Cultures of Conflict Resolution in Early Modern Europe

Stephen Cummins, Laura Kounine

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9781472411556
• eBook ISBN: 9781134802715
• Edition: 1
• Topic: History
• Subtopic: Early Modern History
• Index: History

Disputes, discord and reconciliation were fundamental parts of the fabric of communal living in early modern Europe. This edited volume presents essays on the cultural codes of conflict and its resolution in this period under three broad themes: peacemaking as practice; the nature of mediation and arbitration; and the role of criminal law in conflicts. Through an exploration of conflict and peacemaking, this volume provides innovative accounts of state formation, community and religion in the early modern period.

PART I
Rethinking Disputes and Settlements

Chapter 1
Rethinking Disputes and Settlements: How Historians Can Use Legal Anthropology

John Jordan*

Just over thirty years ago Disputes and Settlements: Law and Human Relations in the West was published, raising historians' awareness of and engagement with legal anthropology and its methodology.¹ Inspired by legal anthropology, historians began to ask new questions of their sources and to pursue new research directions. As the contributions to this volume show, the field has continued to evolve. But, in the intervening years, so has legal anthropology. The Bossy conference and volume captured a specific moment in time (and a turbulent one at that) within legal anthropology, not its terminus.

The focus of this chapter is first of all on how legal anthropology itself has developed among anthropologists, and secondly on how historians have engaged with the insights and findings of legal anthropology: in short, on how the legal anthropological turn has come of age within the discipline of history in the time since Disputes and Settlements was published. A concluding section suggests some potential avenues for future research. The discussion is meant to be illustrative of major trends rather than a comprehensive analysis of each.

First, what is legal anthropology? At its core, it is a methodological approach that attempts to identify rules, whether legal or otherwise, and to observe how they inform, guide and constrain behaviour. At the same time, it considers these questions from a human perspective, and asks how people ignore, adhere to or improvise around rules. Such research is not restricted to courtrooms and other legal domains. As one of its leading practitioners, Sally Falk Moore, described it:

An anthropological approach to law inquires into the context of enforceable norms: social, political, economic, and intellectual. This includes, but goes further than, what Western governments and courts define as law. In anthropology, while the 'socio-legal' includes formal juridical institutions and their social surroundings, it also encompasses law-like activities and processes of establishing order in many other social domains, formal and informal, official and unofficial, in our own society and in others.²

From Bossy to Today: The Legal Anthropologist's Perspective

From its inception, a central challenge for legal anthropology has been how to compare law in Western and non-Western (most frequently African) societies. Countless debates over whether Western legal categories could be applied to non-Western societies, including a spirited one between Max Gluckman and Paul Bohannan, dominated the field in its early years.³ The result was neither consensus nor a decisive majority for one view. Legal anthropologists instead began to study order and its points of rupture (disputes), since both could be studied without defining the legal. Moreover, disputes were considered a phenomenon that could be compared cross-culturally.⁴ For most of the 1970s, such studies characterized legal anthropology.⁵

Bur if one takes stock of the held at the end of the 1970s, one sees fissures beginning to appear in the foundation. Simon Roberts and John Comaroff argued that the focus on disputes alone was too narrow; rather, ethnographers needed to study disputes in their 'total social context'.⁶ Others charged that these studies were 'atemporal' and failed to take proper account of how the particular ethnographic moment had been shaped by history and/or power relations. A third critique noted that such studies often ignored that the society in question was part of a (often post-colonial) state with its own legal institutions, personnel and practices that would have shaped its culture of dispute. Still others stressed that disputes were not in fact a comparable cross-cultural phenomenon because of the differences in legal and other institutions between Western and non-Western societies.

Ill rough this last criticism, the definition of the legal domain again raised its head. For if legal anthropology was going to be comparative, then surely one must have at least a working or operational definition of what law is. But therein lay a central bone of contention. Where some scholars called the rules or customs of non-Western societies 'law', or (at the time) 'customary law', others steadfastly maintained that the term 'law' should be reserved for the law of the state.⁷ The basic disagreement over what constituted the legal domain, and whether it made sense to isolate legal from social or cultural analyses, led some, Roberts included, to argue for the abandonment of legal anthropology.⁸ For if there is no agreement on the scope of the legal, or no desire to distinguish legal from social processes, how is legal anthropology distinct from social or cultural anthropology?⁹

