Law, Culture, and Ritual

Disputing Systems in Cross-Cultural Context

Oscar G Chase

• Publisher: NYU Press
• Year: 2005
• ISBN:
  9780814772300
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

Disputing systems are products of the societies in which they operate—they originate and mutate in response to disputes that are particular to specific social, cultural, and political contexts. Disputing procedures, therefore, are an important medium through which fundamental beliefs, values, and symbols of culture are communicated, preserved, and sometimes altered. In Law, Culture, and Ritual, Oscar G. Chase uses interdisciplinary scholarship to examine the cultural contexts of legal institutions, and presents several case studies to demonstrate that the processes used for resolving disputes have a cultural origin and impact.

Ranging from the dispute resolution practices of the Azande, a technologically simple, small-scale African society, to the rise of discretionary authority in civil litigation in America, Chase challenges the claims of some scholars that official dispute systems are more reflective of the interests and preferences of elite professionals than of the cultures in which they are embedded.

1
Introduction

No human society is free of disputes. But how will the disputes be addressed? Here we encounter myriad manifestations of human ingenuity and imagination. “Institutionalized responses to interpersonal conflict, for instance, stretch from song duels and witchcraft to moots and mediation to self-conscious therapy and hierarchical, professionalized courts.”¹ We find all these “dispute-ways” and more.² Even apart from what it is they dispute about, and what kinds of claims will be validated by their society, a people must decide how to process those claims and grievances. Will (or must) the parties allow a third person to resolve their quarrel (so-called triadic disputing)? Or will the disputing remain one on one (“dyadic”), to be fought out, negotiated out, or left to fester? If triadic, will the third party be a go-between, a mediator, or an umpire? If the latter, will the umpire’s decision be final, or will it be subject to review? And will the umpire have some kind of official status (including state power to enforce decisions) or will she be more like an arbitrator—a neutral whose power is derived from the consent of the parties? Where will the relevant norms be found? How will the decision maker resolve disputes over facts and decide what “really” happened? A task repeated in societies around the world is to separate truth from falsehood. How? Any society’s approved way of handling disputes is the result of conscious and unconscious choices that are made within the constraints of the knowledge, beliefs, and social structure available to it.

Among the Central African Azande, the benge oracle would be consulted. A small portion of poison would be fed to a baby chick as the question was put to the oracle: “If the plaintiff tells the truth, let the chicken die, let the chicken die, let the chicken die…” The chick lived (or died). The oracle had spoken.³ In another time and place (the United States) a judge orders that a jury be consulted. A group of strangers is summoned to a special hall, used only for airing disputes. They hear from the plaintiff, the defendant, and the conflicting witnesses. The strangers retire to a private room and caucus. They return with a verdict.⁴ In yet another time and place (most of Continental Europe and Latin America), the facts are determined by a specially trained judge whose decision is based primarily on documents and who may not even allow contesting parties to testify.⁵ Every one of these methods is defended in the place it is (or was) used as the best way of getting at the truth about an ultimately unknowable past.⁶ Each of the peoples described possess the same innate capacity to reason and observe the world around them. Why have they reached such different conclusions? How do their preferred methods of disputing reflect their worlds? Do their “dispute-ways” in turn affect their beliefs about the world they inhabit?

That so many different societies have found different solutions to the common human goal of handling disputes while maintaining a cohesive collective life argues for the study of disputing in cultural and social context.⁷ In this book I explore the deep and reflexive connection between culture and disputing processes, a connection that is found even in modern states characterized by technical and elaborate rules of process. The recognition and understanding of this relationship will enrich our capacity to evaluate recommendations for change—particularly when they involve borrowing from other societies. After sketching out my core argument in a bit more detail, I will discuss some unavoidable issues of definition and theory. This introduction will close with a road map of subsequent chapters.

