SOCIOLOGY OF LAW PROJECT

TOPIC: The Differing Realms of Law.

SUBMITTED TO: Prof. Tapan Mohanty
SUBMITTED BY: Chirag Chhabra
CLASS: Second Year, B.A., L.L.B. (Hons.)
SECTION: B
ROLL NO: 2013BALLB108

ACKNOWLEDGEMENTS
ThereareanumberofpeopletowhomIoweanimmenseamountofgratitude,forwithout
them,thisprojectwouldneverhaveseenthedawnofcompletion.
Firstly,ImustthankProf.TapanMohanty,forwithouthisguidance;weneverwouldhave
hadabasicunderstandingofthephilosophies,ideologiesandtechnicalitiesthatsurround
theworkingsofSociology,initsnexuswithlaw.
Secondly,thestaffoftheNLIULibrarydeservesgratitudeforgivingusaccesstotheir
unlimitedresourcesand24/7WiFifacilities.

CONTENTS

Introduction................................................................................................................................
An Introduction to the Differing Realms of Law by Paul J. Bohannan.............................................
An Introduction to Paul J. Bohannan.................................................................................................
Legal Anthropology..........................................................................................................................

Definition of Law.......................................................................................................................
Double Institutionalisation.........................................................................................................
Criticisms........................................................................................................................................10

Bibliography.............................................................................................................................11

INTRODUCTION
An Introduction to the Differing Realms of Law by Paul J. Bohannan
In the December of 1965, an article was published in the prolific journal, American
Anthropologist, titled The Differing Realms of Law. A prolific scholar, Paul J. Bohannan,
wrote this article. This article, or essay has been cited 216 times by scholars all around the
world, in contexts of anthropological and sociological studies, as well as analyses in
international law. At the outset of this article, Bohannan clearly states that it has three main
aims:
1. To investigate the definition jurisprudence uses, and their usefulness from an
anthropological point of view.
2. To examine the phenomenon referred to as double institutionalisation of norms and
customs that make up a legal system.
3. The difficulties in certain associations with legal institutions and political organisations
and interest groups and lobbyists.1

An Introduction to Paul J. Bohannan

Paul James Bohannan was an American anthropologist known for his research on the Tiv
people of Nigeria,2 spheres of exchange3 and divorce in the United States.4
He attended Queen's College at Oxford as a Rhodes scholar, receiving a Bachelor of
Science in 1949 and his Ph.D. in 1951, both in anthropology. Bohannan remained in
England and was a lecturer in social anthropology at Oxford University until 1956 when he
1 Paul J. Bohannan, The Differing Realms of Law, 67 AMERICAN ANTHROPOLOGIST 33, 33
(1965).
2 PAUL J. BOHANNAN & LAURA BOHANNAN, TIV ECONOMY (1968); PAUL J. BOHANNAN,
JUSTICE AND JUDGMENT AMONGST THE TIVS (1957).
3 PAUL J. BOHANNAN, HOW CULTURE WORKS (1995).
4 PAUL J. BOHANNAN & JESSIE BERNARD, DIVORCE AND AFTER (1970).

returned to the States taking up an assistant professorship in anthropology at Princeton

University. In 1959, Bohannan left Princeton for a full professorship at Northwestern
University in Evanston, Illinois. From 1975 to 1982 he taught at the University of
California, Santa Barbara. In 1982 he became dean of the social science and
communications department at the University of Southern California. He retired from fulltime teaching in 1987, but remained at USC as professor emeritus until his death in 2007.
He has won the Legion of Merit in 1994 and the Herskovitz Prize in 1969.
From 1962 to 1964 Bohannan was a director on the Social Science Research Council. He
was a director of American Ethnological Society from 1963 to 1966. Bohannan was
president of the African Studies Association in 1964. In 1979-1980, he was president of the
American Anthropological Association.

Legal Anthropology
This is the main gist of the work the likes of Bohannan undertakes. Legal anthropology,
also known as anthropology of laws, is a sub-discipline of anthropology which specializes
in the cross-cultural study of social ordering.5 This broad definition of the field captures
the wide array of research done by legal anthropologists today. The field of Legal
Anthropology is a science and thus all theories must be based upon the basis of empirical
facts gathered from a society.6 The questions that Legal Anthropologists seek to answer
concern how is law present in cultures? How does it manifest? How may anthropologists
contribute to understandings of law? The English lawyer Sir Henry Maine is often credited
with founding the study of Legal Anthropology through his book Ancient Law,7 and
although his evolutionary stance has been widely discredited within the discipline, his
5 CAROL J. GREENHOUSE, PRAYING FOR JUSTICE: FAITH, ORDER AND COMMUNITY IN AN
AMERICAN TOWN 28 (1986).
6 L. POSPISIL, THE ANTHROPOLOGY OF LAWS: A COMPARATIVE STUDY (1974).
7 HENRY SUMMER MAINE, ANCIENT LAWS (1861).

questions raised have shaped the subsequent discourse of the study. However, a turning
point was presented in the publication of Crime and Custom in Savage Society by
Malinowski8 based upon his time with the Trobriand Islanders. Through emphasizing the
order present in acephelous societies, Malinowski proposed the cross-cultural examining of
law through its established functions as opposed to a discrete entity. Legal anthropology
remains a lively discipline with modern and recent applications including issues such as
human rights, legal pluralism, Islamophobia9 and political uprisings.

