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Legal anthropology,
legal pluralism and legal thought
In RAIN 25 (April 1978), Simon Roberts observed that cial control in the widest sense. From Malinowski him-
CHRIS
'most British anthropologists seem pretty uninterested' self (1926), as well as many other anthropologists,
FULLER in the anthropology of law, and nothing much has came a series of detailed legal ethnographies, and the
changed in the sixteen years since. In the United States, best of these - such as Schapera (1938), Llewellyn and
by contrast, anthropological interest in the law remains Hoebel (1941), Gluckman (1955, 1965), Bohannan
The author is a Reader
lively, so that this article is mainly about an indif- (1957), Gulliver (1963) and Fallers (1969) - established
in Anthropology at the
London School of ference that has become pervasive, within Anglo- legal anthropology as a genuine subdiscipline whose
Economics. American anthropology, only on this side of the Atlan- substantive content was primarily defined by the ana-
tic. For Roberts, who developed his argument in greater lysis of 'traditional' processes of dispute settlement.
depth in Order and Dispute (1979), the sterility of legal Obviously, legal anthropology was always a fairly
anthropology was responsible for the dismal state of af- small specialization, but it used to occupy a more in-
fairs he described, and his radical cure was abolition of fluential place in British anthropology than it does
the subdiscipline itself, whose 'law-centred' perspective today.
fatally impedes the proper study of social order and dis- Some time around 1970, legal anthropology began to
pute. Roberts's argument opened with the claim that the lose its cutting edge, partly because - as Roberts says
cross-cultural definition of 'law' and legal institutions (1978: 4) - it became caught up in 'some of the most
such as 'laws', 'courts' or 'judges' is peculiarly proble- wasteful and debilitating quarrels' within anthropology.
matic. It is true that by conventional definition 'law', The most notorious of these was between Bohannan
like 'government', is not a universal category, whereas and Gluckman - who both have polemical articles in
'politics', which is often understood to encompass both Nader (1969) - about the salience of western judicial
of them, is, so that 'legal anthropology', unlike 'politi- categories, ancient or modem, for the understanding of
cal anthropology', appears restricted in scope. Yet that non-western law. In some respects, the argument con-
does not make the definition of law, in descriptive currently raging between formalists and substantivists
rather than analytical terms, particularly treacherous; in economic anthropology, in which Bohannan played a
nor is there any reason why every subdiscipline of an- leading role on the substantivist side, had its legal equi-
thropology has to have a universal, cross-cultural cover- valent in the dispute between Bohannan and Gluckman,
age. Rather than reopen the largely unproductive matter even if the latter's advocacy of cross-cultural legal
of definition, however, I want to argue in this belated comparison is not strictly formalist (cf. Comaroff and
reply to my colleague that Roberts, in pronouncing the Roberts 1981: 4). The eventual outcome of the for-
death sentence on legal anthropology, encouraged indif- malist versus substantivist controversy in economic an-
ference to the law as a fascinating and important sub- thropology is a matter for debate, but in legal anthropo-
ject that anthropologists should not leave aside. logy, despite the level-headed efforts of a few scholars
like Moore (1978: chs. 4, 7) to show a path forward,
Legal anthropology the argument over comparative methodology was
It was not always like this, and for the social theorists mostly deadening and this contributed to the subdisci-
who laid the foundations of modern anthropology in pline's desultory state in the 1970s, as described by Ro-
Britain and elsewhere, law was a central preoccupation. berts.
Thus in Durkheim's The Division of Labour in Society, Of course, there were some useful publications in
law was proclaimed as the 'visible symbol' of social that decade, such as Hamnett (1977), but since 1980
solidarity (1984: 24), and Weber wrote extensively on work in legal anthropology has become much more in-
the sociology of law in Economy and Society (1978: ch. novative and the renewed progress is apparent in sev-
8). A concern with law and legal scholarship was also eral valuable monographs, such as Comaroff and Ro-
particularly apparent in the development of kinship berts (1981), Moore (1986), Rosen (1989), Conley and
studies, from Morgan to Fortes and beyond. As a dis- O'Barr (1990), Merry (1990) and Starr (1992), as well
tinctive subdiscipline, legal anthropology's intellectual as the edited collection by Starr and Collier (1989).
ancestry is generally traced to Maine's comparative, This modem literature, however, has not been widely
evolutionist Ancient Law (1861). Early modem anthrd- read in Britain. Indeed, even the older classic texts of
pologists took it for granted that the comparative, eth- legal ethnography are no longer required reading for
nographic study of 'primitive law' was important and contemporary British anthropologists, as once they
worthwhile, even if 'law' was understood by some were, and legal anthropology is increasingly treated as
writers, like Malinowski, to refer to mechanisms of so- a minority specialization, probably commanding less
Berkeley: U. of frames Staff's historical ethnography (1992) of Turkish ployed so that it does not inherently rely on judicial
California P. law, where the relation between the Ottoman past and premises that are constitutive only of state law and
1989. Law and the secular present, rather than colonialism and its le- therefore distort the understanding of those other, non-
Society in Modern
gacy, defines the problem for analysis. state orders. Among anthropologists, the veracity of this
India (ed. R. Dhavan).
The concept of new legal pluralism pertains to the conclusion is unlikely to be contested, but the intellec-
Delhi: Oxford U. P.
Weber, M. 1978. to be discarded where it has arguably been most fruit- into the anthropological mainstream, so that legal an-
Economy and Society. ful: namely, in the interpretation of alternative modes of
thropology can anew benefit from and vigorously con-
Berkeley: U. of thought within their local social contexts. Anthropolog- tribute to the development of the subject as a whole. D1
California P.
ists certainly can contribute something valuable and dif-