Applied Anthropology Research Paper Topics

Scholars credit Sir Henry Maine (1822-1888), an English comparative jurist and historian, as the founder of legal anthropology. In Ancient Law, Maine developed a theory positing that the development of legal systems was the key to social evolution. Maine argued that that as society progressed from custom to law, political organization evolved from one based on kinship to one based on territory. Accompanying such movement was the emergence of the “individual” as separate from the group and the replacement of “status” (family) with “contract” in the modern nation-state. Scholars criticized the evolutionary bias in Maine’s model of law, challenging Maine’s view that the modern nation-state is necessarily the most civilized stage of development. However, for decades Ancient Law remained the preeminent work on the nature of “primitive” legal institutions.

The Emergence of Modern Law and Anthropology

Modern legal anthropology developed during the 20th century with the publication of several significant anthropology books and monographs devoted to law. These studies examined the legal ideas and practices of non-Western peoples, especially their approach to the management of disputes in their societies. Research conducted by the anthropologists Bronislaw Malinowski (1884-1942), E. Adamson Hoebel (1906-1993), and Max Gluckman (1911-1975) were key to the development of legal anthropology.

Bronislaw Malinowski and Norms of Reciprocity

Malinowski was the founder of a theoretical perspective known as structural functionalism. The premise of structural functionalism, as articulated by Malinowski, is that every component of social structure, including law, functions for the good of the whole society and every component of social structure interconnects to form a well-balanced system. In Crime and Custom in Savage Society, one of several monographs written by Malinowski on the Trobriand Islands of Melanesia, Malinowski conducted systematic research on tribal law and applied a structural-functional analysis to the study of the various forces that make for order, uniformity, and cohesion in a “primitive society.” He criticized earlier anthropological perspectives that assumed that the community completely dominates the individual in primitive societies, that is, that the individual is simply a passive obedient responder to the customs and commands of the community. Malinowski argued that a lack of fieldwork led anthropologists to these erroneous conclusions about law in these societies.

Using an ethnographic approach, Malinowski sought to understand what kind of law exists in Trobriand society and why members of the society follow that law. His observations led him to criticize the assumption made by many scholars that law in such societies consists primarily of strict prohibitions and harsh punishments resembling criminal law. Instead, Malinowski’s research led him to recognize the importance of reciprocity, an exchange system based on mutual services between individuals and groups, as the basis for law and, consequently, social order. Malinowski posited that the obligations associated with reciprocity have the social function of safeguarding the continuity and adequacy of mutual services. He found that obligations associated with reciprocity are the primary social bonds in Trobriand society. Furthermore, the public and ceremonial nature of exchange, as well as the desire for individuals to achieve prestige, reinforces these bonds. Based on his observations, Malinowski called for a broader definition of law, one that recognized law as a body of binding obligations kept in force by the specific mechanism of reciprocity and publicity inherent in the structure of society. Given this broad conceptualization of law, Malinowski asserted that specific, formal legal institutions are not necessary in every society.

E. Adamson Hoebel and the Case Study Method

Hoebel was an ardent proponent of the collaboration between the two disciplines of anthropology and law. In The Cheyenne Way, Hoebel collaborated with a law professor, Karl Llewellyn (1893-1962), to examine the methods used by the Cheyenne for the legal resolution of intratribal conflicts. In studying the Cheyenne, Hoebel and Llewellyn developed a social science instrument for the recording and interpretation of dispute resolution among “primitive peoples” known as the case study method. This case study method consisted of examining in detail the processes involved in settling “trouble cases.” In a typical trouble case, this included investigating what happened, what each participant did in relation to the dispute, what steps were taken by other persons, the final outcome, the reasoning of the deciders, and the effects of the decision on the parties themselves, on future trouble cases, and on the general life of the group as a whole.

Hoebel and Llewellyn advocated for the case study method of investigation because they believed that the two other methods of investigation that were available to researchers had serious methodological weaknesses. The first, the ideological approach, emphasized concentration on norms or rules that express ideal patterns against which researchers can measure actual behavior. The emphasis of this approach is to investigate what people think are the rules of their society. Hoebel and Llewellyn pointed out that in some societies people do not think in terms of rules and, therefore, are unable to identify the rules of their society. Moreover, in societies that do think in terms of rules, a statement of the rules might not explain decision making adequately; that is, precise conformity to the norms is the exception rather than the rule. This divergence between norms and outcomes could result from normative ambiguity or normative conflict. Hoebel and Llewellyn also found the second approach, firsthand observations of actual behavior, to be seriously deficient in two respects. First, they believed that studies using this method contained descriptions of behavior that were overgeneralized and did not give a complete picture of how disputes were resolved. Second, these studies tended to concentrate on substantive law, or what the rules of the society are, instead of procedural law that examines the process for settling trouble cases. Hoebel and Llewellyn believed that the case study method overcame the limitations of these two approaches. They argued that by using the case method, researchers are able to identify the phenomenon of competing norms, overcome the inability of individuals to articulate norms, observe the divergence between stated norms and actual outcomes, and examine the actual process used in trouble cases. The study of actual legal cases as the unit of analysis for investigation also enables researchers to generalize from particular cases and, therefore, to understand the legal system of a society. It also enables researchers to understand legal change through studying comparative legal dynamics.

