ThesisPDF Available

Legal Anthropology: An Historical and Theoretical Analysis

Abstract

This thesis represents an attempt to make a theoretical and ethnographic analysis of the state of play of that branch of anthropology known as either 'legal anthropology' or the 'anthropology of law'. Although relegated to a less than prominent position in the anthropological pantheon--compared to such classic areas of enquiry as kinship, religion or even economics for example--legal anthropology has made an important imprint upon the surface of the anthropological landscape. Further, many anthropologists would or have considered the somewhat esoteric concerns of legal anthropology to be within the purview of a small, specialized sub-group of the larger discipline and have therefore expended relatively little print or conference space to it. As a result of this the material available in legal anthropology is marked primarily by its sparsity. The reasons for this apparent bias are indicative of wider theoretical dilemmas and as such, will be explored in detail in later sections. Broadly then, this thesis will seek to place the numerous theoretical developments, methodological concerns, and changing ideological approaches in legal anthropology within a historical framework that further recognizes the necessity to address these fundamental elements with a view that is essentially integrative. Through the course of this analysis it will become obvious that the author does not stand on neutral ground vis-a-vis the various controversies and it is hoped that some small contribution to a more general theory can be made by analyzing the relevant concerns both with a view to the past and a view to the future.
Legal Anthropology: An Historical and Theoretical
Analysis
Submitted by: Mark Goodale
M.Sc.
Department of Anthropology
London School of Economics
2
Supervisor: Professor Simon RobertsIntroduction
This thesis represents an attempt to make a theoretical and
ethnographic analysis of the state of play of that branch of
anthropology known as either 'legal anthropology' or the
'anthropology of law'. Although relegated to a less than prominent
position in the anthropological pantheon--compared to such classic
areas of enquiry as kinship, religion or even economics for
example--legal anthropology has made an important imprint upon the
surface of the anthropological landscape. Further, many
anthropologists would or have considered the somewhat esoteric
concerns of legal anthropology to be within the purview of a
small, specialized sub-group of the larger discipline and have
therefore expended relatively little print or conference space to
it. As a result of this the material available in legal
anthropology is marked primarily by its sparsity. The reasons for
this apparent bias are indicative of wider theoretical dilemmas
and as such, will be explored in detail in later sections. Broadly
then, this thesis will seek to place the numerous theoretical
developments, methodological concerns, and changing ideological
approaches in legal anthropology within a historical framework
that further recognizes the necessity to address these fundamental
2
elements with a view that is essentially integrative. Through the
course of this analysis it will become obvious that the author
does not stand on neutral ground vis-a-vis the various
controversies and it is hoped that some small contribution to a
more general theory can be made by analyzing the relevant concerns
both with a view to the past and a view to the future.
The rest of this paper will be divided into five sections. The
first part will a selective history of the work that had been done
in legal anthropology up until the mid-1970's. By surveying the
various theoretical and methodological antecedents, it will become
possible to place the more recent work within its proper context
as both a reaction to and an improvement on this preceding
material. The reason for this somewhat amorphous demarcation point
is that by the end of the 1970's, the prevalent concerns of the
past dramatically shifted as the printed results of a number of
symposia signalled a departure and an attempted new beginning.
After 1979 or thereabouts legal anthropology became,
paradoxically, both more unified in its scope of enquiry and less
relevant for the larger discipline as a whole.
Section 2 will focus on how the theoretical 'positions' that
have characterized legal anthropology have become manifest in
ethnographic studies that have explicitly sought to employ the
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differing methodological and even ideological approaches to the
'law-ways' of the small-scale societies that anthropologists have
traditionally been concerned with.
In the third section, the analysis will be taken to a more
abstract level by considering the various problems that have been
encountered when attempts have been made to arrive at definitions
of concepts such as 'law', 'conflict', 'social control' or 'order'
for example. The exploration of some of the more vexing issues
will be facilitated by concentrating on the work that Leopold
Pospisil and others have done in this area.
Section 4 will serve to provide a view to the present and
future concerning the direction that studies in legal anthropology
have taken more recently and are likely to take as new projects
come to fruition. Further, some suggestions will be made as to
potentially novel areas of research that studies of this kind
might profitably contribute to. Finally, by way of conclusion,
this section will provide a summary of the previous sections with
a specific focus towards integrating the material and arriving at
any necessary conclusions to be reasonably drawn from it.
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1. A Selective History of Legal Anthropology
At least since the publication of Henry Summer Maine's Ancient
Law in the mid-nineteenth century, there has been a wide academic
interest in the 'law' of those societies which were smaller and
equipped with simpler governmental institutions than those found
in the emerging industrialized West.(1) Maine, an academic lawyer
schooled in the common law tradition, sought to analyze the Roman
legal apparatus as a separate and all-important institution that
functioned primarily to provide society with a viable structure in
which the inevitable conflicts could be resolved.
However, it must be immediately acknowledged that Maine was
first and foremost concerned to discover the origins of the
English legal system through the analysis of Roman law. Any
contribution that was made to the understanding of non-western
legal structures in and of themselves was incidental. Further,
Maine's approach was framed within an evolutionary framework that
sought to add to the body of literature on the origins of the
English legal system by garnering insights from societies that
were seen as existing at an earlier stage on a unilineal
developmental continuum. His theoretical approach had an important
impact on the development of what Roberts (1979) calls the rule-
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centered paradigm.
Indeed, it is possible to assert that legal anthropology can
be, following Roberts, delineated into two opposing paradigms; the
rule-centered paradigm and the processual paradigm.(2) Some (e.g.,
Dahrendorf 1959; Giddens 1979) have suggested that this idealized
dichotomy between what are essentially the 'normative' and
'interpretive' approaches in the social sciences can be
extrapolated to embrace a fundamental demarcation that has
characterized much of Western social theory in general.
The Rule-Centered Model
Intrinsic to the rule-centered model is the assumption that the
normative basis for decision-making characterizes the emergence of
law and that this litmus test can and should be applied cross-
culturally. At an even more fundamental level, the rule-centered
paradigm operates on the assumption that social life is the
irrevocable product a rule-governed universe and further assumes
that 'normal' behaviour encompasses compliance with these
directives. As a result of this, the inevitable instances of
interpersonal conflict or dispute come to be seen as
'pathological' and are to be dealt with by society's control
mechanisms.(3) As will be seen, these premises become highly
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questionable in the light of various theoretical objections and
contradictory ethnographic data.
Returning to the notion of successive forms of social control,
Emile Durkheim can also be seen to have significantly affected the
development of the rule-centered model in legal anthropology.
