Mark Goodale & Elizabeth Mertz. Encyclopedia of Law and Society: American and Global Perspectives. Editor: David S Clark, Volume 1, Sage Publications, 2007.
Beginnings: Comparative and Evolutionary Approaches
It is difficult to say with any certainty when the anthropology of law began; scholars were conducting what today passes as anthropological studies of law long before there was any self-consciousness of “legal anthropology” as a distinct and legitimate sphere for research and writing. Perhaps the earliest and best example of this is the work of Friedrich Carl von Savigny (1779-1861), the German legal scholar whose 1814 anticodification pamphlet, The Vocation of Our Time for Legislation and Jurisprudence, made the argument that law and legal institutions are the unique expressions of a people’s culture and history and cannot be understood apart from them.
However, the high point of protolegal anthropology was without question the mid-nineteenth century. Within twenty years of each other, four anthropological studies of law and legal institutions appeared that had, collectively, a profound influence on a growing body of theory about the origins and nature of human societies. In 1861 Johann Bachofen (1815-1887), a Swiss scholar, published his seminal Mother Right: An Investigation of the Religious and Juridical Character of Matriarchy in the Ancient World. Bachofen drew from a wide range of comparative materials to argue that people originally conceived human institutions, including law and morality, within matriarchies. In the same year, Henry Maine (1822-1888) published Ancient Law, another landmark study. Like Bachofen, Maine used a wide range of information about different societies and historical epochs—in this case attempting to prove that cultural evolution is universally marked by a progression from status, based on kinship, to contract, which emerges with the rise of larger and more complex societies.
Primitive Marriage (1865), by John McLennan (1827-1881), made the link between anthropological studies of law and evolutionary theories of society even more explicit by basing his argument for female-centered social rules on the effects of selective pressures resulting from early conditions of material scarcity. Indeed, McLennan carried on a regular correspondence with Charles Darwin (1809-1882), whose Origin of Species had been published in 1859. Finally, in 1877, the American lawyer Lewis Henry Morgan (1818-1881), who was himself influenced by Bachofen, published his Ancient Society, in which the relationship among law, cultural evolution, and comparative research was definitively established. The shift to evolutionary models in these early works itself marked a turn toward historical context and away from abstract, timeless analyses of social contract or sovereignty, which were not adequate to understanding the complexity and variability found in actual societies. This convergence in understanding emerged despite otherwise stark theoretical and political differences between scholars such as Maine and Morgan.
Most contemporary anthropologists of law would not accept the validity of the armchair methodologies employed by these earlier scholars, nor, in most cases, the unilineal evolutionary conclusions reached throughout these important early works. Particularly problematic under current anthropological approaches would be older evolutionary models that erroneously viewed modern Western society as the pinnacle of an evolutionary development whose earlier stages were exemplified by contemporaneous so-called primitive societies. Nevertheless, the nineteenth-century scholars established one important foundation that connects their work with much contemporary research and theorizing in legal anthropology: the requirement that one study and analyze law in both cultural and historical context.
Early Encounters with Law: Ethnography, Function, and Structure
Even though Morgan spent time with the Iroquois in upstate New York and used his experiences in his first writings, he was not necessarily the first legal ethnographer. He derived the bulk of his most important work, Ancient Society, from his comparative reading and analysis in ancient history and not from what today one would recognize as ethnographic research. On the other hand, it must be said that with the changing views within the past twenty years on what constitutes ethnography, fieldwork, and the locations where anthropological knowledge is produced, the canonical view that Bronislaw Malinowski (1884-1942) was the first ethnographer of law (rather than Morgan) is perhaps less persuasive that it once was.
Nevertheless, the Polish-born British social anthropologist transformed the anthropological study of law on both theoretical and methodological grounds. Malinowski broke with the great armchair polymaths of the nineteenth century by demanding that one carry out any scientific study of law, not through the Herculean comparativism that had defined the field until that time, but through the application of three innovative methods. These were (1) participation in the day-to-day life of the people in order to better understand their culture and institutions, (2) long-term residence to get a sense of the rhythms of culture, and (3) mastery of the local language sufficient to use it for research without the need for translation.
Using these ethnographic methods in the Trobriand Islands (1915-1918), Malinowski developed a theory of law that moved away from the cultural evolutionary approach of the nineteenth century and instead focused on how sanctions within society functioned in relation to wider social relations. As Laura Nader notes in her own general overview of legal anthropology, Malinowski’s work “foreshadow[ed] a generation of anthropological research on how order could be achieved in societies lacking central authority, codes, and constables” (2002: 85). This focus moved legal anthropology away from Western-based equations of law with formal institutional legal structures and toward a more functionally based interest in social ordering and control, however achieved, across different societies.