DEFINITION OF LAW
8 BRONISLAW MALINOWSKI, CRIME AND CUSTOM IN SAVAGE SOCIETY (1985).
9 JOHN R. BOWEN, A NEW ANTHROPOLOGY OF ISLAM (2012).

At the outset of the first section of his article, which speaks of the problems the legal
language poses in the face of progress on an anthropological discovery, clearly states that
endeavouring to define a concept like law is futile, despite it being central to all these
fields.
However, he did not reject the premise that there are common trends that run through
various currents. He examined those mentioned by Stone, that law is:

A complex whole which always includes norms regulating human behaviour, that are social
norms. The complex whole is orderly and the complex whole is orderly, and
characteristically a coercive order that is institutionalized with a degree of effectiveness
sufficient to maintain itself.10

The other point of view that he gave a grain of consideration was that of H.L.A. Hart, that
law has core, basic issues:
1. How is law related to order backed by threats?
2. What is the relation between legal obligations and moral obligations?
3. What are rules, and to what extent is law an affair of rules?11

He then extols the ideas propounded by Herman Kantorowicz who said that law is central
to all objects related to the social sciences, and hence a jurisprudential understanding of
most issues is essential amongst those that pursue such interests.12 He believed that any sort
of obligation attached to the concept of law is a result of social and moral influence that is
culturally determined. Law is the one avenue via which men may strive for justice, equity
and good conscience, and hence, it must be kept uniform and realistic and dynamic.
10 ROY L. STONE, LOGICAL TRANSLATIONS IN THE LAW (1965).
11 H.L.A. Hart, H.L.A. Hart on Legal and Moral Obligation, 73 MICHEGAN LAW REVIEW
447, 443-458 (1974).
12 HERMANN KANTOROWICZ, THE DEFINITION OF LAW 17 (1958).

DOUBLE INSTITUTIONALISATION

In the Differing Realms of Law, Bohannan set out his own solution to the enduring problem
of differentiating law from both norm and custom. For him, norm refers to a rule, more
or less overt, which expresses ought aspects of relationships between human beings.
Custom is thus a body of such norms, including deviations and compromises with norms,
that is actually followed in practice much of the time and that governs the ways in which
people must behave if social institutions are to perform their tasks and society is to endure.
Customs are thus norms that have been institutionalized to perform the required tasks of a
specific social domain. Society cannot long endure with a number of independently
operating institutions. There must exist some higher mechanism that can interfere in the
malfunctioning/functioning of the institution in order to disengage the trouble case. This
responsibility lies on the shoulders of a nations legal institutions.
They are comprised of laws that are distinguished from mere customs by being both greater
and more precise. Laws are customs that have been removed from their specific context
through a process of reinstitutionalisation, marking a transition from a purely social to a
legal point of view.13 If this entire nexus was a pyramid, first institutionalization is a norm,
whereas the second is a custom, while laws transcend these paradigms. These constructs act
as regulatory forces for all institutions by elevation into the legal institution.
Through this process of double institutionalization, select norms become laws, now charged
to regulate activity among all the social institutions and not merely their own. Unlike
customs, which govern specific domains, laws have no unique domain, instead governing
all others. According to this article, law is not one type of norm of social regulation, but is
the master norm hierarchically superior to all others whose only work is to regulate the
customary institutions. If law is a social necessity, it is only because of the imperfect ability
of customs to govern their domains and not because law has an irreducible domain of its

13 NORBERT ROULAND, LEGAL ANTHROPOLOGY 300 (Phillipe G. Planel trans., 1994).

own (such as inculcation of normative standards). The form and content of an indigenous
legal system will vary less because of the demands of law itself, than because of the
customary institutions whose malfunctions it is intended to resolve. Perhaps the greatest
strength of this theory is that it captures the often lawlike aspect of custom. By regulating
their own institutions, customs function locally very much as do globally active laws. The
appearance can lead the casual observer to confuse law and custom, as indeed many,
including anthropologists, have done.

Criticisms
The weaknesses of Bohannans pyramidal scheme arguably outweigh any benefits it
confers. Stanley Diamond challenges whether double institutionalization uniquely
characterizes legal rules.14 We can also observe that if custom and law have the relationship
he describes, then the term customary law becomes meaningless, belying its common
use.15 More seriously, the theory of double institutionalization treats as the sole function of
law dispute resolution, the stepping in and resolving the malfunctioning of institutions.
American legal anthropology does work under just that equation. Those who assign law
additional tasks beyond these, a point of some ambiguity among many contemporary legal
anthropologists, will find unsatisfactory a theory that does not merely highlight this
responsibility but elevates it definitionally into the only legitimate work that law performs.

BIBLIOGRAPHY
14 STANLEY DIAMOND, IN SEARCH OF A PRIMITIVE: A CRITIQUE OF CIVILZATION (1974).
15 WERNER F. MENSKI, COMPARATIVE LAW IN A GLOBAL CONTEXT: THE LEGAL SYSTEMS
OF ASIA AND AFRICA 90 (2006).

1. Bohannan, P. (1965) The Differing Realms of Law, American Anthropologist,

Northwestern University Press.
2. Donovan, James M. (2008) Legal Anthropology: An Introduction. London: Rowan
Altamira Publishers.
3. Kantorowicz, H. (2014) The Definition of Law. (A.H. Campbell ed.) Cambridge:
Cambridge University Press.