University of Western Australia
Marcia Helene Hewitt 10436125
April 7 2009
Topic: Discuss strengths and limitations involved in a comparative anthropological approach to legal anthropological issues.
In this essay I will discuss the strengths and weaknesses of the comparative approach within the discipline of legal anthropology. But before doing that I will define firstly what legal processes are to the anthropologist and why these processes are studied in the first place, ie what are the aims of the anthropologist in studying legal systems. With that in mind, it will be easier to explain what the comparative approach yields from the anthropological perspective.
Firstly, it is a universal that people in all societies have legal issues with debt, infidelity, theft, scarce resources and direct personal injury either emotional or physical. This creates ‘the dispute.’ Anthropologists study the method and process of settling these disputes from one society to another, sometimes making analogies one to another. As developing nations in particular grapple with conflicting and changing systems of law, often imposed onto indigenous societies, there is more and more need for systems of law that allow minority access and alternatives to centralised law systems which often privilege legal and paralegal professionals at the expense of less literate classes. Anthropologists in studying societies are able to map out systems used in different societies, and add to a rich body of literature . This rich body of literature informs voluntary complaint committees, telephone hot lines, newspaper action lines , now all part of dispute management processes within the United States. Legal systems have become overburdened; so other systems, alternative law systems, are coming into existence. Donald Black’s notion (1976) that law is a “social phenomenon”, and that the style of law can be classified according to its outcome. eg penal, compensatory, therapeutic or conciliatory. The outcome then is related to power and degrees of intimacy. Pospisil (1971) stands with other post-classical ethnographers in establishing the effectiveness of a theory of law formulated on the basis of comparative studies, in his case, of thirty-two cultures and a survey of an additional sixty-three. (Donovan, 2008, p.125)
Strengths of the comparative approach
Anthropologists firstly have to provide a basis for comparison and generalisation via thorough ethnographic work. (Nader, 1978). The case method has become one of the main foci of anthropologists. Llewellyn and Hoebel (1941) have cited trouble cases as the “safest main road to the discovery of law” (Nader, L 1978). The fieldworker has to look at the underpinnings of law within the society they are studying. The idea of ‘case’ has become another way to say they are gathering materials about disputes. There are four basic types of cases: cases taken from recorded materials, observed cases, memory cases and hypothetical cases. (Nader & Todd, 1978). The best case documentation is usually achieved when an anthropologist can follow cases over time, and be fortunate enough to follow the case outside of an institutional setting. Extended cases are particularly good as used by Starr, (1978) Koch (1974) and Yngvesson (1993)because they involve issues with other cases over a period of months or years, allowing the analysis to include developments and shifts in balances of power. Extended case also allows for diagnostic pinpointing of stress areas within a social structure of a community as Turner (1957) pointed out.
By comparing studies on mediation, arbitration, adjudication, judges, councils, go-betweens, crossers, duellers and so on anthropologists can distinguish components of processes of dispute in order to understand the conditions that underpin them.
Laura Nader’s collection of ethnographies shows a vast array of systems in settling disputes. Looking at Turkish cases described by Starr or status relationships as written by Rothenberger in Lebanon or Todd in a Bavarian village it is possible to recognize a broad complexity of culturally imbedded disputes. Even within one culture there are different procedures people can use to have their needs met. It is much more accurate to analyse legal processes if one has knowledge of many different adjudication techniques and strategies. Before the 1960’s most analysis was structurally functionalist, concerned with form and structure, and the social relationship between people, but not interested so much in disputants in continuing relationships or what their gender, kinship or social status may have been. . There has been a shift from structure to process , a shift from institutions to individuals and the choices they make in disputing. The comparative analysis gives a much more accurate and compassionate way of seeing the solving of grievances. The wealth of information available in cross cultural analysis provides a backbone for contemporary justice collectives such as the Berkeley Law project. (Nader, 1978).
Almost all of the essays that Nader uses suggest that every disputing action has its ideological or cultural component. Deviant acts are culturally defined, while acceptable behaviour centers around particular norms. Crime is then defined by how far an individual or a group strays from the cultural norms as defined by the structure of the culture. Todd’s study on Bavarians (Todd, 1972, p.90) informs that ‘normative’ is defined as those having a notional quality called charakter form the main social cluster. Those who are defined as not having character are seen as marginals, often in debt and often disputing with others. These marginals possess no institutionalised meeting place and rarely enter into the places of the insiders. These folk are itinerant workers, often out of work or pensioned. Occupational factors, in folk view, reflect on them negatively and reinforce the label of ‘characterless ness’ that has been inflicted of them by the ‘insiders’. Character is not the sole source of defining certain villagers as marginal, but the label does cover some socioeconomic determinants as well.
