Anthropology Of Law Research Paper

1. Historical Developments In The Anthropology Of Law

The great nineteenth-century theorists of social evolution used law as a measure of civilization and savagery. Sir Henry Maine, for example, theorized that with the shift from kin-based to territorially-based societies, there was a change in the law affecting persons from one based on status to one based on contract. In Emile Durkheim’s evolutionary scale, societies ranged from ‘primitive’ societies held together by mechanical solidarity—the sameness of all constituent members—to complex societies organized by an organic solidarity between different and specialized but interdependent members. Societies with mechanical solidarity are characterized by repressive, punitive law that maintains cohesion, while those with organic solidarity have restitutive law and damages arranged through more specialized tribunals and functionaries. Although Durkheim’s theory is empirically wrong its tendency to link civilization with the form of law affected subsequent debates within anthropology about the definition of law and its link to ‘civilization.’ In the early twentieth century, some anthropologists argued that law was universal, not characteristic only of people labeled ‘civilized.’ Bronislaw Malinowski, for example, argued that the Trobriand Islanders had no law in the sense of a state institution but governed their relationships with one another through reciprocity (1926). But the assertion that all societies had law raised the question of what ‘law’ was. During the early twentieth century, two major schools of thought developed. One school defined law in terms of institutions, requiring socially authoritative mechanisms for enforcing rules through the imposition of sanctions. Radcliffe-Brown pioneered this perspective, defining law as ‘social control through the systematic application of the force of politically organized society’ (1933, p. 202). Under this definition, all societies have customs and sanctions, but not all societies have law. E. A. Hoebel defined law more broadly, but also within an institutional context, as ‘the legitimate use of physical coercion by a socially authorized agent’ (1954, p. 26). Critics of this view of law argue that his definition is based on Western conceptions of law (Comaroff and Roberts 1981, pp. 6–7).

A second school of thought, following Malinowski, defined law in functional terms, identifying it with a broad range of social processes that produce social conformity through social pressure and inducement (1926). Reciprocity was a fundamental mechanism for maintaining social control. With Malinowski’s definition, every society has law. Critics of this view contend that defining law as social control is too broad and includes practices such as gossip, ostracism, and nicknaming that are not law-like. By the 1970s, the debate over the definition of law became increasingly sterile and was largely abandoned in favor of understanding law as a social process (see Nader 1969).

2. Law And Dispute Processes

Between the 1930s and 1960s anthropologists sought to describe the nature of rules of whole societies. Yet they confronted the paradox that there were frequently discrepancies between these rules and everyday forms of behavior. In the early 1970s anthropologists turned to studying processes by which conflicts are handled and resolutions achieved (see Moore 1978). Laura Nader and her students researched how litigants pursued disputes, and how these disputes were resolved in a wide variety of societies (Nader and Todd 1978). This approach used extended case study analysis and emphasized the perspective of litigants rather than judges. It broke dramatically with the earlier focus on rules and looked instead at the processes by which individuals pursued grievances. At the same time, it built on a tradition of analyzing extended case studies in the context of social relationships. For example, Max Gluckman argued that close-knit villages tended to have compromise settlement processes, while more loose-knit ones favored more adversarial processes (Gluckman 1955). The focus on dispute processes remains a basic framework for the anthropology of law. By the early 1980s, however, it became clear that a focus on the processes of resolving conflicts could not be separated from a consideration of rules and how they were formed. Comaroff and Roberts found in their study of the Tswana that the meaning and relevance of rules is negotiated in disputes (1981, pp. 5–17). Arguments among disputants are framed by rules, but the content of rules are negotiated as disputes are argued and resolved (1981, p. 19). This more interactive understanding of rules and processes has proved valuable for examining the operation of law in communities as well as in more formal settings, such as courts. It offers a way of understanding how different systems of rules can develop in different settings, a situation described as legal pluralism.

3. Legal Pluralism

In the contemporary world, societies typically have more than one legal system. Legal pluralism refers to situations of legal coexistence in a single social field. Initially described in colonial situations, in which the colonial power superimposed a European legal system over an existing indigenous system, legal pluralism is now understood as a fundamental characteristic of all legal systems. Advanced capitalist states as well as colonial and postcolonial states have multiple legal systems. Some are rooted in semiautonomous social fields that are self-regulated but also subject to regulation by the larger society, such as commercial networks (Moore 1978) or criminal communities. Many institutions such as schools and corporations develop forms of private governance. Informal but rule-governed relationships are characteristic of families, communities, and voluntary organizations, although there is considerable debate about whether such forms of normative ordering should be called law.

Early descriptions of plural legal systems examined each in isolation, but more recent work emphasizes the way plural systems shape one another. Thus, one legal system may offer the right to appeal decisions from another, or a litigant may be able to choose among several competing systems. Plural legal systems typically differ in power, so that the more powerful has the capacity to trump the actions of the less powerful. In colonial situations, the colonial authority often established one legal system for the subjugated and another for the colonial authorities (Moore 1986, Merry 2000). Local social groups such as schools, communities, businesses, and even gangs, have their own systems of law-like ordering, but these function within the framework of nation state law. The term ‘interlegality’ has been used to describe the interactions between multiple legal systems.

Globalization increases legal pluralism in two ways. First, it fosters the circulation of legal forms and practices from one nation state to another. Constitutions, codes, and legal institutions are commonly transplanted, much as they were during the earlier period of colonialism. These transplants introduce codes and procedures quite different from those of the receiving society, often with the intention of reform. Colonial transplants characteristically were phrased as furthering civilization; mid-twentieth-century transplants as modernizing institutions; and late-twentieth-century ones as promoting democracy and the rule of law.

