A HISTORICAL OVERVIEW OF LEGAL ANTHROPOLOGY

CHRONOLOGICAL OUTLINE• 1800s to early 1900s:

– Social evolution

– European imperialism.

• Early 1900s to 1960s:

– Functionalism and Structural Functionalism are dominant theories

– Law as rules is a major approach

• 1960s:

– The Gluckman/Bohannan debate

• 1960s to early 1980s:

– Functional theories are replaced with a variety of conflict and other critical theories.

– Processes of dispute resolution, law as a social process, becomes a major approach.

• Early 1980s

– The Crisis in Representation and its aftermath

• Currently

– Linguistics, Discourse, Power, and Ideologies

• DURKHEIM (1858-1917): A society’s institutions, such as the law, function to maintain social equilibrium and cohesion.

MARX (1818-1883): The economic base is the foundation of any society, and its superstructure is comprised of social institutions, such as the law, that materially supports and justifies the economic base.

WEBER (1864-1920): The most advanced legal system is guided by formal rules, and categorized in his “ideal types” as a rational bureaucracy. Capitalism is the most rational economic system, and its legal system insures its efficiency, predictability, and calculability.

POSITIVISM:EMPIRICISM, OBJECTIVISM, DETERMINISM

• Positivism views empirical sciences and the scientific method to be the only source of true knowledge.

• Positivism applies empiricism to the study of society, and claims this is the objective way to identify and analyze social problems, and construct models for improvement.

• Positivism is deterministic as it asserts there are natural

“cause and effect” explanations for social phenomena.

• Comte, the primary founder of positivism, was an essentialist

and believed humans are born irrational and need a

positivistic society to organize and control them.

• His model of individual development parallels his evolutionary model for society. A person passes through theological and metaphysical stages before they reach the mature positivist

stage. Only a small minority of men (never women) reach this

level, and – he asserted -- they should be the leaders of society.

AUGUSTE COMTE1798 to 1857

A theory developed by Herbert Spencer when he applied new scientific discoveries to the study of societies.

His theory predates Darwin’s theory of biological, unilinear evolution. However, after Darwin, social evolution also became referred to as social Darwinism.

Spencer coined the term “survival of the fittest” in applying his social evolutionism to laissez-faire capitalism.

He was responsible for promoting political policy in England that denied social services to the disadvantaged.

1820 to 1903

• Society is an organism that functions in both comparative and contrasting ways to biology.

• Spencer equated civilization with a superorganic society and claimed it generated the greatest social equilibrium.

• Societies develop from primitive to superorganic through a long, unilinear, evolutionary process.

Based on Lamarck’s theory of evolution: Spencer asserted that human biological and psychological traits develop through use.

Emotions dominate intellect. He corresponded different

emotional types with social types: militaristic, independent, lazy, corrupt, etc.

SIR HENRY JAMES SUMNER MAINE

• Many early anthropological texts were written by lawyers.

• Maine is the founder of legal anthropology and supporter of European superiority and its imperial projects. He espoused that there is an opposition between “West” and “East” based in religion and law.

• With Ancient Law (1861), he advanced the social evolution of legal systems – from “primitive” to “civilized” -- setting forth “a grand theory to account for the development of law and governance” from the origins of human society to his own Victorian England.

• He established that social processes develop from “status to contract.” However, he was critical of the social contract theory that had been the foundation of European legal systems for two hundred years. He argued social contracts are artificial and tainted by legal fictions.

• He countered that society develops through family and kinship in lieu of the social contract.

1822 to 1888

MAINE CONSIDERED SOCIETIES LIKE THE TROBRIANDERS TO BE “SLAVES TO CUSTOM” WITHOUT

RATIONAL LEGAL AND GOVERNMENTAL SYSTEMS.

LEWIS HENRY MORGAN He was an American social evolutionist, lawyer, and

ethnographer of Native Americans who asserted that matriarchy was the original social system.

