Law and society designates a three-way concern with the nature of law, society, and the relation between them. Two main approaches have been important: one ultimately rooted in the law and legal theory of the Roman Republic and the other ultimately rooted in the law and legal theory of the Roman Empire. This entry describes the bases of the tradition, its transformation into the 19th-century debates that framed the emergence of sociocultural anthropology, and its main representatives in anthropological theory.
Roman Law and Legal Theory
Roman law is a complex body of substantive laws, legal doctrine, and theory about law and society that began in the Roman Republic and has evolved continuously since. The general view of law in the ancient Mediterranean world was that it was the “will of the gods.” It was, therefore, not something that mortals could create. It had to be something they found. Different societies used different theories of how this was to be done.
Rome was always a class-based society with two main classes. Patricians were a military aristocracy whose members held large estates that they farmed with unfree labor, slaves, and plebes. Plebes were not uniform, but their main interests were those of small-scale peasant farmers.
Republican legal theory was social constructionist with a presumption of individual freedom and rationality. A “republic” is Res Publica (a public thing). There were several key ideas. Officers were elected for fixed 1-year terms. At first, the chief officer was the praetor, who was chief magistrate and general of the army. His power to command was his imperium. Candidates for magisterial office described the laws they would enforce, so the vote was for both. The principle that connected the idea of law as the will of the gods to this system of election was vox Populi vox Dei (the voice of the people is the voice of the gods).
The popular voice was safeguarded by checks and balances. Soon after the republic was initiated, the office of consul was added above the praetor. The consul was always a divided office, that is, one office occupied by two people. To do anything, the two had to agree. Still later, the office of tribune was added in response to the demand of the plebes. The tribune was elected solely by the plebes and could block any action of a praetor or consul that was adverse to plebian interests.
Magistrates were balanced by the senate, consisting of men who had been through the elected offices and had not done anything to merit censure. Although the magistrates could initiate wars, only the senate could receive ambassadors and make peace.
Finally, the law authorities were separated from the law enforcers. The key text and symbol of the process was the XII Tables, attributed to a committee of 10 men representing patricians and plebes on display in the Forum Romanum. It was not a code but rather a set of key legal problems and solutions that implied what the basic legal principles were without stating them. For the rest of the law, a legal archive was maintained in the college of the Pontiffs, headed by the pontifex maximus.
The Roman Empire was constructed out of the offices of the republic by Augustus. Having been elected consul repeatedly, Augustus gave up that office to be appointed proconsul for life with an extended imperium. Proconsuls were appointed by the senate and did not have fixed terms. He then was elected tribune and finally also was appointed pontifex maximus. This obliterated the checks and balances and established the system known as the principate, which very quickly became the hereditary single office of imperator (emperor).
With elections ended, the constitutional principle could no longer be that the voice of the people was the voice of the gods. It became instead “The emperor is the voice of the law.”
Imperial legal theory developed around the idea of a conflict between state interests and individual interests. This was embodied in the sequence of efforts to establish uniform imperial codes, beginning mainly with Theodosius and culminating in the Corpus Juris Civilis ordered by Justinian. The organizing principle was hierarchy, that is, a hierarchy of civil laws that followed by logic from first principles in a state that was a hierarchy of obedience to the emperor. The compilers did not write new law but rather rearranged the law that already existed according to what they argued were universal logical principles. When the Corpus was completed in 534 CE, Justinian ordered all other law books destroyed.
Although the Corpus disappeared from European administrative life soon after it was promulgated, republican law lived on. It had always been fundamentally the law for a civitas, and it persisted in both the original Roman cities and the colonias that had been sent out to conquered areas. These were usually located in previous large settlements where the Roman colonists lived side by side with the original inhabitants and brought them under Roman protection. When the empire collapsed and the power relations reversed, the Romans were protected in turn. Eventually, the populations and legal systems merged to form the European nations that are recognized today.
The conflict between empire and civitas redeveloped in Europe in three main contexts. First, in the 11th century, universities began to be established and offered law as a subject of study based on textual analysis of Corpus Juris Civilis, which was copied, extensively annotated, and widely circulated as a general legal standard. The second context was the development of canon law by the Catholic Church on the same model. The third was the “reception” of the 15th century, a widespread movement in Germanic areas to introduce substantive codes along the same lines. Because the principles of imperial law could not be extracted from their texts without also exposing the underlying principles of republican law, by the Renaissance both theories were once again in full flower and known to all educated people.
Political, social, and legal philosophy as now recognized crystallized in debates over the epistemological basis of law governmental legitimacy between the reception and the 19th century. In this, arguments on the republican side were closely aligned with arguments for experimental science and philosophical skepticism. Those on the imperial side were aligned with the idea of deductive systems based on a priori or self-evident knowledge. On the republican side, these culminated in the Enlightenment arguments of Montaigne, Montesquieu, Smith, Hume, Kant, and the authors of the American Revolution. On the imperial side, comparable figures included Hobbes, Locke, the Scottish Common Sense philosophers, and Hegel. Of these two traditions, the former was clearly ascendant by 1800.
