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Legal Anthropology

LEGAL ANTHROPOLOGY

William Nixon * Posted May 1998

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HISTORY

GROUP DYNAMICS 
ORGANIZATIONS
WHERE TO STUDY
SOURCES
WEB LINKS

Introduction

What is legal anthropology? Scholars disagree over the definition, but broadly speaking, legal anthropology seeks to illuminate the ordering of human society. There seems to have been a consensus over the past century that law is an important component of culture that anthropologists should study, and many anthropologists who might not consider themselves to be legal anthropologists have produced important works in legal anthropology. Self-defined legal anthropologists are found in anthropology, criminal justice, area studies departments, and law schools. In addition, it is important to note that there are applied legal anthropologists, some of whom work with indigenous peoples on such issues as land claims, self-determination, and environmental protection.

Brief History of Legal Anthropology

1860s Maine advances evolutionary approach to legal anthropology.
1920s Malinowski calls for ethnographic study of law.
1940s-1950s Hoebel revives evolutionary model.
1950s-1960s Gluckman and Bohannan debate the application of Anglo-American legal categories to non-Western societies.
1970s Movement away from rule-centered study of law to processual approach.
1980s Postmodern critique; anthropologists turn to the United States.
1990s Interdisciplinarity influences within legal anthropology.

Sir Henry Maine is generally acknowledged as the founding ancestor of legal anthropology. Maine was a former colonial legal official who became a lecturer in jurisprudence at Cambridge and Oxford, publishing Ancient Law in 1861. This classic text, notable for its vast cataloging of numerous and diverse legal traditions, advanced a grand theory of the development of law within a rigid evolutionary framework. All human societies were placed on a chart of development beginning with the most “primitive” and culminating in Maine’s own Victorian England. While his overly deterministic evolutionary scheme eventually fell into disrepute, Maine made an enduring contribution to legal anthropology with his identification of a fundamental distinction between those societies in which legal rights and responsibilities rested on social status, and those in which they rest on contractual agreements among individuals. This was summed up in his phrase “from status to contract.” It should also be noted that Maine perceived an opposition between East and West linked to a distinction between religion and law. Such positions lead Riles (1994:616) to place Maine squarely within the colonialist enterprise of glorifying European culture.

Modern anthropology of law is considered to have begun with Bronislaw Malinowsi’s Crime and the Savage Society (1926), one of his many monographs on Trobriand society. Malinowski criticized Maine’s evolutionary scheme, at that time still the dominant paradigm in legal anthropology, for resting on a fundamental misunderstanding of the nature of governance and social control in so-called primitive societies (1926:56). In its place he proposed an ethnographic approach to the study of legal issues, calling for extended fieldwork in order to “study by direct observation the rules of custom as they function in actual life” (1926:126). Whereas Maine dismissed societies like the Trobriand as slaves to static custom, Malinowski’s patient ethnographic approach yielded a complex system of civil and criminal rules and a system of enforcement (1926:58-59). Malinowski was not merely interested in recording the Trobrianders particular set of legal rules, but sought also to explore the cultural context of their law, and to appreciate its rationality: “we are met by law, order, definite privileges and a well-developed system of obligations” (1926:21).

Undoubtedly the next great figure to be considered is E. Adamson Hoebel, whose several publications on legal topics mark him definitively as an anthropologist of law, as opposed to a scholar such as Malinowski who certainly made vital contributions to legal anthropology, but is not regarded as a legal anthropologist per se. Hoebel’s The Cheyenne Way (1941), written in collaboration with the great legal scholar and reformer Karl Llewelyn, is justly regarded as a classic text in legal anthropology, particularly for its clear articulation of the case study as the primary unit of analysis which established this approach as a model for the study of tribal law. Hoebel and Llewelyn’s work is an early example of an interdisciplinary approach to the study of law, a trend that would grow over time. In 1954, Hoebel published his more theoretical work Law of Primitive Man, in which he set out what were, in his view, the various types of legal systems, and assessed their levels of complexity and perfection. From this we can see that Hoebel represented somewhat of a return to the explicitly evolutionary approach first articulated by Maine (1954:Chapter 12 and passim).

