Legal Anthropology
Legal anthropology includes the study of legal ordering of bands, tribes, rural villages and urban neighborhoods[1]. The discipline also examines legal institutions and the nature of codified rules as they occur in varying social settings. Legal anthropology developed alongside sociology of law and equally probes into the implications of conflict resolution, justice and authority in social contexts. Ethnography within the field involves researchers observing and participating in spaces where law is practiced and legal discourses happen ie. courts and courtrooms.
Background
In highlighting the normative basis of law, Sir Henry Maine (Ancient Law, 1861) described the legal evolution of societies as progressing from status to contract. The early interest in anthropological law entailed civilizations measured according to their legal frameworks alongside the shift from kin-based to territorial societies.
Comparative Legal Anthropology
The comparative approach in legal anthropology emerged as a result of the universality of ‘codified system of rules’ and to the degree in which it varies in distinct social contexts.
Increasingly so, anthropologists from all schools of the domain attempted to define law as akin to social control.
For example –
- Malinowksi gave a functionalist perspective by saying that law plays the role of inducing social pressure and conformity.[2]
- Radcliffe-Brown provided a structuralist aspect of law, as being different from sanctions and customs but instead a politically organized force.[3]
- Hoebel gave law the definition of ‘physical coercion’ from an authorized social agency.
These perspectives however, remained confined to the western perception of law[4] as rule-based and fell short of a culture-specific perspective.
The Gluckman-Bohannan Debate
Max Gluckman in his case study on the Barotse of North Rhodesia (1955) was supportive of the translation of indigenous legal parameters into western jurisprudence. Paul Bohannan countered such claims and instead highlighted subjectivity of whole social and legal systems to specific societies. This sparked a debate between the two scholars with Bohannan’s publication of Justice and Judgement among the Tiv (1957). A debate that changed legal scholarship and led to the abandonment of comparative approach in legal anthropology.
Law as a Socio-cultural process
Laura Nader says, ‘all societies do not fight about all the possible things that human beings can fight about’. And hence, the presence of varying natures of disputes, their procedures (courts,contests,ordeals) of resolution and choices of settlement (arbitration, mediation, negotiation) are all interactive elements of examining the operation of law in different societies or communities.[5]
As it so happens, legal frameworks are built on knowledge and epistemological foundations like ethics, values and morals etc. Scholars have analyzed legal institutions and spaces like courts for their socio-linguistic paradigms[6]. This helps infer how laws create meaning in society and shape its normative design.[7]
In similar domains, anthropologists have also investigated how law shapes subjectivity and identity of self among individuals in a community. It emphasizes on the importance of legal consciousness in social relations.[8]
Legal Pluralism and Globalization
Recent interest in legal anthropology is driven by the nature of law as a tool for transmitting cultural hegemonies. In essence, legal pluralism refers to a multi-faceted legal system in a single social setting.[6] Such instances were common in European colonial contexts, where invading powers deployed their legal system over existing indigenous ones. Today, legal pluralism is a common global phenomenon, notably in India where religious legal principles from Islamic (Sharia) law are integrated and incorporated alongside constitutional laws. [9]
Current areas of focus include the nature of International law and governance. These are imperative in forming of transnational legal orders and transmission of constitutional values. Legal anthropologists also study transitional justice by examining the nature of past human rights violations within communities and the challenges in assuring their restoration, reinforcement and justice.[10]
Conclusion
Legal anthropology is a complex field involving not just law and order but also politics, society and culture. The background of the discipline belongs in a starkly different time and space. The various trajectories in legal anthropology unfurled over several decades of events, catastrophes and scholarly breakthroughs. As is apparent, the case studies of legal anthropology are diverse in size, density as well as complexity. Its scope ranges from tribal codes embedded in myth and divinity to international laws governing the entire global landscape.
See Also
References
[1] Merry, S. E., Canfield, M. C., & Wright, J. D. (2015). Law: anthropological aspects. International Encyclopedia of the Social & Behavioral Sciences [second edition]. Volume 13, 535-541.
[2] Malinowski, B., 1926. Crime and Custom in Savage Society. Rowman & Littlefield.
[3] Radcliffe-Brown, A., 1933. Law, primitive. In: Encyclopedia of the Social Sciences, vol. 9, pp. 202–206.
[4] Comaroff, J.L., Roberts, S., 1981. Rules and Processes. University of Chicago Press.
[5] Practicing Ethnography in Law: New Dialogues, Enduring Methods. (2016). United States: Palgrave Macmillan US. and also Merry, S. E., Canfield, M. C., & Wright, J. D. (2015). Law: anthropological aspects. International Encyclopedia of the Social & Behavioral Sciences [second edition]. Volume 13, 535-541.
[6] Humphreys, S., 1985. Law as discourse. History and Anthropology 1, 239–264.
[7] Conley, J.M., O’Barr, W.M., 1990. Rules versus Relationships: The Ethnography of Legal Discourse. University of Chicago Press.
[8] Merry, S.E., 1990. Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans. University of Chicago Press, Chicago.
[10] Demian, M., & Kent, L. (Eds.). (2021). Transitional Justice in Law, History and Anthropology. Taylor & Francis Group.
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