Durkheim placed a relatively heavy emphasis on a society's legal
sphere and indeed, it was through the analysis of legal forms that
Durkheim proposed to test his hypothesis concerning 'mechanical'
and 'organic' solidarity. Basically, societies in which mechanical
solidarity prevailed would exhibit 'repressive' sanctions, while
those in which organic solidarity had developed were characterized
by 'restitutive' sanctions. By establishing what legal form
predominated in any given society, Durkheim claimed, one could
therefore ascertain a society's basic nature.(4)
The rule-centered paradigm's earlier link with jurisprudence
was continued in important ways by later anthropologists.(5) After
those non-Western societies--that had previously been studied only
in order to glean insights into the origins of Western
jurisprudence--came to be studied in their own right, the
assumption that 'law' was a natural and definable area for enquiry
was retained. For example, Radcliffe-Brown (1933) saw to it in an
encyclopedia of the social sciences that law should form a
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discrete entity in his proposed 'social physiology'. Further, this
retention by some anthropologists of a nineteenth century,
jurisprudential conception of law (with its implications; ie...
centralized bureaucracy, courts, formalized enforcement agencies
etc..) reflected a predominately positivist approach in Western
social theory.(6) This theoretical bias--the most conspicuous
exponent of which was Roscoe Pound, the American jurist--led
Radcliffe-Brown(1933:202) to contend that indeed law was a "social
control through the systematic application of the force of a
politically organized society."(emphasis mine)
Evans-Pritchard in The Nuer(1940), following steadfastly in
this vein, arrived at a similar notion of the law when he saw it
concerned with a situation where there could be found "authority
with power to adjudicate" and to "enforce a verdict".(7) Having
arrived at this conceptualization, Evans-Pritchard went on to
conclude that this definition forced one to see many of the
societies that anthropologists study as without law.
Other writers (e.g., Schapera 1938; Hoebel 1954; Pospisil 1958)
have offered up alternative but related definitions (the problems
with which will be dealt with in more detail in section 3).
However, even though they do differ slightly, they share a number
of key presuppositions. Being, as Roberts and Comaroff (1981: 7-8)
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assert, derivations of Western legal theory, these
conceptualizations fundamentally relate law to authoritative
social control. The result of this inextricable link is to
invalidate this model as a heuristic device when analyzing
ethnographic data from many of the de-centralized, pluralistic
societies that anthropologists have been concerned with. Further,
these implied premises have manifested themselves in a number of
classic accounts of indigenous law.
Schapera's A Handbook of Tswana Law and Custom is, in the main,
comprised of exhaustive lists of Tswana rules, which are (not
surprisingly) categorized along lines that are strikingly Western
in both form and content. Throughout, Schapera describes the
various 'codes' and normative guidelines that 'judicial agencies'
employ when deciding how to resolve a socially disruptive dispute.
(8)
As Roberts (1979) rightly points out, it would be a
misrepresentation to imply that those working within the rule-
centered paradigm have simply sought to manipulate non-Western
systems of social control into a Western legal framework. As a
prominent example of a rule-centered writer who cannot be said to
simplify matters in such a way, Roberts offers Max Gluckman. In
Gluckman's The Judicial Process Among the Barotse of Northern
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Rhodesia (1955), Roberts claims, extensive attempts are made to
compare Lozi judicial institutions with Western ones in order to
establish the similarities and differences between the them. Also,
the reluctance to draw a direct relationship between normative
guidelines and decision-making outcomes separates this work from
its more rigid predecessors. That is, according to Roberts,
Gluckman and other scholars in this category (e.g., Fallers 1969)
place a considerable amount of stress on the flexibility of
indigenous rules and show how various degrees of interpretation
allow 'judges' to be more efficacious in dispute situations. By
implication, this theoretical delineation between the older rule-
centered writers and the relatively later ones allows one to
conclude that these later rule-centered studies are not without
some use-value. In this sense, Roberts is right and wrong.
To the extent that scholars such as Gluckman and Fallers have
recognized the patent inadequacy of applying a strict, rule-
centered model to many if not most non-Western societies, the
later studies can be seen as useful organizational tools when
accounting for the myriad situations in which social conflict
occurs. In an analogous way, functionalism as a mainstream
theoretical approach has lost its value, while still providing
ethnographers with an system for ordering data. Therefore, as part
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of a legal anthropologist's repertoire, the rule-centered paradigm
could possibly allow one to assume for the sake of organization--
while all the time remaining cognizant of its artificiality--that
a certain society's social control functionary/ies came to a
decision by specifically invoking a known set of rules (rules that
are not only known to the autochthonous community but to the
anthropologist as well!).
However, the fundamentally adhered to notion that the 'law' is
an entirely separate and isolated institution (ie.. an irreducible
category) causes great doubt to be cast on the accuracy of
Gluckman's ethnography as a factual account of how the Lozi
comprehend their dispute processes. This foray into the
indigenous- perception-as-opposed-to-the-anthropologist's-model
dilemma allows one of the most vital criticisms of the rule-
centered paradigm to
be adumbrated. This central problem area in legal anthropology has
most often been framed within the context of the 'Gluckman-
Bohannan controversy' (Nader 1965; Roberts and Comaroff 1981).
At an essential level, Gluckman and Bohannan can be seen to
have represented opposing poles in an argument that had
reverberations throughout the discipline as a whole. Once again, a
useful analogy can be drawn between this academic debate and the
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famous formalist-substantivist debates in economic anthropology
that had broader implications for the social sciences in general.
Bohannan and others that supported his position (e.g., van
Velsen 1969) attempted to explicate the inherent dangers of
assuming that the," linguistic, conceptual, and institutional
categories of Anglo-American law may be used to account for those
found in other systems."(9) Despite all of the obvious
difficulties in comparing two legal systems with wholly distinct
conceptual and empirical histories, van Velsen (1969:137) further
asserts that the rule-centered approach has often utilized
concepts according to "an imperfect understanding of their own
legal system."
Gluckman and others (e.g., Hoebel 1954) maintained that certain
elements of Western jurisprudence can and should provide a
framework within which legal 'facts' in non-Western societies
might be interpreted.(10) This specific supposition was founded in
the belief that Western legal thought has developed certain
concepts (e.g., the 'reasonable man') which could be used to
structure an analysis of non-Western data relating to social order
and conflict resolution.(11)
Some (Nader 1969; Roberts, by implication, 1979) have seen this
controversy as a non-problem owing to the notion that Gluckman and
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Bohannan were simply talking past each other. Bohannan was
concerned with the indigenous 'analytical system'--that is, the
way in which the Tiv themselves perceive their system. Gluckman,
on the other hand, was primarily interested in ethnographic
comparison in order to better comprehend those aspects of Lozi
procedure that are distinct from Western legal structures.
Therefore, it is claimed that the debate need not occupy a
position of theoretical importance because the issues were being
addressed at different levels--namely, description (Gluckman) and
analysis (Bohannan).
This 'resolution' however, fails to grasp the fundamental level
at which the two opposing parties to the dispute diverge, both
theoretically and ideologically. While Gluckman is seen to be
merely describing--and using Western legal concepts as ordering
devices--it must be recognized that something much more profound
is involved in this process. The rule-centered paradigm assumes,
above all else, that Western jurisprudential conceptualizations
represent a higher plateau of legal development than that found in
non-Western societies. Further, when it is claimed that the
utilization of these conceptualizations is for purposes of
comparative juxtaposition only, by implication and ipso facto, the
Western concepts inevitably serve as apical points towards which
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the non-western system is seen to be moving. Thus, the Lozi's
corpus juris occupy a lower position on a vertically situated,
developmental scale.