During the 1950s and 1960s, legal anthropologists were largely concerned with law as an aspect of social control through the imposition of sanctions, and saw legal procedures as the means of enforcing social rules. Following Malinowski, legal anthropologists generally viewed mechanisms of dispute resolution as rational. A crucial debate emerged during this time about the relationship between legal and anthropological methods, and particularly over the question of whether legal anthropologists should apply Anglo-American legal categories to the study of non-Western societies. This debate centered primarily on two leading figures in legal anthropology during this period; Max Gluckman and Paul Bohannan, though by no means was it limited to these two. Indeed, during this same period the number of scholars who identified themselves as legal anthropologists grew considerably. Bohannan believed that using universal legal categories serves as a barrier to understanding and representing another culture and advocated the liberal use of native legal terms. While these terms could not be easily translated into English, their meanings could be explained within an ethnographic context. Gluckman considered Bohannan’s approach to be both overcautious and a barrier to fruitful comparative analysis. It is apparent that their debate was not so much about the nature of law itself, but rather the nature of legal anthropology, raising issues about representation, language, and cultural comparison. Fortunately for subsequent legal anthropologists, they debated these issues at a conference in 1966 and their remarks were published three years later as part of a larger collection (1969: 349 & 401).

In the 1970s, the important debate within legal anthropology centered on the question of whether the focus of study should be on rules or processes. An increasing number of legal anthropologists, such as Comaroff and Simon (1981), critiqued the long-standing emphasis in legal anthropology on the rules of adjudication, and argued instead for study of the processes by which disputes are resolved and norms are elaborated. According to Riles, an important corollary to this debate was an emphasis by the proponents of the processual model on legal pluralism and the alternative regimes and structures of law that were taken to inhere in any society (1994:605).

In the 1980s, a discourse and postmodernist critique began to emerge that questioned traditional categories of legal anthropologists. For example, the case method has long been the paradigmatic unit of analysis, yet, according to Conley and O’Barr (1993:48-49), the method shifts the attention of anthropologists away from routine compliance with law and toward deviant behaviors and conflict. This in turn raises the question of whether the case method reflects a universal human understanding about law, or is simply the projection of Anglo-American legal values onto others. Similarly, Geertz has challenged the categories of “law” and “fact,” and raised serious concerns about the ability of anthropologists and legal thinkers to combine their approaches as part of an interdisciplinary project (1983:169-170)

It is difficult to surmise where legal anthropology is currently headed. Nevertheless, certain developments are apparent. An important shift that began in the 1980s and continued into the 1990s was the move by legal anthropologists toward the study of the United States. Greenhouse (1986), Merry (1990), and Conley & O’Barr (1990) all represent part of this unfolding program to examine the ordering of American life using the traditional tools of anthropology. For example, Greenhouse assumed the role of ethnographer in “hopewell,” a suburb of Atlanta a community with a significant concentration of Baptists. She discovered that the citizens of Hopewell avoid the formal legal system, and instead turn to the church as a means of maintaining social order. Notwithstanding this trend, important work is still being done exploring law in other societies, such as Nader’s monograph on the Zapotec (1990). Meanwhile, Starr and Collier (1989) have tried to reorient the anthropology of law away from viewing law as conflict towards viewing law as power, and studying its creation, distribution, and its transmission.

Another way to consider what developments might take place in the near future is to consider what has been called for by prominent legal anthropologists in recent review articles. Mertz (1992) calls for greater attention by legal anthropologists to the tools of linguistics in order to better appreciate the importance of language in legal process. Riles (1994) calls for a revival of interdisciplinary scholarship. French (1996) calls for greater use of the narrative approach by legal anthropologists. Just (1992) calls for legal anthropologists to stop looking exclusively at the way culture illuminates law, and to start exploring legal consciousness and the way law illuminates culture. Finally, Merry (1992), has argued that legal anthropologists need to be more aware of transnational processes, and should integrate an understanding of the multi-national legal order with their analysis of national legal systems.

