Dispute processes, those that initiate disputes and those that operate to resolve them, are cultural processes. These must be analyzed and understood within the social and cultural context of a community rather than as a matter of individuals’ rights and wrongs according to a logical political system of standardized jurisprudence. The anthropological study of dispute resolution is not different from an ethnography of community life. Community life consists of relationships among neighbors and kin, and involving economic, political, religious, and environmental resources. And all of these can be the subject of disputes.
Disputes involve a contested interpretation of shared principles of community life. These principles, or structural elements, are themselves not contested. A dispute is related to the manner in which a person has acted in relationship to these principles, as this has impinged upon the interests and affairs of other community members. Thus, the members of a community may share the general belief that the products of a garden are the property of the person who worked it, that gardens should be fenced, and that pigs, watched by a swineherd, roam and forage freely. A person who has a garden raided by another person’s pigs then may initiate a dispute with the pigs’ owner. Neither may propose that pigs should be penned nor that garden products are not owned by their farmers. The gardener may argue that the pig owner, via the swineherd, did not watch the animals carefully, and the pig owner may argue that the gardener did not construct a durable fence.
Disputes are embedded in the recurring life events of a community; each dispute has a trajectory out of past events, including prior disputes, and proceeds encumbered with the baggage of a wider context of community affairs. The gardener and the owner of the pigs may be rivals for community resources and have been involved in prior disputes. The garden may be placed in an area where pigs are often taken by swineherds; this herd of pigs is usually taken to forage close to gardens, and so forth.
Moreover, it is likely that any dispute can be viewed as impacted by a supernatural agency. Pigs that overcome a well-built fence or that were able to eat an unusually large amount of produce may have been assisted by a supernatural agent. The gardener may have angered these and become vulnerable, or the pig owner may have facilitated their involvement.
Disputants, in a sense, must agree to dispute, and the community must agree that there is a valid dispute. A person who raises an objection to pigs roaming free to forage or who objects to farmers having ownership of the produce of their farm work would be ridiculed, or at least find no community support. One of the unsettling results of social change is the introduction of unfamiliar principles as a basis for disputes.
Are humans inherently contentious? There is no easy answer to this question. Humans are inherently social and socially sensitive creatures. We creatively construct our cultural behavior daily from our traditional experience and in concert with our fellow community members. And we mutually dispute our varying creative versions. It is unlikely that creatures as complex as humans and as adept at symbolic reinterpretation could live in a dispute-free condition. The continuous potential of disputing, however, does not lead to a continuing condition of social disruption.
The social organization of communities also enables the means to resolve disputes. These range from inaction, avoidance or relocation by the persons involved to formal processes of adjudication by authorities vested with sanctioning powers. These processes are themselves normative properties of the community’s social system. The ways in which they are applied are often also the source of disputes. However, community members who do not abide by them in good faith may be viewed as less-than-desirable community members. The farmer whose garden has been invaded by another’s pigs and who in response seizes and kills several of the pigs, or who goes in the night and takes a corresponding part of the pig owner’s garden may likely be in violation of community values regardless of his apparent loss. Indeed, witchcraft or sorcery is usually viewed as an improper tactic by an aggrieved person. The response is often to identify the witch (witch “doctors” are skilled at reading patterns of community disputes) and then try to resolve, in appropriate fashion, the dispute at the root of the attack.
Anthropology has tended to examine resolution processes that are located within communities or within a superordinate entity accepted by the community, such as a chiefdom. This is in contrast to processes imposed on the community based on foreign concepts and administered by strangers (such as those established by European administrations and kept by those assimilated to European culture). However, given the reality that these processes are embedded firmly in new nations, more anthropologists include national resolution procedures, typically formal adjudication.
There is a range of resolution processes. Some involve the two disputants in personal negotiation, but more usual is some kind of mediation or arbitration with a third party directing or even deciding on the nature of a settlement. It is also common for the resolution process to be part of a ritual procedure. Ancestral figures, but also other supernatural agencies, are disturbed by disputing (especially if it has led to conflict). Community misfortune may result unless resolution, specifically in a ritual setting appreciable by the supernatural agency, is completed. Mediators are often religious specialists.
Is resolution effective? It may be, insofar as both parties believe that their positions have been justified and fairly dealt with. The “aggrieved” party should believe that restitution (even apology) has been made, and the “aggrieving” party should believe that their actions were held to be understandable, even though assessed as requiring some adjustment to the other party. The contemporary judicial approach of restorative justice holds that disputes (especially those involving injury) cannot be truly resolved unless all parties—victims, perpetrators, and other community members—participate, accept responsibility and work together to make the community’s life right again.
In fact, resolution probably achieves only a temporary result. Compromise may leave both parties discomfited. An explicit judgment that one party has acted wrongly, even foolishly, leaves that person vulnerable to community approbation. The person awarded a judgment may not feel that it was sufficient. Ritual resolution, even with its powerful supernatural incentive for reconciliation, may not last. Given the human condition, resolution should not be expected to eliminate disputes, but rather to ameliorate them. The success of a community’s dispute resolution repertoire must lie in its capability to provide continuing temporary remedies, whether or not these are completely acceptable.
- Caplan, P. (Ed.). (1995). Understanding disputes: The politics of argument. Oxford: Berg.
- Gulliver, P. H. (1979). Disputes and negotiations: A cross-cultural perspective. New York: Academic Press.
- Nader, L. (1965). The anthropological study of law. American Anthropologist, 67(6, Part 2), 3-32.