Foundations of Law and Legal Anthropology | Anthropological Key Concepts

[00:00:06]I want to start by defining law briefly these lectures are very basic and normally given in the first week of your course so I'm going right back to the beginnings a law according to Hob h o e b e l a social Norm is legal if it's neglect or raction is regularly met in threat or in fact by the application of physical Force by an individual or group possessing the socially recognized right of so acting that's the definition of a definition of law a social Norm is legal if its neglect or infraction is regularly met in threat or in fact by the application of physical Force by an individual or group possessing the socially recognized right of s acting that's from Hobo's primitive law or was that effect 1954 page 28 in such a definition many societies don't have law with the capital L um for example Evans brard says in the strict sense of the word the Noah have no law law is a con cultural construct of civilization and 90% of human history people didn't have law in this sense of being having institutions to affect it um by a group possessing the socially recognized right of so acting law according to hobo has four main functions one to identify acceptable lines of behavior for inclusion in the culture secondly to allocate Authority and to determine who may legitimately apply Force three to settle trouble cases and four to redefine relationships as the conditions of life change law is often divided into two levels There are rules and there are rules about rules this is taken from uh the theal theorist H heart uh there are the rules themselves like Thou shalt not murder or Thou shalt not steal or whatever it is the rule is And Then There are rules for applying the rules how do you decide if someone is guilty of murder or stealing and so on so there two levels now the great problem in anthropology is how how you approach the vast diversity of legal systems in history and cultures how can you get a framework which will deal with all the different types of legal situation that you find in everything from Hunter gather of groups to Great uh civilizations like America or Russia or whatever here there's the usual tension is current in all anthropology that is between formalist that is by now I hope you know the difference between formalist and substantivist basically formalist are taking models from your own Society Western societies applying them in economics or any other sphere to other societies or substantivist that is looking at the substance of the society without applying your own um legal Frameworks or economic Frameworks to them now this is particularly marked in legal anthropology because of the highly elaborated analysis of law that has gone on in the West for the last 2,000 years since the Romans as Gman who is a major theorist here admits that's Glu well you should know how spell Gman now in analyzing legal problems in an African society one has to use terms and Concepts which have been employed by jurist through two Millennia or as banan b a n a n or sometimes in American o n writes because of its tremendous field of assumptions and undefined premises law probably has one of the most extensive foundations of ethnocentric metaphysic of any discipline so how do you solve this well the great dispute between lman and bannan about which we'll hear probably more is that banan thought he was a substantivist in this sense he thought for instance I consider it to be the Cardinal error of ethnographic and social analysis the grossly ethnocentric practice of raising folk systems like the law designed for Social Action in one's own Society to the status of an analytical system applying one's own fol system elsewhere whereas grman who was trained in law believed that you could use Western legal Concepts to analyze legal systems wherever you encountered them how do we solve this dilemma well one approach is to distinguish firmly between folk that's what used to be called emic as in phic and analytic or etic systems and Bohanan stressed this the need to separate these off we need some higher system above our folk systems in order to compare it's something that Edmund leech suggested in relation to kinship systems that you try and find some Universal higher level he suggested mathematics for getting over the problems of defining things like marriage family father so on but in fact um Bohanan suggested a three level system which I think is quite uh at least it makes explicit the difficulty you have a comparative framework which is developed by analyst like ourselves and then you look at legal traditions and you notice that they they themselves have two levels they have the tiv who are in African societies studied by the by banan they have their fol system and the baroy who studied by lman have their F system and what is a bit shocking to us we have the anglo-american I all our legal systems in the West in America and England folk system what you see in our courts of law here and we have our Roman the Roman law which is the one that prevailed over the continent for um several thousand years F system they know better or worse than each other they're just folk systems internal but above them you have um T analysis they think about their fol system they analyze it they can specified and you have the same thing you have baroy analysis you have legal analysis in Anglo American law and you have rean Juris Prudence the argument really is that to a certain extent bman believes that you can use Roman Juris prudence and legal realism as it's called of Anglo American law to analyze the TI and the baroy whereas bannan thinks that these are just analyses of particular systems and you need to take out of this and bring up to a higher level Concepts which will then allow you to look at this analysis as just local when this um schema was devised in a conference in the 1950s 60s it was thought that it resolved the the Gutman bannan dispute and the dispute between substantive and formist approaches and it's to a certain extent it does but doubts remain in my mind anyway who is to judge what is valid to draw up into the top box how do we reduce the coloring of Words which is always the problem in anthropology maybe semantic load of words like property property crime sin even murder certainly