Dispute processes are in large part a reflection of the culture in which they are embedded; they are not an autonomous system that is predominantly the product of insulated specialists and experts. More, they are institutions through which social and cultural life is maintained, challenged, and altered, or as the same idea has been expressed, “constituted” or “constructed.” These institutional practices importantly influence a society and its culture—its values, metaphysics, social hierarchies, and symbols—even as those practices themselves reflect the society around them. In adopting the phrase “importantly influence,” I follow Melford Spiro, who uses the same term, opposing it to the stronger claim that some idea or practice is “determined” by cultural heritage.⁸ Culture is so complex that it would be extravagant to hold that any one set of institutional practices can “determine” it. I thus address the old question of how the social conventions and rules that make social life possible are developed and sustained. My enlistment of dispute processes in the service of answering that question fits comfortably, if not perfectly, within the modern “enterprise of actually tracing the uneasy relationship of law to culture [that] has begun in earnest.”⁹ As I explain later in this chapter, however, my concerns are both broader and narrower than “law”: broader, because there are many societies whose dispute processes do not involve law as we understand it; narrower, precisely because my obsession with process allows me to neglect the substantive norms affecting the dispute. I apply the “constitutive perspective,” so valuable in understanding how “law” is embedded in social life, to the broader range of practices of disputing.¹⁰

Clifford Geertz’s famous metaphor helps us to understand the constitutive perspective. “Man,” he observes, creates governance “by enclosing himself in a set of meaningful forms, ‘webs of signification he himself has spun.’…”¹¹ Because we inhabit a universe devoid of meaning and lacking intrinsic social structure, we must create both. They are a product of mental processes that include observation, calculation, and imagination. The web is spun with our social arrangements, our symbolic systems, our epistemology, our psychology, and our practices. Moreover, each of these informs the others. The web that holds us is composed partly of those institutions that make social life possible and partly of the internally held system of ideas and beliefs that makes the universe tolerable. Each of us must engage this task. But because we are social animals we are neither free to, nor must we, spin each web entirely anew. We are socialized into a web that at least in part has been spun for us and is communicated by parental instruction, by education, by the functioning of institutions, and by drama and ritual. The procedures we use to resolve disputes are both strands of the web and are among the means by which we transmit its outlines to other members of our society.

An understanding of the meaning of particular dispute processes for its participants is essential. To get at these meanings we need an interpretive approach. We must use the related tools of thick description and “cultural contextualization of incident.”¹² That is, we must observe the relevant practices closely and must place them within the culture in which they operate. The task of contextualization is dependent on comparison and contrast; we see what is particular to a society by placing it next to those that differ. In developing my arguments I will therefore employ comparative studies of modern legal regimes as well as anthropological descriptions of small-scale societies.

An interpretive approach to disputing practices is both suggested and aided by the rituals they so often employ in the service of legitimacy, ceremonials that express in lovely (or terrifying) metaphor the longings and passions that are central to the cultures that produce them. Sometimes they bring into sharp relief the psychic needs shared by all humans but expressed in muted, or at least different, ways in other cultures. Because, perhaps, it is so important and yet so difficult, the creation of disputing institutions has often invoked visual artistry. A wonderful example is the mask worn by Benin diviners when announcing a verdict. A photograph appears on the book jacket. The closed eyes suggest dispassion, much like the blindfold traditionally worn by the figure of Justice,¹³ while the beautifully composed face also suggests a sense of the calm confidence that the justice giver wishes to communicate (or that the society wishes to experience).

But interpretive explanation is not sufficient. Disputing is hardly about meaning making alone. Because disputes are found in every society, finding an effective means of handling them is an essential task of social life. We must also explore the way function and cultural representations interpenetrate. A disputing practice will be better understood when we see how it works symbolically and functionally. We can understand the American jury, for example, interpretively, as a representation through action of the societal ideal of populist, egalitarian decision making. And we can understand it functionally as a generally accepted way of choosing between contested versions of fact. Either understanding alone would be inadequate.