Gluckman's position would most definitely take vigorous
exception to this categorization, however, its ethnography is
irrevocably bound to the 'folk model' that is used to represent
it. As in linguistic theory, which says that the actual cognitive
process itself is structured by the particular language that is
used to convey it; so too is ethnography structured by the
intrinsic model that the anthropologist brings to the field. The
essential premises of the rule-centered model have been discussed
in detail above, but suffice it to say that in being the product
of a long legal tradition, it is impossible to employ the model
without its concomitant theoretical baggage.
Bohannan and van Velsen undoubtedly recognized these dangers
when protesting against the use of the rule-centered approach in
analyzing legal systems that fell outside that scope of the West's
jurisprudential and historical development. The importance of
these and other criticisms led those who were interested in non-
Western legal systems to look elsewhere for their theoretical and
methodological guidance, which leads to the next sub-section.
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The Processual Paradigm
As Roberts and Comaroff (1981) assert, it is by general
agreement that the processual model owes little or nothing of its
inception or promulgation to traditional jurisprudence.
Malinowski's Crime and Custom in Savage Society (1926) is seen as
the first study in this genre, that is, the first such work that
sought to account for the particular societal mechanisms through
which order was maintained in a society that lacked "courts and
constables." What Malinowski emphasized essentially was the need
to look beyond Western legal concepts to the specific functions
that indigenous social control structures served.(12) His widely
quoted locus classicus to this effect (1934: lxiii) has been the
processual model's charter for the last fifty years: " In such
primitive communities I personally believe that law ought to be
defined by function and not by form, that is, we ought to see what
are the arrangements, the sociological realities, the cultural
mechanisms which act for the enforcement of law."
Malinowski had been indignant about theories of primitive law
like Hartland's (1924) which described the indigenous person as an
automaton, obeying the customs of the group because he was
irrevocably bound by tradition. Instead, Malinowski was concerned
with the positive inducements to conformity to be found in
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reciprocal obligations, complimentary rights, and favorable social
reputations.(13) He perceived the social and economic stake of the
man who wished to remain in good standing among his fellow men as
the dynamic force behind the performance of obligations.(14)
Malinowski, therefore, was in essence dealing with that specific
aspect of social control that resides in the mutuality and
reciprocity of social obligations.
Crime and Custom also did much to lay to rest many of the
illusions about the nature of 'savage society' in general and
about indigenous social control mechanisms specifically. As Ian
Hamnett (1977: Introduction) observes," it remains an unrivalled
corrective to notions of primitive automatism with regard to
'custom', and it introduced a refreshingly positivist and
commonsensical note into areas where mystification often
masqueraded as explanation."
It can be seen, however, that even though Malinowski adamantly
rejected an institutional approach to law, he nevertheless
encourages an approach to normative regulation that is within a
control framework. Because of this, Malinowski is able to develop
a connection between what can be called a 'model of control' and
the day-to-day situational logic that is contained within the
interactional context. As he realized, without this essential
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connection, the normative order appears unacceptably abstract;
ie.. without accounting for both the ideological conceptions of
order and the practical realm in which these conceptions become
manifest, the total social picture is hopelessly incomplete.(15)
However much Crime and Custom revolutionized the way in which
anthropologists, and especially lawyers came to view law in
'primitive' societies, it nevertheless has been criticized on a
number of levels. The most damaging of these has been enumerated
by several scholars (e.g., Moore 1978) and asserts that the shear
breadth of Malinowski's focus of enquiry renders his analytical
model 'watered down' to the point where law becomes inseparable
from other modes of social control. As Moore (1978: 220) says, the
conception of law that Malinowski propounded was so broad that it
" was virtually indistinguishable from a study of the obligatory
aspects of all social relationships. It could almost be said that
by its very breadth and blurriness of conception Malinowski's view
made it difficult to separate or define law as any special
province of study. Law was not distinguished from social control
in general."
Other anthropologists (Schapera 1938; Radcliffe-Brown 1952;
Gluckman 1955; Hoebel 1954) offered conceptions that contrasted
sharply with Malinowski primarily in their unifying emphasis on
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the socially approved application of force as the essential
element of law. More recent scholars (e.g., Hart 1961; Bohannan
1965; M.G. Smith 1966; Pospisil 1967) have de-emphasized force as
a fundamental element but have still found, generally, that
Malinowski's framework has proved necessary but not sufficient,
both theoretically and empirically.
However, as Roberts and Comaroff (1981) demonstrate, the same
amorphousness that provided fuel for his critics fire, as it were,
also provided others with their greatest source of inspiration. As
to the implications of Malinowski's position, they note," perhaps
the most significant was the notion that behaviour is constrained
primarily by the intrinsic properties of social relations--
obligations, expectations, and reciprocities--and by the
exigencies of interaction. It is therefore in social processes,
not institutions that the analysis of order is ultimately to be
grounded."(emphasis added)
This theoretical shift from an emphasis on structural content
to interactional form signalled the emergence of the processual
paradigm in legal anthropology. This model has a number of
important characteristics that can be seen to encompass much of
the literature within this tradition. First, societal dispute is
not treated as pathological--and hence to be 'cured'--but is seen
2
as an endogenous and fundamental element of social life. Second,
the appropriate sociological meaning of conflict is to be accessed
through a methodology that analyzes the dispute within the context
of the entire social process.(16) It follows from this that an
complete account of a dispute should use a longitudinal approach
that records its incipience, efforts at management, and any
resulting outcome. This greater attention to what Roberts and
Comaroff call "temporal depth" makes it possible to analyze a
social phenomenon, not in a conceptual vacuum, but in its totality
and with an appreciation of the inevitable vicissitudes of
interpersonal relationships.
The third conspicuous characteristic of the processual paradigm
has been its de-emphasis of the third party (ie...judges,
governmental officiants, even leopard skin chiefs) and a focus on
the individual actors that are parties to any particular dispute.
This so-called litigant's perspective (Turner 1957) recognizes
that a situation of dispute usually represents only one stage in
an ongoing relationship between the two or more individuals and
that the decision whether or not to bring a conflict into the
public arena is part and parcel of not only the events preceding
the conflict, but of those that the parties anticipate will follow
it.
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Lastly, indigenous rules or normative guidelines are not seen,
in the processual model, as a priori 'laws' that have the
irrevocable authority to determine the outcome of disputes. As
Roberts and Comaroff observe (1981: 15), it is often the body of
rules themselves that are the most marked object of negotiation
and even purposive manipulation.
As can be surmised, the entire range and scope of dispute
settlement procedures play an important role in the processual
paradigm's methodological repertoire. Some have asserted (e.g.,
Gulliver 1979) that dispute processes are viewed, in the context
of the processual paradigm, as cognitive and organizational
frameworks within which people are able to articulate and promote
their group or self interests.