truth many of these things terms that you use are bundles have bundles of meanings which if you take them out of a particular context and move them up into a comparative frame you have to redefine them all and uh they don't overlap in different societies and civilizations um but perhaps it's the best we can do what this box does is to translate between systems this is the big big problem in anthropology how you translate between even French and English little learn between Japanese and Western legal systems and it does make you aware of the danger of imposing your own legal Concepts and Waring and other cultures ideas um I don't particularly agree with Gman gutman's argument was that we have the most sophisticated system look we've been thinking about it very carefully for 2,000 years the Romans were great lawyers we've had great lawyers since we had paper we have Machinery we have courts therefore we have much more experience and we can think about things and we have made distinctions which other societies haven't if you looked at T analysis you find that many of the concepts which have been elaborated and developed over the last 2,000 years are not there in the ti it's rather like the uh you encounter the same thing in translation of languages there are many words uh or many Concepts which for instance in GIC in the Scottish language you don't you didn't have a word for computer you didn't have a word for electricity you didn't have a word for this that and the other thing because they weren't there in traditional Gala Society so GIC language had to incorporate all sorts of Lone words from other cultures and and Concepts philosophical Concepts and so on and this is the same problem here um and it was the same in Japan lots of Western Concepts the very concept of right which is Central to law had to be invented uh in late 19th century law we have an expert sitting with us here who's looked at sorts of things but it was fukuzawa yukichi who brought in the western invented a term for right in Japan because it wasn't present in Japanese law before that so there are I don't think uh that this solution of just taking Western uh legal reasoning over the centuries solves the problem but it does this thinking about this does alert you to the heavy ethnocentric bias of many legal analyses as it does in economics or politics another approach is to um look at the question in terms of some basic motivation or model of human beings in economics economics is founded on the proposition that we all act rationally to maximize our gains from transactions with each other economics collapses and it was thought that maybe you could take the same approach in law that you could find some basic human attitude which would then underpin all legal systems and the one that glan thought he found was the reasonable man he says the reasonable man is recognized as a central figure in all developed systems of Law and if it can be found everywhere he thought he found it in the LOI and the barzi where he worked in Africa if it can be found everywhere that all legal systems have the reasonable man then it acts rather like the exchanging man or the power seeking man in politics Bookman said took his idea from someone called AP Herbert uh whose book on common law as a delightful introduction to um the paradoxes ofish law was in the haben in the first essay which is called the reasonable man um he tells the story I won't go into it in detail now because we're short of time but basically he tells a story of a a gentleman whose punt was sunk um by a lady who was going past in a speed boat and he's defended by uh rather the the lady is defended by Herbert's famous defense lawyer eel red rut who argues that the whole of English law is based on the concept of a reasonable man it's uh someone who he is an ideal a standard the embodiment of all those qualities which we demand of a good citizen no matter what may be the particular department of human life which Falls to be considered in these courts sooner or later we have to face the question was this or was it not the conduct of a reasonable man did people take sufficient care care etc etc um the reasonable man is a careful uh organized devoid in short of any human weakness with not one single Vice SS Prejudice procrastination ill nature aist and absent of any kind as careful for his own safety as he is for that of the others this excellent but odious character stands like a monument in our courts of Justice this reasonable man is personified by the jury who on taking their oath become 12 reasonable men now the twist that Herbert gives to this is that at the end after all this the so eth turns to the judge and says my Lord my the defendant my client should be acquitted she's a woman there is no mention in any of this of women it's all about reasonable men you can do what you likes and that's the end of it the point of course is that it's a universalistic solution within men is encom encompassed unfortunately women as well rather than having to say it each time now there are one or two features about this which are worth just stressing um there's an emphasis on citizenship all people are men women so on um the behavior is universalistic it's not specific to age or anything else it's not distinguished by role or status Rich poor old young male female are all meant to be reasonable people um of course the contents of what is reasonable as very culture specific but the standard is meant to be universalistic and finally the purpose of this is not to use it as a way of judging evidence or cross exam but rather as a way of allocating responsibility was it reasonable for someone to bring an action against the County Council for slipping uh on ice because they hadn't cleared it or should they have taken more care that sort of thing um when bman uses this uh in his um ethnography thei he uses it uh to show that thei have the concept of the reasonable man that they never use those words for but there are two features about it one is that it's used to establish the truth in cross-examination in other words it's to detect lying the example that sticks in my mind is in if someone has got drunk come home found their wife with another man late at night and she comes to court and says my husband beat me up um and hit me and so on and so on and