The 19th-Century Republican Tradition
The most direct path to the 19th-century anthropological conceptions of law and society begins with the historical jurisprudence of Carl Friedrich von Savigny (1779-1861). His subject matter was Roman law between the collapse of the empire and the reception, and his focus was not on texts but rather on courts and legal ceremonies as represented by court documents.
It was Savigny who traced the continued development of Roman republican law in Europe after the empire collapsed. He saw this as demonstrating that “law grows out of the life of the people,” at once an echo of Kant’s conception of law embodying the progressive growth of freedom of a community and a reaffirmation of vox Populi vox Dei. His philosophical and political manifesto was titled Of the Vocation of Our Age for Legislation and Jurisprudence (1814) and opposed a project to write a legal code for Germany on the Napoleonic model. He contended that laws constructed in such a way could never have the subtlety, complexity, and efficacy of law that grew naturally, or “organically,” from the perceptions and values of those to whom it applied—the spirit of the people, their Volksgeist.
For anthropology, the most immediate impact of Savigny was through the Grimm brothers, Wilhelm and Jacob. Both were his students. Jacob, the elder, began his studies in 1802 and was a research assistant for Savigny beginning in 1805. Since Savigny had deciphered the history of Roman law in the German context, one obvious unknown concerned the German side of the relationship. One possibility was to use folkloristic materials collected from the less educated and presumably more conservative “folk” so as to find relics of an ancient mythos not originating in the Latinized culture of the upper or educated classes. To date this material, the Grimms adapted Savigny’s comparative method to the language of the stories. This led to the discovery of the “sound law” in the sequence of languages that leads from ancient Greek, to Gothic, to the varieties of modern German. The general method is still the basis of historical linguistics. The Grimms’ main work on law proper was Jacob’s Deutsche Rechtsaltertumer, published in 1828.
Savigny’s recognized successors in law included Theodor Mommsen (1817-1903), Frederick William Maitland (1850-1906), and Rudolph von Jhering (1818-1882). The first two revolutionized the history of law. Jhering revolutionized the analysis of law as such. Building on Smith and Kant, Jhering grounded his analysis directly in cognitive and social processes at the individual level. Two mutually complementary theses run through his work. The first is that law is created and maintained through self-interest. The second is that law grows out of the self-regulation of power.
Jhering argued that self-interest bids us to enter exchanges. Even exchanges are self-enforcing by mutual interest. But exchanges can become uneven. For example, suppose that I offer to pay you if you fix my plumbing. You fix it. Now I have fixed plumbing and what I offered to pay you. In this case, law is needed to provide an artificial interest in paying you to replace the natural interest that has been removed. This is what law is: a support to maintain required relations in other institutions, especially commerce, in those cases where they do not maintain themselves.
Jhering had two major successors of direct importance to anthropology: Eugen Ehrlich (1862-1922) and Hermann Kantorowicz (1877-1940). Ehrlich originated the term “sociology of law.” His central concept was the notion of the “living law” as those rules we have that are so firmly enforced that we can hardly think of violating them and that rarely or never actually require judicial action, for example, the rules of most workplaces. Kantorowicz’s perspective was very similar.
The more the sophistication of Roman Republican law became clear, the more important it seemed to be to ask where it originated. This was the question of the lawyer-ethnologists such as Adolphe Bachofen (1815-1887), Henry Maine (1822-1888), Lewis Henry Morgan (1818-1881), and John F. McLennan (1827-1881).
Bachofen had studied under Savigny at Berlin from 1835 to 1837; was appointed professor of Roman law at Basel in 1841; and served as a judge of the Basel criminal court from 1842 to 1866. He has come to be identified with the thesis that a matriarchal state of society preceded the current patriarchal one, but his deeper and more original concern was not with systems of rule but rather with the cultural worldviews that they reflected.
In the debates concerning the Swiss Civil Code, Bachofen opposed the blanket imposition of the Code Napoleon and supported the approach that eventually incorporated more recognition of local custom into the Swiss code than into any other contemporary European system.
Maine argued for two main theses: that law evolved from status law to contract law and that the first form of organized society was “patriarchal.” As with Bachofen, Maine’s legal and ethnological activities were inseparable. His first major work, Ancient Law, was published in 1861, the same year as Bachofen’s Mother-Right was published. From 1863 to 1869 in India, Maine served as a legal member of the Council of India and as vice chancellor of the University of Calcutta.
