what is the anthro approach to looking at Law
Looking into the context of "enforceable norms."
Analyzing the strength or relative influence of various factors. These factors constitute the constellation of tendencies and habits of collective life that make up a society.
How do they affect (and how are they affected by) the creation and maintenance of law? Tendencies include the social, political, economic, and intellectual.
"Beginners Mind": comparative study gives the student new approaches to the familiar; new questions to ask; a perspective rooted in "not knowing." How would you explain this to a being from another planet?
Seldom politically neutral
Try to understand what is going on
What it means to the actors
What it means within given situations
How much of the context must be understood to fully understand any norm, legal or illegal?
How seriously should we take courts' explanations for what they do, or policy makers'?
On war, the economy, criminal law?
Ulterior motives: political, economic, social control??
Plato: function of law was to produce "virtuous men."
"Justice" can only be achieved between social equals with common interests (citizens)
Augustine & Aquinas began to distinguish between G-d's Law and Man's law. Reason permitted a coming together, creating heaven on earth
Hobbes & Locke
Laws of Nature: War of All Against All
Man's Law: an effort to seek peace
Locke: "State of Nature" = each free to pursue their own interests
Society: "social contract" where each surrenders a measure of autonomy in exchange for peace & security
Re Classical Themes
Universal Human Rights on the rise
Move toward global equality and primacy of "human security" instead of "state security"
Downsides: role of law in essentializing categories and fixing identities
Laws are man-made
Studied variety of legal systems
Sound law needs conformance with nature
Best relates to "the disposition of the people for whom it is established"
In total: Spirit of the Laws (see Geertz)
From "archaic" to "modern" law
A search for defining characteristics
From "status" to "contract" paramount
British scholar. Fieldwork in India
Lewis Henry Morgan
American scholar looking at indigenous peoples
Sought to explain the "evolutionary path followed by human societies"
From primarily kin-based
To primarily territory-based
It's the economy, stupide!
Evolutionary stage model of development
Marx: a German who lived and worked in England (in the public library) after failing to find a secure place in German society. He thus had something of an internationalist perspective, along with his perspective as an historian. Perhaps the most important historical event of his lifetime was the American Civil War.
Newman on Marx
Althusser provides a sophisticated take on Marxism, whereby the economic system (the structure) does not determine all else in society (superstructure, or system of supports for the structure), but that those parts, such as the law, exist in "reciprocal interaction." Each has a certain causal influence on the others, but each retains a degree of independence (33).
Althusser: Social Structure
Law is always under the control of the ruling class
A set of concepts and beliefs that describe and explain the world (Christianity, Islam, Capitalism?)
Law as Ideology
Law is a form of ideology that describes social relationships and expresses a social morality (33).
The social order is presented as normal, moral, desirable, just (34)
Law as ideology "obscures" and "mystifies" the true nature of social relations (34)
is created by law as detached from his foundations and is stripped of his reality as "economic man" (34)
This is a "false" depiction, since social relations are structured as "contracts" of freely agreeing individuals
This is provably not the case (e.g. employment contract, marriage contract; others?)
"Obscure" & "Mystify"
The reality of inequality is "obscured" behind the seemingly universal language of contract (34).
Law is also ideological in that it presents people as isolated individuals—the citizen—rather than as members of classes
Marx argues that one's class determines one's social existence.
Law therefore obscures conflicts between classes by presenting them as connections between individuals
Political Function of Law:
Politics is the allocation of resources
Law is an arena of struggle between groups battling over resources (34)
In this struggle, the ruling class has the greatest access to law as a tool or weapon of class warfare
Economic Function of Law
Social inequality flows from unequal access to basic resources
Law defines and guarantees the rights of property owners
By doing so law regulates the basic relationships between individuals (35) (e.g. landlord/tenant; employer/employee, etc.)
Law stands between those who control land, property, and capital, and those who have only their labor to sell
It creates structure for traditional rules regarding pay, hours, and mutual obligations between employers and employees (e.g. labor organizing, strikes).