he says of course I didn't hit her I never hit my wife etc etc now is it the reasonable behavior of a drunken man who thinks his wife is committing adultery to to hit her I mean it's not reasonable in the sense it's acceptable but is it the sort of thing he would probably do and the answer is yes he probably would do that and therefore he is guilty of this offense so it's used as a forensic device to try and work out whether someone is lying or not which is entirely different from the AP her use of it and secondly um as constantly says the reasonable man is usually implicitly present um when people contrast reported Behavior with the Norms of behavior of particular positions he that's what he uses in other words and he gives example the reasonable husband the re reable induna IMD that's a a headman in other words people should be reasonable within the role and status that they occupy so it's would be reasonable for an uncle to beat his nephew but it is not reasonable for a nephew to beat his uncle it's reasonable for a father to beat their son but not a son their father it's status specific and he again and again says this the whole point about the English use of it in Herbert is that it's not status specific it's not reasonable for a woman um to swamp an Old Gentleman in a pant it wouldn't be reasonable the other way around it doesn't matter whether they women or men or old or young or the Lord of this and a taxi driver it's just Universal reasonableness it's completely based on a lack of status so in fact Gman uh reasonable man in Africa is illustrates the total difference between African law and English law rather than confirming what he thought was a universal principle and this arises from the perhaps the most important um under underlying development in the history of legal anthropology which occurred in the 19th century and it occurred in Cambridge in uh Trinity Hall with the work of uh Sir Henry Maine with an e in his book ancient law and four or five other books and if you're interested in I used to give a lecture on Maine which I think is on my website and certainly I've written a lot about Maine which is on my website and he is the most important legal thinker in U anthropology he was part of the Great sociological breakthrough of the second half of the 20th and 19th century um Fernand tonis t n i s from Community to Association that is from Sha to gazel durkheim's Mechanical to organic solidarity and durkheim's work on Law and many others including Main's movement from status to contract basically what Maine was saying that in almost a whole of human history until very recently um our legal relations with others have been based on family relations on family dependency rather than on individual relations between two separate individuals this is what he means by status you are born into it status basically means that you are born into a position you are born as a woman you are born as a son you are born as a slave and you can't change it status with you all your life it's embedded in a relationship where and that is the condition the the substratum for all of legal relations through 90% of human history the great movement um is from those kinds of systems to those which take as the basic unit an individual who is free from status overturns in his most famous phrase the movement of the progressive societies has hither to been a movement from status to contract that's ancient law 869 from this it can be said he says the Society of our day is mainly distinguished from that of PR receiving Generations by the largess of the sphere which is occupied in it by contract there's another way of putting this a contract is between two free individual you have to have complete Freedom autonomy equality otherwise you can't have contractual relationship status is inherent in in your relationship contract is entered into freely by two people this distinction uh as all those who worked on the history of uh law and legal anthropology um as and even Gman recognized this this generalization the most important which Scholars have advanced to cover a sweeping movement in human history and I think if you use that idea that contrast of obviously it's not a binary we have in our legal system as matland and others have pointed out a lot of status it's not free of status women are still not always treated equally children are often or sometimes treated as unequal to their parents so on but there has been a shift along and Continuum from almost pure status to a very mixed situation of status and contract and I want to now in the last part of the lecture look at the consequences of this difference um which I think helped a great deal but I'll just give you a minute as I usually do in these lectures and then continue are there any questions I want to um start looking at the implications of status and contract uh firstly in terms of the notion of the rule of law you often hear um politicians and others saying we believe in the rule of law it's not always apparent that they understand what the rule of law means um I think they most of them think it means just being law abiding you know not breaking the law the rule of law according to dicey d i in his famous study the study of law of the Constitution which defines this um means the following things firstly the supremacy of law in dispute settlement he says we mean in the first place that no man is punishable or can be lawfully made to suffer in body or Goods except for a distinct breach of law established in the ordinary legal manner before the ordinary of the land in this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide arbitrary or discretionary powers of constraint in other words um Quan Bay um the uh arbitary imprisonment of people in uh many parts of the world under um pressure from of the war of on terror and so on is not abiding by the rule of law much of um the rule of law has been sidelined in America and England and the West to try and deal with this apparently imminent threat um another aspect of this is that disputes U must be settled through legal channels uh as Roberts whose a a book on legal anthropology is one of the best introductions says in in it spere is a position of absolute Supremacy all other normative systems give way to Legal rules and the courts are ultimately the authoritative