Maine was the first British ethnologist to insist on the “comparative method” of historical investigation, although he did not make clear at first that he took it from Savigny. Contrary to Bachofen, Maine argued that the patriarchal system went back to the beginnings of the Indo-European language family. To specify it, he modified the Roman model only enough to incorporate points that he considered to be held in common with other ancient Indo-European legal systems, particularly Hindu law. The result was a social system in which the only organization was the household and literally all legal power resided in its eldest male. In this system, “law is the parent’s word.”
Eventually, in Maine’s view, as allowances were made for those among the descendants who would succeed to the position of the father, status within the family and the society became more differentiated, increasing by slow degrees the rights of others within the family to delineate a portion of the property and act on their own regarding it. This eventually led to a system based on the individual power of contract, supported by a government detached from the family system.
Maine was a major proponent of legal codification, and no matter how debatable his movement from status to contract may have been as an historical thesis, there is no doubt that it described the thrust of British law in India.
Morgan was a year younger than Bachofen. He practiced law from 1844 in Rochester, New York, and served in the state legislature from 1861 to 1869.
Morgan was interested in general rules of development that covered all societies. His main works were the League of the Iroquois in 1851, Systems of Consanguinity and Affinity of the Human Family in 1871, and Ancient Society in 1877. He approached the ethnographic materials directly through Roman legal vocabulary and constitutional analysis. This included the concepts of consanguinity and affinity themselves. The result was to show how terminologies for kinsmen articulate with different forms of family organization and to thereby create an enduring and central concern of social anthropology. Equally important, however, he did not see primitive society as monolithic; for example, he recognized that the family system was not necessarily the same as the clan system, if any, which in turn was not necessarily the same system of government.
McLennan brought the arguments on matriarchy versus patriarchy together with another line of argument focusing on “totemism.” He was appointed parliamentary draftsman in 1871. His first major work was Primitive Marriage, published in 1865. He agreed with Morgan and Bachofen in holding that the first organized form of the family must have been based on the relation between mother and children, but he disagreed vigorously with most other aspects of their analyses. Basically, McLennan held that it was quite wrong to start with a small and sharply defined group such as the family in any form; what one had to imagine was the least fully conceptualized type of association. This was the undifferentiated territorial “horde.” He then held that the first and most basic rule required for the constitution of such a group was the rule of exogamy, that is, the rule that one had to marry outside of one’s own horde. He argued that because there were still no principles that could order relations among hordes, this naturally led to the practice of marriage by capture.
McLennan saw evidence of marriage by capture in the marriage ceremonies of an extremely wide range of linguistic communities. He held that such ceremonies were more appropriate and reliable sources of evidence on the most ancient uses than were formal laws, particularly written laws, which must have arisen more recently. Thus, the ceremonies were not considered “mere” rituals or expressions of religious ideas alone. They were read as Savigny had read judicial proceedings, that is, as enactments of general societal relationships.
By the early 20th century, the lawyer-ethnologists were of little interest for two main reasons. The first was that, with the exception of Morgan, their social mechanisms assumed a time span for human history that turned out to be far too short. The second was that they came to be identified with the neo-Hegelians.
19th-century Authoritarian Theory
The main authoritarian reaction to the theories based on republican conceptions was in two ideologies with roots in Hegel and St. Simon’s socialism: Auguste Comte’s positivism and Karl Marx’s communism. They agreed in seeing society as monolithic and hierarchical, rejecting pluralism as disorder and rejecting democracy as a delusion. Their main disagreement was over causality. Positivists argued that mind controlled matter, and Marxists argued that matter controlled mind. The legal positivism of John Austin (1790-1859) is parallel but separate, imperially grounded but not Hegelian.
The first anthropologist to espouse Comte’s positivism was E. B. Tylor (1832-1897). In 1889, Tylor’s Primitive Culture argued for “animism” as the first religion directly on the model of Comte’s “fetishism” and for Comte’s view of science as precluding recognition of human free will. The first legal scholars were the neo-Hegelians.
The recognized founder of the neo-Hegelian school is Albert Herman Post (1839-1895). His publications, beginning in 1872, invoked Comte’s arguments and methods to attempt to construct a universal history of law and society. Unlike the lawyer-ethnologists, Post argued that evolution had a definite goal, which was none other than the creation of a totalitarian world system. Joseph Köhler (18491919) was Post’s successor and shifted the imagery from Comte to Hegel.
Köhler was a prodigious writer. The editor of the English translation of his Lehrbuch der Rechstphilosophy (translated as Philosophy of Law) listed 48 major works up to 1903. The most important for anthropology is Zur Urgeschichte der Ehe [On the Prehistory of Marriage], published in 1897 and recently translated with a foreword by R. H. Barnes.
Köhler took totemism as the original and basic form of religion and social organization, citing James Frazer. This was considered to be a system of beliefs in which members of social groups, clans, or tribes are identified with distinct animal species or objects. Köhler argued that it followed that no one could belong to more than one clan because this “would result in a mixed animal.” Given this, it further followed that the clan must always be based exclusively on either “mother-right” or “father-right.”
