Substance and process: Reappraising the premises of the anthropology of law

Abstract

The anthropology of law works best through the use of the holistic approach that Hoebel [88] recommended in the early stages of the subdiscipline. That approach includes the study of trouble cases, of patterns of actual law-related behavior, and of abstract rules or principles, the last being not the least among them. The quest should ideally be joined, however, so as to generate data that lend themselves to cross-cultural comparison and the formulation of politico-legal principles of a general sort, a goal which numerous anthropologists of law have already espoused in their work. But as Smith and Roberts [89] caution, this is particularly difficult with regard to substantive law content, because substantive law is a “particularly culture bound” domain: there is considerable variability from society to society in its specific content. The structural comparison of substantive law notions as they occur within the boundaries of particular societies, by contrast, presents one fruitful alternative approach, one which carefully reflects the realities of intergroup politics. Through a political analysis of variability in cognitive models of law can better be seen as a reflection of, and an underpinning to, the socio-economic base that correlates with it.