agencies of dispute settlement so basically you mustn't use other me mechanisms to solve disputes you must go to law you mustn't fight you mustn't use physical Force you mustn't use Supernatural agencies if you believe in them like witchcraft um and even things like withdrawing um reciprocity or uh ridicule or ostracism you must sort out your things by talking in a court of law now this isn't unique to the West many African societies um settle M of their disputes by talking um for example my former supervisor sha SC a p e r a who's written a lot about African law and particularly about the C that's k g a t l a South Africa um says a settlement directed talk enjoys preeminence as a mode of handling disputes um while such means as violent self-help and sorcery are strongly disapproved actually that summarized from Roberts page 151 but basically many societies the one I worked in in the you talk out disputes you don't resort to physical violence and so on so the legal process is completely dominant and must be open normal transparent and that is the main meaning of the rule of law the second meaning is as Dy says we mean in the second place not only that with us no man is above the law but what is a different thing that every man whatever be his rank or condition is subject to the ordinary law of the realm and aan to the jurisdiction of the ordinary tribunals that is another in the coffin of detention without trial for long periods um putting people in incarceration and then not accusing them and so on and so on of many things that have been happening recently all people are accessible have access to the same ordinary law and thirdly his meaning is that it's judg made law not a Bill of Rights thirdly we may say that the constitution is pervaded by the rule of on the ground that the general principles of the Constitution are with us the result of judicial decisions rering the rights of person private persons it's not we don't have a Bill of Rights as you know in England and so it's tends to be coming emerging from many many decisions although recently the balance has shifted and there have been more and more legislation in the last 10 years there's been more legislation in this country the whole of the history of English society um where did this concept of the rule of law come from um because it is pretty unusual one is that it's a recent product product of the capitalist and liberal revolutions between the 17th and 19th centuries in England and America the turning point being the time of Lock and Jefferson and others um a more plausible view I think at least my view is is taken from the legal great legal thinker Rosco pound that's Rosco r c e pound p o u n d who says that the concept comes from a fundamental notion of Germanic law of which the feudal right of the relation of King and subject and the reciprocal rights and duties is an example it became Central of common law from the Middle Ages much earlier onwards um which was based on the presumption that no one is above the law this even the king the king is under the law not above the law this is the fundamental difference between English law and Continental Roman law in Continental Roman law the estate the state is me the 14th summary of this I am the state I am above I make the laws and you obey them in England there is this nebulous thing called the law under which there is the king the crown the everything um and this is the basis of democratic societies that the political process is under the law it's not arbitrary whereas in absolutist societies um the political system is above the law the classic position in England was stated but in the 13th century by a lawyer called Bron BCT and later cited by cook the great common law lawyer um during the Civil War the King is under no man but only under God and the law that's what Magna was centrally about in 1215 and it's a crucial feature of English law but no one is above the LA and that's why when politicians start tinkering and tampering with that idea and making executive law it's so dangerous if you're interested in that um whole question then Helena Kennedy's Book just laws very useful there are some uh implications of this um which come back to some of the things I was saying before one is equality before the law in a social structure based on contractual relations which is what capitalist individualistic societies tend to be legal disputes are between legal equals whatever their relative wealth their education their birth and so on they are equal thus um man called Bernard con CN who wrote a lot about law in India and worked in India says basic to British law is the idea of quality of the individual before the law but that idea is totally against the normal situation where people are not equal before the law because they are born unequal they're not inherently equal either outside the court or inside it K remarks that North Indian Society operates on the reverse value of hypothesis men are not born equal and they have widely differing inherent worth this theme of is basic to the whole social structure and is expressed most clearly in the cast system in a cast Society you're not born equal in Muslim Society Islamic Society derived from a very early period you're not born equal a woman is inferior to a man inherently and a Believer is superior to nonbeliever and this leads to clashes of legal systems as con writes when Indians go into a court they're supposed by definition lose their outside statuses it is not takas and Chamas that's t k URS and Chamas c h m a RS who are having a dispute but a defendant and a complainant the adversary system has developed to equalize the persons in court to an Indian peasant this is an impossible situation to understand the chamar knows he is not equal to the Taco he may want to be equal but he knows he is not the taco cannot be convinced in any way the chamar is his equal but the court act as if the parties were to to dispute were equal this is in banan's reader on law um page 155 and this is really uh what comes out of the ly ethnography which is that the disputes are very often about relative status they're not about contracts in and they start off with the presumption the par not equal um so cast Societies or kinship based Societies or societies which have a strong gender and age difference