Anthropology and Law

A Critical Introduction

Mark Goodale, Sally Engle Merry

• Publisher: NYU Press
• Year: 2017
• ISBN:
  9781479836857
• Topic: Sciences sociales
• Subtopic: Anthropologie

An introduction to the anthropology of law that explores the connections between law, politics, and technology. From legal responsibility for genocide to rectifying past injuries to indigenous people, the anthropology of law addresses some of the crucial ethical issues of our day. Over the past twenty-five years, anthropologists have studied how new forms of law have reshaped important questions of citizenship, biotechnology, and rights movements, among many others. Meanwhile, the rise of international law and transitional justice has posed new ethical and intellectual challenges to anthropologists. Anthropology and Law provides a comprehensive overview of the anthropology of law in the post-Cold War era. Mark Goodale introduces the central problems of the field and builds on the legacy of its intellectual history, while a foreword by Sally Engle Merry highlights the challenges of using the law to seek justice on an international scale. The book’s chapters cover a range of intersecting areas including language and law, history, regulation, indigenous rights, and gender. For a complete understanding of the consequential ways in which anthropologists have studied, interacted with, and critiqued, the ways and means of law, Anthropology and Law is required reading.

Part I

Law and the Production of Meaning

1

Speaking the Law

The law can best be understood and practiced when one comes to see that its language is not conceptual or theoretical—not reducible to a string of definitions—but what I call literary or poetic, by which I mean . . . that it is complex, many-voiced, associative, and deeply metaphorical in nature.

—James Boyd White, Heracles’ Bow

As we have seen, one of the most consequential periods in the intellectual history of the anthropology of law was the extended debate between Max Gluckman and Paul Bohannan (see Bohannan 1957, 1969; Gluckman 1965, 1969). This “durable controvers[y],” which was also “very good . . . academic business” (Moore 2001: 99) for the anthropology of law, touched on many key themes that would shape the evolution of the field over the next several decades: the relationship between generalized analytical and culturalized “folk” categories in the study of law; the role of ethnography as an empirical access point; the history of colonialism in shaping indigenous legal identity; the place of politics and advocacy in the anthropology of law; and the problem of representation—who is entitled to speak the law?

In reflecting on the Wenner-Gren conference that took place in Austria in August 1966, where “[s]itting around that illustrious round table were all [the twentieth] century’s pioneers in [the anthropology of law],” including Gluckman and Bohannan (who were frequently at loggerheads), Laura Nader observed that the “political differences between us were there, but they were unmentionable. Only later are we coming to realize the tightrope that many ethnographers were walking between advocacy and objectivity, between generalization and interpretation” (Nader 1996: vii, x).1

Sally Falk Moore makes the convincing argument that Gluckman’s “dominant personality in law and anthropology” at the time, as well as his “classical manner,” obscured the fact that his interest in analyzing Lozi legal norms in terms of universal analytical categories “embodied a political position” (Moore 2001: 97, 98). As she puts it, “Gluckman wanted to show that indigenous African legal systems and practices were as rational in the Weberian sense as Western ones. . . . Embedded in his gloss on Lozi ideas was a splendid message about racial equality” (98). Even so, the nuances of this “splendid message” could get lost within some of Gluckman’s more notable assertions, such as the fact that the “very refinement of English jurisprudence makes it a better instrument for analysis . . . than are the languages of tribal law” (Gluckman 1962: 14; quoted in Nader 1965: 11).

Yet from another perspective, the Gluckman-Bohannan debate was also about the relationship between language and law: Does language merely transmit legal norms or is it their source, or both?; Should one draw a distinction between legal languages that are embedded in particular cultures and histories and those that have become “universalized” by virtue of colonialism, economic power, or their “very refinement”?; If law is a “species of social imagination,” does language occupy a unique position for the “unacknowledged poets of the world” (Geertz 1983: 232) who reveal it?; and How do legal languages articulate—and at times resist—broader structures of social power?2

Moreover, the Gluckman-Bohannan debate revolved around another problem that would come to occupy later anthropologists of law. If law can be understood as a distinct form of knowledge, what function do speech-acts serve in constituting and legitimating this knowledge? In her study of law, language, and conflict resolution among American Baptists in suburban Georgia, Carol Greenhouse argued that the domain of the anthropology of law had expanded beyond the boundaries of legal systems and legal rules to encompass “images of social structure and the language[s] that generate and convey normative knowledge and meaning (Greenhouse 1982: 70–71; see also Greenhouse 1986).