Köhler argued the case with an analysis of kinship terminologies based on Morgan, noting that Morgan’s glosses could be written out as equations. Thus, if the same term is applied to one’s (ego’s) father and father’s brother, this is represented as Father = Father’s Brother. Terminologies could then be compared as patterns of such equations.
Köhler interpreted all such equations as evidence of group marriage, meaning that all of the people from one clan married all of those from the other clan, even though Morgan had explicitly said otherwise. Nevertheless, Köhler concluded that it was irrefutable that “all peoples of the earth originally had group marriage” if we considered the derivation of group marriage from totemism and that “totemism presents itself to us in nearly all human activities, institutions, legends, [and] idioms as an ancient and later abandoned system.”
Köhler’s Philosophy of Law began with an “excursus” that deduced Köhler’s position from a general definition of law and argued that, for humans, natural law is the law of culture, which it is “man’s task” to create and develop. This “ideal of cultural development,” in his view, would be served “if all states would unite in one great whole” through the formation of a “supranational” law. But he saw little hope that such a “world empire” and law would emerge by rational action of sovereign nations because it would result in a reduction of their jealously guarded autonomy. therefore, Köhler held that war in pursuit of it was “valid.”
Although Émile Dürkheim (1858-1917) described himself as a republican, “republican” for Durkheim was not what it was for the Romans or Kant. Durkheim defined democracy only as a type of thought, not as any sort of organizational arrangement to ensure popular sovereignty. It was the widest extent of participation in “the governmental social consciousness,” whereas “the role of the State … is not to express and sum up the unreflective thought of the mass of the people but [rather] to superimpose on this unreflective thought a more considered thought.”
Durkheim’s social analyses supported his politics. On the Social Division of Labor, his dissertation in philosophy, was intended to refute Adam Smith’s description of orderly and efficient economic relations arising from the interactive exercise of personal judgment. Durkheim argued that the division of labor was social rather than individual. It was both mental and collective. Society was integrated by a principle of solidarity. The form of this solidarity evolved according to a necessary law of growth, drawn directly on the analogy of the biological evolution. It began with mechanical solidarity, where everyone literally looked, thought, and acted alike, and ran to organic solidarity, where people, behaviors, and roles were progressively differentiated and interlinked. People were drawn into these differentiated roles not by individual purpose or even the pressure of others but rather by an impulse for self-fulfillment because each alone was “incomplete.”
Durkheim’s interpretation of totemism drew on both Köhler and Tylor. Durkheim praised Köhler’s analysis extensively in an important review published in L’Année Sociologique in 1897 and again in 1905. He then applied Köhler’s argument nearly point for point, although without citing Köhler, to Baldwin Spencer and F. J. Gillen’s representation of Australian totemism in The Native Tribes of Central Australia (1899). Spencer and Gillen, in turn, credited their theoretical perspective to Tylor. The result was The Elementary Forms of the Religious Life, first published in 1912 and then in English in 1915, widely considered one of the foundational works of modern sociology.
The argument began with the idea that categories of thought control our behavior. Durkheim then argued (paraphrasing Comte) that these categories, being general and mental, cannot come from the individual but rather must come from society:
Man is double…. There are two beings in him: an individual being which has its foundations in the organism and whose activities are therefore strictly limited, and a social being which represents the highest reality in the intellectual and more order that we can know by observation—I mean society.
Durkheim’s explanation of how the two beings come together is that the subjective dominates the objective, the general dominates the particular, and the state dominates individual experience and Köhler’s idea of totemism. Hence, the categories were “born in religion and of religion.”
Durkheim concluded with Köhler’s argument that unity of the group is the basis for the self-identity of the individual: “We have shown how the religious force which animates the clan particularizes itself in particular consciousness.” He also argued, following both Hegel and Köhler, that only the group is active, not individuals:
The collective consciousness is the highest form of the psychic life, since it is the consciousness of the consciousness. Being placed outside of and above individual and local contingencies, it sees things only in their permanent and essential aspects, which it crystallizes into communicable ideas.
The “two beings” argument was repeated in Mental Functions in Inferior Societies by Durkheim’s colleague, Lucien Levy-Bruhl, in 1910. Others proposed different ideas of the original form of society or its essential basis but kept the same basic idea that there was some such elemental form or essential basis and the same circular methods of arguing for it.
French sociology and the contemporaneous German sociology of Georg Simmel (1858-1918), Ferdinand Tönnies (1855-1936), and Max Weber (1864-1920) agreed that society was unitary and that human free will and choice were illusions. The differences were only in the ways in which they focused their arguments. They were less interested in primitive religion and early societies than in contemporary religion and modern society. Rural life was characterized as traditional and superstitious, emphasizing the group over the individual. Urban or civilized life and thought were rational, scientific, and individualistic. Simmel’s sociology of religion was simply the claim that religion was society, that is, that social determinism was religious determinism. The most general difference between Tönnies’s and Weber’s arguments was that Weber’s argument was built around the dichotomy between form and substance, whereas Tönnies’s argument stressed the dichotomy between will and reason. Tönnies’s Gemeinschaft and Gesellschaft were forms of collective will. Weber, like Comte, took thought as the basis of action and equated the evolution of society with the evolution of rationality.