Hi us the Bossy volume appeared at a turbulent moment in the short lifespan of legal anthropology. Yet the field did not cease to exist; rather, its practitioners regrouped. Two major trajectories shaped this period of refocus.¹⁰ The first considered how best to classify norms and other non-official processes of order which operated alongside state law. This occurred under the banner of legal pluralism'. The second devoted increased attention to history and power in legal anthropological studies.¹¹ No longer would legal anthropologists 'isolate the "legal" as a separate field of study'. Instead, the legal would be embedded in its holistic social, economic and historical context.¹²

The move to a more historically inclined approach mirrored a general trend in social anthropology to reconnect with history. As Kunal Parker argued, 'the need for anthropology to establish a relationship to history was part of the effort to rehabilitate anthropology after the anticolonial critiques the discipline sustained in the 1970s and 1980s'.¹³ This development brought with it an increased interest in diachronic processes, particularly as they related to legal change. As June Starr and Jane Collier summarized it:

instead of focusing on disputes and attempts at settlement of problems, new objects of study surfaced: how culture mediated legal ideas, the legal strategies of a ruling or a minority group, the negotiation of a dispute across international boundaries, the creation by legislation of new 'redistributive' networks, how state-enacted law changed rural agrarian hierarchies, or how less powerful groups struggled to obtain laws representing their interests.¹⁴

But Starr and Collier (and others) were not content with merely expanding the scope to incorporate history and time, they also wanted to make power, specifically asymmetrical power relations, a central part of their analysis. The impetus came from a conference in 1985 whose proceedings were published as History and Power in the Study of Law (edited by Starr and Collier). With contributions from many leading legal anthropologists, History and Power quickly became one of the most influential texts in the field, increasing practitioners' awareness of power relations within the realm of law. At its core was the conviction that the law is inherently an uneven playing held. As Starr and Collier wrote in the Introduction, 'Because all the contributors hold the view that legal orders create asymmetrical power relations, they also share the assumption that the law is not neutral. The legal system does not provide an impartial arena in which contestants from all strata of society may meet to resolve differences.'¹⁵

As a methodological or theoretical stance, Starr and Collier's position has had its critics, the most trenchant of whom was Peter Just. To Just, such a position takes 'a theoretical stance that is, not to put too fine a point on it, neo-Marxist. It assigns a primacy to asymmetric relations of power that assumes class interests and antagonisms.'¹⁶ Just was not opposed to power being part of the analysis; he simply warned 'that the tendency to reduce all contestations to contests over class power can obscure other kinds of inconsistencies and contestations'.¹⁷ Regardless of whether one views legal relations as generally asymmetrical or not, power, with due attention to its historical dynamics, has become a central theme of (legal) anthropological inquiry.

The other response to legal anthropology's conceptual crisis at the beginning of the 1980s was the growth of legal pluralism. The term legal pluralism first entered the anthropological lexicon in the 1960s.¹⁸ But it was not until the 1980s that it and its key dimensions were defined, most notably in two articles, one by John Griffiths and the other by Sally Engle Merry.¹⁹ Definitions still vary, but most would agree that legal pluralism is a situation in which two or more legal systems coexist in the same social field'.²⁰

As co-editor of the Journal of Legal Pluralism and Unofficial Law,John Griffiths was one of legal pluralism's most influential early advocates. Griffiths's article, originally given at the Law and Society Association conference in 1981, argues against what he termed the ideology of legal centrism, that

law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions. To the extent that other, lesser normative orderings, such as the church, the family, the voluntary association and the economic organization exist, they ought to be and in fact are hierarchically subordinate to the law and institutions of the state.²¹

Instead, Griffiths advocated extending the definition of law to include all forms of social control or normative order.²² He classified all norms, rules and orders that arise from social fields as legal in nature regardless of whether they had any basis in state-generated or codified law. For Griffiths, 'all forms of social control are more or less legal'.²³ In short, Griffiths regarded the norms and customs of all societies as 'law'.

Griff...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of Figures and Tables
• Notes on Contributors
• Acknowledgements
• Introduction: Confronting Conflict in Early Modern Europe
• PART I RETHINKING DISPUTES AND SETTLEMENTS
• PART II MEDIATION, RECONCILIATION, COEXISTENCE
• PART III LAW, COURTS AND CONFLICT
• Afterword
• Index