Legal anthropology, also known as the anthropology of law, is a branch of anthropology that examines customary laws and traditional legal institutions within societies. Unlike disciplines such as jurisprudence or sociology, legal anthropology approaches the study of law with several unique perspectives:
1. Comparative Study: Legal anthropology studies societies comparatively, avoiding qualitative discrimination in favor of one type of human society over another.
2. Integration into Culture: It treats law as an integral part of the cultural whole, not as an isolated or autonomous institution.
3. Dynamic Understanding: Society is viewed as dynamic, and thus the social role of law is not solely to maintain the status quo but also to adapt and evolve alongside societal changes.
4. Empirical Science: It focuses on empirical study rather than theoretical abstraction, making it a science of law rooted in real-world observations.
Evolution of Legal Anthropology
Late Nineteenth Century: Evolutionary Focus
Legal anthropology emerged in the late 19th century with a focus on empirical studies of customary legal systems observed by missionaries, travelers, and colonial administrators. These studies often characterized customary, primitive, or folk law as foundational to the evolution towards modern legal systems.
Example: Sir Henry Maine’s Ancient Law (1861) traced legal evolution from kin-based groups to larger, territorial units, highlighting transitions from small, kin-based societies to chiefdoms and eventually larger, politically organized territories.
Early Twentieth Century: Anthropology of Order
By the early 20th century, scholars like Bronisław Malinowski and A.R. Radcliffe-Brown shifted focus to understanding law’s role in maintaining social order within societies.
Malinowski: In Crime and Custom in Savage Society (1926), based on fieldwork in the Trobriand Islands, Malinowski viewed law broadly as mechanisms that produce and sustain social order through reciprocal obligations rather than formal legal codes.
Radcliffe-Brown: Identified law as a form of social control through systematic application of force in politically organized societies, noting absence or minimal presence of formal legal institutions in smaller societies like the Andaman Islanders.
Post-World War II: Study of Dispute Processes
Legal anthropology evolved post-World War II into a study of dispute resolution processes and norms enforcement within societies.
Example: Karl Llewellyn and Adamson Hoebel’s The Cheyenne Way (1941) analyzed ‘trouble-cases’ among the Cheyenne people to understand their legal norms and procedures for resolving disputes, focusing on community-based mechanisms rather than centralized legal systems.
Hoebel: In The Law of Primitive Man (1954), emphasized legitimate use of physical coercion in maintaining social norms and argued that law includes practical enforcement of norms through social mechanisms.
Bohannan: In Justice and Judgment among the Tiv (1957), argued against Western-centric views of law, emphasizing understanding legal institutions in non-Western societies on their own terms.
Legal Pluralism: Contemporary Perspective
In contemporary legal anthropology, legal pluralism has gained prominence, recognizing coexistence of multiple legal systems within societies, including state (formal) and non-state (customary, indigenous) legal systems.
Theory: Griffiths’ theory of legal pluralism (1986) defines it as circumstance where more than one legal order operates within a single social field, reflecting complex realities of social life.
Example: In post-colonial societies like India, legal pluralism is evident in recognition of customary laws alongside formal state laws, with constitutional provisions attempting to integrate customary laws into formal legal frameworks.
Legal anthropology remains relevant today by providing insights into how societies maintain social order, resolve disputes, and adapt legal norms to changing social dynamics. By studying law within cultural contexts and through comparative analysis, legal anthropology enriches understanding of law as dynamic and adaptive social institution.
Conclusion
Legal anthropology, through comparative and empirical approaches, challenges conventional views of law and legal institutions. By integrating law into broader cultural and social contexts, it offers nuanced understanding of how legal systems operate within diverse societies. Legal pluralism underscores complexity of legal systems and interaction within modern governance structures, guiding policies for accommodating diverse legal traditions.