of the themes discussed in this section come together in attempts to resolve this
issue; integrative approaches are necessary to map the complex confluence of dynamics
involved, while awareness of global patterns—as well as rethinking notions of conflict and
context—are also frequently required.64
In addition, legal anthropologists have not been simply interested in the relationship
between global flows, power, and law as a matter of intellectual urgency. Rather, scholars have
increasingly explored the ways in which their research findings could form part of wider
strategies of resistance to injustice, both through the use of law and legal institutions where
appropriate, but also by challenging law when it serves as a foundation for domination. The rise
of a more engaged legal anthropology has been partly reflected in the emergence of the
61 Sally Engle Merry, ‘Crossing Boundaries: Methodological Challenges for Ethnography in the Twenty-First
Century’, 23 Political and Legal Anthropology Review 127-34 (2000).
62 Nader (note 18).
63 Comaroff and Comaroff (note 27); Coutin (note 54); Mindie Lazarus-Black, Legitimate Acts and Illegal
Encounters: Law and Society in Antigua and Barbuda (Washington, DC: Smithsonian Press 1994); see James C.
Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven, CT: Yale University Press 1985);
ibid., Domination and the Arts of Resistance: Hidden Transcripts New Haven: Yale University Press 1990); ibid.,
Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale
University Press 1998).
64 Mindie Lazarus-Black and Susan Hirsch (eds.), Contested States: Law, Hegemony, and Resistance New
York: Routledge 1994).
anthropology of human rights as an area for research and, at times, in activism by
anthropologists concerned with the plight of indigenous populations, cultural minorities and
other oppressed populations. On the one hand, there have been some challenges to the perceived
dominance of ‘power’65 as an explanatory mechanism in studies of law and its language. On the
other hand, some have argued for an epistemology in which the social scientific study of law is
linked to law’s capacities for resistance and emancipation, thus keeping power as a central focus.
3.6. Directions for future research
It seems likely that these themes will remain important foci for future work in legal
anthropology. As globalization continues to expand, integrative models and methods emanating
from legal anthropology represent a cutting edge for social scientists seeking to track the multi-
layered flow of power and legal forms across cultures and societies.66 At the same time, the
analytical categories of ‘power’ and ‘context’ in legal anthropology will require further
development, taking into account critiques that argue against overly determinist or simplistic
models. Anthropologists studying law and politics in the global north are also bringing their
characteristic ethnographic vision to issues more typically studied by sociologists, such as crime
and bureaucracy.67 Moreover, there will undoubtedly be a continued push toward an engaged
anthropology, ‘reinventing’ anew a time-honored concern in anthropology.68 As legal
anthropologists work in new ways with indigenous peoples and others affected by current legal
trends, they will have to move into a more complicated engagement with issues such as
international human rights, the role of the state and responding to violence and war.69 Here
theory, ethnography, method and legal practice come together in an exciting nexus in which all
can be enriched.
65 See Marianne Constable, Just Silences: The Limits and Possibilities of Modern Law (Princeton, NJ:
Princeton University Press 2005).
66For examples, ethnographies examine how immigrants can challenge yet live in the shadow of laws
governing citizenship and migration; see, e.g., Susan Bibler Coutin, Nations of Emigrants: Shifting Boundaries of
Citizenship in El Salvador and the United States (Ithaca: Cornell University Press 2007); Ruth Mandel,
Cosmopolitan Anxieties: Turkish Challenges to Citizenship and Belonging in Turkey (Durham: Duke University
Press 2008).
67 See thematic sections on these topics in PoLAR: Political and Legal Anthropology Review 34(1): 6-94
(2011)(bureaucracy); ibid 32(1): 47-85, 105-123, and on PoLAR’s open access webpage,
http://aaanet.org/sections/apla/spillover.html.