R. Radcliffe-Brown (1881-1955), a contemporary of Malinowski, was also an early ethnographer who contributed to a theory of law based in ethno-graphic fieldwork. Nevertheless, while Malinowski adopted what one can understand as an ethno-jurisprudence in arguing that all societies embed social controlwithin wider social relations, Radcliffe-Brown developed a more formal definition of law that required the existence of political institutions capable of enforcing sanctions. Because some societies, like the Andaman Islanders and the Trobrianders, lacked these structural entities, Radcliffe-Brown concluded that some societies lacked law. In this, he perhaps unintentionally evoked the legacy of legal evolutionary theory; however, as time passed, it was to be Malinowski, not Radcliffe-Brown, who had the more palpable influence on later anthropologists of law in this regard.
Law, Culture, and Legal Pluralism
For the next thirty years, scholars worked to refine and expand parameters for the anthropological study of law. Central concerns included questions about the nature of law, the relationship of law to other social institutions, and the proper ways to access law as an object for research. An important early example of this was the pioneering collaboration between the anthropologist E. Adamson Hoebel (1906-1993) and the legal scholar Karl Llewellyn (1893-1962). This association was perhaps less unusual than it might seem because during the first part of the twentieth century, legal realists like Llewellyn had been openly searching for non-jurisprudential techniques to use in analyzing the indeterminacy of law and its social content—and anthropologists of law had already been studying these topics.
In The Cheyenne Way (1941), Hoebel and Llewellyn utilized the legal realist case method—which had entered American jurisprudence and legal education via the German historical jurisprudence of von Savigny—to distill the essence of the Cheyenne way of life, as expressed in Cheyenne law. To do this, the scholars focused on what they called trouble cases, meaning conflicts resolved in public forums. Their assumption that trouble cases were a better window into the core of local legal principles than were other possible types of law (such as administrative or regulatory) was to become methodologically conventional for many legal anthropologists even as theoretical frameworks shifted. The general idea that law reflects culture was to continue as a major theme in legal anthropology, eloquently crystallized later in the work of Clifford Geertz and his followers. Fieldwork conducted in the 1950s by noted legal anthropologists such as Elizabeth Colson and Leopold Pospíŝil expanded the scope of research into disputed cases, asking wider questions about how resolution of these cases was tied to the overall structure of societies.
During the 1940s and 1950s, the anthropology of law emerged as a distinct subdiscipline within American cultural and British social anthropology. Two major figures from this time, Max Gluckman (1911-1975) and Paul Bohannan, each pursued ethno-graphic studies of law and social control that eventually led to quite distinct theoretical positions and to a debate over the terms within which legal anthropologists should represent local legal categories and concepts. Gluckman maintained that one could use legal categories from Western jurisprudence when abstracting from research findings on indigenous legal ideas and practices; he felt that without the use of general and abstract categories, comparative legal anthropology would not be possible. Bohannan, on the other hand, expressed the relativist position that indigenous legal categories were largely irreducible; thus, the legal anthropologist’s task was to explain local legal categories in their own terms. The Gluckman-Bohannan debate, which extended through the 1960s, served to expand theory in legal anthropology. It also prefigured many of the later controversies within anthropology more generally over issues of representation and epistemology.
Nevertheless, the 1940s and 1950s were important for the anthropology of law for a quite different reason. During what would be, in retrospect, the waning years of colonialism, the research conducted by many legal anthropologists had either direct or indirect links with colonial institutions and their purposes. Colonial administrators frequently established dual legal systems, in which judges adjudicated some matters using the colonial power’s law, while they handled other matters under so-called customary law.
Legal anthropologists would later understand this kind of situation, in which two or more legal systems coexist within the same region, as a form of legal pluralism. Customary law was supposedly the indigenous system that predated colonial intervention. However, key aspects of the indigenous system often substantially changed in the translation in colonial contexts, as did the distribution of power. In validating certain versions of customary law, colonial administrators drew on ethnographic information provided by anthropologists. While some might debate whether legal anthropologists at this time directly aided the colonial enterprise, it is clear that (especially for the colonial powers pursuing policies of indirect rule, such as the British in West Africa and the Dutch in parts of Indonesia) the information gleaned from on-the-ground studies was a substantial help to colonial administrators.
