Introduction
In his essay ‘Law and fact as local knowledge’, Clifford Geertz characterised the anthropology of law as a ‘centaur discipline’ (Reference Geertz1983, p. 169), a hybrid in which anthropology and law, meaning legal science, were aggregated. ‘The interaction of two practice-minded professions so closely bound to special worlds and so heavily depending on special skills has yielded’, according to Geertz, ‘rather less in the way of accommodation and synthesis than of ambivalence and hesitation’ (Reference Geertz1983, pp. 168, 169). This led him to advocate a ‘somewhat disaggregative approach to things than has been common: not an attempt to join law . . . to anthropology . . . but a searching out of special analytical issues, that, in however different a guise and however differently addressed, lie in the path of both disciplines’ (Reference Geertz1983, p. 169). I think Geertz’s diagnosis holds true for some but not for all legal anthropological work. There is indeed much uncertainty and ambivalence about the relations between law, understood as academic discipline, and the social sciences dealing with law, especially anthropology and sociology. This colours the more specific relations between the subfields or specialties of legal anthropology and legal sociology. But, as the quote from Geertz suggests, a third problematic relation is the positioning of legal anthropology within general (social, cultural) anthropology. In my contribution, I attempt to throw more light on these problematic relationships. I look at the general historical development of this specific anthropological genre. This involves both the status of the genre, as ‘specialty, subfield, sub-discipline or topical label’, as well as its substance.Footnote 2
The issue of the identities of the anthropology of law has accompanied me throughout my academic life. Ever since my own metamorphosis from lawyer to anthropologist in the Department of Anthropology in Zürich in the early 1970s, I have been regularly confronted with it in different national and disciplinary contexts. I have worked in three different national academic cultures – in Germany, Switzerland and the Netherlands – in many international academic networks and associations, in law faculties, in anthropology, and in development studies embedded in an originally agricultural university. My involvement with and engagement in anthropology were both intra- and extramural (see Clifford Reference Clifford, Segal and Yanagisako2005, p. 47), depending on where I worked. I have relatively successfully maintained a professional identity as ‘legal anthropologist’ in the national and international academic fields despite the various boundary crossings and despite the coexistence of my (legal) anthropological identity with periodically ascribed identities such as ‘lawyer’. Thus, I have been sensitised to the constraining and enabling powers of multiple academic identities in different contexts.Footnote 3
Finally, such reflection does not need to be a mere exercise in navel gazing. I also want to make it an exercise in a time-oriented legal anthropology.Footnote 4 I look at the ways in which cognitive and normative categories such as ‘legal anthropology’ are reproduced and changed through time and in different relational and institutional contexts.Footnote 5 I shall first talk about some general developments, and then about the different trajectories in different states, academic institutions and networks. In the second part of my paper I engage in a comparative analysis of some differences between anthropologists, lawyers and sociologists of law, and discuss the relation between the anthropology of law to anthropology in general. I conclude that, when thinking of anthropology in general or legal anthropology in particular, there are hardly any identity markers left that would demarcate mutually exclusive (sub-)disciplines. I am not troubled by this. The distinctiveness of anthropology, and legal anthropology, I argue, is not (should not be) constructed with the help of unambiguous mutually exclusive identity and boundary markers. It rather lies in an accumulation of features, which make (legal) anthropology what it is, even if many features may be shared with other disciplines.
The (re)production of legal anthropology
The categories of legal anthropology, as well as legal sociology, social or legal science, are ‘categorising concepts’ (Fallers, Reference Fallers1969) of a cognitive and normative nature to which certain academic works, authors and research traditions are attributed.
The repertoire of identity markers
A number of properties have been used to characterise the genres in general and the anthropology of law in particular. They can also be used to assess its similarity and difference from other sciences dealing with law. In my view, the most salient ones functioning as ‘disciplinary ensemble’ (Clifford, Reference Clifford, Segal and Yanagisako2005, p. 40)Footnote 6 have been:
• the region of the world in which research took place
• the type of society/political organisation
• the type of law (normative order)
• the conceptualisation of law
• comparative orientation
• historical orientation
• pragmatic–political orientation
• methodological specialisation
• theoretical assumptions and interests.
Interweaving the properties (and creating boundaries): general developments
Many actors interweave combinations (now one would say, assemblages) of these features to produce and change different academic traditions or genres dealing with law.Footnote 7 History shows that the combination of substantive criteria used for attributing academic work to the category legal anthropology have been changeable and contextual since the publication of Bachofen’s Mutterrecht (Reference Bachofen1861/1948) and Maine’s Ancient Law (Reference Maine1861/1894). There have been many and considerable shifts in research interests, theoretical concerns, methodologies and regional specialisations. These have frequently been reviewed, and I shall just give my own brief summary. Footnote 8 We have seen a gradual development ‘from the law of primitive man to the social-scientific study of law (legal pluralism) in complex societies’, including European or US industrial societies (F. von Benda-Beckmann, Reference Benda-beckmann1989; Moore, Reference Moore2001). Theoretical and methodological interests have developed, in overlapping phases, from a strong concern for an evolutionistic, encyclopaedic account of the evolution of legal systems, a universal history elaborated by armchair academics, to a largely unhistorical, intensive and fieldwork-based study of small-scale societies in a rather non-comparative way. For a long period, legal anthropology then became a nearly exclusive study of conflict and dispute management processes under the spell of American legal realism and the so-called trouble-case method. This made it increasingly less attractive to general social and cultural anthropology.Footnote 9 Until the early 1970s, these studies largely neglected the fact that these societies had since long been influenced by and had become part of colonial states and a wider economy. Gradually, the scope of interest widened. Since the early 1970s, much research addressed legal and institutional complexity under the concept of ‘legal pluralism’, so much so that ‘legal pluralism’ became a kind of trademark for legal anthropology. Starting with studying the plurality of procedures and decision-making institutions in disputing processes, the state and its law came within the purview of legal anthropologists. This interest in dualism or pluralism was later extended to state law and institutions outside the domain of dispute management.Footnote 10 In the same period, legal anthropology also became increasingly ‘time-oriented’, combining, as Moore (Reference Moore and Siegel1970) had suggested, individual centred short-term, choice making instrumental action and a long-term historical perspective.Footnote 11 Important impulses to broaden the perspective in the direction of state and history also came from neo-Marxist scholars.Footnote 12 Especially during the past fifteen years, theoretical reflections and empirical research on law/legal pluralism have been further expanded through the attention given to transnational and international law and organisations and other aspects of ‘globalisation’.Footnote 13 The developments in our field have to a large extent run parallel with, and have been influenced and enriched by, developments in social anthropology and other social sciences (history, legal science, political science, psychology).Footnote 14 In most recent times there is also an increasing trend towards a geography of law.Footnote 15
There increasingly is a conviction that whatever theoretical specialties legal anthropology may develop, these must be firmly grounded in general social theory, and legal anthropological authors have drawn on the theoretical insights of social theorists like Giddens, Bourdieu, Foucault, Gramsci or Habermas (see Munger, Reference Munger, Sarat, Constable, Engel, Hans and Lawrence1998).