As she demonstrates, through an analysis of the ways in which American Baptists invoke norms in the process of building and maintaining a community that is as much epistemic as it is juridical (1982: 70), the speech-act is fundamental: it both highlights the differences between Baptists and non-Baptists and locates the speaker within a “system of social classification” (70).3

But if the study of the multiple relationships between language and law has played an important role in the wider history of the anthropology of law, this importance has expressed itself in different ways that reflect changing theoretical, ethical, and disciplinary preoccupations. A good example is the way in which the now-key concept of “discourse” was adopted and deployed by anthropologists of law. In the 1989 Starr and Collier volume on “history and power in the study of law,” which was based on research conducted primarily in the 1970s and early 1980s, and articles written around 1985, “discourse” is used in ways that only gesture to the concept’s future importance for anthropology. In the book’s Introduction, the editors first and most obviously use “discourse” as a synonym for “dialogue” or “discussion”: for example, “There is still much to discover from subdisciplinary discourse as we reach better understandings of how all legal processes are embedded in social relations” (Starr and Collier 1989: 6).4

Yet later in the same Introduction, the editors use discourse in a very different way that points to what was soon to come: “The contributors [to the volume] who use a cultural approach tend to treat laws and legal systems as elements of a discourse” (1989: 21). Here discourse is not simply another word for dialogue or even speech-act; rather, it invokes the meaning that was being introduced into anthropology via the writings of social theorists like Foucault, for whom discourse described an entire social and linguistic regime in which language itself constituted social objects as an expression of power (or, more precisely, power/knowledge).5 And within this broader conception, some languages constituted power/knowledge more formally than others, principally those associated with key institutions of “biopolitical” control, such as prisons, universities, hospitals, and, of course, the institutions of law.

But if this key concept in the anthropological study of law and language had not yet been adopted by most scholars as of the mid-1980s, it certainly had been by the early 1990s, a shift that mirrors wider disciplinary realignments. For example, in the 1994 Lazarus-Black and Hirsch volume on “law, hegemony, and resistance,” “discourse” is one of the most widely used theoretical concepts among the book’s eleven contributors. At various points in the volume, evidence for a general shift toward a Foucauldian conception of discourse is clear: “power-laden discourse grounded in law” (Lazarus-Black and Hirsch 1994b: 29); “[l]aw is a discourse which interprets and conveys meaning, but it is a discourse with force behind it” (Merry 1994: 37); “meanings and practices form a discourse that both derives from and produces written law” (Coutin 1994: 284); and the “forbidden, revelatory quality of refugee testimonies gave these speeches a transformative power. According to Foucault . . . , knowledge that must be extracted is deemed more reliable than knowledge easily given. The testimonies publicized by the Sanctuary movement exemplify the confessional discourse that Foucault contends has become the authoritative method of producing truth in the West” (Coutin 1994: 298).

The one opposing perspective to the Foucauldian conception of discourse in the anthropology of law among the contributors is that of Susan U. Philips, who distinguishes “discourse at a distance” from the understanding of discourse used “by linguists and linguist anthropologists like [herself],” which is derived from “direct access” to speech and based on the use of “tape recordings or transcripts of speech of real people talking to one another” (Philips 1994: 62). Philips argues that while the Foucauldian approach to discourse is well-suited to historical interpretation, the “linguistic” approach provides a better set of tools to measure “how a given hegemony is constituted” in practice (1994: 62–63).

In a key early article, Elizabeth Mertz (1994) surveyed many of the most important intersecting developments in linguistics, legal studies, and critical anthropology and introduced a framework within which anthropologists of law could reground their approaches to legal practice and social power through sensitivity to such concepts as context in the structure of discourse, sociolinguistic creativity, language structure and social conflict, and the relationship between ideology and metalanguage within legal institutions. Her programmatic review also anticipated some of the tensions that would continue to shape the study of the relationship between law and language within the anthropology of law.

Mertz first draws a distinction within the broader study of linguistics between approaches to language that emphasize the structural aspects of language (often conceived in the abstract), those that focus on how language shapes social ends (instrumentally or functionally), and finally, those that study the ways in which language “embodies social creativity” (1994: 435–436). As Mertz argues, although these different insights from linguistics are not necessarily in opposition to each other, it is the relatively more recent strand of scholarship that explores “language as an active participant in social construction” that holds the most promise for the anthropology of law. As she puts it:

If language is the key medium through which social exchange and understanding are accomplished . . . then it becomes vital to develop a thorough analysis of the linguistic channeling and structuring of social life. This is particularly important in the domain of law, which is so often (particularly in Western capitalist societies) a key locus of institutionalized linguistic channeling. . . . For this reason, legal language affords a key site for advancing the social-linguistic project of unpacking the social and creative character of language use and structure. (1994: 436, 441)

Mertz then turns to parallel developments in academic and critical legal studies that would provide many of the kinds of insights about legal “discourse at a distance” that, as we have seen, Philips distinguished from more fine–grained approaches to language use and structure. As Mertz explains, the approach to legal language by scholars within fields such as legal feminism and critical race theory was shaped by a belief that law was a key “site for struggle over social power” (1994: 441). Even though struggles for social power through law were most often won by those with more power to begin with, the languages of law could also be used as a resource for marginalized populations to resist these historical structures of racial, economic, and political domination. Expressing some of the same concerns as Philips about this macroscopic approach to legal discourse, Mertz notes that critical legal scholars “could gain from anthropological insights about the power of detailed and systematic aspects of language structure,” but she concludes that anthropologists of law in turn would benefit from a “more stringent sensibility about the relations of language, ideology, and power—particularly from the perspective of the disenfranchised” (1994: 442).