There have been two main levels of criticism of the processual
model. The first level concerns the alleged ambiguousness of the
paradigm's scope of enquiry. The all-encompassing nature of its
analysis, assert its critics (Fallers 1969; Moore 1970; Hamnett
1975), lacks the rigor and accuracy of a proper social scientific
methodology. That is, the overarching concept--social control--
favored by the adherents of the processual paradigm is able to
account for everything and hence explains nothing. As an
alternative, Hamnett (1975: 107) suggests that " a continuous
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scale of 'legalism'... could (and should) be constructed, and
empirical legal systems placed along it... In this he (Fallers)
has made a major contribution to legal anthropology, by
reinstating law as a specific mode of social action and showing
the way back from the theoretical desert of 'social control'."
This sojourn into the 'theoretical desert' is, of course,
unsatisfactory for those of the rule-centered persuasion because,
for them, it tends to invalidate legal anthropology as a sub-
discipline by failing to isolate a specific and definable area for
study. However, as has been stated, it is this precise flexibility
that allows the processual model to, not only account for the
diverse range of dispute situations, but also to be applied on a
cross-cultural basis.
The second major area of criticism which has developed around
the processual paradigm reflects the view that, by concentrating
on human interactions--especially negotiations--instead of
institutional forms, the model paints an unacceptably simplistic
picture of human behaviour. Referring to Malinowski's apparent
transactionalism, Hamnett once again summarizes the rule-centered
approach's criticism most succinctly:" The Trobriander, from being
an automaton enslaved by custom, becomes at a stroke a utilitarian
positivist endowed with a nice sense of costs and benefit. This
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second stereotype is scarcely less plausible than the
first."(Hamnett 1975: 7)
Even though it is a crude caricature of some of the underlying
tenets of the processual model, Hamnett's characterization does
point up some of the problems that processual studies have
contained. By focusing primarily on the dispute process, the
processual analysis runs the risk of forcing social control to be
seen as merely an "epiphenomenon of strategic interaction."(17)
Further, to subordinate the normative domain to the transactional
sphere is to deny the fact that people do not always act in a
self-interested fashion. By not taking into account the
unconscious power of societal precepts, some processual studies
have lost the ability to explicate much of the variety of human
behaviour.(18)
Finally, it must be recognized that these two 'grand'
theoretical and methodological positions in legal anthropology are
idealized types only and that it is highly doubtful that any
anthropologist would fail to see the merits of each. Instead, it
is far more common that one finds a analysis that emphasizes the
socio-cultural order and gives inadequate attention to the role of
process or, a study that overemphasizes the processual dimension
at the expense of structure and institutions.
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The Era of the Dispute Process Studies
Most anthropologists would look upon the notion of a human
socio-cultural universal as a highly dubious proposition. The
slightest hint of such a sweeping generalization is enough to make
most anthropologically minded scholars dismiss such attempts as
anchored in a nineteenth century evolutionism and unfit for
further attention. Keith Hopkins, for example, has used much ink
in demonstrating quite convincingly that the incest taboo--
historically thought to be the most universal human institution--
is itself a varied, cultural construct.
However, this does not imply that there are no universals--just
no human institutional ones. All human beings share a definable
organic existence including the bodily constituents, reflex
mechanisms, physiological processes, and unidirectional journey
from birth to death. Human beings everywhere and at all times have
laughed, cried, smiled and had sexual intercourse in order to
propagate the species. Unfortunately, these entirely unarguable
assertions do not allow one to logically infer that, because all
human beings share these traits, they perceive of them in the same
way. Further, because homo sapiens perceive of these inevitable
processes differently, then ipso facto they must organize and
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institutionalize their particular responses in a similarly sui
generis fashion.
Therefore, it becomes possible to analyze a specific human
institution cross-culturally while recognizing that the particular
form an institution takes in any one society will be a function of
a range of perceptual responses to different exogenous stimuli.
This approach is the hallmark of the dispute studies in legal
anthropology. As Nader(1978: 1-5) puts it," In all human societies
there are persons who have problems of debt, of theft, of
infidelity, of employment, of consumption, and of personal injury.
Many of these people seek to do something about their problems,
and in so doing resort to remedy agents that the society has
previously developed to deal with them; and, if no satisfaction
can be obtained through these traditional means, they create new
forums through which they seek to obtain 'justice', however they
may perceive it."(emphasis mine)
The impetus for this new direction in legal anthropology can be
traced to the 1941 publication of Llewellyn and Hoebel's The
Cheyenne Way. These collaborators, lawyer and anthropologist
respectively, utilized the traditional, legal 'case study' in
order to organize their 'ethnography'. The method of 'the case'
used in this way must be distinguished from Hoebel's earlier use
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of 'case histories' in his essay on the Comanche Indians (1940).
In the former, categories of law were determined on the basis of
both case historical material and ethnographic data, while in the
latter, the emphasis was upon the case itself as a category of
jurisprudence.
In The Cheyenne Way, Hoebel and Llewellyn identified three
primary " roads into the exploration of the law-stuff of a
culture."(19) First, they advocated an analysis of the abstract
rules that either form the contents of codes in literate
societies, or are found as a verbalized set of ideals in non-
literate societies. Second, they emphasized the study of the
actual patterns of behaviour between the members of any particular
group. Finally, they sought to discover a society's 'law-stuff' by
abstracting principles from the decisions of legal authorities
given in the course of settling a dispute.(20) These three methods
were seen as interrelated, but an undoubted primacy was given to
the 'trouble case'.
In the corpus of The Cheyenne Way, individual cases are
extracted from trouble situations and are described in terms of a
series of basic tasks--the law jobs--of which the most important
is the preservation of order.(1941: 283) The analysis of the
numerous cases is intended to serve two ends: first, as a
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demonstration of the theoretical and substantive legal principles
of the Cheyenne people; and second, as evidence that the law is in
fact, for the Cheyenne, a matter of case-process.(21) Indeed, it
is asserted that the Cheyenne as a collective possess an intuitive
juristic precision "...Because explicit law--ie...law clothed in
rules--was exceedingly rare among them...They did not have many
fixed rituals of procedure to guide them, around whose application
or whose ceremonial formulae and behavioral concepts of legal
correctness so readily come to cluster."(1941: 313)
Before moving on to consider dispute process studies more
fully, it is first necessary to note some of the criticisms that
have been addressed to The Cheyenne Way specifically. M.B.
Hooker(1975) has shown that while the book has served an important
function in stimulating later analyses in legal anthropology, it
nonetheless is wrought with a number of conceptual deficiencies.
First, Hooker claims that the reason that 'fixed rituals of
procedure' were not found by Hoebel and Llewellyn is that the
methodological premises of their analysis precluded such
discovery. Following from this, it becomes apparent that 'explicit
law' was seen not to exist among the Cheyenne for what Hooker says
is the overt Realist position of the authors, which emphasizes
process over structure. This then, is the reason that Llewellyn
2
and Hoebel failed to 'find' any evidence of 'explicit rule
formulation' among the Cheyenne. Lastly, Hooker asserts that the
author's adoption of the 'case' as the all-important element, to
the exclusion of the notion of ratio decidendi (or precedent), can
be seen as a somewhat arbitrary inclusion and leads to an
incomplete categorization.(22)
Despite these entirely valid criticisms (or in fact because of
them), later legal anthropologists (e.g.; Gulliver 1963, 1969,
1971; Nader 1965, 1969; Metzger 1960; Roberts and Comaroff 1981)
have excised the importance given to dispute processes from the
larger body of Llewellyn and Hoebel's work and made it the
foundation upon which the sub-discipline has primarily rested
since the 1950's.