General patterns and different trajectories
This is a brief sketch of the general patterns in the developments of the anthropology of law. However, what anthropology of law was, and is, and what its relation was to social scientific studies in general, followed different trajectories in different countries. It would need more time and space (and information) than I have available here, but I want to emphasise some characteristics and differences in these developments.Footnote 16
In the world of Anglo–American anthropology, the anthropology of law in the UK ceased to remain important after the golden age of the Manchester school. What had been the most developed empirical and reflexive anthropology of legal processes in tribal/village societies under the stimulating influence of Max Gluckman lost its academic power and appeal in the 1970s and 1980s. While the work of Roberts (Reference Roberts1979) and the joint work by Comaroff and Roberts (Reference Comaroff, Roberts and Hamnett1977, Reference Comaroff and Roberts1981) belong to the best works of their time, they also introduced some elements which led legal anthropology as a specialty within anthropology into a dead end. First of all, they argued that to engage in an ‘anthropology of law’ was not useful, given the strong ethnocentric associations of the concept ‘law’, which could not really be transposed to the normative orders of other societies, given the ‘fundamental differences’ of the latter if compared with European law. Would-be legal anthropologists were advised to better study the processes of disputing and maintaining order.Footnote 17 The second element, reinforcing the first one, was that they kept the anthropology of law within the ‘trouble case’ paradigm for studying law in society, for the two paradigms in the anthropology of law, which they identified as rule centred and process centred, both remained limited to the study of disputing processes.Footnote 18 Finally, they did not address the co-existence of legal orders and institutions of decision-making – which, at that time, would have been quite normal and was increasingly done by other scholars.Footnote 19 From the side of the sociology of law and socio-legal studies, little attention was given to legal anthropological work.Footnote 20 However, in recent years there seems to be a gradual renaissance of legal anthropology in the UK that seems to belie Fuller’s (Reference Fuller1994) pessimistic assessment, as well as a move towards a convergence between the anthropology and sociology of law.Footnote 21
But quantitatively, and qualitatively, the English-speaking anthropology of law definitely moved to the US in the 1970s.Footnote 22 Moore, Nader and Collier became the leading scholars in the field, and this prominence is continued by their younger colleagues. In the US, more than elsewhere, one could also observe a feminisation of the anthropology of law (Moore, Nader, Collier, Dwyer, Yngvesson, Merry, Greenhouse, Starr, Riles and Hirsch). In contrast to most other academic systems, the anthropology of law obtained a place in anthropology departments rather than in law departments, and in the best universities at that. Collier (Reference Collier, Gupta and Ferguson1997) has given a rich account of the development of the subfield in US anthropology, especially of Nader’s attempt to consolidate the anthropology of law as a ‘sub-field’. Footnote 23 However, these developments do not seem to have reached into and really changed the mainstream of US anthropology.Footnote 24 As Collier (Reference Collier, Gupta and Ferguson1997, p. 122) says, the anthropology of law was ‘respected by lawyers but neglected by anthropologists’ (see also Riles, Reference Riles and Mundy2002). While having their own association (PoLaR) within the AAA, legal anthropologists also became a prominent tribe in the ‘big tent’ (Erlanger, Reference Erlanger2005) of the Law and Society Association, in which different approaches to law in society come together, albeit that prominence refers more to quality than to quantity.Footnote 25
While the anthropology of law went through a crisis of identity in the US and UK in the 1980s (Riles, Reference Riles and Mundy2002, p. 35), it started to blossom in the Netherlands.Footnote 26 Legal anthropological work in the Netherlands built upon the insights developed by the adat law scholars in the Dutch East Indies and Anglo–American anthropology and sociology of law.Footnote 27 The Dutch adat law researchers had developed several insights that emerged in the Anglo–American anthropology of law only at a much later stage. One was that the influence of legal realism and its methodological and theoretical implications for law in action were not confined to ‘trouble cases’ but extended to decisions taken in ‘trouble-less cases’ (Holleman Reference Holleman1978).Footnote 28 Another was the early critical discussion of Western ethnocentric misinterpretations of local laws in colonial courts and literature, later to become known as the ‘creation of customary law’ discussion.Footnote 29 The third was that right from the start adat laws were seen within the wider plural context of the state system and in relation to Islamic law, and the influence of substantive and procedural state law on adat laws and village decision-making were studied (see Ter Haar, Reference Ter haar and Schrieke1929) long before this became part of legal anthropological work.Footnote 30 Starting in the 1980s, the various strands of social scientific studies of law (anthropology of law, sociology of law, psychology of law, later also law and economics) were brought together in one professional organisation with its own journal (Recht der Werkelijkheid). The extent of actual convergence, however, was limited to a small number of legal sociological and anthropological scholars.
