Anthropology and Law
Updated: Aug 22, 2020
[This article is authored by Shivani Lalan, Pondicherry University]
For anthropology, the roots of law lie in the shared responses to behavior that arise from culture. Law as seen in its “modern” form may well be an institutionalized response to those behaviors, whether positively or negatively reinforced. The American Anthropological Association defines the discipline in the following manner - "Anthropology seeks to uncover principles of behavior that apply to all human communities. To an anthropologist, diversity itself - seen in body shapes and sizes, customs, clothing, speech, religion, and worldview - provides a frame of reference for understanding any single aspect of life in any given community." Anthropology simply refers to the composite, comprehensive, and holistic study of humanity, keeping in mind all the variations and diversity therein and highlighting the same when required.
The discipline, while agreeing on the purview of law, does not quite share its exact definition. Anthropologist E.A Hoebel has the following explanation - “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”.
This draws up the definition of a law, or what is legally enforceable by tracing the very root of such enforcement, which is found in the nucleus of culture or society - a social norm. The presence of a social norm indicates that there are behaviors that are accepted, and consequently rewarded, and those that are unacceptable and will promptly be met with punishment in some shape or form. Social norms engender and represent the very core of what a society believes is right or wrong. These conceptions may vary drastically across societies, thus creating the space for two or more such groups to be biased against each other’s systems of enforcing or upholding these norms.
This was the beginning of legal anthropology - an evaluation of different legal systems found in varying cultures, and placement of the same on an evolutionary hierarchy. Anthropologists studying legal and political systems of cultures would proceed to then rank them in order of their place on the grand scale of evolution. This scale began from “primitive” stages of law and politics in tribes and ended in the Western conception of institutionalized justice and formal polity. Obviously, these anthropologists belonged to the latter end of their self-made spectrum. For them, the state of the law in any other culture must always be aimed towards or progressing to the standards set by the West. In anthropology, this expectation of cultures to match up to others, and the degradation of the same when they didn’t is termed as “ethnocentrism”. The Evolutionary school of thought in Anthropology was consistently ethnocentric in their views towards all aspects of culture, and the law was no exception to this outlook. In tribes where conflict resolution between two or more parties occurred through the counsel of a tribal chief, headman, or even a council of elders, the law was said to be less evolved than other forms. On the same scale, peasant societies that have designated upholders of law - even if they existed in the quasi-judicial or quasi-legal space - were said to be higher up. Further up the ladder were cultures that were non-Western, and yet had formal means of dispensing justice, in the presence of a formal authority that was non-partial and objective. The very top of this ladder was comfortably occupied by Eurocentric notions of formalized legal systems - the presence of a court, of a jury, systemized procedures, and elaborate codes that were formalized through a particular body of work (for instance, The Constitution).
Such an outlook is rightly outdated and outmoded in the modern study of legal anthropology. The evolutionary framework of social thought was debunked by subsequent schools, who advocated for the objective and non-comparative studies of cultures. Today, anthropologists focus on the intersections between cultures within a nation-state or a seemingly unified legal framework. This is to say that the focus lies on the disharmony between the cultural frames of formal law, and other cultures that exist outside it. Legal anthropology today tries to investigate what lies in between the intersections of culture and law, or what falls through the gaps of the grids made by the two. At the center of this effort is the need to examine the causality of conflicts between diverse cultures and cultural practices, and the legal systems that are implemented as per the state.
This dissonance is the cause of many frictions not just in the practice of law, but also in many stages of policymaking and execution. Simply put, if a legal system is unaware of what the cultures it governs consist of, the said system is not going to be efficient at dispensing justice across topics like religion, property, marriage, family, language, and so on. This is where social norms come into play - knowing the norms that already exist in cultures of a state, the state machinery will be able to construct legal systems that do not bulldoze or even vilify those norms. The need for this consideration is simply that cultural norms hold a primal place in the shared attitudes of a people. Transgressing these laws, even if it is for the purpose of erecting a formal legal mechanism, does not guarantee that the mechanism and its constituents will be honored by the people.
The Way Forward
It is increasingly common for policymakers to consult anthropologists before rolling out new provisions. This is done to ensure the efficiency of the provision, such that its target population is able to fully utilize it for their benefit. Such instances have been seen across the world and across both public and private sectors. Law too has seen its share of having anthropologists working with lawyers to better understand situations of parties in conflict, whatever level it may be at. One of the most famous examples of such a collaboration in the case of Llewellyn (lawyer) and Hoebel (anthropologist). Together, they created some of the most important case studies in fieldwork in the domain of legal anthropology (although it was not addressed as such at the time). Their work together spanned across many cultures, the most famous of them being the study of the “law-ways of the Cheyennes” (Hoebel, 1941). The creation of their body of work gave rise to an interest in such types of collaborations, often also leading to more and more research on varying legal systems within subcultures in a state, and their interaction with the larger formal framework of the law.
It is not characteristic of law to be partial or to present a picture in parts. Research in the field must be built along the same lines. For this purpose, a partnership between anthropology and law is beneficial not only to both the professionals in terms of their own accomplishments or publications but also to both disciplines in general, since the quest to build a holistic yet centered body of work.
 Chris Fuller, Legal Anthropology,: Legal Pluralism and Legal Thought on JSTOR Anthropology
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 Mark Goodale, Anthropology, and Law: A Critical Introduction (2017).
 The legal anthropological approach, Press-files.anu.edu.au, Available here
 William Twining, Law and Anthropology: A Case Study in Inter-Disciplinary Collaboration, 7 Law & Society Review (1973).
©Image Courtesy: University of Kent, see here.