Legal anthropology, also known as the anthropology of laws, is a sub-discipline of anthropology that uses an interdisciplinary approach to "the cross-cultural study of social ordering".[1] The questions that Legal Anthropologists seek to answer concern how is law present in cultures? How does it manifest? How may anthropologists contribute to understandings of law?
Earlier legal anthropological research focused more narrowly on conflict management, crime, sanctions, or formal regulation. Bronisław Malinowski's 1926 work, Crime and Custom in Savage Society, explored law, order, crime, and punishment among the Trobriand Islanders.[2] The English lawyer Sir Henry Maine is often credited with founding the study of Legal Anthropology through his book Ancient Law (1861). An ethno-centric evolutionary perspective was pre-eminent in early Anthropological discourse on law, evident through terms applied such as ‘pre-law’ or ‘proto-law’ in describing indigenous cultures. However, though Maine’s evolutionary framework has been largely rejected within the discipline, the questions he raised have shaped the subsequent discourse of the study. Moreover, the 1926 publication of Crime and Custom in Savage Society by Malinowski based upon his time with the Trobriand Islanders, further helped establish the discipline of legal anthropology. Through emphasizing the order present in acephelous societies, Malinowski proposed the cross-cultural examining of law through its established functions as opposed to a discrete entity. This has led to multiple researchers and ethnographies examining such aspects as order, dispute, conflict management, crime, sanctions, or formal regulation, in addition (and often antagonistically) to law-centred studies, with small-societal studies leading to insightful self-reflections and better understanding of the founding concept of law.
Contemporary research in legal anthropology has sought to apply its framework to issues at the intersections of law and culture, including human rights, legal pluralism, Islamophobia[3][4] and political uprisings.
Legal Anthropology provides a definition of law which differs from that found within modern legal systems. Hoebel (1954) offered the following definition of law: "A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting."
Maine argued that human societies passing through three basic stages of legal development, from a group presided over by a senior agnate, through stages of territorial development and culminating in an elite forming normative laws of society, stating that "what the juristical oligarchy now claims is to monopolize the knowledge of the laws, to have the exclusive possession of the principles by which quarrels are decided."
This evolutionary approach, as has been stated, was subsequently replaced within the anthropological discourse by the need to examine the manifestations of law's societal function. As according to Hoebel, law has four functions:
1) to identify socially acceptable lines of behaviour for inclusion in the culture. 2) To allocate authority and who may legitimately apply force. 3) To settle trouble cases. 4) To redefine relationships as the concepts of life change.
Legal theorist H. L. A. Hart, however, stated that law is a body of rules, and is a union of two sets of rules:
rules about recognizing, changing, applying, and adjudicating on rules on conduct ("secondary rules") [6]
Within modern English Theory, law is a discrete and specialized topic. Predominantly positivist in character, it is closely linked to notions of a rule-making body, the judiciary and enforcement agencies. The centralized state organisation and isolates are essentials to the attributes of rules, courts and sanctions. To learn more on this view, see Hobbes. 1651 Leviathan, part 2, chapter 26 or Salmond, J. 1902 Jurisprudence.
However, this view of law is not applicable everywhere. There are many acephalous societies around the world where the above control mechanisms are absent. There are no conceptualized and isolated set of normative rules – these are instead embodied in everyday life. Even when there may be a discrete set of legal norms, these are not treated similarly to the English Legal System's unequivocal power and unchallenged pre-eminence. Shamans, fighting and supernatural means are all mechanisms of superimposing rules within other societies. For example, within Rasmussen’s work of Across Arctic America (1927) he recounts Eskimo nith[check spelling]-songs being used as a public reprimand by expressing the wrongdoing of someone guilty.
Thus, instead of focusing upon the explicit manifestations of law, legal anthropologists have taken to examining the functions of law and how it is expressed. A view expressed by Leopold Pospisil[7] and encapsulated by Bronislaw Malinowski:
"In such primitive communities I personally believe that law ought to be defined by function and not by form, that is we ought to see what are the arrangements, the sociological realities, the cultural mechanisms which act for the enforcement of law."[8]
Thus, law has been studied in ways that may be categorized by as: 1) prescriptive rules 2) observable regularities 3) Instances of dispute.