As these anthropologists have maintained, it is recognized that
the study of dispute processes focuses on only one aspect of many
viable legal factors. However, as a specific topic, it can be seen
to crosscut segments of the entire law domain by incorporating a
particular type of settlement--judicial procedure--into the
broader context--dispute settlement--which provides a lens through
which to explore the larger role of law in culture and society.
(23) As Nader (1969: 9-10) has said of this approach," The
consideration of judicial process as one point on the continuum of
2
the broader category of public forms of dispute settlement leads
us to considerations of an anthropological nature in trying to
explain process, use, and function of various dispute-settling
mechanisms as they relate to the presence or absence of this
judicial process."
The abundance of material within this tradition is marked by
several important methodological and theoretical characteristics.
First, by emphatically rejecting the view that there are 'proper'
and specific areas for study, the legal anthropologist was seen as
free to observe the social control process in its totality. A
concomitant of this was the explicit concern to understand the
indigenous institution or mechanisms irrespective of the use any
such knowledge might have for explicating the anthropologist's own
system. Second, by re-introducing the individual as an efficacious
and distinct social actor, there occurs a de-emphasis of the
importance of codified or normative guidelines. That is, rules and
institutions remain of interest only in so far as they assist or
help to illuminate the observed regularities in instances of
dispute.(24)
Third, as Roberts (1979) has emphasized, the dispute studies
made an important step by stressing the fact that conflict, as
opposed to the law or rule-centered position, was a normal and
2
indeed inevitable aspect of social life. Disputes are here seen as
"vehicles through which existing social forms could be reproduced
and clarified and also a means through which social change could
be addressed."(25) This desire to approach disputes with an
explicit view to the larger social context was the direct result
of the realization that a dispute situation most often involved
the community as a whole. Thus, scholars (e.g.; Turner 1957;
Gulliver 1963) began to construct a picture of the process that
embraced its antecedents, the resolution attempts, and the
dispute's aftermath.
Another key characteristic of the paradigmatic dispute study
was the notion that the traditional, third-party adjudicatory
model of dispute resolution was entirely inadequate in accounting
for the majority of the ethnographic data relating to resolution
procedure. Instead, it was found that there exist a variety of
socially approved and supported methods for dealing with a
dispute. Gulliver (1963) recognized that it was possible for a
party to a dispute to utilize avoidance, withdrawal, mediation,
negotiation, as well as different forms of adjudication (e.g.,
arbitration) in seeking to resolve the dispute situation.
Finally, primarily through the influence of Melanesian
specialists like M. and A. Strathern and S. Harrison, it came to
2
be accepted that fighting often presents itself as an integral
part of a society's normative repertoire for resolving dispute. It
was no longer possible to abide by the traditional Western
dichotomy that placed talking and fighting at opposing ends of the
dispute settlement spectrum. Extrapolating from this, the related
law/war opposition became extremely problematic and of little use-
value when analyzing some non-Western societies. Indeed, here was
offered a view of social relations where periodic but highly
ritualized warfare served to promote social harmony and act as a
means for re-creating and maintaining inter- and intracommunal
relationships.
By way of concluding this primarily historical section, it is
possible to see how the two traditional approaches in legal
anthropology have been used as media through which were expressed
fundamental differences concerning the conceptualization of law in
society specifically and the relationship of the individual to the
normative universe in general.
The later dispute studies were partly a result of an overall
change in methodological orientation--from so-called armchair
theorizing to participant observation--, but were also a reaction
to the perceived removal of the individual cum social actor from
most mainstream, structural-functionalist anthropology.
2
Therefore, in the end, it came to be seen that both theoretical
approaches were insufficient in and of themselves and that the
dispute process methodology was much too narrow in focus. This
combined realization was to pave the way for the entrance of new
and often unorthodox legal anthropological positions, a subject
that will be addressed in the 'new directions' section.
2
2. Ethnographic Paradigms
In order to clarify some of the more abstract theoretical
propositions discussed in the previous section, a digression will
be made for demonstrative purposes. Two ethnographies will be
considered as representative of their respective positions and
thus by detailing how the ethnographic data are used to support
theoretical suppositions, it will be possible to arrive at a
opinion as to the accuracy of the overall picture that emerges.
Ethnographic Jurisprudence
As has been stated above, Max Gluckman saw legal anthropology
as a means through which to document a particular indigenous legal
system on the one hand, and to assess the relative
similarities/differences vis-a-vis the Western model on the other.
His most influential publication and the one that served as the
standard by which subsequent texts were compared was his The
Judicial Process Among the Barotse of Northern Rhodesia (1955).
Gluckman's fundamental thesis consisted of the generalization
that if one could determine the nature of the social relationships
between the parties to a dispute, one could predict the procedure
that would be employed in the decision-making process.(26) Also,
2
the nature of the external relationships in which litigants are
involved will affect the manner in which they will attempt to
manage the problem. As Gluckman says," the fact that the parties
(and often the judges as well) are normally involved in complex or
multiplex relations outside the court-forum, relations which
existed before and continue after the actual appearance in
court...largely determines the form that a judicial hearing
takes."(Gluckman 1969: 22)
Thus, in alignment with the tenets of the structural-
functionalist model, Gluckman concentrates on the Lozi
relationships and their functional role in the disputing process.
For the Lozi, according to Gluckman, the particular relationship
between the disputants determines the procedural form that the
settlement attempt will assume. It follows from this that the
outcome of the dispute settlement attempt will be the direct
result of this determined procedural form. As a related feature,
the nature of the relationship between the disputants also acts in
a negative way to set constraints on the form that the settlement
process will take. Therefore, for Gluckman, the most central
variable in this proposition was the level of complexity that any
particular Lozi relationship functioned at.(27)
On a more specific level, Gluckman was concerned to examine the
2
ways in which the Lozi kuta (courts) applied the above principles
in the actual day-to-day processing of dispute situations.
Underlying this, however, is an implicit rule-centered orientation
apparent in the fact that law, for Gluckman, consists essentially
in a set of abstract rules. He supports this claim when he says
that," law is a body of rules which are theoretically certain and
which have socially permeated, 'intrinsic' meanings."(1955: 354)
According to one of his more controversial propositions,
Gluckman has asserted that the Lozi judges apply the standard of
the 'Reasonable Man' in assessing the behaviour of the parties to
a dispute.(1955: ch.3) This conceptualization has been frequently
misunderstood by many of the critics of the rule-centered paradigm
and especially by those emphatically adverse to transposing
established Western jurisprudential notions to non-Western
societies (e.g., see Bohannan 1957,1969). However, Gluckman's
Reasonable Man must primarily be understood as a reflection of
societal role expectations and not as the personification of some
average member of Lozi society. Further, this standard must also
be seen as an overt attempt by Lozi judges to devise an
efficacious, normative sphere in which decisions can be handed
down in a balanced and guided fashion.