um come and clash with those which are based on the premise of uh equality homo hierarchic in dumal phrase against homo equalis as he called it in his second book Main in fact who drafted the legal framework for Modern India he was advised the um Indian government in the 1850s and laid down much of modern Indian law reported that 19th century Indians complained that life in India has become intolerable since the English criminal laws had begun to treat women and children as if they were men complete Revolution they were treated as as if they were the same this is intolerable the premise of inequality which is almost Universal in human societies um is challenged by this odd Ecentric Deval system that emerged on this island uh almost alone and for some centuries was the only example of this and then spread to America and is now underpins Declarations of Human Rights everything else um it's based This legal system is based also on a another concept which is the idea of individual rights as dumor has pointed out hierarchy and holism which are by holism um D more means um something similar to hierarchy that is that the the whole or the the greater unit the group are um dominate the individual uh are linked to each other just as are equality and individualism it's another part of the same thing hence inseparably linked to the idea of equality before the law is the idea of inalienable private rights or human life as I mentioned men saw the change from family based to individual individual based laws the major shift in legal systems from the movement from status to contract is another way of saying this the idea idea that each individual as an individual by their birth has intrinsic rights to appeal to the law is of revolutionary importance it's implicit in the famous declaration uh American Declaration we hold these truths to be self-evident a man is Born Free and equal now they may have pretended that they thought Jefferson and others may have pretended they thought it was self-evident it wasn't at all self-evident no one in the world believed it except a few Americans in the new world and some Englishmen at that time it was completely unself evident but it is a a revolutionary concept which has nowc um widespread as main himself wrote about the unusual and minority view if I had to State what for the moment is the greatest change which has come over the people of India and the change which has added most seriously to the difficulty of governing them I would say that it was the growth on all sides of the sense of individual legal right of a right not vested in the total group but in the particular member of it agreed who has become conscious he may call in the arm of the state to force his neighbors to obey the ascertained rule since in his book on communities page 73 this is not just confined to India um but is Illustrated wherever British law was introduced in Africa or elsewhere as the sociologist bottimore b t m writes one General tendency of legislation has been been to extend the legal rights of the individual for example the right to retain personal earnings by the gains of learning act 1930 and the right of women to share in the property of the joint family by the Hindu law of inheritance Amendment act 1929 and the Hindu woman's right to property Act of 1937 British kept enacting laws which gave women children and others rights and these rights extend further and further you you start with obvious things like women then children and then animals and then presuming the plants and everything else almost anything has innate rights to be considered um as having various things which you cannot do to it the ancient English concept that every man has his own special piece and if you break that you injure him which is that's a quote from Mand um that you are in a sense every person in an individualistic Society surrounded by a shield and if you violate that you are violating something intrinsic inside them um is extended widely current protests by East Asian countries about linking foreign aid to Western concepts of Human Rights is a recent example of this tension the whole thing trouble that's going on now about aging Olympics and so on is related to this the Western concept of individuals having rights which you must not infringe the right to free speech the right to do this the right to do that comes into crashes seriously with societies which don't believe that they believe much more in responsibilities and in group um membership and so on finally um the premise of this is that law is uniform in VAR is one there is one law for everybody you don't make special laws for special groups this discussion that's been going on due to the Archbishop of Canter's remarks that there might be subgroups or sub parts of our legal system separated off from the main legal system practicing say Sharia law or some other goes against this whole tendency there are very few exceptional cases uh where you can apply a different kind of legal system so there should be uniformity of Law and uniformity in space as well um in many traditional societies the laws and customs vary over very short distances every village and certainly every region has its own legal system for example in traditional France up till the end of the 19th century each part of France had different legal customs and traditions the oddness of England being an island and early unified was that the legal system was uniform in England there were minor customary differences in manners at the manorial level at the lowest level like whether the younger son or the oldest H son inherited or whatever but basically the law of England applied in Yorkshire or Kent or Cornwall or wherever it was it was exactly the same law it was you had C circulating judges who went from place to place to place to make sure that the same legal system was being used whereas usually over a very short distance it will vary Regional variations should be ired out there should be a common law for everybody and this again is why things like having certain areas which are off bounds like ban and so on violates this because it suddenly makes legal peculiarities which go against uniformity and equality of law so that's um that and next week I'll go down to questions like Jews and the the way courts work and so on thank you very much