Weber had studied law at Heidelberg, Berlin, and Göttingen and had written his dissertation on medieval commercial law in 1894. The connection between the economy and law was the central theme of his massive Wirtschaft und Gesellschaft (Economy and Society), published in 1922. This aimed directly at rejecting Smith’s view that division of labor is the product of efficiency-seeking behavior at the individual level. Instead, Weber portrayed law as developing by an internal logic of increasing formality and rationality.
Weber’s stages of legal development followed Comte’s and similarly implied that legal values descend from and are consonant with religious values. First was primitive law with “magically conditioned formalism,” evoking Comte’s fetishism. This coalesced into Old Testament religion for Comte and Old Testament law for Weber, that is, charismatic revelation by law prophets. Next was “cautelary jurisprudence,” which seemed to refer to the pragmatic law finding of the Roman Republic. “Imposition of law by secular and theocratic powers” was next and suggested the imperial and papal rationales, again agreeing with Comte, and “rational” law corresponded directly with Comte’s positivistic science, being based on generalization by rational bureaucrats from specific cases to principles according to universal logical rules.
The problem is that modern European law has no more developed out of ancient Judaism than has modern science. Nor did Roman imperial law supersede Roman republican law, as Savigny showed. But succession was what Weber wanted because succession suggests hierarchy, and hierarchy was the unifying theme of his argument.
Pragmatism in Law
The American counterpart to European post-Kantian empiricism is pragmatism. Pragmatism grew out of the discussions of the “Metaphysical Club” that met in Cambridge, England, during the early 1870s. Especially important pragmatists at that time included Oliver Wendell Holmes, Jr., Charles Peirce, and William James and later included John Dewey, G. H. Mead, and W. I. Thomas. In pragmatic legal theory, “law” is firmly focused on courts and what they do.
Pragmatism uses an empirical theory of knowledge and meaning to bring together the entire panoply of post-Kantian empirical developments from physiological psychology, to developmental and social psychology, to a theory of social relations, and finally to an understanding of key institutions—most notably law, education, and economics. Pragmatic legal thought was continuous with the continental jurisprudence descending from Savigny.
Holmes’s most important and expansive work was The Common Law (1881). The historical sweep covered the XII Tables, the law of the Germanic tribes, English common law, and modern American case law. It was not a codification but rather a delineation of basic legal concepts as illustrated by cases. The introduction focused on the general concept of liability, which became Holmes’s touchstone for differentiating criminal law from torts and contracts. Holmes argued that for criminal law tort the idea of liability, based on an idea of revenge, is “of the first importance,” although in contract law it is “hardly material” outside a limited number of cases. The concepts of liability differ, however, between criminal law and tort and are linked to differing interpretations of other concepts such as trespass, malice, reasonable, foreseeable, accident, intent, and responsible.
One of Holmes’s most important underlying ideas was that in each of the major branches of law, the basic categories under which the cases and exegeses are grouped form, in themselves, an evolved philosophy of law, a repository of experience, ordered and retained in an evolved and evolving social system.
Benjamin Cardozo (1870-1938) demonstrated the agreement between Ehrlich and Holmes in a series of lectures delivered at Yale University and published in 1921 as The Nature of the Judicial Process. His focus, like Holmes’s focus, was on how judges decide cases, particularly difficult cases. This, he argued, had led to increasing recognition of the necessity for the sociological method in Ehrlich’s sense. A quotation Cordozo took from Dean Pound was particularly apt and indicated nicely the broad agreement among all four:
It is true, I think, today in every department of the law that the social value of a rule has become a test of growing power and importance. This truth is powerfully driven home to the lawyers of this country in the writings of Dean Pound[:] “Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude.” … “The emphasis has changed from the content of the precept and the existence of the remedy to the effect of the precept in action and the availability and efficiency of the remedy to attain the ends for which the precept was devised.”
Pound’s position in this stream is clear from the same quote. Law is a set of social tools that answer to diverse purposes in diverse ways. Conversely, social life itself defines diverse purposes for individuals to pursue.
Pragmatism in Anthropology to 1950
Although Franz Boas (1858-1942) and Bronislaw Malinowski (1884-1942) are equally identifiable with the intellectual traditions of pragmatism, Boas’s interests did not lead him to encounter issues law.