Without ethnographic, cross cultural and comparative studies, this ingredient of character would not be known or understood as part of the disputing process ; ie, marginals are denied access to the institutionalised meeting places. These Taugenichts (ne’er do wells) are economic marginals who have little or no money, or spend unwisely. Such an individual cannot feed and clothe his family in an appropriate manner and are constantly in dept and in local courts in answer for suits, garnishment of wages or repossession of goods. (Todd, 1970, pp 91-93).
Social particulars and the disputing process
Another strength of the comparative analytical tradition is seen in the
Turkish courts. (June Starr., 1975). In this village many incidents revolve
around tangerine groves. Without knowledge of cash cropping after
Ataturk’s legal reform of the Civil Code of 1926, it would not be clear that
the households owning citrus orchards had certain issues, such as arranging
marriages to other orchardist households in order to increase the density of
kin networks. Many of the disputes centered around contractual agreements
in relation to control of tangerine orchards and inheritance claims of siblings
or offspring while the father is still alive. (Starr, 1978, p. 130).
More advantages: finding universals in the disputing process
For conflict resolution groups all over the world,ie. Quaker Peace Team , NGOs, Public Citizen, Workplace safety groups, disability rights groups, National citizens for nursing home reform, Connecticut Citizen Action Group, Congressional Accountability Project
(http://en.wikipedia.org/wiki(/Ralph Nader), RPF (Russian Peace Foundation) the advantage of comparative studies is great. An excellent example is John Rothenberger’s work in Lebanon, where he defines the processes that he observed:
“ Descriptively there is a range or continuum of processes and related agencies and mechanisms which can be used when an overt dispute arises in Qarya:
1) Nothing (perhaps then harbouring a grudge)
2) Argument or fighting without interference of a third person
3) Negotiation between the parties without a third person
4) )Negotiation between the parties with the aid of a neutral go-between (often someone within the lineage), especially in marital disputes
5) Mediation by a third party remedy agent
6) Appeal to the mukhaar in his official capacity as pseudoarbitrator or adjudicator
7) Invocation of the military police
8) Appeal to the formal courts “ (Rothenberger, 1970, p. 162 as cited in Nader, 1978).
This form of settling disputes could be used in divorce and property settlements and mediation processes in Western countries as well as in Eastern countries. Understanding informal systems of dispute can help to undo cultural prejudices against Muslim and other third world people . No one is kept out of the legal process in Quay. There are effective dispute resolution models in small scale societies.
There is inclusion of consenses style dispute solving being used in Western countries. In fact Bob Hawke was quoted that ‘ conflict resolution in his cabinet would be along the lines of consenses.’ He proposed an alternative model for conflict resolution based on consensus to overcome unnecessary divisions. (Hawke, Boyer Lectures, 1995 Radio National).
Weaknesses in the comparative case study method
There is a litany of complaints by feminist scholars about the “discovery” of women in relationship to law and society. This is particularly so in the studies of Aboriginal women (Langton 1998). Male researchers until the 1970’s made claims that women had no power, only to find out later that , according to women anthropologist who were allowed into Women’s Business ,that women had much legal authority and authority over land areas. (APEC Womens Leaders Network). It is true that sexist traditions have made records uneven, and that some of women’s art, work and politics are in some cases irretrievably lost. Our theories are only as good as our data. (Quinn N. 1977). Not only are classical comparative studies called into question on epistemological grounds, their adequacy in representing kinship and family systems is being attacked for their substantive limitations. Earlier studies had focused on the legal and political aspects of kinship that were dominated by men. Feminist critics argued that they generally ignored women and the domestic sphere, thereby undermining the adequacy of earlier conventional studies. This criticism reinvigorated comparative studies of the family, women’s roles, socialization, and gender relations (Yanagisako 1979) that found antecedents in the early comparative work of Boas’s student, Margaret Mead (Mead  2001; Mead and Malinowski  2001). The reconsideration of the role of women, the family, and socialization also coincided with Bourdieu’s attention to the processes of social reproduction (Bourdieu and Passeron 1977).