A second way in which globalization increases legal pluralism is by constructing a global legal order. This includes international commercial law, fostered by the accelerating flow of transnational commercial activity. In recent years, global institutions which regulate international business, such as the International Monetary Fund and the World Bank, have become increasingly central to this legal order, along with a group of legal experts who help to manage international business transactions. The human rights system, made up of rules and sanctioning systems embedded in international institutions such as the United Nations, is another facet of the new global legal order. Although premised on a system of sovereign states, the pressure for compliance with human rights by states and transnational nongovernmental organizations is redefining the nature of state sovereignty itself. Local actors, such as indigenous peoples, make claims for legal and political sovereignty within the nation state, using international principles of self-determination and rights to protection of culture. The creation of new regional legal entities such as the European Union is also exploding the autonomy of local legal orders (Darian-Smith 1999).

4. Law And Power

Since the 1980s, the anthropology of law has become concerned increasingly with the relationship between law and the exercise of power (see Starr and Collier 1989). Inspired by Marxist and Foucauldian theory, and by the Critical Legal Studies Movement in law schools which argued that law reflects the interests of dominant groups rather than simply the logic of legal reasoning, anthropologists examined the way law supports relations of power in a wide range of social contexts (see Lazarus-Black and Hirsch 1994). But this research also demonstrated how law challenges dominant groups. It showed law to be a double-edged sword, expressing the rules and sanctioning authority of established political authorities and at the same time offering opportunities and justifications for resisting political authorities. For example, social movements that call on civil rights, such as the US civil rights movement against racial discrimination in the 1950s and 1960s, challenge existing power hierarchies.

Feminists have used the criminal law to challenge male privilege by demanding penal sanctions for those who use violence against women in intimate relation-ships. The discourse of human rights has been deployed by indigenous peoples, women, victims of war atrocities, prisoners of war, and many other groups to claim protection from state authorities. Thus, law usually reinforces existing power arrangements, but can provide an avenue of resistance through its institutions and the discourse of rights.

Attention to the way legal forms and institutions exercise power, legitimate power, and resist established forms of power leads to a concern with the way laws are produced and enforced as well as with the linguistic and social exchanges which take place in courtrooms, police stations, and lawyer’s offices (e.g., Conley and O’Barr 1990). Law constitutes social identities and understandings of social relationships through its regulations and through the spectacular as well as the mundane processes of arrest, trial, and mediation through which these regulations are en- forced and failure to comply is punished. Even when laws do not impinge directly on social life, they exercise power through the ways in which they shape individuals’ legal consciousness. This refers to the way people see themselves defined by and within law, the rights they can assert, and their entitlement to seek legal remedies for grievances (Merry 1990).

Law is a fundamental aspect of the exercise of power in colonial situations, since colonizing nations characteristically imposed a metropolitan legal code on to societies with very different legal orders. Such legal transplants were usually legitimated by goals of reforming family and community life. But they also privatized land ownership and created the basis for wage labor on plantations and mines. Several historically grounded studies have explored the complex relationships between this new European law and the shifting legal terrain of the colonized peoples of Africa (e.g., Moore 1986), Latin America (e.g., Collier 1973), and the Pacific (e.g., Merry 2000), among many others.

5. Law, Culture, And Language

Law is embedded in culture. The legal system of a society reflects its fundamental values and its normative order (Rosen 1989, Geertz 1983). At the same time, law constitutes cultural practices and defines basic identities such as citizen and criminal. Moral and religious understandings of self and community determine when and how people use law (Greenhouse 1986). The law also provides a rich vocabulary for describing and legitimating relationships of unequal power. It contributes in significant ways to the hegemony of a political system by engendering consent and fostering legitimacy for its exercise of power. Law is essentially a language and legal procedures are fundamentally linguistic. A body of recent work on law and language combines sociolinguistic analysis and law and society scholarship to look at the way law creates meanings and exercises power through linguistic exchanges in courtrooms and other legal settings (Conley and O’Barr 1998). This work provides a way to look at the detailed interactions that determine how the law exercises power. For example, many features of the kinds of talk which are persuasive in American courtrooms are more characteristic of male than female speakers, and of powerful rather than powerless speakers, so that male litigants in these courtrooms have an advantage (Conley and O’Barr 1998). But legal language and institutions also offer avenues for resistance. In particular, the language of rights has proved a powerful framework for social justice movements, especially since the end of the Cold War. Rights talk has been central to labor movements, indigenous peoples movements, the anti-apartheid movement in South Africa, and movements for women’s rights, to name a few examples. Local groups around the world now draw on global conceptions of human rights for inspiration. Much of contemporary social justice talk and activism takes place within the domain of law.

6. Conclusion

The anthropology of law changed dramatically over the twentieth century. While earlier theories saw law as a structural feature of a whole society and used it to classify societies, more recent anthropological studies examine dispute processing, the linguistic and cultural features of legal settings that shape the way power is exercised, and the extent to which legal categories and concepts are embedded in individual consciousness and local culture. At the same time, the notion of culture as an integrated, homogeneous, and consensual system has been replaced by models of law in society which focus on the multiple and contradictory nature of rules and procedures. Contests among these systems of power and symbolism account for social change. Some of the competing frameworks are the product of alternative systems of legal regulation developed through colonialism or globalization. Contemporary legal anthropology views law as the product of contestation about meanings and identities in social fields constituted by multiple legalities. It examines the way law exercises power and sees this process as mediated by legal procedures, linguistic forms and exchanges, and cultural practices that shape legal settings and provide individuals access to these settings.

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