Germany had had a rich early history with German Ethnological Jurisprudence (with Post, Kohler, Steinmetz, Schultz Ewert and others; see Schott, Reference Schott1982; Gingrich Reference Gingrich, Barth, Gingrich, Parkin and Silverman2005), and with Thurnwald was prominent in the transition to fieldwork oriented anthropology. This development was disrupted during the Nazi rule. Some anthropologists (such as Lips and Adam) emigrated. After the war, the anthropology of law never fully recovered. Schott (Reference Schott, Lauthmann, Maihofer and Schelsky1970, Reference Schott and Fischer1998) was the major postwar anthropologist in the field. There was also a small number of lawyers with a strong interest in the ‘historical’ [actually evolutionist] anthropology of law (Fikentscher, Reference Fikentscher, Fikentscher, Franke and Köhler1980; Wesel, Reference Wesel1985). In more recent years, however, the anthropology of law is becoming more recognised and valued again in German anthropology departments. Some chairs have been advertised, asking for the anthropology of law as a preferred specialty. The establishment of a legal anthropological research group at the Max Planck Institute for Social Anthropology is another factor contributing to a stronger visibility and institutionalisation of legal anthropology in research and curricula.Footnote 31 The sociology of law remains largely embedded in faculties of law, and there lives a difficult and often sad life, declining again after a short boom in the 1970s and 1980s. The extent of convergence between the anthropology and sociology of law was and is very limited.Footnote 32
Actors in contexts
Many authors within and outside the professional academic world have shaped these developments by attributing their own work, and that of others, to the category of legal anthropology and by redefining the category itself.Footnote 33 Scholars become, or do not become, legal anthropologists by processes of self-identification and/or external labelling.Footnote 34 Such processes are normative, selective and often strategic. Labelling, often rather stereotypical, is important, because the extent to which scholars still (can) read other scholars’ writings is limited, and the tendency to take over authoritative statements of leading scholars and/or accounts in important review or state-of-the-art articles is great. Labelling is often done by collective identification, for instance through membership in the department or faculty in which a scholar works. If one is working in an anthropology department, one is an anthropologist; if one works in a law department, one is a lawyer, or a sociologist or political scientist, respectively; this is often quite independent from what one’s academic degrees are or what one writes. Labelling and classification also occur outside the core of academic writing, through the catalogues and advertisements of academic publishers.
Processes of self-identification and the publicising of that identity are also important. There are many authors whose writing concentrates on the core business of legal anthropology, on descriptions of legal orders or of legal anthropological concepts and theories, and who may also teach courses on legal anthropology, but who nevertheless do not see themselves as legal anthropologists, but rather see themselves, or are seen, as ‘lawyers’, or legal or political ‘sociologists’, or ‘political scientists’.Footnote 35 This can be due to different reasons, such as membership in non-anthropology departments or an unwillingness to become identified with a specific label or stereotype of legal anthropologists for instance as people ‘who only research customary laws in villages’ or ‘who do not address wider theoretical or thematic field issues such as social theory, political science, or history’. To some extent, and especially during their lifetime, authors can largely control their identity. But even during their lifetime, and especially after their death, they and their work become subject to the labelling and identification processes controlled by others.
In these processes, the changing normative frameworks for the interpretation and association of research and theorising can be, and have been, used to re-categorise earlier work. What has not been legal anthropology can become legal anthropology, and what had been legal anthropology can become legal sociology.Footnote 36 Contemporary ideas about the ‘correct’ legal anthropology thus recreate the history of legal anthropology anew (see generally Restrepo and Escobar, Reference Restrepo and Escobar2005). The development of what is now called the Dutch tradition of legal anthropology is a good example for this.Footnote 37 Another good example is also the history of (neo-)evolutionist theory (F. von Benda-Beckmann, Reference Benda-beckmann1991).Footnote 38
These processes take place in wider academic institutional and societal contexts, in a ‘field pervaded by power in distributing, proclaiming and withholding knowledge’ as Banakar (Reference Banakar2003, p. 15, quoting Bourdieu) has said; a field of power relations in which material resources are distributed and struggled over – staff positions, professorships and shares in the curricula (Restrepo and Escobar, Reference Restrepo and Escobar2005). As sub-branches of sociology and anthropology, and of law, the fate of legal anthropology and of the sociology of law is largely shaped by the relationships between their larger academic sisters (F. von Benda-Beckmann, Reference Benda-beckmann1991; Banakar, Reference Banakar2003, p. 14), and by the position these larger disciplines hold within the totality of disciplines within a university and in the wider academic community, professional associations and peer groups.Footnote 39 These relationships play a role within the different and partly overlapping fields and arenas in which these academic traditions develop, in the academic institutions, the relationships between disciplines, in academic networks, and the wider societal context (see also Clifford, Reference Clifford, Gupta and Ferguson1997, Reference Clifford, Segal and Yanagisako2005). Scholars working in the mainstream of sociology, anthropology or law have a relatively quiet life most of the time.Footnote 40 Their relations with other single category-disciplines (law, economics, sociology, political science) can become tense when struggles arise about who ‘owns’ what range of social phenomena and what resources are attached to this. For the hyphenated ‘sub-disciplines’ such as legal sociology or legal anthropology, which theoretically can belong to or identify with two category-disciplines, or develop a trans- or inter-discipline, life is generally much harder. To speak of ‘belonging’ is often a euphemism, for what is at stake is at best a modest extent of being tolerated. In the law faculties, this goes for the sociology of law (after its heyday in the 1970s) and even more so for the anthropology of law. Both have to struggle for recognition and survival. Within their home disciplines (anthropology, sociology or law) they are usually isolated and easily marginalised. In these contexts, the anthropology and sociology of law are largely engaged in struggles for recognition and survival under conditions of very unequal power relationships. Because of their weaker position and their constant confrontation with stereotypical assumptions about what they do or should be doing, they have a tendency to spend much time discussing and defending the specifics of their specialty, law, which then easily reinforces the image ‘that they are only interested in law’ and not in power, practice, culture, etc. Whereupon they have to prove again that ‘law is important’, and easily become locked in a vicious circle.