Critiques of the comparative method extend to epistemological debates that began to question the concepts employed in comparative reseach studies of kinship and the family. Questions were raised about the nature of analytical definitions and the use of Western European concepts such as descent, marriage, kinship as analytical constructs for the description & analysis of systems in other cultures. (Needham 1971).
Incomplete data and questionable sources
In the trouble case method memory cases are often fraught with fragmented and incomplete data. There is also a preoccupation with finding patterns that often the participants disagree with, or in the case of Ghana, sometimes a single agency is used to accomplish diverse ends. The patterns of remedy agents have ideological as well as strictly utilitarian import as in Lowry’s studies of a West African town. (Lowry, 1975).
Something very foreign to Western Eurocentric ethnographers is the use of shrines and other agencies for detection of wrongdoers or for supernatural
atonement. Sorcerers (mallams), or Muslim Holy men receive ten or twenty cents for a consultation , or eight dollars to make a rival sick. (Rothenberger, John, 1970). This type of cultural behaviour is way outside the norms of Western ethnographers, as is thief detection by burning oil in pots and seeing if the innocent person will not be burnt. How does one use Western scientific tools to analyse, for example, that an ancestor came to someone in a dream and told them where their inherited land was, or where a particular tree was that had a particular family design? Similarly cultural practices in some countries are very difficult for Western anthropologists to classify. For example, in Central Africa, is a woman sewing a plate into her five year old’s bottom lip doing her harm, and is there a case for human right’s work here? (Wadell, 1970). But what if the woman says she is enhancing her daughter’s appearance so she can marry well, and have a secure home and food? Establishing cultural norms in a universal sense is sometimes not possible. Some theorists argue that each situation has to be looked at within its own cultural and cognitive base and cannot be compared to another. Would an African mother see our anorexic fashion models as being tortured and starved to fit a fashion industry constructed for the sale of clothing to a population of people who don’t look like the fashion model? Just speculation for the reader.
The face of law is changing. People all over the world want justice.
The comparative approach to studying legal systems by anthropologists has enabled social scientists, law professionals and human rights advocates to see more clearly what is going on in the lives of people in developing countries. What will happen if people are increasingly integrated into state and national frameworks, and more grievances result with using large scale impersonal organisations rather than the social contact with neighbours and friends that went before? There are major issues: unequal power which becomes more pronounced in stratified society; professionalism which alters the pattern of access to dispute solution.
Much of the trouble in administering the law has arisen from a total ignorance or avoidance of the question of pluralism.. This has happened before…the prejudices of the dominant ruling class prevails over the populace as law.
Informed and inspired by the work of Laura Nader and her model of the Berkeley Law Collective, more attention is being given to “studying up”. (Donovan, 2008). For particularly the United States, a country which produces a vastly disproportionate number of world’s lawyers and still dominates legal culture on a global scale, the American systems are still understudied. Research up to recently has emphasized legal pluralism over dispute resolution. Contemporary legal anthropological studies has shifted the paradigm from institutional to personal, from hegemony to cultural particulars.
Participant observation more than any other research method can shed light on formally inaccessible sites. Laura Nader’s consumer project exemplifies this. (consumer project )
Fairness centered and ‘reasonableness’ are beginning to replace top down models in legals systems. Communities in the West are forming alternative to violence groups, consensus groups (Bob Hawke was one of the pioneers of this in government circles, inspired by Aboriginal models), and peace groups all over the world. In short, people all over the globe are demanding solutions to social and personal injustice in a larger way than ever.
Donald Black has said “…law is like an addictive drug.” (Donovan, 2008, p.257). Any society that tries to create systems to regulate moral behaviour is likely to face major problems ie harsh penalties in Islamic countries for teenage sexual behaviour. There is increasing clamour for human rights, land tenure, and individual codes of sexual ethics.
Further, rather than West influencing East when it comes to small scale societies, it appears rather that East is influencing West in remedy agents, consensus and longer term arbitration that includes the concept of time.
There are a few wrinkles when it comes to ongoing multiplex relations which are not always harmonious–Durkheim and Laura Nader teach harmony politics while villagers in small scale societies will point out that some ongoing relationships are based on conflict and will never synthesise into anything else.
Cross cultural and comparative legal anthropology is the most difficult and the most underdeveloped .Obstacles exist at every step. More attention is being given to linguistic difficulties and some anthropologists feel that comparative work should not be continued. This lack of consensus concerning the merits of comparative work has made it difficult to always acquire necessary funding and support for long term projects. (Donovan, 2009).
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