Legal scholars noted that many social structures had their own rules and processes that were similar to law, which were referred to as legal orders. The viewpoint that law should be studied together with these legal orders or cannot be seen as fundamentally distinct or separate from them has been referred to as legal pluralism. Some scholars have argued that law is distinct from other law like processes, for example because of its relationship with the state.[9]:38
Processual paradigm: order and conflict
Order and regulatory behaviour are required if social life is to be maintained. The scale and shade of this behaviour depends on the values and beliefs held by a society deriving from implicit understandings of the norm developed through socialization. There are socially constructed norms with varying degrees of explicitness and levels of order. Conflict may not be interpreted as an extreme pathological event but as a regulatory acting force.
This processual understanding of conflict and dispute became apparent and subsequently heavily theorized upon by the anthropological discipline within the latter half of the nineteenth century as a gateway to the law and order of a society. Disputes have come to be recognised as necessary and constructive over pathological whilst the stated rules of law only explain some aspects of control and compliance. The context and interactions of a dispute are more informative about a culture than the rules.
Classic studies deriving theories of order from disputes include Evans-Pritchard work Witchcraft, Oracles and Magic among the Azande which focused upon functional disputes surrounding sorcery and witchcraft practices, or Comaroff and Roberts (1981) work among the Tswana which examine the hierarchy of disputes, the patterns of contact and the effect norms affect the course of dispute as norms important to dispute are rarely “especially organised for jural purpose.”[10]
Other examples include:
Leach, 1954. Political Systems of Highland Burma. Barth, 1959. Political Leadership among Swat Pathans.
Case study approach
Within the history of Legal Anthropology there have been various methods of data gathering adopted; ranging from literature review of traveller/missionary accounts, consulting informants and lengthy participant observation.
Furthermore, when evaluating any research it is appropriate to have a robust methodology capable of scientifically analysing the topic at hand.
The broad method of study by legal anthropologists prevails upon the Case Study Approach first developed by Llewellyn and Hoebel in The Cheyenne Way (1941) not as “a philosophy but a technology.”[11]
This methodology is applied to situations of cross-cultural conflict and the correlating resolution, which can have sets of legal notions and jural regularities extracted from them. [12]
This method may be safe-guarded against accusations of imposing western ideological structures as it is often an emic sentiment: for example,
“The Tiv drove me to the case method…what they were interested in. They put a lot of time and effort into cases.”[13]
Scholars have argued that law provides a set of categories and relations through which to see the social world.[9]:54[14]:8 Individuals themselves (rather than legal professionals) will try to frame their problems in legalistic terms to resolve them.[14]:130Boaventura de Sousa Santos argues that these legal categories can distort reality, Yngvesson argues that the definitions themselves can create power imbalances.[9]:64
Issues of terminology and ethnology
Regarding law, in Anthropology's characteristically self-conscious manner, the comparative analysis inherent to Legal Anthropology has been speculated upon and most famously debated by Paul Bohannan and Max Gluckman. The discourse highlights one of the primary differences between British and American Anthropology regarding fieldwork approaches and concerns the imposition of Western terminology as ethnological categories of differing societies.[15]
Each author's uses the Case Study Approach, however, the data's presentation in terms of achieving comparativeness is a point of contention between them.
Paul Bohannan promotes the use of native terminology presented with ethnographic meaning as opposed to any Universal categories, which act as barriers to understanding the true nature of a culture's legal system.
Advocating that it is better to appreciate native terms in their own medium, Bohannan critiques Gluckman's work for its inherent bias.
Gluckman has argued that Bohannan's excessive use of native terminology creates barriers when attempting to achieve comparative analysis. He in turn has suggested that in order to further the cross-cultural comparative study of law, we should use English terms and concepts of law which will aid in the refinement of dispute facts and interrelations. [16] Thus, all native terms should be described and translated into an Anglo-American conceptual equivalent for the purpose of comparison.