Gluckman's ethnographic account has also given rise to a number
2
of tangential discussions within legal anthropology. More
important amongst these are the following: the extent to which
judicial process and legal reasoning are cross-cultural
invariants; the general question of the role of certainty and
uncertainty in the judicial process; the problem of whether or not
there is room for such concepts as 'justice' and 'law' in
theoretical constructs and if so, how may they be properly
employed; and finally, the problem of how the norms of society
enter into the judicial decision-making process.(28)
As has been stated, Gluckman has been most highly criticized
for his use of the Reasonable Man concept. Hoebel (1961) suggested
that Gluckman replace the Reasonable Man with a more exact and
less value-laden tool, but as Gluckman had always pointed out, he
used the concept in the same sense as the Lozi judges did. In
addition, Gluckman further argued (1959, 1963, 1965), that the
concept has distinct advantages for the study of 'tribal' law
because it serves as a " necessary and unifying structuring device
that facilitates the ordering of the judicial process."(29)
Despite this plea by Gluckman that his concept merely reflects
the indigenous usage and moreover, aids in organizing ethnographic
data, one can still claim that he has either failed or refused to
address the more fundamental problems with the Reasonable Man. As
2
Bohannan and others have repeatedly observed (see above, section
1), Gluckman immediately casts doubt as to the usefulness of his
data as soon as he attempts to order his Lozi material within a
Western jurisprudential framework.
Even with these powerful objections, Gluckman's ethnography can
be seen to have stimulated a panoply of reactive but constructive
discourses that have had the effect of not only adding to the
collective body of ethnographic material, but have also increased
our understanding of the nature of many non-Western legal systems.
Dispute Processing in a Lebanese Village
In Nader and Todd (eds.) The Disputing Process: Law in Ten
Societies, John Rothenberger describes how Sunni Muslim villagers
in the mountains of Northern Lebanon resolve their various
interpersonal and intergroup conflicts in such areas as rights of
land use, injury or destruction of property, control of scarce
resources etc... In doing so, Rothenberger's ethnography serves as
a fine example of a quintessential dispute study and processual
analysis.
In approaching his data sans prior Western legal assumptions,
Rothenberger is able to concentrate on the complex, interactive
process through which the Lebanese villagers seek to maintain or
2
restore social order. He observes that the loci of dispute
resolution procedures are to be found by analyzing:" (1) the
social, economic, and political environment of the disputing
process; (2) the process of dispute settlement itself; and (3) the
relationship of the disputing process to the social, economic, and
political matrix of the village as illustrated by contrasting
cases involving the same parties."(Rothenberger 1978: 153) He also
goes to great lengths to remain cognizant of the specific
interaction between the type and course of the dispute settlement
procedures, and the relative position of the parties in relation
to, not only each other, but to the decision maker/remedy agent as
well.(30)
Thus, by analyzing the disputing process within the total
context of the manifold social, political and economic factors,
Rothenberger presents an ethnographic picture that is contextually
specific yet does not seek to employ broader legal concepts or to
make a claim for cross-cultural, comparative use-value.
Further, when analyzing one method of indigenous conflict
resolution that involves talking directed towards decision-making,
Rothenberger is able to differentiate between the various modes
within this sphere. Following Gulliver's example (Gulliver 1969),
he demonstrates that, depending on the specific nature of the
2
dispute in question, the disputants may either employ negotiation,
mediation, or one of several forms of adjudication when attempting
to resolve the dispute. Also, and even more importantly,
Rothenberger shows how there is often an overlap on this
procedural continuum and that it is quite frequently the case that
in the course of the proceedings, the resolution method is
purposely altered. This procedural fluidity, following Gulliver,
becomes seen as an essential element in the decision-making
repertoire because it allows for the demands that the changing
socio-economic, ecological, and human interpersonal spheres make
upon the normative universe.
However, despite the obvious positive results of this and other
similar studies, it can be said that because of the purposive
narrowing of the overall scope of the enquiries, they have had
little or no use-value on a comparative level. In a larger sense,
these ethnographic accounts simply add to the growing body of
literature on the legal systems of non-Western societies without
attempting to address any of the more fundamental questions such
as: when and under what conditions will a recourse to violence be
seen as a viable alternative in dispute resolution?; is there any
relation between the economic structure and the parallel legal
one?; under what circumstances will a neutral third party become
2
necessary in place of either a mediator or a negotiation
procedure?; etc.. .
In sum, it has been shown how both of these ethnographic
paradigms serve to illuminate their respective theoretical and
methodological positions. While each contributes in different
ways--Gluckman's as primarily an intellectual stimulus, and
Rothenberger's as an important addition to the dispute study
literature--they nevertheless reiterate the point that by
emphasizing one clearly beneficial model at the expense of
another, an ethnographer places restrictions on the long term
applicability of its conclusions on both the specific, societal
level and more importantly, on the comparative one.
2
3. Leopold Pospisil and Conceptual Problems
In order to examine how some of the more abstract dilemmas are
addressed in legal anthropology, it is necessary to examine how
one legal anthropologist, Leopold Pospisil, has attempted to
resolve a number of theoretical difficulties. His approach has
been eclectic and thus resistant to any rigid inclusion into a
particular conceptual paradigm. In this sense, some of his work
represents a step forward in the search for a more adaptable
theoretical framework with which to apply to the ethnographic
data.
In his Anthropology of Law (1971), Pospisil is concerned to
identify the attributes of a hypothetical, analytically based
concept of law that is designed for comparative analysis. Included
in this conceptualization are phenomena which would be recognized
as law by the jurisprudential positivists in the Anglo-American
tradition--sanction, for example--but would also include phenomena
of institutionalized social control from non-Western societies.
(31) Pospisil denies the validity of any definition of law
that claims supremacy for any particular categorization of law. As
examples of material that are characterized by this, he describes
the work of Radcliffe-Brown, who saw sanction as the primary legal
2
attribute, and Malinowski, who stressed the notion of reciprocal
obligation as law's essential defining feature. Pospisil's central
objection is, quite rightly, that any specific and exclusive
definitional emphasis is insufficient when attempting to reach a
greater understanding of the essence of 'law'.
Instead, Pospisil suggests concentrating on four, broad areas
of enquiry: authority; intent of universal application; obligatio;
and sanction. Also, Pospisil draws attention to the important
notion that, in any society, there are a multiplicity of legal
levels that affect the individual when he finds himself enmeshed
in a dispute situation. This means that one must distinguish
between the various societal sub-groups such as the household,
sub-lineage, lineage, etc.., each of which has its own body of
inclusive rules.(32) Therefore, it can be seen that the individual
is simultaneously a member of each of these inclusive normative
domains at one and the same time. The implication of this is the
notion that one may be subject to the directives and provisos of
several legal systems, " the rule contents of which vary sometimes
to the point of contradiction." (Hooker 1975: 32) This in turn has
important consequences for the way in which 'the' legal system
becomes manifest to the larger, national state bureaucracy and to
the observing anthropologist.