Although several anthropologists of the time were clearly aware of the influence of colonialism on the indigenous practices they studied, it was not until later that legal anthropologists turned the spotlight on this part of the picture and developed more self-conscious analyses of customary law and the role of colonial powers in co-constructing “tradition.”
From Law to Disputing
During the 1960s and early 1970s, the anthropology of law underwent a major shift in focus. By then, anthropologists had nearly exhausted the usefulness of examining questions about the nature of law as such, the characteristics of legal systems in comparative perspective, and other issues within ethnological jurisprudence. Inspired in large part by Laura Nader in the mid-1960s, anthropologists moved still more decisively outside the formal boundaries of law and legal institutions to study disputes as part of wider social and cultural processes.
In a remarkable feat of legal anthropological coordination, the Berkeley Village Law Project sent researchers into the field across a wide range of regions over a twenty-year period. The Project, in part, demonstrated the possibilities of the paradigmatic shift from rules to disputing, but also developed new questions about the relationship between dispute processes and the state. As Nader explained (2002), the idea was to explore the connections between agency, power relationships, and the resolution of disputes. Jane Collier, who analyzed Zinacanteco law as a resource on which individuals drew in pursuing their own strategies and goals, also had a concern with agency.
The focus on dispute brought with it interest in processual models for studying law, a direction articulated with clarity in books by Sally Falk Moore and by John Comaroff and Simon Roberts. Along with the concern with law as process came more emphasis on its distinctively local character, a point on which anthropologists with otherwise different perspectives converged. Moore introduced the influential concept of the “semi-autonomous field,” urging anthropologists to consider the ways in which local subgroups within societies developed their own partially autonomous legal dynamics. Clifford Geertz argued that there are dramatically divergent local “sensibilities” beneath the conceptualizations of “fact” and “law” across different cultures. Lawrence Rosen demonstrated the underlying cultural logics at work as participants in legal proceedings “bargained for reality.”
The late 1970s and early 1980s also marked a transition in the anthropology of law, especially in the United States, in another way. Researchers “came home,” employing methods developed for research in non-Western locations to study law and culture in Western societies (encroaching on areas of the world that were the traditional domain of sociologists, legal scholars, and political scientists). Sally Merry, for example, studied conceptions of urban danger as they reflected and reinforced ethnic divisions in Boston and then later explored the topic of working-class legal consciousness in the United States. Carol Greenhouse conducted ethnographic fieldwork in a Georgia community and found that religion, alongside local ideas about insiders and outsiders, played a crucial role in how some U.S. citizens utilized (or chose not to utilize) the legal system. Nader studied the responses of American consumers who had suffered “little injustices” but were forced to seek alternatives to the formal legal system because it denied them access.
Of course, legal anthropologists continued to work outside their own—usually Western—countries and to produce works of importance. Nevertheless, this shift toward the study of problems within major industrialized nation-states signaled the emergence of an important trend, one that would have a lasting impact on the anthropology of law. In addition, whether by coincidence or not, at the moment when legal anthropological research was moving into geographical areas that had been more the province of sociology and other cognate disciplines, a formal interdisciplinary movement dedicated to the study of law and society was beginning to gain momentum after its initial emergence in the mid-1960s. The research and writing of legal anthropologists appeared in the movement’s journal, the Law and Society Review, and legal anthropologists eventually assumed positions of influence with the Law and Society Association.
Power, History, and the Language(s) of Law
The 1980s were a time of critical self-reflection within anthropology, though more so in the United States than elsewhere. What one can understand as a postcolonial malaise within anthropology, which had set in during and after the Vietnam War and was partly alleviated through the rise of Marxist anthropology and political economy more generally, contributed to an intellectual climate in which the role of anthropology was reconsidered and partly reconstituted. Trenchant commentary from non-Western scholars, such as that by Edward Said, on the implicit racism found in Western discourses—including those of anthropology—forced a painful reexamination of anthropological research and writing. As a result, the discipline opened itself to the influence of social and literary critique drawn from outside the social sciences and explored with renewed energy questions of consciousness, history, and power, which scholars now invested with less structural meaning.