Processes and methodologies
As disputes and order began to be recognised as categories worthy of study, interest in the inherent aspects of conflicts emerged within legal anthropology. The processes and actors involved within the events became an object of study for ethnographers as they embraced conflict as a data-rich source.
One example of such an interest is expressed by Philip Gulliver, 1963, Social Control in an African Society in which the intimate relations between disputes are postulated as being important. He examines the patterns of alliance between actors of a dispute and the strategies that develop as a result, the roles of mediators and the typologies for intervention. Another is Sara Ross, whose work Law and Intangible Cultural Heritage in the City focuses the rubric of legal anthropology specifically onto the urban context through an "urban legal anthropology", that includes the use of virtual ethnography, institutional ethnography, and participant observation in urban public and private spaces.[17]
Key questions in legal anthropology
Issues of Legal Pluralism.
See Lyon, 2002 Local arbitration and conflict deferment in Punjab, Pakistan or Engel, D. 1980. Legal pluralism in an American community: perspectives on a civil trial court.
The legitimacy of Universal Human Rights.
Political anthropologists have had much to say about the UDHR (Universal Declaration of Human Rights). Original critiques, most notably by the AAA (American Anthropological Association), argued that cultural ideas of rights and entitlement differ between societies. They warned that any attempt to endorse one set of values above all others amounted to a new western imperialism, and would be counter to ideas of cultural relativism. Most anthropologists now agree that universal human rights have a useful place in today's world. Zechenter (1997) argues there are practices, such as Indian 'sati' (the burning of a widow on her husband's funeral pyre) that can be said to be wrong, despite justifications of tradition. This is because such practices are about much more than a culturally established world view, and frequently develop or revive as a result of socio-economic conditions and the balance of power within a community. As culture is not bounded and unchanging, there are multiple discourses and moral viewpoints within any community and among the various actors in such events (Merry 2003). Cultural relativists risk supporting the most powerfully asserted position at the expense of those who are subjugated under it.
More recent contributions to the question of universal human rights include analysis of their use in practice, and how global discourses are translated into local contexts (Merry 2003). Anthropologists such as Merry (2006) note how the legal framework of the UNDHR is not static but is actively used by communities around the globe to construct meaning. As much as the document is a product of western Enlightenment thinking, communities have the capacity to shape its meaning to suit their own agendas, incorporating its principles in ways that empower them to tackle their own local and national discontents.
Female genital cutting (FGC), also known as female circumcision or female genital mutilation remains a hotly debated, controversial issue contested particularly among legal anthropologists and human rights activists. Through her ethnography (1989) on the practice of pharaonic circumcision among the Hofriyat of Sudan (1989) Boddy maintains that understanding local cultural norms is of crucial importance when considering intervention to prevent the practice. Human rights activists attempting to eradicate FGC using the legal framework of the Universal Declaration of Human Rights (UNDHR) as their justification, run the risk of imposing a set of ideological principles, alien to the culture attempting to be helped, potentially facing hostile reactions. Moreover, the UNDHR as a legal document, is contested by some as being restrictive in its prescription of what is and is not deemed a violation of a human right (Ross 2003) and overlooks local customary justifications which operate outside of an international legalistic framework (Ross 2003). Increasingly (FGC) is becoming a global issue due to increased mobility. What was once deemed a largely African practice has seen a steady increase in European countries such as Britain. Although made illegal in 1985 there have as yet been no convictions and girls as old as nine continue to have the procedure. Legislation has now also been passed in Sweden, the United States and France where there have been convictions. Black, J. A. and Debelle, G. D. (1995) "Female Genital Mutilation in Britain" British Medical Journal.
Further information
There are a number of useful introductions to the field of legal anthropology,[18]Sally Falk Moore, a leading legal anthropologist, held both a law degree and a PhD in anthropology. An increasing number of legal anthropologists hold both JDs and advanced degrees in anthropology, and some teach in law schools while maintaining scholarly connections within the field of legal anthropology; examples include Rebecca French, John Conley, Elizabeth Mertz, and Annelise Riles. Such combined expertise has also been turned to more applied anthropological pursuits such as tribal advocacy and forensic ethnography by practitioners. There is a growing interest in the intersection of legal and linguistic anthropology.