He studied kinship systems throughout the world and divided their terminologies into two social evolutionary categories: CLASSIFICATORY: Those that grouped relatives

under the same kinship term (early). “Ancient” kin based societies Communal property

DESCRIPTIVE: Those that identified the same category of kin by separate terms (advanced). Political, territorially based societies Private property

Much of his work is not accurate, yet his early focus on connections between law and property are foundational to these issues that remain highly pertinent today.

1818 to 1881

BRONISLAW MALINOWSKI• The modern anthropology of law began with Bronislaw

Malinowsi’s Crime and the Savage Society (1926).

• Malinowski ( in addition to Franz Boas) established the

guidelines of cultural relativism in anthropology.

• He opposed Maine’s social evolutionism and through functionalist

theory argued that “savages,” were as “rational” as Europeans.

• Through "study by direct observation the rules of custom as they function in actual life" (1926:126), and in contextualization with their culture, Malinowski documented the Trobrianders’ complex system of civil and criminal rules with organized procedures of enforcement to establish:

– Trobriand society was generally orderly.

– This order was maintained by a system of obligations based in their economy in which they had a keen self-interest, and rational understanding of cause and effect.

– Individuals frequently tested their social order through self-interested acts of deviance and resistance, demonstrating that they were not “slaves to custom.”

1884 to 1942

THE CHEYENNE WAY:Conflict and Case Law in Primitive Jurisprudence , 1941

• E. Adamson Hoebel (1906-1993), legal anthropologist, and Karl Llewellyn (1892-1962), legal scholar and reformer collaborated on The Cheyenne Way.

• They conducted fieldwork among the Cheyenne in 1936, and established the case study as the primary unit of analysis for the study of tribal law.

• Their ethnography asserts that the Cheyenne--a nomadic, semi-pastoral, hunting culture with no organized government–adhere to a legal system in which social conduct is guided without violence and conveyed through oral history.

• They compared Cheyenne law with “Western” case law in addressing such conflicts as: military issues, homicide, the supernatural, marriage and sex, property and inheritance, informal social pressures, the integration of the individual into the tribal community, etc.

• Hoebel’s and Llewellyn's collaboration is an early example of the interdisciplinary approach to legal anthropology, a trend that would increase over time.

“MARRIAGE AND SEX”

• This chapter from The Cheyenne Way describes wife-absconding cases from which Hoebel and Llewellyn established six “patterns of action” of a husband in response to “the violation of his marital rights”:

– (1) A basic, ideal norm in which to husband made no move, but waited for the emissary, usually a tribal chief, to come from the aggressor bearing a peace pipe.

– (2) The wronged husband may send a chief with a statement of his demands.

– (3-4) The aggrieved husband might steal or shoot a horse from the aggressor’s herd.

– (5) “Rarely,” the husband kills the absconded wife “without any attempt at legal settlement.” However, “This must be regarded as illegal.”

– (6) “The husband could demand the return of his wife.”

• Recent critique by Conley and O’Barr:

– “If one relies only on the case material itself, no compelling pattern emerges. To the extent there is a guiding principle, it seems to be no more specific than ‘anything goes.’ As for legal rules or processes, their existence seems to depend on unreported source material or axiomatic assumptions… Where they saw a set of rules that circumscribed the behavior of the aggrieved man, we find an almost infinitely fluid situation that invites autonomy on the part of the disappointed woman.”

Malinowski contributed to the anthropology

of law, whereas Hoebel is definitively a legal

anthropologist.Hoebel and Llewellyn established the theory that however a

society settles its disputes, this is the fundamental foundation of its legal code.

In 1954 Hoebel published a more theoretical text, Law of Primitive Man, in which he categorizes different “pre-literate” legal systems according to their levels of complexity.

With this work, and due to his prominence in the anthropology of law, Hoebel represents a return to the explicitly evolutionary approach of Maine.

LEGAL ANTHROPOLOGY OF THE 50s AND EARLY 60s

“Law as Rules”Beginning with Malinowski’s and Radcliffe-Brown’s use of Durkheim,

functionalism and structural functionalism were dominant theories in anthropology between the early 1920s to the mid 1960s.