Anthropologists of law actively participated in this series of shifts, especially since law had always been a means through which power had been exercised and, at times, resisted. Likewise, because of the earlier movement toward the anthropological study of law and society within industrialized nations, many legal anthropologists had already broadened their research to include the use of historical sources to complement more time-restricted ethnography. These two factors combined to bring legal anthropology to the leading edge of social research and theory and made history and power into ordering foci for a new generation of anthropologists. As Carol Greenhouse, Barbara Yngvesson, and David Engel explained, this initiated a shift from disputes as a unit of analysis to “the systems of knowledge and power that frame disputes and connect them to social relations” (1994: 21). It also focused new attention within legal anthropology—and anthropology more generally—on the study of the state and of colonialism itself.
A parallel response to the postcolonial crisis in anthropology involved a reflexive, postmodern critique. Anthropologists taking this route urged self-conscious consideration of the entailments of ethnographic writing and anthropologists’ position vis-à-vis their subjects. From outside the United States, the writings of scholars from subaltern studies and other fields drew pointed attention to the erasure of indigenous voices that had occurred and continued to occur in Western scholarship. Concern with positionality pointed legal anthropologists to consider how the politics of identity in general are constructed in, through, or in spite of law—and how imposition of law can also flatten or obliterate alternative viewpoints, frequently those of the disempowered or marginalized. Legal anthropologists went on to use postmodern perspectives to track the impact of law on identity and claims of rights at an international or global level.
Another important development within legal anthropology during the 1980s was the emergence of legal language as a topic for ethnographic research. This relates to the concomitant rise of power as a theme, because the same body of social theory that redefined and then elevated power as a central issue for social research also focused on language and discourse, arguing that language was the key medium through which relationships of power were mediated—particularly in legal settings. Legal discourse studies made important contributions both within anthropology and within the interdisciplinary law and society community. It would be accurate to describe this area as a distinct tradition with the sub-discipline of legal anthropology, one that continued through the 1990s.
Current and Future Directions
The period from 1990 through the present has seen the development of an increasingly complex and integrative approach to studying law within legal anthropology. Where earlier anthropologists spent energy debating whether cultural ideas or social power were primary in shaping legal developments, the newer generation recognized the importance of both—and set about studying the complicated picture that emerged from this recognition. In a similar spirit, legal anthropologists sought to move beyond the division between studying local dynamics and studying wider—even global—patterns. Their longstanding familiarity with cross-cultural analysis (and attendant dilemmas) has provided a disciplinary advantage in efforts to decipher global legal patterns as they play out in local settings.
However, as some of the focus has shifted toward globalization, legal and other anthropologists have had to develop new methods, integrating the “gold standard” approach provided by long-term fieldwork with new, creative means for tracking the flow of legal developments across the world. From this global perspective, anthropologists have also been able to offer critiques of the spread of Western-influenced legal forms and ideologies—including ideological approaches to conflict, consensus, and context in legal settings.
Finally, all these trends in legal anthropology have contributed to growing awareness of the dynamics surrounding the imposition of power, and resistance to power, that affect law at the nexus of local and larger patterns. Some have urged a new, “engaged” anthropology that situates anthropologists more actively within these dynamics. We will examine each of these themes, which together point to future directions for research in legal anthropology.
Integrative, Complex Visions of Law: The Dialogue with Critical Social Theory and Semiotics
In her Huxley Memorial Lecture, “Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949-1999,” Sally Falk Moore identified three major approaches to law within legal anthropology: law as culture, law as domination, and law as problem solver. In addition to their roots in anthropological research, these diverse conceptualizations draw from different strains of European social theory. One could look to Émile Durkheim (1858-1917) and Max Weber (1864-1920) for idealist threads, to Karl Marx (1818-1883) and his followers for a materialist emphasis on power and the role of economic factors, and to Weberian analyses of modernity for rationalist and functionalist visions of law. (Of course, this would oversimplify the work of all three theorists.)
The sometimes-fierce divisions within anthropology among adherents of these approaches through the 1970s have eased to some degree, producing interestingly nuanced accounts of how culture and power intertwine in the workings of law. Here again we can recognize debts to European social theorists such as Michel Foucault (1926-1984), Antonio Gramsci (1891-1937), Jacques Derrida (1930-2004), Jurgen Habermas, and Pierre Bourdieu (1930-2002)—but legal anthropologists have made a distinctive contribution in their ethnographically grounded accounts of the complex dynamics at work.
