Historical Studies of Legal Change

Abstract

An international conference called Ethnohistorical Models for the Evolution of Law within Specific Societies was held August io-i8,I 985, in Milan and at the Bellagio Conference Center, Lake Como, Italy, with funding provided by the Wenner-Gren Foundation for Anthropological Research and the Rockefeller Foundation. June Starr and Jane F. Collier were the organizers, Elizabeth Colson (University of California, Berkeley) and William Twining (University College, London) were discussants, Jessica Kuper was editorial advisor, and Longina Jakubowska and Richard Maddox were rapporteurs. Twenty anthropologists, sociologists, and law professors from North America and Europe attended. Theory ranged from functionalism, Marxism, and deconstructionism to cultural analysis and interpretive approaches. Conference goals were to compare case studies of legal institutions changing over time in particular societies and to develop methodologies to direct future research. Because the anthropology of law was once a welldefined subfield within social anthropology, participants wished to make sense of the current diversity of approaches among them. In discussions they focused on the models and methods they were using to analyze the development, change, decay, integration, and articulation of legal systems within specific social units. Anthropological studies of law in the first half of the 2oth century had developed rich descriptions of how social order was maintained in tribal and peasant societies that lacked police, a Western-style judiciary, or prisons and jails (Barton I969 [I919], 1949; Malinowski I926; Llewellyn and Hoebel I94I). The anthropology of law was a clearly bounded subfield because most anthropologists studying conflict resolution relied on a lawyer's sense of what law was (Bohannan I957; Gluckman I955, I956, I965; Nader I969; Gulliver I963; Van Velsen I964). By I960 the evolutionary approach inherited from Maine (I879 [I86I]) and Hobhouse, Wheeler, and Ginsberg (i 9I5) had culminated in two publications, one concerned with non-Western legal systems (Hoebel I954), the other with precapitalist legal forms in relation to economic systems (Fried I960). Although many anthropologists of law never became involved in evolutionary model building, by I970 it was clear that legal anthropology would go no farther in this direction for two reasons. First, evolutionary sequences could not capture the increasingly complex legal behavior and lawlike forms that had been recorded by legal ethnographers in different world areas for the last five decades. Secondly, the growing interest in conceptualizing law as fully embedded in society meant that to abstract and purify legal forms in order to fit them neatly into stages of sociocultural evolution did considerable damage to the data. The early I970S saw the blossoming of a plurality of approaches. Books in the anthropology of law shared the tradition of detailed description but differed in emphasis on boundaries between disputes and war (Koch I974:8i-82) and between law and nonlaw conflict resolution. Pospisil (I 97I:II3) found law in every social unit from the household to the state, while Starr (I978) found law only in state institutions, treating village lawways (Malinowski's term) as nonlaw conflict-resolving forms. Collier (I973) avoided this dilemma by focusing on litigant choice of a legal form. By the end of the I970S some researchers felt that a dominant focus on processes of resolving extended disputes had emerged (cf. Epstein I967, Gulliver I969, Moore I978, and Nader and Todd 1978). Others debated the advisability of rule-centered or process-centered studies (Gluckman I973, Hamnett I977). Yet, even as this debate was resolved by Comaroff and Roberts (1I98i), many researchers were abandoning the dispute paradigm as too normative and positivistic and turning to historical research as a way to understand legal change. The I985 conference brought together scholars using historical data from texts or their own ethnographic research to consider how dispute-airing forms and power relationships that changed over time were affecting legal behavior, legal processes, and other institutions. These ideas stemmed in part from the reading of Giddens (I976, I979) and Bourdieu (I977) and in part from the influence that political economy and Marxism had had on social anthropology in the I 970S. To focus directly on legal change meant using analytical strategies that differed from those of the earlier community or regional studies. Now, 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 I. ? I987 by The Wenner-Gren Foundation for Anthropological Research. All rights reserved oOII-3204/87/2803-0005$I.oo.