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1. Introduction to Comparative Law and Anthropology James A.R JOBNAME: Nafziger PAGE: 1 SESS: 5 OUTPUT: Mon Oct 30 11:14:01 2017 1. Introduction to comparative law and anthropology James A.R. Nafziger I. MUTUAL INSIGHTS AND OUTLOOKS ACROSS A PROFESSIONAL DIVIDE At the congested intersection of law and anthropology today, legal pluralism and anthropological eclecticism are prominent, perhaps even paramount. If, indeed, the roads from law lead plainly to anthropology, as the jurist Oliver Wendell Holmes, Jr. famously observed,1 there is significant traffic in both directions. The chapters in this book demonstrate the mutuality, though certainly not congruence, between the two disciplines. By integrating insights from anthropology and kindred social sciences about social ordering as well as systems of knowledge and power within diverse cultural contexts, the concept of legal pluralism enriches our understanding of law and institutions, not only in a purely normative sense, but also in the actual practices of particular societies and the world at large.2 One can readily appreciate why, for over a half century, such “interdisciplinary study – the analysis of questions across the divide between disci- plines – has come to dominate legal scholarship.”3 Reciprocally, insights from the legal profession help shape the contours of social and cultural anthropology. Of course, the concept of legal pluralism, derived from empirical investigation and analysis across a disciplinary divide, must do more than simply alert us to the breadth, diversity and complexity of social controls. It must help reveal the issues and choices that the broadened field of analysis entails for individuals, communities, governing authorities 1 Oliver Wendell Holmes, Jr., Lecture, Harvard University (Feb. 17, 1886), in Notes,20AM. L. REV. 742 (1886); see Leonard A. Jones, Oliver Wendell Holmes, the Jurist,36AM.L.REV. 710, 720 (1902). Justice Holmes later observed that “[i]t is perfectly proper to regard and study the law simply as a great anthropological document.” Oliver Wendell Holmes, Law in Science and Science in Law? 12 HARV.L.REV. 443, 444 (1899). 2 See John Griffiths, What is Legal Pluralism? 24 J. LEGAL PLURALISM I (1993) (compre- hensively analyzing the concept); Isaak Dore & Michael T. Carper, Multiculturalism, Pluralism, and Pragmatism: Political Gridlock or Philosophical Impasse? 10 WILLAMETTE J. INT’L L. & DISP.RESOL. 71 (2002) (discussing philosophical dimensions of the relationships between pluralism, traceable to its establishment as an epistemological category by William James, and multiculturalism). But see Brian Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global,29SYDNEY L. REV. 36 (2007); Brian Z. Tamanaha, The Folly of the “Social Scientific” Concept of Legal Pluralism,20J.L.&SOC’Y 192 (1993) (arguing that the concept of legal pluralism is constructed upon an unstable analytical foundation that will ultimately lead to its demise). 3 Robert B. Ahdieh, Notes from the Border: Writing Across the Administrative Law/ Financial Regulation Divide,66J.LEGAL EDUCATION,NO. 1, at 64 (2016). 1 James A. R. Nafziger - 9781781955185 Downloaded from Elgar Online at 09/28/2021 04:36:19AM via free access Columns Design XML Ltd / Job: Nafziger2-Comparative_law_and_anthropology / Division: 01-Chapter1 /Pg. Position: 1 / Date: 12/10 JOBNAME: Nafziger PAGE: 2 SESS: 3 OUTPUT: Mon Oct 30 11:14:01 2017 2 Comparative law and anthropology and intergovernmental organizations. For example, if “the law,” at least in non- totalitarian societies, can be seen as a flexible language that extends beyond authorita- tive rules to control deviant behavior, then its social impact may entail individual actions in pursuit of goals and strategies based on choices among alternative norms and institutions, that is, on purposeful exercises of agency.4 Legal anthropology (or the anthropology of law)5 necessarily engages the perspec- tives if not techniques of comparative law. Indeed, it has been suggested, somewhat startlingly, that anthropology as a whole is “something of a child of comparative law.”6 Whether one accepts this proposition or not, the relationship between the two disciplines has been nurturing. For example, comparative insights reinforce well- grounded skepticism in the social sciences including anthropology about the dominance of formalism, positivism and statism in shaping and controlling social behavior. A related synergy involves the role of custom, in addition to formal governmental measures, as an expression at the grassroots of the normative order. Anthropological insights can be instrumental in helping define the relationship between law and custom, a question that has persisted from at least the time of Cicero.7 The law in books and law in action often diverge. To be