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". 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.Malinowski, Bronislaw 1985 Crime and Custom in Savage Society. Totowa, New Jersey: Rowman & Allanheld. 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 acephalous 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 and political uprisings.
What is law?
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 on conduct ("primary rules")H. L. A. Hart, "Law as the Union of Primary and Secondary Rules," The Concept of Law. rules about recognizing, changing, applying, and adjudicating on rules on conduct ("secondary rules")
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-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 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."(1934: Introduction to Hogbin, Law and Order in Polynesia).
Thus, law has been studied in ways that may be categorized by as: 1) prescriptive rules 2) observable regularities 3) Instances of dispute.
Legal Pluralism
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.
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.” (Bohannan, 1957:58).
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 employ strategic 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.” (Pospisil, 1973: 541).
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.(Bohannan, 1965: pp. 41; Pospisil, 1973).
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.” (Bohannan, 1989: vii).
Law as a system of knowledge Scholars of the sociology of knowledge note that social and power relations can both be created by the definition of knowledge, and influence how knowledge is created.
Scholars have argued that law provides a set of categories and relations through which to see the social world. Individuals themselves (rather than legal professionals) will try to frame their problems in legalistic terms to resolve them. Boaventura de Sousa Santos argues that these legal categories can distort reality, Yngvesson argues that the definitions themselves can create power imbalances.
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.(Bohannan, 1956).
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.(Gluckman, 1965: 26). 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.