Malinowski initially took his D.Sc. in physics at Krakow in 1908, but he decided to go into anthropology instead. His first step was to take courses from Wilhelm Wundt and Karl Bucher at Leipzig. Wundt was concerned with the relation of mind to action, and Bucher was concerned with the organization of work. In 1910, Malinowski became a postdoctoral student at the London School of Economics, planning to do research in the South Pacific. He studied mainly under Charles Seligman (1875-1940) but also associated with Edward Westermarck, Leonard Hobhouse, W. H. R. Rivers, and A. C. Haddon, among others. The theoretical assumptions and issues at the London school were essentially the same as at Leipzig. They shared a central concern with the emergence of human mentality and human culture out of a pan-human physiological substrate and the way in which human thought was shaped by culture, and ethnological fieldwork was well established as an extension of laboratory methods in Wundt’s sense.
Malinowski left for the Trobriand Islands in 1914 and remained there until 1918, formally interned as an enemy alien. He is recognized as having developed what is now called “participant observation” and also was the inventor of the ethnographic monograph as we now know it. This is not a reconstruction of a past condition or a pristine “precontact” society but rather a description of a community as it is observed with the investigator located within it.
Malinowski’s Trobriand monographs were pluralistic and relativistic. Each took a group of theories reflecting one of our institutions and held it up against their uses. Thus, Argonauts of the Western Pacific in 1922 compared conventional economic concepts of rationality, markets, money, and value with the Trobriand system of overseas trade, called the kula. Sex and Repression in Savage Society in 1927 tested and rejected Freud’s concept of the Oedipus complex. Crime and Custom in Savage Society in 1926 did the same for neo-Hegelian conceptions of law and custom and is Malinowski’s main work on law.
Although Malinowski was absolute in his rejection of the neo-Hegelians, he did not discuss their opponents. Yet his conception of the sanctioned basis of custom was very similar to Ehrlich’s conception of the living law, and his idea of when sanctioned intervention was required paralleled that of Ehrlich and Jhering, as was subsequently recognized by Cardozo and Pound.
Karl Llewellyn (1893-1962) is the legal scholar who most ethnologists are likely to have read. The specific work they are most likely to have read is The Cheyenne Way, written mainly by Llewellyn using fieldwork by E. A. Hoebel. This began with a discussion of the method according to which the cases were collected. They were texts rather than actual observed events, but they were of a specific sort calculated to illustrate basic principles of law; they were “trouble cases.” Trouble cases are cases that present general problems for the group as a whole and that are remembered for those problems and their solutions. The book presented the cases under subject headings according to the types of problems and remedies they illustrate and concluded with three chapters on “law-jobs and juristic methods” that presented Llewellyn’s theory of law. Although it clearly belongs to Savigny’s tradition, it does not take any established analysis within that tradition as a starting point. It is of a piece—a simple, striking, and new view of the way in which law arises from the life of the people.
Positivism in Anthropology to the Present
The period between around 1930 and 1960 saw a major intellectual swing from pragmatism and empiricism to positivism. Roughly in chronological order, the main arguments fall into four main clusters: an initial isolated “theoretical” statement by A. R. Radcliffe-Brown (1881-1955), the “cultural” view of E. A. Hoebel (1925-1983), a long series of arguments aimed at treating law as “dispute settlement” that is shaped or controlled by the larger social structure, and a debate on the general definition of law. The end result was theoretical sterility and isolation.
A. R. Radcliffe-Brown
Radcliffe-Brown was a forceful proponent of the positivism of Henri Hubert and Durkheim, and he wrote the section on primitive law in the general article on law for the 1934 Encyclopedia of the Social Sciences. The article began by dismissing the entire line of scholarship from Savigny to Pound as irrelevant to the subject. The reason was that the jurisprudents defined law as involving “organized legal sanctions,” and primitive societies did not have any; rather, they had sanctions imposed by society itself. Deeds that offended the “moral sense of the community” would be subject to three sanctions: a general diffuse sanction that subjects a person to general disapproval, a ritual sanction that puts a person in a condition of ritual uncleanliness, or a penal sanction “whereby the community through certain persons acting as its constituted judicial authorities inflicts punishment.”
Although few subsequent writers have agreed that primitive society had no law, virtually all have recognized that the perspective of the great jurisprudents was incompatible with positivistic social determinism.
E. A. Hoebel
Hoebel was a student of Boas. Hoebel was interested in Commanche law but was having trouble conceptualizing it. Boas asked Llewellyn to meet with him. The two worked together on The Cheyenne Way. Hoebel then continued on his own, moving from Llewellyn’s pragmatic conception of “law jobs” to his own conception of a jural code of postulates and corollaries.
For the Ifugao of the Philippines, Hoebel listed 6 postulates and 17 corollaries. The list included entirely unrelated ideas, most of which were in legal terms clearly not adjudicable or enforceable. The first, for example, was as follows: “The bilateral kinship group is the primary social and legal unit, consisting of the dead, the living, and the yet unborn.” The second was as follows: “Supernatural forces control most activities, and the actions of human beings are either compatible or incompatible with the predilections of the supernaturals,” a corollary of which was the necessity of headhunting.