Marx & Engels' Theory of Legal Development
In any given society, legal change follows on the heels of developments in the economic mode of production (35)
Such development requires the existence of a State
Role of the State
Newman: superstructural institutions, such as law, that stand between the disadvantaged many and the privileged few grow and become elaborated as a result of improvements in the productive capacity of a society, and the consequent growth in economic surplus, and the resulting class antagonisms. The state, and the legal apparatus that supports it, is necessary to control these internal conflicts and to regulate property and labor relations (38).
Can Marx' theory apply tothe U.S.?
As the US has experienced changes in the economic mode of production (e.g. moved from a farming and industrial society into an automated one), what happened to the need for labor?
How might changes in the demand for (an increasing supply of) labor alter social relations (i.e. the superstructure, including legal relations)?
Are major changes evident in legal relations that coincide with evident changes in the mode of production?
people who believe that the values of their ethnic group is better than that of other groups.
the perspective that a foreign culture should not be judged by the standards of a home culture and that a behavior or way of thinking must be examined in its cultural context
Emile Durkheim (1848-1917)
Law is an expression or instance of a general world view or universalizing theory
If Marx is about "conflict" Durkheim is about "consensus"
Marx' ideas rooted in "the material conditions of human life" while Durkheim's are based on the power of ideas themselves
Particularly the idea of "the social." Today some argue for "the death of the social" (Rose). That human subjects are immersed in their individual pursuits, are able to specify and execute personal preferences, and fail to relate to or strive for the common good. Perhaps environmental concerns may prove a visible exception to this trend. Perhaps mass financial hardship (unemployment, foreclosure, etc.) may too inspire a resurgence of "mass" consciousness.
Law is a "stable" and "precise" expression of social form & organization (41)
All "essential" varieties of social solidarity are "reflected" in law
Law "reproduces" social solidarity
Division of labor is a "cause" of a particular form of social solidarity
Two Types of Law
Repressive Law brings about suffering or a loss inflicted on the agent
Repressive = Penal Law
Restitutive Law restores or returns things to how they were. Relations are brought back to "normal"
Restitutive = Civil & Administrative Law
Two Types of Solidarity
Mechanical: "social molecules" (42) act together to produce society; people know their place, their roles, and do as they have always done
Organic: produced by the division of labor. This is interdependence produced by social change and different roles or "personalities in society. Modernity
Mechanical: characterized by predictability, stability, tradition. A son does as his father has done, a daughter as her mother. Durkheim describes village life as "mechanical," rote, limited.
Divisions of labor include policeman, doctor, shop keeper, in addition to assembly line production styles
As cities grow and become more complex G-d withdraws
Individuals become sources of spontaneous activity. Cities become sites of the "free play of human forces" (43)
Juridical law supplants religious law in organic societies
Shaping Social Identity
Occupational groups replace the "natal milieu" (43)
Human agents shift from persons without "personality," who are "shaped" by those around them, to differentiated, interdependent individuals
"Cooperation is automatically produced through the pursuit by each individual of his own interests" (43)
The upsetting of traditional ways gives rise to a collective need for order. This need is expressed through the creation and maintenance of repressive laws. Workers moving through a dynamic society value stability and predictability. Laws reflect this preference, and deviance is punished to produce conformity.
While division of labor gives rise to juridical laws...
Moral rules proliferate to regulate social life, and each profession in society
Humans living together must make mutual sacrifices...(44)
Morality has not yet reached its height of development...
Power extends not merely from a central source or "sovereign," but flows between relations, with human subjects as its agents...(46-47)
Disciplinary power is the mostly hidden creation of a stealthy bourgeois society...
Bourgeois society has invented "disciplinary power." The theory of sovereignty and its "legal codes" disguise the truth of disciplinary society. The way to uncover the reality of disciplinary power is to chart its operation, its actual procedures, and discern elements of domination inherent in its techniques...