During the past years, however, there have been changes. With the new attention bestowed on law and even legal pluralism by powerful academic and political actors (economists, international and national development agencies), a need for social scientific expertise on customary law, indigenous peoples’ law and legal pluralism has gone hand in hand. ‘Legal anthropologists’ are increasingly regarded as relevant experts.Footnote 41 An academic interest in law by non-lawyers seems to become rather self-evident, or‘normal’, and this facilitates a ‘coming out’ of social scientists as anthropologists of law.
An intermediate summary
History thus shows different ways in which the boundaries between legal anthropology and other sciences interested in law have been drawn. They also show different degrees of convergence, differentiation or polarisation. As a consequence, there seem to be hardly any clear and unequivocal boundaries and identity markers left that would distinguish the academic disciplines in a mutually exclusive way.
• In the most general way, the subject matter, ‘law’, is not, and never has been an exclusive identity marker.
• Also, a non-dogmatic interest in law as such is not an exclusive identity marker.
• Type of law. There is no longer a firm association of the anthropology of law with a specific type of law, for instance local (customary, ethnic, religious, non-state) law, or of the sociology of law with the law of the state.
• Geographical region and sociopolitical organisation. The earlier regional concentration – on regions in which tribal people and their law was situated – no longer is a distinguishing feature. Legal anthropologists do research in industrialised states (and not just among marginal population segments such as Roma or immigrants), while (development) sociologists and comparative lawyers also do research in post-colonial states in Africa, the Americas and Asia. The boundaries between ‘field’ and ‘home’, and between ‘self’ and ‘other’, are increasingly blurred (see also Collier, Reference Collier, Gupta and Ferguson1997, pp. 128, 129).
• Legal pluralism. Now, the concept is used by many anthropologists, sociologists, political scientists and lawyers. While legal pluralism is sometimes said to have been the conceptual guiding star of legal anthropology since the 1970s, and for many it seemed to be exclusively connected to anthropology (of law), it is also claimed as being typical for the sociology of law (Banakar, Reference Banakar2003) or even academic lawyers (Roberts, Reference Roberts1998).Footnote 42 Legal pluralism has also made inroads in resource management studies, and into the world of forestry and irrigation studies. While there are considerable differences across disciplinary boundaries, the use of the concept ‘legal pluralism’ is no longer a clear identity marker for legal anthropology.
• Research methods. ‘Anthropological fieldwork’ (Gupta and Ferguson, Reference Gupta, Ferguson, Gupta and Ferguson1997), the methodological stance of privileged witnessing (Kuklick, Reference Kuklick, Gupta and Ferguson1997, p. 63) is still an important identity marker, which legal anthropology shares with anthropology in general. But it is increasingly recognised that what is studied in the field is only an episode of social processes on a wider temporal and spatial scale (Moore, Reference Moore1993), and also that the best fieldworker draws most of his/her knowledge from other sources and the literature. Nevertheless, extended fieldwork remains the trademark and initiation ritual of anthropologists. But its importance is also discussed now within anthropology.Footnote 43 As Kuklick (Reference Kuklick, Gupta and Ferguson1997, p. 64) says, the ‘archetypal field method currently lacks a defensible rationale’. Conversely, other disciplines also sometimes engage in long-term in-depth research in small-scale settings, while anthropologists also work with questionnaires, collect statistical data and use written sources. While there is still an imbalance in the extent to which different methods are used, anthropology and sociology cannot be divided along the line of qualitative and/versus quantitative methods.