Power, too, is always at issue when dispute processes are developed, employed, challenged, and reformed. Dispute-ways are never neutral as between competing social groups, even if they are in fact neutral as between the individual disputants. Who gets to decide disputes, and the means they use to decide, will privilege and handicap different sectors of society. We will see when we turn to the Azande of Central Africa how the ritual control of the oracle underpins their critical social distinctions. And is this same dynamic not illustrated as well by ongoing struggles in the American legal system over the ambit of jury power? As Laura Nader argues, elites will endeavor to restrict court access when the courtroom becomes an arena for effective social change.¹⁴

Since culture is nonetheless my main interest, readers familiar with socio-legal studies may locate my claim that disputing processes “reflect” culture in the continuing debate about whether law “mirrors” society. The notion that law roughly but invariably reflects the culture in which it is found, while virtually axiomatic for some observers, does not command unanimity.¹⁵ An extended meaty challenge to the mirror thesis has recently been offered by Brian Z. Tamanaha,¹⁶ who points to the globalization of commerce and the transplantation of legal practices and concepts as reasons to doubt the persuasiveness of the thesis. It is only partly accurate to locate my book smack within this debate. As I have noted, “law” is relevant here only because it is a product of and a source of dispute. My claim is not limited to law; it is about official systems of disputing, whether or not they could be identified as “legal.” Nonetheless, as disputing processes often take the form of legal institutions, and as I argue for a close cultural connection, I must take seriously the objections to the mirror thesis. If I am successful, this book will undermine a particular claim of the anti–mirror theorists, i.e., that official institutions for handling disputes are in large part shaped by professional elites acting within a virtually untrammeled range of technicians’ power. While no one argues that these institutions are wholly the product of a professional priesthood totally insulated from the society they inhabit, and while I do not claim that these priests are putty in the hands of “culture,” I do emphasize the cultural side. The metaphysics, values, symbols, and social hierarchy of any collectivity will set the bounds within which it organizes its dispute-handling institutions.

This analysis has implications for the various current projects of procedural reform, especially those emphasizing the harmonization of rules across national boundaries. It is no exaggeration to claim that “[t]he debate on law and culture might seem to hold the key to comparative law’s nature as a scholarly field and also to its potential as a source of practical guidance for legal policy—as, for example, in regard to legal transplants … and harmonization of law between legal systems.”¹⁷ As globalization has led to homogenization of substantive law, it is no surprise that a move toward uniformity in dispute processing has followed.¹⁸ My approach shows why the latter move has encountered more difficulties than substantive harmonization—all the more surprising because it has involved “only” process. Finally, the power of dispute-ways to reciprocally influence the culture in which they are embedded raises a concern that must be considered by those engaged in such harmonization efforts. It may argue for conserving a practice like the American civil jury, because of its role in the maintenance of important values, but it may argue as well for breaking new ground. For example, the introduction of the jury in a society in transition from totalitarianism would be profoundly expressive of a new era of popular participation in government. It would symbolize the relocation of authority and could even change the way individuals conceptualize their relationship to authority.

Even those who are not persuaded by my arguments will, I hope, be enriched by the detailed exploration of the connections that are at its heart.

The Issue of “Culture”

My use of culture as an explanatory variable (dispute-ways reflect culture and in turn affect culture) invokes a term that needs defining and some defending as well. “Constructing a definition for anthropology’s core concept has always been difficult, but at no time more so than the present.”¹⁹ The main difficulties spring from the inherent vagueness of the concept, its potentially misleading message of immutability of practice and belief, and its failure to acknowledge individual departures from, and even opposition to, a social orthodoxy.²⁰ These problems must be acknowledged and care taken to avoid their pitfalls, but they do not trump the utility of the concept. I agree with Amsterdam and Bruner: “We seem to need a notion of culture that appreciates its integrity as a composite—as a system in tension unique to a people not in perpetuity but at a time and place.”²¹

For what purpose do we “need” this notion of culture? I suggest that we need it in part because it serves as a short-hand way of referring to commonalities in practices, values, symbols, and beliefs of particularized groups of people. We need “culture” too, for its power to explain why remarkably different institutions arise in different societies to deal with problems that are essentially the same. I embrace a concept of culture that entails commonalities that persist over time but are hardly eternal and that are widely, but not uniformly, shared by a definable collectivity.²² To quote Kroeber and Kluckhohn, “the essential core of culture consists of traditional (i.e., historically derived and selected) ideas and especially their attached values; culture systems may, on the one hand, be considered as products of action, on the other as conditioning elements of further action.”²³

More specifically, the definition of culture used here includes the “traditional ideas, values and norms” that are widely shared in a social group.²⁴ Culture includes propositions of belief that are both normative (“killing is wrong except when authorized by the state”) and cognitive (“the earth is round”).²⁵ Culture also i...