In Europe, the following scholars and schools will be good resources: Vanja Hamzić (SOAS University of London), Jane Cowan (University of Sussex), Ann Griffiths and Toby Kelly (University of Edinburgh), Sari Wastell (Goldsmiths, University of London), Harri Englund and Yael Navaro (University of Cambridge), and Richard Rottenburg (Martin-Luther Universität).
'Allegra: a Virtual Laboratory of Legal Anthropology' is an online experiment by a new generation of legal anthropologists designated to facilitate scholarly collaboration and awareness of the sub-discipline.
Anthropology is the scientific study of humanity, concerned with human behavior, human biology, cultures, societies, and linguistics, in both the present and past, including archaic humans. Social anthropology studies patterns of behavior, while cultural anthropology studies cultural meaning, including norms and values. The term sociocultural anthropology is commonly used today. Linguistic anthropology studies how language influences social life. Biological or physical anthropology studies the biological development of humans.
Cultural anthropology is a branch of anthropology focused on the study of cultural variation among humans. It is in contrast to social anthropology, which perceives cultural variation as a subset of a posited anthropological constant. The term sociocultural anthropology includes both cultural and social anthropology traditions.
An incest taboo is any cultural rule or norm that prohibits sexual relations between certain members of the same family, mainly between individuals related by blood. All known human cultures have norms that exclude certain close relatives from those considered suitable or permissible sexual or marriage partners, making such relationships taboo. However, different norms exist among cultures as to which blood relations are permissible as sexual partners and which are not. Sexual relations between related persons which are subject to the taboo are called incestuous relationships.
Cultural relativism is the position that there is no universal standard to measure cultures by, and that all cultural values and beliefs must be understood relative to their cultural context, and not judged based on outside norms and values. Proponents of cultural relativism also tend to argue that the norms and values of one culture should not be evaluated using the norms and values of another.
A ritual is a sequence of activities involving gestures, words, actions, or revered objects. Rituals may be prescribed by the traditions of a community, including a religious community. Rituals are characterized, but not defined, by formalism, traditionalism, invariance, rule-governance, sacral symbolism, and performance.
Bronisław Kasper Malinowski was a Polish-British anthropologist and ethnologist whose writings on ethnography, social theory, and field research have exerted a lasting influence on the discipline of anthropology.
In anthropology, kinship is the web of social relationships that form an important part of the lives of all humans in all societies, although its exact meanings even within this discipline are often debated. Anthropologist Robin Fox says that the study of kinship is the study of what humans do with these basic facts of life – mating, gestation, parenthood, socialization, siblingship etc. Human society is unique, he argues, in that we are "working with the same raw material as exists in the animal world, but [we] can conceptualize and categorize it to serve social ends." These social ends include the socialization of children and the formation of basic economic, political and religious groups.
Economic anthropology is a field that attempts to explain human economic behavior in its widest historic, geographic and cultural scope. It is an amalgamation of economics and anthropology. It is practiced by anthropologists and has a complex relationship with the discipline of economics, of which it is highly critical. Its origins as a sub-field of anthropology began with work by the Polish founder of anthropology Bronislaw Malinowski and the French Marcel Mauss on the nature of reciprocity as an alternative to market exchange. For the most part, studies in economic anthropology focus on exchange.
Political anthropology is the comparative study of politics in a broad range of historical, social, and cultural settings.
Sociocultural anthropology is a term used to refer to social anthropology and cultural anthropology together. It is one of the four main branches of anthropology. Sociocultural anthropologists focus on the study of society and culture, while often interested in cultural diversity and universalism.
Herman Max Gluckman was a South African and British social anthropologist. He is best known as the founder of the Manchester School of anthropology.
The sociology of culture, and the related cultural sociology, concerns the systematic analysis of culture, usually understood as the ensemble of symbolic codes used by a member of a society, as it is manifested in the society. For Georg Simmel, culture referred to "the cultivation of individuals through the agency of external forms which have been objectified in the course of history". Culture in the sociological field is analyzed as the ways of thinking and describing, acting, and the material objects that together shape a group of people's way of life.