Comparative analysis of disciplining processes
There remain many differences besides the often superficial similarities. The actual subject matter, ‘law’ or ‘legal pluralism’, is not ‘just there’. It is largely constituted and delimited by one’s conceptual and analytical approach, one’s empirical and theoretical research interests, and by one’s pragmatic objectives. It makes a great difference whether or not one limits the category of law to what lawyers call law, and whether or not one is interested in all kinds of social processes in which law gets involved, or specifically only in ‘legal’ processes. In the following, I shall look more deeply into the differences between anthropologists of law and lawyers, sociologists of law and general anthropologists.Footnote 44
Boundary work: social and normative sciences
While the subject matter, law, law application, etc., does not distinguish legal anthropology from law as legal science, the way in which legal anthropology conceives law as variable, the questions it asks about law and the methodology on which research is based, distinguish it from legal science (F. von Benda-Beckmann, Reference Benda-beckmann2002). A qualifier must be added right from the start. The category of ‘legal science’ is potentially very wide. It can also include non-dogmatic studies, such as the history of law, sociology of law, or legal theory, and also, of course, a comparative social scientific anthropological study of law.Footnote 45 Depending on the scope of the definition, we are thus talking about relations between a social science discipline dealing with law and a dogmatic science, or about different theoretical approaches within a very wide notion of legal science. Footnote 46
The anthropology of law, with its specific focus, wants to contribute to the ultimate aim of anthropology, the scientific understanding of human social and cultural behaviour, and a systematic understanding of the distribution in time and space of its manifestations (Goldschmidt, Reference Goldschmidt1966, p. 2). Legal anthropology is primarily oriented at description and analysis, comparatively and historically oriented, with more or less modest ambitions at generating explanatory propositions. The normative and dogmatic sciences of law elaborate correct interpretations of general legal abstractions with respect to concrete problematic situations (cases) and/or philosophical reflections on what and how law should be.Footnote 47
These are different academic and professional ways of thinking about and dealing with law. Not surprisingly, they are also reflected in different conceptual and theoretical assumptions.Footnote 48 Many debates, including the one on legal pluralism, have suffered from the tendency to bring these different objectives and resultant concepts down to a one-dimensional level of discussion, in which authors look for ‘the one’ correct or useful concept for both lawyers and social scientists, without appreciation of the fact that the other is engaged in a different enterprise (F. von Benda-Beckmann, Reference Benda-beckmann2002). This constitutes the very nature of the centaur. So, however great the shared interest in the subject matter may be, and however much one can learn from the other, before one enters into conceptual debates, one should be clear in one’s appreciation of the different academic and professional enterprises and their limitations and implications, and take them into account when promoting one’s own understanding or criticising that of others.Footnote 49 This indeed requires ‘the disaggregation of “law” and “anthropology” as disciplines so as to connect them through specific intersections rather than hybrid fusion’ (Geertz, Reference Geertz1983, p. 232).Footnote 50 As Geertz (Reference Geertz1983, p. 170) said, it should not lead to ‘infusing legal meaning into social customs or to correct juridical reasoning with anthropological findings, but to a hermeneutic tacking between two fields . . . in order to formulate moral, political and intellectual issues that inform them both’.Footnote 51 I would not consider such ‘learning from’ to be a ‘merging’ of law and sociology/social science, as the title of Banakar’s Reference Banakar2003 book suggests, or create an ‘interdiscipline’ (Riles, Reference Riles and Mundy2002). This would bring us too close to the centaur discipline.
Anthropologists and sociologists of law: a comparison
While the relation between the anthropology of law and normative and pragmatically oriented approaches to law can be (and should be) relatively clearly marked, the situation is different in the social sciences. As I said before, there seem to be hardly any unequivocal exclusive identity markers left that would distinguish between different social sciences approaches to law. In the process of convergence, the wider field is called the sociology of law by some, the anthropology of law by others, while again others settle for labels such as the ‘social-scientific study of law’ or ‘law and society’.Footnote 52
It is nevertheless rather obvious that the tendency to blur the historical boundaries and to mix genres is relatively stronger among legal anthropologists. While many sociologists of law and socio-legal scholars also include insights of the anthropology of law, the tendency to remain ignorant of what the others do and maintain and police the boundaries between the two traditions is much more prevalent among sociologists of law, and anthropologists of law are generally more open to conceive and address the complexity of law in society; they have a more cosmopolitan comparative perspective, as well as a stronger historical orientation.Footnote 53
I argue that there is quite an unequal distribution of social scientists interested in law with respect to a number of important facets of studying law in society. These fault lines do not correspond squarely with the different sub-disciplinary categories of scholars interested in law (anthropologists, sociologists, socio-legal scholars). There is considerable variety within and similarities across these categories. The normative and institutional structures of the disciplines do not determine what the individual academics do. Generally speaking, however, I would maintain that anthropologists of law found it easier to arrive at a distanced, analytical, historical and comparative orientation in the study of law in society.
Comparative orientation
Most sociologists of law do research in their own country, with which they are rather familiar. Anthropologists, on the other hand, used to do research in ‘other societies’. In fact, studying ‘the other’ was for a long time an essential identity marker of anthropology. Anthropologists were thus constantly confronted with the problem of understanding, translating and comparing quite different systems of normative/legal meaning and the social processes through which these were reproduced and changed. As extensively discussed in the Gluckman–Bohannan controversy,Footnote 54 such comparisons were often carried out as direct comparisons, in attempts to capture unfamiliar cognitive and normative meanings through one’s own ethnocentric meanings/concepts. This inevitably led to distortions of meaning, often with considerable economic and political consequences. Realising this danger, anthropologists were more inclined to develop an analytical comparative conceptual vocabulary, a language for comparing different systems of meaning, folk systems and ‘the natives’ point of view’. This concerned concepts of marriage, property, religion, public/private distinctions, the state and, last but not least, the concept of law itself. In comparative analytical frames of reference, a conceptual ‘sameness’ had to be constructed, which the empirical phenomena falling under the category shared, beyond the wide range of empirical variation in other respects. Given the remarkable differences in social and legal morphology, anthropologists were also forced to specify the dimensions of variation along which the empirical manifestations of what was analytically defined as ‘the same’ differed. In such comparative perspective, also the researcher’s own society and legal system appeared as a variation to be looked at as critically as the others.Footnote 55 For legal anthropology, this meant that legislation, court judgments and legal scientific publications were in the first place ‘data’, ‘folk systems’ having the same status as legal conceptions of religious or traditional authorities elsewhere. This of course did and does not preclude that anthropologists could learn much from law and legal reasoning, the natives’ point of view, in their own society and elsewhere.