Functionalism focuses on social cohesion and the status quo, asserting social stratification is necessary for a society to operate effectively.

Legal anthropology followed suit in the 50s and 60s as anthropologists focused on law as an element of social control through imposed sanctions, and legal procedures as a method of enforcing social rules.

Adhering to Malinowski’s project of cultural relativism, legal anthropologists of this era viewed different societies’ systems of dispute resolution to be rational.

However, in studying other cultures they generally assumed that: “Western” jurisprudential concepts could be analogously applied. As in many “Western” cultures--the law is a semi-autonomous, bounded social

domain.

THE GLUCKMAN-BOHANNAN DEBATE

The number of legal anthropologists increased during the 50s and 60s, and at this time a crucial debate developed between anthropologists Max Gluckman (1911-1975) and Paul Bohannan (1920-2007).

The debate concerned legal and anthropological methods, specifically whether Anglo-American legal definitions and categories are applicable to “non-Western” societies. Accordingly, it was not over concepts of the law, per se, but rather issues of language, representation, and cultural comparisons.

Bohannan argued that “universal” legal categories should not be imposed on “non-Western” cultures as it circumvented understanding and representation. He advocated the use of “native” terms, and although incommensurable, their meanings could be understood through ethnographic contextualization. He exemplified this approach with Justice and Judgment among the Tiv (1957).

Gluckman deemed Bohannan’s approach to be over cautiously emic, and a barrier to ethnographic work that could comprise a body of knowledge to be used for (his definition of) productive comparative analysis.

The Gluckman-Bohannan debate has been described as “furious,” “notorious,” and “passionate.”

For example, one of Bohannan’s famous retrospective remarks is: “I was convinced in 1957, and I still am, that fitting Tiv data into a model of Western jurisprudence is squeezing parakeets into pigeonholes and not a way to go about ethnography.”

Descriptions of the outcome of the debate include: It went to far. It concluded in a stalemate. Emic ethnographic representations are important—a nod to Bohannan. Linguistics are integral to the anthropological study of legal systems—another

nod to Bohannan.

However, both Gluckman and Bohannan are critiqued for adhering to the “Western” paradigm of “law as rules” derived from a systematic framework in lieu of viewing law as a social process.

Functionalism and structural functionalism do not have robust theories Functionalism and structural functionalism do not have robust theories of social resistance, change, conflict, etc., so with the revolutionary of social resistance, change, conflict, etc., so with the revolutionary 1960s it became ineffective.1960s it became ineffective.

Neo-Marxism, feminism, interpretive/symbolic anthropology, Neo-Marxism, feminism, interpretive/symbolic anthropology, development studies, and structuralism came to the fore. Post-development studies, and structuralism came to the fore. Post-structuralism and post-colonial studies were then introduced. structuralism and post-colonial studies were then introduced.

In correspondence, a second crucial debate emerged in legal In correspondence, a second crucial debate emerged in legal anthropology during this time over whether the subdiscipline’s focus anthropology during this time over whether the subdiscipline’s focus should be on the rules of adjudication--“law as rules,” or the processes should be on the rules of adjudication--“law as rules,” or the processes of dispute resolution, and how social norms are constructed and of dispute resolution, and how social norms are constructed and fortified.fortified.

An important aspect of this debate was that the “law as rules” An important aspect of this debate was that the “law as rules” paradigm was critiqued for its structural functionalist focus on social paradigm was critiqued for its structural functionalist focus on social order. While those who supported the process model began to focus order. While those who supported the process model began to focus on legal pluralism, and alternative legal regimes that are present in any on legal pluralism, and alternative legal regimes that are present in any society.society.

LEGAL ANTHROPOLOGY OF THE LATE 60s AND 70sLEGAL ANTHROPOLOGY OF THE LATE 60s AND 70s

THE DISPUTE PROCESS MODEL Legal anthropologists holistically investigated the

processes of dispute -- for example they: Looked at what issues conflicts are over and why. Attended to the social relations involved and how

they are altered throughout and after the dispute process.