Max Gluckman and Legal Reasoning

Gluckman conducted extensive research among the tribes of Central and South Africa. In The Judicial Process Among the Barotse, Gluckman focused on the dispute settlement process of the Lozi, a society consisting of a number of interrelated ethnic groups located along the Zambeze River in Barotse Province in western Zambia. He systematically studied the Lozi court in action, listening to cases and the legal arguments presented as they unfolded. From an analysis of the cases and legal arguments, he sought to extract the way in which Lozi judges approached their task, how they assessed evidence, what sources they drew on in making their decisions, the logic of their arguments, and how they applied legal rules to social life. To achieve these objectives, Gluckman distinguished Lozi norms that were special to their society from the logical principles that judges used to decide what norms to apply in court and how and when to apply these norms. Gluckman believed that the results of his research demonstrated that the judicial process used in Lozi courts represented logical principles or modes of reasoning found wherever individuals apply norms to settle disputes, that is, that indigenous African legal systems and practices were as rational as those found in Western societies. Therefore, Gluckman argued that although the premises of the Lozi court were different from those of Western courts because the social context of the society was different, the logical principles used and the reasoning process were the same as in Western courts.

Critics challenged Gluckman’s universalistic notions about logical principles and modes of legal reasoning. In particular, the anthropologist Paul Bohannan asserted the importance of cultural difference and uniqueness, even in the legal principles and process of legal reasoning used to settle disputes. Bohannan argued that law is an expression of unique cultural premises. He believed that anthropologists should not apply Anglo-American categories to the study of non-Western societies because using such categories prevents understanding another culture. Instead, he advocated the use of native legal terms that perhaps are not translatable into English but provide a nondistorted understanding of the judicial process of non-Western societies, including the legal reasoning used to arrive at decisions. The task for the anthropologist is to explain the meanings of native legal terms as part of the reported research. For critics such as Bohannan, comparative law was an opportunity to examine cultural difference, and the analysis of cultural difference is a central purpose of anthropological research.

The Broadening of Law and Anthropology

Studies in non-Western societies continued during the 1960s and 1970s, with an increasing number of anthropologists advocating for studying the processes by which disputes are resolved. This approach often emphasized a choice-making (or rational) model of behavior in which people could use law in a variety of ways to represent their own interests. This approach also examined the process of dispute resolution within its sociocultural context, with anthropologists observing that people often managed their legal disputes through a system of informal negotiated settlements among parties rather than through court-centered approaches. The law as process model challenged the long-standing emphasis in legal anthropology on rules of adjudication as the primary focus of research. In response, some scholars attempted to synthesize the rule-centered approach with the law as process approach. An additional outcome of the process model of law was an emphasis on legal pluralism, that is, the recognition that many types of dispute processing could exist in the same society. Anthropologists began to understand that societies contained other sites where norms were generated and social control was exercised besides the state. In such a system, the social reality may consist of behaviors that are congruent with rules and other behaviors in other sites where people exercise choice to benefit their own self-interests.

The subfield of legal anthropology, however, has broadened its domain in several other, more fundamental and significant ways than simply an emphasis on legal process and pluralism. Most notably, legal anthropology now studies industrial countries and has expanded its scope of inquiry from local legal analysis to national and transnational legal matters. Legal anthropologists study areas such as the field of human rights, international treaties, and other issues that anthropologists did not address in earlier works grounded in a community-based conception of anthropology. Such research entails a greater concern with issues of stratification and power. It also means that anthropologists may openly question the legal rules set by the state when they view these rules as detrimental to the poor and the oppressed.

These anthropologists report persecutions and other atrocities of peoples, and they take positions on the issues they address. Law as ideology becomes a way of contributing to the social construction of a just world. An example of such an approach is anthropologist Laura Nader’s criticism of the addition of the informal alternative dispute resolution (ADR) in American courts as a response to the perceived needs of the poor and of those who had minor legal claims. Nader referred to ADR as a kind of coercive “harmony ideology” and argued that the poor should have access to the courts rather than being forced into a mediation setting because the legitimacy of a legal system depends on providing access to the courts for all. Furthermore, she asked what coercive harmony ideology signified about the inequalities of American society. Nader also applied the idea of harmony ideology to interpret her work on dispute resolution in a Mexican Zapote mountain village and argued that the reason why people presented themselves as resolving all disputes harmoniously was part of a political strategy to keep colonial authorities from meddling in village affairs. Thus, Nader was able to draw parallels between the power and stratification situation of colonial peoples and the poor in industrial countries.

As legal anthropologists began to study industrialized nations such as the United States, the theoretical orientations of other social sciences and law contributed to their perspective and understanding. Legal anthropologists saw the limitations of the structural-functional paradigm in a world where transnational processes exercise enormous power over people and nations. They also recognized the limitations of a dispute processing approach that does not take into account its wider social context. By collaborating with other disciplines, such as law and sociology, other paradigms provided alternative explanations of the role of law in culture and society. For example, in legal scholarship, critical legal studies examines the way in which law maintains power relationships by creating images of social relationships that appear to be fair due to the authority and legitimacy that the law gives them.

Finally, globalization has become an important theme within legal anthropology scholarship. Anthropologists consider the impact of globalization on social relations in several different kinds of context. For example, one context for examining globalization is that it is a form of postmodern colonialism, that is, a form of domination in which the worldwide production and consumption of cultural products is removed from the contexts of their production. Another context is to examine justice issues within the context of globalization. This includes analyzing the tension between local formulation of human rights and its global counterpart, that is, the ideology of international human rights. It often also includes taking a position on the definition of human rights and what kinds of political system can provide these rights.

Law and anthropology examines the complex processes through which laws shape human life. Early studies by legal anthropologists reflected a community-based conception of anthropology. Today, law and anthropology has expanded its scope of inquiry to include national and transnational legal matters. The role of the anthropologist has also changed from one of simply being an observer and reporter of social relations to one of, at times, taking a position on justice issues.