Conceptualising law
This also played a role in the approach to conceptualising law/legal pluralism. Whether and under what conditions the concept of law could be fashioned into a cross-cultural comparative concept was and remains a contested issue, much more than was/is the case with other concepts, such as the family, property, religion or economy.Footnote 56 The extent to which this was problematised, however, varied considerably throughout the history of legal anthropology.Footnote 57 The crucial question mainly was whether normative and institutional orders providing an organisational framework for political, social and economic relations and transactions could be called law, independent from their recognition as law by the legal order of the state. If this is denied, there is no need for further discussion, for a concept of legal pluralism then is logically excluded. If it is accepted, state law then is just one (and in itself variable) manifestation of law, and the likelihood of some extent of legal pluralism the rather unexciting consequence (F. von Benda-Beckmann, Reference Benda-beckmann1979, Reference Benda-beckmann, von Benda-Beckmann, von Benda-Beckmann and Hoekema1997, Reference Benda-beckmann2002). At a certain level of generality, there is thus no reason to make much of the sensitising concept legal pluralism or of the insight that in most societies there is a plurality of legal orders.Footnote 58 This, however, does not change the fact that this abstract point was rarely taken seriously in empirical research and that its implications for social legal theory were rarely discussed.Footnote 59
Moreover, because of its political and ideological implications, the notion of law, and legal pluralism, remains highly contested.Footnote 60 The diverging opinions cross-cut the boundaries between the anthropology of law, sociology of law and legal science (F. von Benda-Beckmann, Reference Benda-beckmann1991). But generally speaking, thinking in terms of legal pluralism is much more common among anthropologists of law than among (legal) sociologists. Footnote 61 It was easier for the former to get used to this notion. Legal anthropologists were in their fieldwork directly confronted with rather clear-cut and overt constellations of legal pluralism. They had to drop the expectation (which they may have had in the beginning) that the societies researched were culturally and legally homogenous (albeit that it took many much too long to realise this).Footnote 62
In an earlier publication (1991, p. 105), I have argued that the differences we encounter had less to do with the everyday life in academe or historical differences between these different traditions of studying law in society, but also, and probably more, to do with the extent to which academics distance themselves from the dominant legal ideology in the society they study and/or submit to it.Footnote 63 Such submission to the dominant legal ideology (whether of the state, or of religious or traditional political organisations) is not confined to professional lawyers. Also laypersons, sociologists and anthropologists can fully ‘internalise’ the messages of law and its ideologies, treating what lawyers say about law as what the law is. If lawyers limit their understanding of law to state law (including international law) and ‘recognise’ non-state law only in these terms, they deny the possibility of other constellations of legal pluralism. This legal ideological viewpoint is then often generalised to ‘us’, who only call law what ‘we’ call law.Footnote 64
Finding law and studying its significance
Their research being anchored in societies not yet studied by others (and other disciplines), anthropologists were less likely to fall into the ‘expertise-trap’, that is, to take too easily to the scientific discoveries and truths of other academic disciplines. In their approach to law in society, anthropologists of law, at least in the societies they started to study in the twentieth century, had a double task. One was to find ‘the law’. The other was to look into the mechanism of its application and other ways of acquiring significance in social life. Since the law they aimed at discovering was largely unknown and unwritten, they had to find it themselves. They would therefore not easily run into the ‘expertise-trap’ in which legal sociologists and other social scientists tend to fall in their own society, given the academic division of labour in their own society. In their own society, law is to a large extent written up and refined through legal scholarly writing and published court decisions. There is a large number of highly trained specialists, whose task it is to interpret, systematise, apply and teach this law. Social scientists and lawyers are therefore easily led to assume that the law is known or could become known to them through consulting what the experts write about it. In the spirit of the dominant cultural distinction between ‘the is’ and ‘the ought’, social scientists could fully devote their attention to the ‘is’, the so-called ‘legal reality’, and leave research on the ‘ought’, the law (the ideal law, the law in the books), to the specialists, to lawyers and philosophers.Footnote 65 Legal anthropologists, on the other hand, whether they liked it or not, had to take on both tasks.Footnote 66
I do not claim that legal anthropologists always did this well.Footnote 67 But it can be claimed for much anthropological work that the ideal law (the ideologies of law, law as culture) and its normative and ideological attributes were described and analysed in quite some detail, and that they were not simply contrasted with some kind of ‘legal reality’. Anthropologists doing research in plural legal orders were also forced to rethink the questions of functional and causal relationships between legal rules and social practice, and to reformulate these as questions concerning the relative significance of different bodies of legal conceptions. The naiveté of the conventional gap approach became much more obvious because of the ‘plurality of gaps’ between actual interaction and the different legal frameworks pertaining to such interaction. This led anthropologists to focus much more on the ways in which people dealt with the pluralism of normative orderings, how they selectively involved rule complexes, legally structured modalities of action, procedures and institutions into their strategies. Once there, legal anthropologists were forced to contextualise, to see how different categories of actors were influenced by and made use of different legal bodies in different contexts of interaction (see F. and K. von Benda-Beckmann, Reference Benda-beckmann, Benda-beckmann, von Benda-Beckmann and von Benda-Beckmann2006).Footnote 68 In order to do this systematically, they had to dissociate categories of actors from the categories of law to which the actors ‘belonged’ by normative construction, that is, the farmer from his/her customary law; the bureaucrat from his state law; the religious functionary from his religious law. Only then could they see that farmers used, or were influenced by, state law, bureaucrats by traditional law, etc. Empirical research further showed that the relations between the elements in a plural legal whole could be different; people could distinguish legal subsystems and choose between them, or accumulate them, or create new combined legal forms and institutions, while other actors, in other contexts, would act differently.