2
Pospisil (1971) has also asserted that it is essential that the
anthropologist of law share the conclusion drawn by sociologists
that law is institutionalized social control.(Varga 1986: 2) Thus,
with this as a starting point, Pospisil poses the question: what
is the feature of institutionalized social control that would
usefully serve as the foundation for any subsequent enquiry? That
is, should law be conceived of as a set of rules or as an abstract
principle? And, if one settles on the law-as-principle position,
should this law be inferred from the empirical data or from the
abstract principles themselves? By way of explication, Pospisil
asserts that Roman law cannot be characterized as a set of
abstract principles because, from the time of the Twelve Tables
until the end of the Republican era, written law was adjusted to
the specific problems arising from actual disputes. However, as
Pospisil claims, due to the fiction of continuity, Roman law was
inherited by the successor states and served as the model for the
European continent--as interpreted by the commentators of the
Middle Ages and the humanists of more modern times.(Pospisil 1971:
20-21)
As Pospisil observes, it is historically correct that the
legalistic conception of law as a set of rules is a phenomenon so
characteristic of Western civilization that there is but one non-
2
Western analogue in the course of history: it appeared for several
decades in China, during the rule of the Ch'in dynasty in the
Second Century B.C.(1971: 23-26) Thus, Pospisil concludes that law
as a cross-cultural concept is meaningless devoid of a focus on
actual behaviour (or 'praxis').
Pospisil has also addressed the processual paradigm's exclusive
emphasis on the outcome of dispute processes in forming a
definition as to what law is and how it should be analyzed. Varga,
following Pospisil, has vigorously asserted that law cannot, and
should not be seen merely as a reflection of or reflected in the
settlement of conflict ridden situations. He notes astutely (1986:
11) that "law is a complex phenomenon comprising an interaction,
interpenetration and temporary separation, that is, the complex
motion of at least three factors, namely, rule, authority's
decision, and actual behaviour."(emphases mine)
Further, the legal process must be reconstructed, as Varga
says, "ontologically"--ie...instead of viewing law as a type of
"normative reification", it is necessary to depart from the actual
functioning of law and analyze it in its totality within the
heterogeneity and complexity that the law in society encompasses.
(Varga 1985: ch.1) (see figure I below)
Pospisil demonstrates this more integrative approach to the
2
conceptualization of law by identifying what he sees are some of
the primary elements of any abstract/empirical notion:(A) its
regularity;(B) its official authority being comprised of four sub-
elements,(1) a 'must' element,(2) supremacy,(3) the systematic
element,(4) officialdom (that is, the law should be recognized as
representing the order of the group);(C) sanction. To qualify this
last attribute, Pospisil has said that " the effectiveness of
social control is the only important qualification of a legal
sanction, not the form it assumes."(1971: 89)
Varga (1986) has pointed out that even though Pospisil has made
an important contribution by integrating several distinct
theoretical positions, his implied emphasis on legal decision
provides no answer to the all-important question; if there is no
litigation, is there no law at all?
Therefore, in the time-honored tradition, Varga makes an
admirable effort at addressing some of these ambiguities in
Pospisil's analysis by offering a model of his own. For Varga, law
has the following defining attributes:(1) law is a global
phenomenon embracing society as a whole (thus, gangs, mafia,
guilds, etc...would fall outside the domain of law);(2) law is a
phenomenon that settles conflicts of interest that emerge in
social 'praxis';(3) Finally, law is that which possess the supreme
2
regulating and influencing effect in a given society.(Varga 1986:
ch.1)
These characteristics, for Varga, can be readily discovered by
the legal anthropologist because "the anthropological approach to
law possesses a deliberating power in that it attempts to grasp
the essence of law openly, building upon its own dynamics and
function performing."(1986: 26) This somewhat rhapsodic
pronunciation does however underscore the notion that many of the
past ethnographic accounts have been inadequate in some way.
As Varga observes, many of the past attempts at overarching
classification (e.g., Pospisil ) with conceptual undifferentiation
have left yawning gaps in the ethnographic literature. For
example, when Pospisil categorizes the Chinese system of social
control as legal, without any necessary qualifiers, he deprives it
of its very peculiarity. Further, this lack of acknowledged
specificity reduces to meaningless that common feature of the
Chinese (and indeed Japanese) system that bolsters its singularity
and richness--namely, the indigenous tradition in which the people
prefer harmony to truth and conciliation to adjudication.
As Varga notes (1986: 29)," the recognition of the complexities
of law enhances the potentialities of making use of it."
2
4. New Directions in Legal Anthropology: Law in the Plural Context
In 1985, a conference was convened in Bellagio, Italy in order
to assess the relative standing of analyses that incorporated law
and the social sciences. The diverse group of anthropologists,
lawyers, sociologists and political scientists that participated
all had in common the desire to infuse new purpose into an area of
study that had previously been marked by divisiveness, theoretical
rigidness, and even moribundity. The result of the Bellagio
Conference was a self-proclaimed new synthesis that sought to
direct the loci of analysis into previously unchartered
ethnographic and theoretical waters.
Before the turn of the decade, almost all significant work in
legal anthropology had been of the dispute process analysis type.
Indeed, it is accurate to say that by the late 1970's, the field
of legal anthropology had reached somewhat of an impasse. It
seemed quite evident that, having recognized the manifest
inadequacies of a narrow adherence to either the rule-centered or
processual paradigms, most anthropologists had become content to
simply collect ethnographic butterflies. That is, by unabashedly
refusing to incorporate and learn from the 'opposing' position,
legal anthropologists had no choice but to retreat to the safety
of ethnographic description. Fortunately, this state of affairs
2
became no longer satisfactory for a number of innovative scholars
and thus the Bellagio Conference represented a collective attempt
to lay the foundations on which novel research and analysis could
be based.
As the participants declared, they sought to establish a new
field of enquiry within which a link could be made between
institutions that had formerly been conceived of as distinct and
irreducible entities. These two spheres were to meet in this new
synthesis of law and the social sciences: on the one hand, the
laws of peoples who use neither writing or codified/recorded laws,
and who, in parallel, probably lack modern technology and systems
of government; and, on the other hand, the world of the paralegal
or quasi-legal forms of 'reglementation' to be found embedded
within state or official legal systems, being the 'laws' of groups
or communities operating outside the regular mechanisms of courts
and state law.(32) Customary and other similar laws are here
conceived of as official law, in the sense that they were (and
often still are) the generally recognized legal systems within the
societies in which they functioned. Unofficial 'laws' and
normative codes are, in this conceptualization, bodies of rules
and methods of settlement at best tolerated and at worst
prohibited by the official legal sphere. Therefore, it is possible
2
to demonstrate the existence of unofficial law within the most
complex polity as well as in the least developed.(34)
Members of the conference also introduced the concept of 'folk
law' as part and parcel of this new direction of analysis.