Hoebel’s claim was that all such beliefs form a unitary controlling whole, which he characterized as “superorganic.” If it were true, the Ifugao would be a community of gullible rule followers with no sense of logical inconsistency or incoherence. In actuality, most of these ideas are not rules of behavior at all.
The effort to treat law as socially structured dispute settlement runs from Max Gluckman, to Elizabeth Colson, to Laura Nader. The core ideas of the dispute are well represented in The Disputing Process, published by Nader and Harry Todd in 1978.
Gluckman is known mainly for his “structural-functional” explanation of conflict, but he was also very forceful in urging a complete theoretical separation of anthropological theory and jurisprudence. The argument equated the increasing power of a science with the development of specialized and distinct scientific vocabularies. Because anthropology was a new and separate discipline with its own purpose, anthropologists who used legal concepts had to give them new and separate meanings. The purpose of anthropological theory was to show that the ideas and behaviors of people were directly shaped by the organization of their society. However, although legal theory and anthropological theory were separate, anthropologists should borrow whatever descriptive insight they could.
In The Judicial Process Among the Barotse of Northern Rhodesia in 1955, Gluckman showed that Barotse judges arrived at their decisions using the same methods described for Western judges by Cardozo. Gluckman observed the way in which specific cases were handled and followed them from the point of view of their prejudicial status and origin, the way in which they were recast for adjudication, and the vocabulary of legal debate that was applied.
He saw Barotse rules of law as clear counterparts of judicial conceptions of rational behavior in tort and civil law. But none of this descriptive apparatus, for Gluckman, was “theory.” Rather, theory was a further idea he offered to explain it. This was the distinction between societies that are “multiplex” and those that are differentiated. Where relationships are multiplex, dispute settlement is readily available and produces solutions that are intended to maintain social ties. Where relationships are specialized and differentiated (not multiplex), dispute settlement is impersonal and often difficult to reach, and it aims at settlements based on individualistic ideas of justice or equity.
One problem with this is that it does not really explain what seems to need an explanation the most: why Cardozo’s analysis actually fits. Another is that it sets up a contrast between types of “societies” that makes no sense. Is a village a society or a nation? Is a household a society? In American families, for example, one person deals with the same others on many bases. In American commerce, one person usually deals with others only in highly specialized roles. So, is American society multiplex or differentiated? “Multiplex” may be a reasonably clear idea, but “society” (among others) is not.
Colson and her students recognized the paradoxes and thought that Gluckman’s characterization was too sharply polarized. They turned to what they considered a “processual” model of organization that, according to Nader and Todd, “focusses on people enmeshed in networks of social relations, on people making decisions that are based on a number of competing factors.” This, however, was harder to reconcile with the idea of social unity and ultimately led to a still further retreat that focused only on disputes and put off the social theory for later.
In their preface to the 1978 book, Nader and Todd described the project as having begun with the program set out in her 1965 review of the anthropology of law, resting on four assumptions:
(1) There is limited range of dispute within any particular society; (2) a limited number of formal public procedures are used by human societies in the prevention or handling of grievances …; (3) the disputants have a choice in the number and modes of settlement … ; [and] (4) the range of manifest and latent functions of law vary cross-culturally. We were interested in understanding the conditions that defined the presence and use of specific dispute-resolving procedures. We would concentrate on one function of law—the management of disputes. Because the modes of settlement are limited in number, dispute processes would offer a good starting place for comparison.
There was no longer any claim about society in general or even law in general, only “comparison” as a distant goal for no clear purpose. The debate died out during the 1980s.
The Definition of Law
The debate over the definition of law was similar. Central figures were Gluckman, Paul Bohannan, and Leopold Pospisil. Bohannan, following Kantorowicz, argued that law could be defined in its own terms and understood in those terms. There was no need to impose anything on it from the outside. Pospisil and Gluckman disagreed, holding that law had to be defined anthropologically. They disagreed with each other, however, over how to do this. Gluckman argued for separating the anthropology of law from legal studies so as to combine it with social theory. Pospisil held that the purpose was to make cross-cultural comparisons of legal systems as such.
Pospisil’s first major work, in 1958, was Kapauku Papuans and Their Law. Kapauku legal decisions were rendered mainly by “big men,” that is, local informal leaders. Pospisil’s analytic headings drew on Roman law, and the conclusion gave four general attributes of the legal process with evident Roman roots: authority, intention of universal application, obligatio (imposition of an authority external to the dispute itself), and sanction. In 1971, his Anthropology of Law began with a review of legal theory making it clear that his own theoretical touchstone was Ehrlich. But where Ehrlich insisted on framing legal theory within a general theory of social organization, Pospisil simply said that his concern was with legal decisions alone and offered the definition from his Kapauku analysis. The rest of the argument compared this definition with those of a series of other writers. This brought him to his disagreement with Bohannan.