Group Dynamics

According to Riles, both anthropologists interested in law and lawyers interested in culture have experienced professional marginalization. Professional organizations such as the American Anthropological Association’s Association of Political and Legal Anthropologists (APLA) suffer “from dangerously small membership” (Riles 1994: 598n1). The American Anthropological Association’s 1997-1998 Guide to Programs & Directory of Members lists 363 members of the APLA. I leave it to the reader to determine whether the ranks of legal anthropologists are indeed so perilously few. Nevertheless, Riles suggests there is an ambivalent mood among legal anthropologists, with the most significant concern relating to the terrain legal anthropologists share with lawyers. She sees this as a modern interdisciplinary project that has been something of a failure, with lawyers and anthropologists learning little from each other at present (1994:650).

There is no escaping the fact that the landscape of the anthropology of law necessarily takes us outside of anthropology departments. In addition to the APLA, the Law and Society Association is one of the significant groups for legal anthropologists, and this organization is explicitly interdisciplinary, drawing its officers from anthropology, women’s studies, political science, criminal justice, and sociology departments as well as from law schools. Moreover, legal anthropologists are themselves increasingly looking outside of anthropology departments for employment. Law schools are the primary alternative employer, so that, for example, among the authors cited in this piece Annelise Riles is at Northwestern University Law School, June O. Starr is at the Indianapolis School of Law, and Rebecca R. French is at University of Colorado, Boulder Law School. Of these three, it should be noted that Riles and Starr have both received a J.D. in addition to their Ph.D., suggesting the relevance of a law degree for anyone considering teaching in a law school. In addition to law schools, legal anthropologists can be found in criminal justice departments, areas studies, and the American Bar Association.

Another consideration, though one that is difficult to adequately gauge, is the fact that there are a number of professional legal anthropologists doing applied work. Anecdotally, we can piece together a picture of who these people are and what kind of work they do. Allen C. Turner, whose CV is cited below, does work on Native American legal issues and environmental resources. Stephen Conn, a contributor to Law & Anthropology: International Yearbook for Legal Anthropology (1997:324) is the executive director of Alaska Public Interest Research Group, which works to protect the political, civil, economic and legal rights of average citizens. Conn has also worked with Native Alaskans who have suffered from radiation experiments conducted on them. Orlando Sampaio-Silva, another contributor to Law & Anthropology: International Yearbook for Legal Anthropology (1996:28 0), works with indigenous societies in Brazil.

Where to Study Legal Anthropology

The following table is an impressionistic, non-comprehensive listing of six anthropology departments where legal anthropology can be studied and the relevant faculty. This list is intended to suggest where to begin looking, rather than to enumerate all extant possibilities. In addition, two important points must be made. First, programs whose prominent legal anthropologist are emeritus, such as Leopold Pospisil at Yale and Sally Falk Moore at Harvard, are excluded, which may or may not be appropriate. Second, important legal anthropologists who work outside of anthropology departments are excluded, which also might be unwarranted.

University of California, Berkeley Laura Nader
University of Chicago John Comaroff
Duke University William M. O’Barr
Indiana University Carol J. Greenhouse (on sabbatical spring 1998), also Stephanie C. Kane and Philip C. Parnell in the Criminal Justice Department
Princeton University Lawrence Rosen
Stanford Jane F. Collier, James Lowell Gibbs Jr.

Select Bibliography

This list is both subjective and non-comprehensive. For example, the writings of other important legal anthropologists as Leopold Pospisil, Richard Abel, and Lawrence Rosen (to name just three) would have to be included in any comprehensive bibliography. Nevertheless, most legal anthropologists would agree that the following works are recommended reading for a solid background in legal anthropology. The review articles, which have been of far greater use in preparing this overview than the citations might suggest, are particularly good places to start.

Bohannan, Paul

1957 Justice and Judgement Among the Tiv. London: Oxford Univ. Press.

1969 Ethnography and Comparison in Legal Anthropology. In Law in Culture and Society. L. Nader, ed. Chicago: Aldine.

Comaroff, John, & Simon Roberts

1981 Rules and Processes: The Cultural Logic of Dispute in an African Context. Chicago: Univ. of Chicago Press.

Conley, John M., & William M. O=Barr

1990 Rules Versus Relationships: The Ethnography of Legal Discourse. Chicago: Univ. of Chicago Press.

1993 Legal Anthropology Comes Home: A Brief History of the Ethnographic Study of Law. In 27 Loyola of Los Angeles Law Rev. 41.