Attitude towards history
Legal anthropologists also developed a different attitude towards the past, and tended to use the opportunity offered by the past to gain distance from the present. To be sure, presentist conditions and hegemonic structures always tend to inform one’s reconstruction of the past, and anthropologists of law are also susceptible to this danger. But here the division of academic labour also functions more easily as an obstacle for sociologists than for anthropologists. For knowledge of history is presumed much more easily in one’s own society than in a foreign one. For more detailed information one can turn to another discipline or sub-discipline, history or history of law.
The kind of historical perspective developed by sociologists and anthropologists also tends to be different. The anchoring of sociology in the present leads researchers (in their own society) to a predominantly retrospective view of the past. This perspective also colours their perception of other societies that do not correspond to their own contemporary model of ‘modern’ or ‘post-modern’ society. These are then easily distanced in time, made into ‘archaic’ or ‘traditional’ societies and put into evolutionary categories.Footnote 69 For legal anthropologists working in developing countries, on the other hand, it was easier to develop a different perspective on history. In terms of research tradition and their own fieldwork experiences, they are much more strongly anchored in the ‘traditional’ society, and in the past. Whether they like it or not, they have to trace changes into the present and thus develop a heightened historical sensitivity for processes of social and legal change.
The anthropology of law within anthropology
As the centaur metaphor indicates, the position of the anthropology of law is also problematic within general (sociocultural) anthropology. After having a central place in the beginning of anthropology, it was increasingly neglected, and, as in the social sciences generally, became an ‘intellectual stepchild’ (Parsons, Reference Parsons and Johnson1978; Collier, Reference Collier, Gupta and Ferguson1997, p. 122). Anthropologists also found it more difficult to treat law as a category for cross-cultural comparison than other categories such as marriage, property, inheritance, religion, etc. (Geertz, Reference Geertz1983, p. 168). It is therefore useful to look at how this image came into being.
In my view, the centaur metaphor primarily relates to the attempts of some anthropologists of law to combine or merge the descriptive–analytical perspective of anthropology with the normative dogmatic and pragmatic perspective of legal science, which I have already discussed. The specific difficulties with ‘law’ as an external discipline or an internal subfield, in my view, are more strongly due to the way labels and stereotypes structure the perception of anthropologists (and others). The position of ‘law’ or ‘the legal’ depends on the meaning one attaches to these categories and to other categories such as ‘economic’, ‘political’, ‘cultural’, etc. These categories are imposed on social phenomena, institutions, social practices or social systems, which are classified as either legal, or political, or cultural. The phenomena captured by the category are then easily identified as the more or less exclusive property of the academic (sub-)discipline that has taken its name from the category. Thus economics is the science of economic phenomena, law of legal phenomena, political science of political processes. This is a major problem which anthropology as a whole faces in its external relationships with other disciplines. But these problems of demarcation and difference not only play a role between anthropology, economics, political science or law, they also play a role within each of these sciences in the interrelations of the hyphenated sub-disciplines, social, cultural, religious, economic and legal anthropology. This easily obfuscates that other (sub-)disciplines also research and theorise about the phenomena in the category of the others. For instance, not only economists but also sociologists, anthropologists, political scientists and lawyers deal with economic institutions and processes. Anthropologists, sociologists, political scientists and economists deal with law. Take the institution of ownership: is ownership a legal phenomenon, or an economic one, a social or political one? Obviously, it is all of the above at the same time, and it would be strange to maintain the contrary. The sale of a house is a legal transaction; it is also a social and an economic one. The law concerning sales gives a normative structure to the circulation of economic goods, which is not external to, but part of ‘the economy’.
In other words, the social phenomena captured with the categories mentioned belong to more than one category. Another way of saying this would be that such institutions and rights are ‘multifunctional’, and consequently figure as elements in more than one functionally defined ‘system’ or ‘domain’. While it is useful to create specific and different analytical categories to mark the properties that characterise social phenomena, these properties are, when we look at actual social phenomena, not sufficient to characterise the phenomena in question in an exclusive manner. The variety of social phenomena summarised under the anthropological concept of law cross-cuts and overlaps with other conventional subdivisions in anthropology, the boundaries between the cultural, religious, political, social and economic spheres of social organisation. Law indeed is culture, law is politics, law is economics and social, but it cannot be reduced to these categories, nor should it be fully absorbed by them (Parsons, Reference Parsons and Johnson1978).Footnote 70 Legal anthropology is social anthropology with a specific focus on the legal and institutional dimension.Footnote 71
While these general ideas will be largely shared by most anthropologists, the fact remains that what they associate with law is usually very limited. It builds upon the pre-academic socialisation in which ‘law’ is something distant, involving courts, parliaments, the police and a rather esoteric language of specially trained experts. In undergraduate studies, this early socialisation is reinforced in many textbooks, such as Kottak (Reference Kottak2000). Since time for reading and learning is limited, such perceptions tend to prevent anthropologists from going deeper into the matter or to realise that they themselves deal with law in their own research. Moreover, much knowledge transmission is based on selected publications, which often reproduce stereotypes and caricatures of what the ‘anthropology of law’ has done or is (alleged to be) doing.Footnote 72 That some legal anthropological work conforms to these stereotypical notions, that it, for many years at least in Anglo–American anthropology, has been limited to the study of disputing processes, and that indeed there have been centaurs reducing the descriptive–analytical and the normative perspectives to one dimension, has not made it easier for the anthropology of law.