sure, the two disciplines often pursue different inquiries. Legal scholars and practitioners typically use comparative insights to help resolve discrete problems, to highlight contrasting aspects of their own legal system, and to provide alternatives for legal reforms and revisions. Anthropologists, on the other hand, seek to understand the origins and development of rules and procedures, how and why they persist institution- ally or otherwise, and what consequences result.8 Anthropological insights can thereby help explain, for example, why European law has been more protective of cyber privacy and less tolerant of the marketing of genetically modified food sources than U.S. law. 4 JANE FISHBURNE COLLIER,LAW AND SOCIAL CHANGE IN ZINACANTAN 249 & passim (1973). Collier argues that distinct and overlapping customary and formal institutions of the state, coupled with options within a repertoire of legal language, have enabled community members to make choices for individual ends, even involving deliberate violations of social norms to precipitate a crisis or defeat a rival. Indeed, in describing the fundamental relationship between legal decisions and social order, she observes that, “decisions may indeed reaffirm the basic tenets of social structure, but they also provide the basis for future ‘deviant’ acts. Legal decisions in quarrels provoked by such irresolvable conflicts do not provide individuals with clear models to direct their future behavior, but leave them trapped in intolerable situations where relief can only be obtained by breaking some ‘law’ that precipitates a crisis and a realignment of social relationships.” Id. at 248. As another example, the globalization of critical domains of social activity has blurred the normative divide between the overlapping scopes of local and transnational authority, thereby once again offering alternative discourse and insti- tutional access to persons faced with ordinary issues such as land ownership and tenure. See Anne Griffiths, Re-envisioning the Local: Spatiality, Land and Law in Botswana,9INT’L J.L. IN CONTEXT 213 (2013). 5 Hereinafter, the term “legal anthropology” will also refer to the “anthropology of law.” 6 Martha Mundy & Tobias Kelly, Introduction,inLAW AND ANTHROPOLOGY xv (Martha Mundy ed., 2002). 7 See, e.g., A. Arthur Schiller, Custom in Classical Roman Law,24VA.L.REV. 268, 270 (1938), reproduced in Alison Dundes Renteln & Alan Dundes, I FOLK LAW 33, 35 (1994). 8 See David Nelken, 61 INT’L &COMP. L. Q. 1017, 1019 (2012) (book review). James A. R. Nafziger - 9781781955185 Downloaded from Elgar Online at 09/28/2021 04:36:19AM via free access Columns Design XML Ltd / Job: Nafziger2-Comparative_law_and_anthropology / Division: 01-Chapter1 /Pg. Position: 2 / Date: 7/9 JOBNAME: Nafziger PAGE: 3 SESS: 3 OUTPUT: Mon Oct 30 11:14:01 2017 Introduction to comparative law and anthropology 3 The discipline of comparative law has developed almost entirely within a spatial or geographical framework involving the study of national and subnational legal systems within distinctive legal traditions.9 The historical divergence of these traditions from each other, and more recently their convergence with each other, have commanded the attention of both lawyers and anthropologists, particularly those focused on post- colonial societies and the influence of globalization. The geographical preoccupation of the discipline has been questioned, however. More expansive contours of comparative law have seemed advisable, primarily to include legal history and alternative legal philosophies or jurisprudential approaches within a single legal system. A few of the chapters in this book adopt this broader view of the discipline. Legal anthropology has a long history with several notable benchmarks.10 Its origin is traceable at least as far back as the nineteenth-century jurist Carl Savigny’s critical argument, during the protracted codification of German civil law, that culture and history should determine national law and legal institutions. Such convictions also inspired so-called armchair theories of cultural and legal evolution, often in the service of colonialism. But anthropologists soon abandoned the comfort of their armchairs. Beginning in the twentieth century, anthropological fieldwork developed, inspiring a better informed, more scientific interest in social ordering and control in different societies. Bronislaw Malinowski’s insistence on the method of participant observation, including his own immersion in the Trobriand society or societies of Melanesia, established a durable model of empirical inquiry. Moreover, his specific conclusions, such as the role of reciprocity,11 contributed to a much broader understanding of law in society, liberated from the armchair constructs that had been formulated
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