In retrospect, we can say that the convergence urged by Mertz—one that “combine[d] precise observation of the details of [legal] linguistic structure-in-use with consideration of the wider political and social forces at issue (1994: 448)—did indeed take place within the anthropology of law over the intervening decades, but only incompletely. In fact, as we will see in this chapter, research in the anthropology of law that “provide[s] a more acute understanding of the political dimensions of legal language” has remained somewhat distinct from research that focuses on the “texts that analyze legal language” (1994: 448). Although the reasons for this continuing division among anthropological studies of law and language are not entirely clear, three possible factors can be suggested.

First, as Philips’s emphasis on “transcripts of speech of real people talking to one another” indicates, anthropologists who turn to law from a base in linguistic theory and methodology do so with a set of technical skills that revolve around close attention to speech-acts, the importance of coding, the nuances of linguistic partiality, and an awareness of “varying degrees of explicitness” (Philips 1994: 63). There can be a large gap between this utterance-level of analysis and the broader historical perspective that, according to Philips, allows the anthropologist’s “urge to coherence to operate unchecked” (1994: 63).

Second, from the other side of the spectrum, that which focuses first and foremost on which hegemonies are reinforced (or resisted) by law and how, the preoccupation with the subtleties and partialities of particular speech-acts can be seen as an overly abstract exercise that can eclipse the broader intention, which is to understand how “legal language crystallizes the interplay of pragmatics, poetics, and social power with such clarity” (Mertz 1994: 448).

And finally, although the historical approach to the relationship between law, language, and power remains an important current in the anthropology of law, its reach has been tempered by a recognition that it often depends on a totalizing conception of discourse that can obscure as much as it reveals. In fact, this problem was recognized by Lazarus-Black and Hirsch themselves. Despite their emphasis on the historical approach to legal discourse, they also underscored the importance of “put[ting] the bite back into . . . concepts of power” (1994b: 4) by attending to both the discursive and material dimensions of law.

Thus, for these reasons (and likely others), the anthropology of law and language remains productively divided among what might be called discourse-near and discourse-far approaches. As we will see below, although this distinction has some heuristic value as a matter of intellectual history, in practice anthropological studies of law and language are diverse. The chapter surveys three broad areas within this diversity. The next section examines the different ways in which anthropologists transformed legal discourse into an object for ethnographic research. This move was itself an important innovation, because developments in reflexive ethnography and a concern with representation created linkages between the practices of legal discourse and the role of law in processes of “wider social change and reproduction” (Mertz 1994: 447).

The chapter then turns to anthropological research that has explored the relationships between language ideologies and legal power. As Mertz describes this area of scholarship, “[w]hat is the role of ideology . . . in the legal institutional regimentation and sedimentation of language—and in the linguistic regimentation and sedimentation of legal institutions?” (1994: 447). Following this, the chapter takes up the question of law’s poetics, that is, the ways in which legal language can be understood aesthetically as much as instrumentally, or, to paraphrase Roman Jakobson (1960: 350), how legal language can also be a “work of art.” This section explores revealing instances of legal-linguistic play, from parodies of the law in Papua New Guinea to the use of indigenous language swearwords in Mexico to resist the imposition of identities created by state law. The chapter concludes by considering the ways in which the anthropological study of law and language underscores law’s heteroglossia: the fact that legal discourse always embodies many voices, many competing perspectives, many registers of power.

The Ethnography of Legal Discourse

Through an important series of contributions that resulted from a collaboration that brought an anthropologically trained legal scholar together with a linguistic anthropologist, John Conley and William O’Barr developed a framework for studying legal discourse using the tools of ethnography and the theoretical underpinnings of interpretative anthropology (e.g., 1985, 1990, 1998). Conley and O’Barr conducted research in so-called informal courts in the United States in six cities in three distinct cultural and political regions. They studied a total of 466 cases in order to “build[ ] . . . models of lay people interacting with the legal system” through the ethnographic analysis of legal speech. This was complemented by post-trial interviews that were used by the research team to both confirm the linguistic analysis of court transcripts and to flesh out the outline of the eventual interpretation (Conley and O’Barr 1990: xi).6

Conley and O’Barr focused on small claims and magistrates’ courts so that they would have more direct access to legal speech and legal storytelling within a form of dispute resolution that was relatively unstructured. As they explain, this focus on the use of legal language as a methodological end unto itself was not a common practice at the time (1990: xi). In fact, many scholars from the broader “law and society” movement, who were also studying legal language during the 1980s, were using quantitative techniques. As a result, early reactions to Conley and O’Barr’s pioneering research were mixed; although colleagues from outside anthropology found the work interesting, they more often than not viewed it as necessarily preliminary to more formal statistical research (Halliday and Schmidt 2009: 123).

In developing the ethnography of legal discourse, Conley and O’Barr drew an important distinction between legal language as an object for research and legal language as a channel for meaning. As they described it:

[O]ur guiding principle was to treat the language of litigants as the object of study rather than a mere instrument. Many other social science traditions . . . use language as a window through which other, presumably more...