68 Dell Hymes (ed.), Reinventing Anthropology (New York: Pantheon 1972).
69 For example, anthropologists have debated the role of anthropological knowledge in ‘the war on terror’ and
actual ground war through the ‘human terrain system’. David Price, ‘Past Wars, Present Dangers, Future
Anthropologies’, 18 Anthropology Today 3-5 (2002); American Anthropological Association Executive Board
Statement on the Human Terrain System Project, http://www.aaanet.org/about/Policies/statements/Human-Terrain-
System-Statement.cfm; Jeffrey Sluka, ‘Curiouser and Curiouser: Montgomery McFate’s Strange Interpretation of
the Relationship between Anthropology and Counterinsurgency’, 33s1 PoLAR: Political and Legal Anthropology
Review 99-115 (2010).
Further reading
Donovan, James (2008) Legal Anthropology: An Introduction. Lanham, MD: AltaMira Press.
French, Jan (2009). Legalizing Identities: Becoming Black or Indian in Brazil's Northeast Chapel
Hill: University of North Carolina Press.
French, Rebecca (1996) ‘Of Narrative in Law and Anthropology’. 30 Law and Society Review
417.
Greenhouse, Carol, Elizabeth Mertz and Kay Warren (eds.) (2002). Ethnography in Unstable
Place: Everyday Lives in Contexts of Dramatic Political Change. Durham, NC: Duke
University Press.
Griffiths, John (1986). What is Legal Pluralism?’ 24 Journal of Legal Pluralism 1-55.
Just, Peter (1992). ‘History, Power, Ideology, and Culture: Current Directions in the
Anthropology of Law’, 26 Law and Society Review 373-412.
Merry, Sally Engle (1988). ‘Legal Pluralism’, 22 Law and Society Review 869-96.
Merry, Sally Engle (1992). ‘Anthropology, Law, and Transnational Processes’, 21 Annual
Review of Anthropology 357-79.
Roberts, Simon (1979). Order and Dispute: An Introduction to Legal Anthropology. New York:
St Martin's Press.
Strathern, Marilyn (2001). ‘The Patent and the Malanggan’. 18 Theory, Culture and Society 1–
26.
Wilson, Richard A. (ed.) (1997). Human Rights, Culture and Context: Anthropological Perspe
Book
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Anthropologists widely agree that identities even ethnic and racial ones are socially constructed. Less understood are the processes by which social identities are conceived and developed. Legalizing Identitiesshows how law can successfully serve as the impetus for the transformation of cultural practices and collective identity. Through ethnographic, historical, and legal analysis of successful claims to land by two neighboring black communities in the backlands of northeastern Brazil, Jan Hoffman French demonstrates how these two communities have come to distinguish themselves from each other while revising and retelling their histories and present-day stories. French argues that the invocation of laws by these related communities led to the emergence of two different identities: one indigenous (Xoco Indian) and the other quilombo (descendants of a fugitive African slave community). With the help of the Catholic Church, government officials, lawyers, anthropologists, and activists, each community won government recognition and land rights, and displaced elite landowners. This was accomplished even though anthropologists called upon to assess the validity of their claims recognized that their identities were "constructed." The positive outcome of their claims demonstrates that authenticity is not a prerequisite for identity. French draws from this insight a more sweeping conclusion that, far from being evidence of inauthenticity, processes of construction form the basis of all identities and may have important consequences for social justice. © 2009 The University of North Carolina Press. All rights reserved.
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Anyone who has attended law school knows that it invokes an important intellectual transformation, frequently referred to as "learning to think like a lawyer". This process, which forces students to think and talk in radically new and toward different ways about conflicts, is directed by professors in the course of their lectures and examinations, and conducted via spoken and written language. This book delves into that legal language to reveal the complexities of how this process takes place. The book bases its linguistic study on tape recordings from first year Contracts courses in eight different law schools. The book discusses how these schools employ the Socratic method between teacher and student, forcing the student to shift away from moral and emotional terms in thinking about conflict, toward frameworks of legal authority instead. This move away from moral frameworks is key, the book says, arguing that it represents an underlying world view at the core not just of law education, but for better or worse, of the entire U.S. legal system-which, while providing a useful source of legitimacy and a means to process conflict, fails to deal systematically with aspects of fairness and social justice. The latter part of the study shows how differences in race and gender makeup among law students and professors can subtly alter this process.