Field research, field studies, or fieldwork is the collection of raw data outside a laboratory, library, or workplace setting. The approaches and methods used in field research vary across disciplines. For example, biologists who conduct field research may simply observe animals interacting with their environments, whereas social scientists conducting field research may interview or observe people in their natural environments to learn their languages, folklore, and social structures.
Feminist anthropology is a four-field approach to anthropology that seeks to transform research findings, anthropological hiring practices, and the scholarly production of knowledge, using insights from feminist theory. Simultaneously, feminist anthropology challenges essentialist feminist theories developed in Europe and America. While feminists practiced cultural anthropology since its inception, it was not until the 1970s that feminist anthropology was formally recognized as a subdiscipline of anthropology. Since then, it has developed its own subsection of the American Anthropological Association – the Association for Feminist Anthropology – and its own publication, Feminist Anthropology. Their former journal Voices is now defunct.
A cultural universal is an element, pattern, trait, or institution that is common to all known human cultures worldwide. Taken together, the whole body of cultural universals is known as the human condition. Evolutionary psychologists hold that behaviors or traits that occur universally in all cultures are good candidates for evolutionary adaptations. Some anthropological and sociological theorists that take a cultural relativist perspective may deny the existence of cultural universals: the extent to which these universals are "cultural" in the narrow sense, or in fact biologically inherited behavior is an issue of "nature versus nurture". Prominent scholars on the topic include Emile Durkheim, George Murdock, Claude Lévi-Strauss, and Donald Brown.
The Department of Social Anthropology at the University of Manchester, founded by Max Gluckman in 1947 became known among anthropologists and other social scientists as the Manchester School. Notable features of the Manchester School included an emphasis on "case studies", deriving from Gluckman's early training in law and similar to methods used in law schools. The case method involved detailed analysis of particular instances of social interaction to infer rules and assumptions. The Manchester School also read the works of Marx and other economists and sociologists and looked at issues of social justice such as apartheid and class conflict. Recurring themes included issues of conflict and reconciliation in small-scale societies and organizations, and the tension between individual agency and social structure.
E. Adamson Hoebel (1906–1993) was Regents Professor Emeritus of anthropology at the University of Minnesota.
Social anthropology is the study of patterns of behaviour in human societies and cultures. It is the dominant constituent of anthropology throughout the United Kingdom and much of Europe, where it is distinguished from cultural anthropology. In the United States, social anthropology is commonly subsumed within cultural anthropology or sociocultural anthropology.
Susan F. Hirsch is a legal anthropologist whose work has specialized in the study of legal language. She is a professor of conflict resolution and anthropology at George Mason University, where she holds the Vernon M. and Minnie I. Lynch Chair in the Jimmy and Rosalynn Carter School for Peace and Conflict Resolution.
Off the verandah is a phrase often attributed to anthropologist Bronisław Malinowski, who stressed the need for fieldwork enabling the researcher to experience the everyday life of his subjects along with them. In this context, it is also interpreted as criticism of armchair theorizing.
Malinowski, B. 1926. Crime and Custom in Savage Society.
Lyon, S. Durham University Lecture Series. Department of Anthropology: Power and Governance.
Ross F. (2003). “Using Rights to Measure Wrongs: A Case Study of Method and Moral in the Work of the South African Truth and Reconciliation Commission”. In: Wilson A., Mitchell J P. eds. Human Rights in Global Perspective. Anthropological Studies of Rights, Claims and Entitlements. London: Routledge, pp 163–182.
Schapera, I. 1938. A Handbook of Tswana Law and Custom.
Wesel, U. 1985. Frühformen des Rechts in vorstaatlichen Gesellschaften, Suhrkamp Verlag, Frankfurt am Main, ISBN3-518-57723-9 (paperback) and ISBN3-518-57706-9 (hard cover)
Zippelius, R. 2011. Rechtsphilosophie, §§ 5 IV 2, 8, 9 I, 12 IV, 17 II, 19 IV, 25, C.H. Beck, Munich, ISBN978-3-406-61191-9
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