Defined the range of litigants’ options. Analyzed the incentives and constraints that impact

litigants’ choices. Investigated marginalized groups, how their

interaction with the law generates a vicious cycle of recidivism, and how they form support networks.

Studied systems alternative to the law, such as mediated dispute resolutions, or unmediated negotiations.

These studies’ focus on meaning (hermeneutics) illuminate micropolitics in law that shape social life, and relations of power in local contexts.

They are also indicative of anthropologists’ struggles to disengage completely from positivism.

Zinacantecos of Mexico.Anthropologist

Jane Collier conducted a dispute

process study with this culture.

• Anthropology emerged in the 1800s as a part of the European imperial project, and since the early 20th century, had been struggling to disengage from this origin. Nevertheless, in the 1980s anthropologists recognized that ethnographic research was highly asymmetrical in its relations of power. Anthropologists had the power to focus on, define, and represent the “Other.”

• This was illuminated with the publication of Writing Culture: The Poetics and Politics of Ethnography (1986), edited by Clifford and Marcus.

• Marcus and Fischer argued that the "crisis of representation" resulted from a vexed interplay of two anthropological projects:

– 1) Ethnography 's commitment to a systematic description of specific cultures and social units.

– 2) Anthropology 's persistent objective to discover an encompassing totality, regardless of decades of anti-universalizing rhetoric by many anthropologists.

• Many anthropologists negotiate this interplay between part and whole by problematizing the very nature of the anthropological object itself. For example the ethnographer recognizes that the concept of totality is a construct of the observer. Cultural specifics and units of analysis do not readily assimilate with that construct. Nor can data and evidence from a particular culture comprise their own theorization that produces a totality.

EARLY 80s: THE “CRISIS IN REPRESENTATION”

*The conundrum that anthropologists then faced was how to maintain the discipline as a social science, and their selves as social scientists with the authorial mastery of knowledge this necessitates, and conduct ethnographic research with non totalizing equity?

*Anthropologists engaged such strategies as:

* Self-reflexivity: making ones self visible in the writing; detailing struggles and confusion; avoiding an authoritative voice; avoiding claims of validity or superiority with regards to theory and interpretation.

*Documenting what people say about their own culture and their own interpretations without any theoretical analysis or commentary by the anthropologist.

*Multi-vocal ethnographies that present a variety of perspectives from people of a culture without the anthropologist’s interpretive and/or theoretical interjection.

*Multi-textual ethnographies that creatively mix text, photographs, film, video, poetry, the body without commentary or specific ordering.

*Conducting fully collaborative ethnographic projects with members of the culture being studied.

*Conducting ethnographic research on one’s own culture and/or elites.

Clifford Geertz raised questions about the differentiation between “law” and “fact,” and posed concerns over the efficacy of the interdisciplinary approach of legal anthropology to address this and other issues.

Conley and O’Barr criticized the case study unit of analysis as imposing Anglo-American values on other cultures, and that it shifts attention from the study of law to deviant behavior and conflict.

IN THE MEANTIME, SPECIFIC TO LEGAL ANTHROPOLOGY OF THE 1980S:

CLIFFORD GEERTZ1926-2006

Examining the legal ordering of American life. (Greenhouse, Merry, and Conley and O’Barr)

Replacing the theoretical approach of law as conflict with law as power. (Starr and Collier)

Integrating linguistics in order to fully understand and theorize the use of language in legal processes. (Mertz and Maurer)

Producing ethnographies with a narrative approach. (French)

Attending to legal consciousness and how the law illuminates culture in lieu of how culture illuminates law. (Just)

Addressing globalization, becoming knowledgeable in transnational processes, and integrating analyses of national legal systems with the multi-national legal order. (Merry)

Engaging in more interdisciplinary research. (Riles)

AND -- legal anthropologists do continue important work with other cultures, such as Laura Nader’s ethnography of the Zapotec.