Colonial societies feature vast inequality and a dualistic legal system (legal pluralism)
Colonial domination attempts to impose a formal legal code to adjudicate disputes
Colonial society responds with adherence to newly legitimized "traditional" practices when beyond the scope of codified law
Rather than a single Durkheimian "collective conscience" Galanter points to a dualistic system typified by colonialism. Society is not ruled by a single "conscience" but by dual or even plural "consciences." These are sometimes in conflict, sometimes align, but always influence and shape one another. "Rights" are created from traditions, and traditions given the force of law...
Giddens: Full Humanity?
"Traditional" features of modern life are in fact inventions dating only from the earlier period of modernity" (51)
They arise from frustration with "institutionally repressed" areas of life
Religious, environmental, human rights, and peace movements examples of resistance to modernity
They effectively challenge basic presuppositions and organizing principles of modernity... (52)
Max Weber (1864-1920)
Rational system is best
Rational legal system = formal rationality
The rational evolves from "lower" systems
Bureaucracy best, most rational government
Capitalism most rational economic system
Ideal Typesof Authority
All possible "legitimate" positions from which to derive "rationalized" authority
Valued, established traditional order; particular gifts and qualities of a given leader; logic found in its rules and organization.
"Senses" of Rationality
A logically coherent system of ideas and/or rules (54)
The most efficient means toward a given end
Capitalism most efficient economy
Variety of Legal Systems
Formal rational = most advanced b/c guided by general rules to be applied to specific cases
Formal irrational = oracles, ordeals, divination used to reach legally binding decisions
Substantive rationality = general norms are applied to cases, general principles and policies serve as guides
Substantive irrationality = arbitrary, personal; rule by men, not by law
Capitalism requires reliability and predictability
Monopoly on Violence
Law is "guaranteed (57) by a coercive, specialized apparatus...
Violence may undermine legitimacy of the State; the people must be expected to obey laws of their own volition
Legal coercion by violence a last resort
Classic Legal Ethnography
Knowledge for its own sake--curiosity about the world; understanding others
Vs. serving "power" e.g. colonial empires, ones own group identity, "the oppressed"
Also, academic disputes & carving ones own professional identity
The Ethnographic Method I
No "armchair" theorizing
Go to the place; fit in
Stay long enough to recognize patterns
Ask what, where, when, how, and why
Inquire into changes over time (i.e. is what you are seeing the way it has always been)
The Ethnographic Method II
Work to understand their "language" (e.g. by learning it; using interpreters)
Learn what the different aspects of their culture means to "them"
Consider issues of "representation"
Watch for your own presuppositions
Perhaps attempt comparative analysis
The Ethnographic Method III
The uses of "the literature"
Are you seeing "tradition" (i.e. "history in action")?
Do legal systems/processes change over time?
If so, is change systematic (e.g. evolution) or arbitrary/chaotic?
Rules & Laws
How is "social order" possible?
What is the role of "the law" in maintaining social order?
How to distinguish the effects of "custom" from the effects of "law"?
Can such a distinction between "informal" and "formal" social control even be made?
Modes of Inquiry
Malinowski & General Principles: Custom
Force of habit
Awe of traditional command
Sentimental attachment to tradition
Desire to satisfy public opinion
Schapera: Just the Facts
Observe the "facts"
Look for "variation"
Look for explanations for variation
Offer analysis of how to "improve" the situation under study (eg. standardization)
Gluckman & Cases
Theory testing and extension
Intense, lengthy observation
Search of official documents
Inquiry into "legal reasoning"
Comparative analysis aids construction of meaning for readers (i.e. "the literature")
Bohannan: Forms of Knowledge
Comparative law = analytical system
Ethnographic fact = folk system
Two systems need methodological separation
Issues of representation key: use of indigenous terms to preserve meanings
Accept local systems on their own terms
Thorough immersion in a "case study"
Learn the language
Foster analytical ability to generalize from the case study to a general theory of law