As part of this integrative vision, legal anthropologists have also incorporated semiotic and linguistic perspectives so that they can analyze the interplay of legal and other discourses that so often bring law to life on the ground. Susan Hirsch, for example, showed how litigants draw on the discourses of Islamic law, Swahili ethics, spiritual health, and state law in negotiating deeply gendered marital disputes in a Kenyan court. Charles Briggs and Clara Mantini-Briggs dissected the discourses surrounding the prosecution of a young indigenous woman for infanticide in Venezuela. These analyses take culture, power, language, material resources, and politics quite seriously as they work toward anthropology of law that is adequate to the complex world it seeks to understand.
The Globalization of Law and of Anthropological Methods
During the 1990s and into the beginning of the new century, legal anthropologists have also turned their attention to much larger research frameworks to study the relationship among globalization, transnationalism, and law’s currents—following paradigm-shifting work along these lines within anthropology more generally by scholars such as Arjun Appadurai. This research led to contributions to the growing body of critical globalization studies, sometimes drawing on postmodern approaches. It also moved legal anthropologists further in the ongoing task of finding methods and models for studying the many-leveled links between local and larger legal processes. Some scholars have focused on the impact of law in shaping and responding to the movement of people, capital, and cultural ideologies across national boundaries. Susan Coutin, for example, studied how Salvadoran immigrants to the United States negotiated their identities in the United States in light of legal developments there and in El Salvador, while Barbara Yngvesson examined the process of transnational adoption. Others have focused on the local impacts of multiple layers of law and legal discourse, from international human rights discourses to national and local law—often finding that the consequences of law on the ground differ significantly from stated or intended goals.
There is also renewed interest in the ways that one can use both old and new methodologies to track law through its transnational and multiscalar articulations. Anthropologists whose research questions require them to follow movements of legal developments beyond local boundaries are experimenting with multisited methods; these methodologies work across multiple locations while still attempting to retain the anthropological requirement of significant engagement with the local fields under study.
Rethinking Conflict, Consensus, Context
The move to a global level clearly requires some new approaches to theorizing the contexts of law. Legal anthropologists studying global processes have documented and critiqued the export of Western legal models to other parts of the world. Nader, for example, has sharply criticized the export of U.S.-derived “harmony” models to other parts of the world. Legal technologies such as alternative dispute resolution (ADR), including mediation, can act to further disem-power already marginalized people and to silence disputes whose full expression might further the ends of justice. Western legal exports are also frequently insensitive to local contexts, while anthropologists train to analyze the results of this insensitivity.
Law, Resistance, and Engaged Anthropology
A continuing challenge for legal anthropologists charting the seemingly unstoppable imposition of elite capitalist power and law across the world has been to find modes of analysis that do not minimize the impact of global capitalism yet also acknowledge points of resistance and local autonomy. Anthropologists who have led the way in this regard include Jean and John Comaroff, Susan Coutin, and Mindie Lazarus-Black, who complement the work of some political scientists. All the themes discussed come together in attempts to resolve this issue; integrative approaches are necessary to map the complex confluence of dynamics involved, while awareness of global patterns—as well as rethinking notions of conflict and context—are frequently required as well.
Legal anthropologists have not been simply interested in the relationship among global flows, power, and law as a matter of intellectual urgency. Rather, scholars have increasingly explored the ways in which their research findings could form part of wider strategies of resistance to injustice, both by using law and legal institutions where appropriate and by challenging law when it served as a foundation for domination.
The rise of a more engaged legal anthropology partly reflects the emergence of the anthropology of human rights as an area for research and, at times, in activism by anthropologists concerned with the plight of indigenous populations, cultural minorities, and other oppressed populations. On the one hand, there have been some challenges to the perceived dominance of power as an explanatory mechanism in studies of law and its language. On the other hand, some have argued for an epistemology in which the social scientific study of law links to law’s capacities for resistance and emancipation, thus keeping power as a central focus.
Directions for Future Research
It seems likely that these themes will remain important foci for future work in legal anthropology. As globalization continues to expand, integrative models and methods emanating from legal anthropology represent a cutting edge for social scientists seeking to track the multilayered flow of power and legal forms across cultures and societies. At the same time, the analytical categories of power and context in legal anthropology will require further development, taking into account critiques that argue against overly determinist or simplistic models.
There also will undoubtedly be a continued push toward an engaged anthropology, reinventing anew a time-honored concern in anthropology. As legal anthropologists work in new ways with indigenous peoples and others affected by current legal trends, they will have to move into a more complicated engagement with issues such as international human rights, the role of the state, and responses to violence and war. Here theory, ethnography, method, and legal practice come together to mutually enrich all in an exciting nexus.