During the past twenty years, however, a definite change has occurred within anthropology. Law has become much more ‘en vogue’, and more anthropologists get interested in issues related to law, rights, legal and institutional complexity and the interconnections between local, national and global levels. To some extent this is due to the increasing importance of ‘law’ in the wider world. Law in its many forms – land rights reforms, global human rights law, indigenous peoples law, World Bank regulations, WTO procedures, rights talks, and recently also the sharia – has become politically and economically so important that it can no longer escape the attention of anthropologists. Some make it a ‘new’ issue within political, economic and cultural anthropology. The enthusiasm with which such important (state or international) law is discovered, sometimes has the consequence that other forms of law in plural legal constellations are forgotten. Another reaction is to ‘come out’ as an anthropologist of law. Another, and the most healthy one in my view, is to see a focus on legal–normative and institutional complexity as just one interesting focus within anthropology; one that does not imply that when being a legal anthropologist one is not (or cannot be) also a political, or economic, etc. anthropologist. Obviously, such a ‘normalisation’ of the anthropology of law (perhaps furthest progressed in the US and increasingly emerging in German anthropology departments) is the most desirable and appropriate one.
Conclusion: multiple boundaries, cores and identities
Where does this leave us? Let me try to draw some conclusions.
First, there remains a sharp difference between descriptively and analytically oriented social sciences of law and normative pragmatically or philosophically oriented legal sciences. With respect to legal science, understood as the normative and practice oriented dogmatic science of law, I am a boundary guard, very much concerned with watching for legalistic and ideological assumptions within anthropological categories and theoretical assumptions (F. von Benda-Beckmann, Reference Benda-beckmann1991).
Second, within the social sciences concerned with law, there has been considerable convergence in the conceptualisation of the research object, theoretical assumptions and objectives, and in research methods. This, in my view, is a good thing and I try to blur genres.Footnote 73
Third, however, for the majority of these scholars, there are still significant differences in these respects; especially in the extent to which lawyers and social scientists distance themselves from, or submit to, the dominant legal ideology; a fact that shapes their conceptual and analytical thought considerably and thereby directs their assumptions and research interests.
Fourth, within (social) anthropology, there is a process of increasing normalisation of the anthropology of law.
What does this tell us about the relationships between the disciplines? In its external relations, legal anthropology shares with its mother discipline the problems of difference and overlap. Whether speaking of anthropology in general, or legal anthropology in particular, I conclude that there seem to be hardly any unequivocal exclusive identity markers (between different social science approaches to law) left. I am not greatly troubled by this. The distinctiveness of legal anthropology is not (should not be) constructed with the help of clear-cut identity and boundary markers that would each separately demarcate mutually exclusive sub-disciplines. It rather lies in an accumulation of features, which make legal anthropology what it is, even if many features may be shared with other disciplines:
• its specific attention to complexity and legal pluralism, the totality of legal ideas normatively oriented at and/or involved by actors
• its attention to the substance of legal schemes of meaning and to the social significance of law (plural legal elements) in social life
• its more cosmopolitan comparative perspective, within and between cultures/societies/states
• its historical orientation
• its sensitivity to contextual differences
• its reliance largely on in-depth field research as a major way of getting ‘quality data’
• the relation of its work to the legal anthropological tradition and its older and newer theoretical and methodological concerns.
For me, this seems to be the only way out of this dilemma (if it is one), a different one from the one suggested by Gupta and Ferguson and their creative reinterpretation of ‘the field’ (Reference Gupta, Ferguson, Gupta and Ferguson1997).Footnote 74 In my view, Gupta and Ferguson (Reference Gupta, Ferguson, Gupta and Ferguson1997) too strongly focus on the ‘field’ rather than on the other differences that distinguish most anthropology from most sociology. A focus on the field and on anthropology’s concern with ‘the other’ alone does not have sufficient distinguishing power. It is also slightly different from what Yanagisako (Reference Yanagisako, Segal and Yanagisako2005, pp. 96, 97) suggests as ‘flexible disciplinarity’: anthropology as ‘a trading zone in which scientists with divergent ways of conceptualising and of organising the world forge transitory, local languages to facilitate exchanges, even while disagreeing about the meaning of items exchanged and their significance in a broader context. It figures a discipline as historically contingent, rather than as defined and delimited by a distinctive subject matter, methodology or theory’ (Yanagisako, Reference Yanagisako, Segal and Yanagisako2005, pp. 96, 97). I am also not really satisfied by Clifford’s dispassionate conclusions of the articulations between the [past, VB-B] ‘articulated ensemble called anthropology’ and other disciplines, which ‘does not identify the ongoing core, the soul, of anthropology, nor does it offer much advice for charting the discipline’s immediate course’ (Reference Clifford, Segal and Yanagisako2005, p. 47). I agree, and given the historically contingent nature of the formation and changes of disciplines one cannot but agree, that there are no clear disciplinary identities or prescriptive traditions. But while the insight that contingency and being part in a wider academic setting with unequal power relationships will be part of the future, it should not prevent us from laying down our terms of trade in the trading zone as defined by our own current understanding of what the identity should be. Without an indication of what ‘our’ core is, we simply become a rudderless ship in stormy academic seas.
It depends on how one looks at cores, differences and boundaries. The traditional way of looking at the boundaries of norms and categorising concepts is to examine the outer edges of norms and categories, in order to determine whether an act, a transaction or a publication still falls within or outside a boundary. In her discussion of the Dutch and Minangkabau construction of evidence, Keebet von Benda-Beckmann (Reference Benda-beckmann1984, p. 84) has contrasted such ‘centrifugal thinking’ of state court judges, which is directed towards the other boundaries, with the more ‘centripetal’ thinking of the Minangkabau, who much more strongly focus on the kernel of norms. If we use the integrative approach of the Minangkabau, looking at the accumulated outcome of such evaluation, rather than at a series of yes/no operations in the analytical construction of difference in each of the relevant identity markers (Reference Benda-beckmann1984, p. 83), there are good reasons to retain a relatively well characterised anthropology of law within the wider spectrum of the social sciences.