Bohannan reflected the same jurisprudential tradition but accepted its pragmatic methodological assumptions. Pospisil focused on a distinction that Bohannan had used in 1957 in Justice and Judgment Among the Tiv between the folk system of law and the analyst’s system imposed from without. Pospisil commended the distinction but criticized Bohannan for concentrating only on the folk system, saying that although Bohannan clearly presented a description of the Tiv conceptualizations, it lacked “broader theoretical considerations” that Pospisil equated with “analytical systems.” From Bohannan’s own perspective, however, the broader considerations arose from the description itself, and the analytic systems that Pospisil was demanding would only have obscured them.
In a 1994 review of legal anthropology in Britain, Chris Fuller cited this debate as a reason for a broad loss of interest among nonspecialists during the 1980s.
Return to Pragmatism
In 1974, the Association for Social Anthropology in Britain published the papers of a conference at Keele University that returned to the pragmatic perspective. Contributors were Lloyd Fallers, P. H. Gulliver, J. L. Comaroff and Simon Roberts, F. G. Snyder, Sally Falk Moore, and J. A. G. Perry. Only Fallers came close to offering a definition of law, but this was just as “our own” idea that could serve as a template. Gulliver described mediation in general terms, but again not with the aim of proposing a cross-cultural definition. The other papers were aimed still more directly at explaining forms of adjudication entirely in local terms while at least implying that external definitions of law or of the determinants of behavior are not required and do not help.
The concluding paper was by Moore, originally a student of Llewellyn and both a lawyer and an anthropologist. Moore argued that legal systems were ordered from within and could be seen from within. Interests affect outcomes, but interests cannot be determined in advance or by external criteria. They are themselves socially constituted, built up or altered even in the course of reaching the decisions they affect. They exist at many levels and are entangled with matters such as friendship and personal resentment, which they sometimes support and sometimes contradict. They are part of the fabric of life, but the way they are built up is recognizable with no need for prior “scientific” definitions.
During the past 10 years or so, approaches to law and society in anthropology have largely returned to the interest-oriented, constructivist, empirical, and bottom-up perspective of the republican tradition of legal scholarship represented by Moore for reasons that have little to with the previous 20 years of positivistic argument and a great deal to do with changes in other fields and in the world at large.
Increasingly, social scientists and lawyers have come to work much more cooperatively with each other and in terms that spring from law as understood from the republican perspective. This has been especially visible in meetings and publications of the Law and Society Association (founded in 1964), which has provided an important common forum for sociologists, anthropologists, lawyers, and others interested in what has come to be called “sociolegal studies.” In consequence, most younger sociologists have rejected the strident antilaw perspective and social determinism that was common in sociology during the 1960s and have moved much closer to the empirical, and mainly pragmatic, perspective that anthropologists have held to more or less consistency despite the positivist excursion. Virtually no sociologist or anthropologist interested in law now dismisses legal scholarship by lawyers as merely normative or takes as his or her mission to “explain” law in the sense of denying its independent reality or importance. As represented by one recent collection of readings by Moore in 2005 and another by the sociologist Alfonso Morales in 2003, what we now see are many more joint or cooperative projects on topics of mutual interest, from development and globalization to how to do ethnographic fieldwork. Social scientists do not yet quite recognize writers such as Holmes, Jhering, and Ehrlich as social theorists as well as legal theorists, but anthropologists, sociologists, and pragmatically oriented lawyers (who are the mainstream) increasingly have the same theoretical priorities and address common concerns in mutually intelligible ways.
- Bohannan, P. (1957). Justice and judgment among the Tiv. London: Oxford University Press.
- Cardozo, B. N. (1949). The nature of the judicial process. New Haven, CT: Yale University Press.
- Cohen, M. R. (1931). Justice Holmes and the nature of law. Columbia Law Review, 31, 352-367.
- Hoebel, E. A. (1954). The law of primitive man: A study in comparative legal dynamics. Cambridge, MA: Harvard University Press.
- Llewellyn, K., & Hoebel, E. A. (1941). The Cheyenne way. Norman: University of Oklahoma Press.
- Malinowski, B. (1923). Crime and custom in savage society. Patterson, NJ: Littlefield, Adams.
- Merryman, J. H. (1969). The civil law tradition. Stanford, CA: Stanford University Press.
- Moore, S. F. (1978). Law as process. London:
- Routledge and Kegan Paul. Moore, S. F. (Ed.). (2005). Law and anthropology: A reader. Malden, MA: Blackwell.
- Morales, A. (Ed.). (2003). Renascent pragmatism. Aldershot, UK: Ashgate.
- Nader, L., & Todd, H. F., Jr. (1978). The disputing process: Law in ten societies. New York: Columbia University Press.