French, Rebecca R.

1996 Of Narrative in Law and Anthropology. In 30 Law & Society Rev. 417.

Geertz, Clifford

1983 Local Knowledge: Fact and Law in Comparative Perspective. In Local Knowledge: Further Essays in Interpretive Anthropology. New York: Basic Books.

Gluckman, Max

1955 The Judicial Process among the Barotose of Northern Rhodesia. Manchester: Univ. of Manchester Press.

1969 Concepts in the Comparative Study of Tribal Law. In Law in Culture and Society. L. Nader, ed. Chicago: Aldine.

Greenhouse, Carol J.

1986 Praying for Justice: Faith, Order, and Community in an American Town. Ithaca, NY: Cornell Univ. Press.

Greenhouse, Carol J., Barbara Yngvesson, & David M. Engel

1994 Law and Community in Three American Towns. Ithaca, NY: Cornell Univ. Press.

Harris, Olivia, ed.

1996 Inside and Outside the Law: Anthropological Studies of Authority and Ambiguity. London: Routledge & Kegan Paul.

Hoebel, E. Adamson

1954 The Law of Primitive Man: A Study in Comparative Legal Dynamics. Cambridge, Mass.: Harvard Univ. Press.

Just, Peter

1992 History, Power, Ideology, and Culture: Current Directions in the Anthropology of Law. In 26 Law & Society Rev. 373.

Llewellyn, Karl & E. Adamson Hoebel

1941 The Cheyenne Way. Norman: The Univ. of Oklahoma Press.

Maine, Sir Henry

1861 Ancient Law. New York: Dutton, 1960.

Malinowski, Bronislaw

1926 Crime and Custom in Savage Society. London: Routledge & Kegan Paul.

Merry, Sally E.

1990 Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans. Chicago: Univ. of Chicago Press.

1992 Anthropology, Law, and Transnational Processes. In Annual Review of Anthropology Vol. 21, 1992.

Mertz, Elizabeth

1992 Language, Law, and Social Meanings: Linguistic/Anthropological Contributions to the Study of Law. In 26 Law & Society Rev. 413.

Moore, Sally Falk

1978 Law as Process: An Anthropological Approach. London: Routledge & Kegan Paul.

Nader, Laura

1990 Harmony Ideology: Justice and Control in a Zapotec Mountain Village. Stanford, CA: Stanford Univ. Press.

Riles, Annelise

1994 Representing In-Between: Law, Anthropology, and the Rhetoric of Interdisciplinarity. In 1994 University of Illinois Law Rev. 597.

Sack, Peter & Jonathon Aleck, eds.

1992 Law and Anthropology. New York: New York Univ. Press.

Starr, June & Jane F. Collier, eds.

1989 History and Power in the Study of Law: New Directions in Legal Anthropology. Ithaca, NY: Cornell Univ. Press.

Journals

Because of the significant interdisciplinary factors at work within legal anthropology, it is highly advisable to review current scholarship published in law journals, in addition to the three journals listed here. This can be done most readily through a search using either Lexis-Nexis or Westlaw, using the key words “law” or “legal” within a short interval of the key word “anthropology.” Obviously, the use of such narrowing devices as a date restrictor can enhance the effectiveness of such a search.

Law & Anthropology: International Yearbook for Legal Anthropology, The Working Group on Legal Anthropology, University of Vienna.

Law & Society Review, Law and Society Association.

PoLAR: Political and Legal Anthropology Review, Association of Political and Legal

Anthropology, a Division of the American Anthropological Association.

Websites

Association for Political and Legal Anthropology:http://www.aaanet.org/apla/index.htm

Law & Society Association: http://www.lawandsociety.org/

Obviously one person cannot stand as the representative for all applied legal anthropologists. However, the interesting web CV for Allen C. Turner, Ph.D., J.D., an Idaho-based applied legal anthropologist focusing on Native American legal issues, suggests what kind of work they do: http://actesq.com/cv.htm