According to a previous definitional tack (Allot, Galanter, Moore
1973), folk law was seen as the "normative self-regulation of a
semi-autonomous social field." Woodman (1985) argued however, that
this definition had insufficient scope, since it arguably excluded
'imposed law' (whether imposed by an external force or by a
dominant section of the social field itself). Therefore, there
seemed to be agreement that folk law encompassed two primary
suppositions: that the law of modern states is not, or does not,
wholly consist of folk law; and, that folk must include any law
that is not state law without necessarily precluding the possible
inclusion of some types of state law.
Implicit in this notion, as Allot and Woodman (1985) observe,
is the positive denial of the Western legal axiom which confines
the concept of 'law' to state law (and which then finds
considerable difficulty in providing an analytical basis for this
preference). With these theoretical assumptions firmly in
place, the participants addressed the all-important concept of
'legal pluralism'. As Allot and Woodman (1985) remark," every
2
member of the human race is claimed as a subject by at least one
state legal system. It is extremely unlikely that anyone is not
also claimed by at least one folk legal system." Therefore, legal
pluralism has come to embrace this notion of the universal fact of
the non-monopoly of state law over the 'legal arena'.
This recognition can have extremely important consequences in
the political, social, and economic sectors of both the
industrialized Western countries and the smaller-scale but
increasingly expanding countries of the so-called Third World.
This comprehension of the validity and efficacy of unofficial
legal forms can and should provide a means through which the
different levels can exist as a 'jurisprudential mosaic'. This
mutual recognition necessarily includes the importance of seeing
law, not as an all-encompassing monolith, but as a series of
distinct but interdependent concentric circles.
Methodologically, it has become apparent that a narrow locus of
enquiry inevitably leads to an incomplete picture of the way in
which law is inextricably part of and operates in the total social
context. It therefore becomes necessary to incorporate a holistic
methodology that allows for dispute analysis, rule classification,
terminological debate, etc..; all employed with the singular
purpose of providing a more complete account of the varied ways in
2
which law as a social phenomenon impacts people and is in turn
impacted by them.
Conclusion
It is an objective fact that worldwide, societies are becoming
more rather than less stratified. The days when the anthropologist
could 'paddle' ashore and encounter a self-contained and
functionally homogeneous society--ideally suited for inclusive
analysis--are speedily drawing to a close. It is natural
therefore, that novel propositions within legal anthropology
specifically and the social sciences in general should reflect a
genuine understanding of this irreversible process. Also, the
preponderance of past studies that have tended to be framed within
a social vacuum--that is, without any cognizance of the broader
socio-political issues--have become more and more irrelevant in a
world that is in the apoplectic throes of rapid change.
Laura Nader, the former guru of the dispute process studies and
an influential exponent of the processual model in general, has
asserted that for legal anthropology to remain useful, it must
increasingly turn its attention to the pluralistic and complex
societies. This redirection should reflect the goal of developing
a law that is responsive to the " polyethnic, multi-interest
2
social systems" that characterize a growing number of human
societies.(35) Further, this concern for sub-groups in the
plural context is also linked, although in complex ways, with the
interest in the drastic changes that are occurring in the
structure and content of modern law as it is developing in cross-
cultural contexts.(Nonet and Selznick 1978) Legal anthropologists
who choose not to realign the foci of their concerns to reflect
this awareness run the risk of falling into "cultural salvage
work".(36)
As Gadacz (1982) pointedly notes, the anthropology of law has
two choices: it can either apply the thirty or forty year's worth
of valuable methodological techniques and ethnographic data from
small-scale (but rapidly vanishing) settings to current and
pressing legal dilemmas, or it can continue unconcerned with
relevant socio-legal problems and remain the lesser known,
essentially esoteric sub-discipline within anthropology that it
has always been. Thus, to paraphrase van den Berghe (1973: 970-
971): " If anthropology (read-legal anthropology) is to remain
relevant, it must be able to account as well for language riots in
Bombay (read-recidivism rates in Tokyo), religious upheaval in
Belfast (read-judicial effectiveness in Berlin), and black power
in America (read-disproportionate black male incarceration rates
2
in America)... as it does for the elegant symmetry of unilateral
cross-cousin marriage among the dualistically organized societies
of the Amazon basin (read-third party adjudicatory techniques
among the Tiv of Nigeria).
By tracing the historical progression of those studies that
have traditionally been categorized as legal anthropology or the
anthropology of law, it is possible to see how the changing
concerns in the theoretical and methodological spheres have often
reflected a greater comprehension of the wider social milieu.
However, it has also been made possible, through the course of
this thesis, to see that legal anthropologists who fail to
recognize these stated changes, have or are in danger of becoming
theoretically stagnated, methodologically inert and increasingly
irrelevant for the broader concerns within anthropology
specifically and society in general.
2
Notes
1. Simon Roberts, Order and Dispute, 1979, ch.1.
2. John Comaroff and Simon Roberts, Rules and Processes, 1981,
p.5.
3. Ibid.., pp. 5-6.
4. Emile Durkheim, The Division of Labor, 1933, ch. 4.
5. Comaroff and Roberts, Rules and Processes, 1981, pp. 6-7.
6. Ibid.., p. 7.
7. E.E. Evans-Pritchard, The Nuer, 1940, p. 162.
8. Issac Schapera, A Handbook of Tswana Law and Custom, 1938,
ch.1.
9. Comaroff and Roberts, 1981, pp. 8-9.
10. Laura Nader, Law in Culture and Society, 1969, Introduction.
11. Ibid.., Introduction.
12. Bronislaw Malinowski, Crime and Custom in a Savage Society,
1926, Part 1.
13. S.F. Moore, Law as Process, 1978, pp. 218-223.
14. Ibid.., pp. 222-223.
15. Ian Hamnett, Social Anthropology and Law, 1977, Introduction.
16. Comaroff and Roberts, 1981, Introduction.
2
17. Ibid.., p. 16.
18. Ibid.., pp. 17-18.
19. E. Hoebel and K. Llewellyn, The Cheyenne Way, 1941, ch. 1.
20. M.B. Hooker, Legal Pluralism, 1975, Introduction.
21. Ibid.., Introduction.
22. Ibid.., Introduction.
23. L. Nader and H. Todd (eds.), The Disputing Process, 1978, pp.
9-10.
24. Roberts, 1979, p. 17.
25. Ibid.., Introduction.
26. Nader and Todd (eds.), 1978, p. 12.
27. Ibid.., pp. 12-14.
28. Hooker, 1975, Introduction.
29. Ibid.., Introduction.
30. John Rothenberger in Nader and Todd (eds.), 1978, p. 153.
31. Hooker, 1975, Introduction.
32. Ibid.., Conclusion.
33. Allot and Woodman (eds.), People's Law and State Law, 1985,
Introduction.
34. Ibid.., Introduction.
35. Rene Gadacz, Towards an Anthropology of Law in Complex
Societies, 1982, pp. 2-6.
2
36. Ibid.., pp. 4-6,
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