The Anthropological Study of Law1

Abstract

IT IS my belief that we are just now on the growing edge of an anthropological understanding of law in its various manifestations. Despite the fact that many of our pioneering ancestors were lawyers by training (Morgan, Maine, Bachofen, McLennen, and more lately Redfield), interest in the anthropology of law has, until recently, had a gradual growth. Between the classic monographs of the nineteenth century (Maine 1861, 1871; and Fustel de Coulanges 1864) and the next milestones in the anthropological study of law (Barton 1919; Gutmann 1926; Malinowski 1926; Hogbin 1934; Schapera 1938) several decades elapsed during which the majority of works on law in preliterate societies were written by colonial administrators, missionaries, and the like rather than by anthropologists (see Nader, Koch, and Cox 1964). Studies of primitive law developed from collections of normative rules ('laws') to observations on the actual application of such rules; in the 1940's, Richardson (1940), Hoebel (1940), and Llewellyn and Hoebel (1941) (whose work provides the only examples of substantial results from joint research by a law professor and an anthropologist to date) began to publish on the 'trouble case.' Since 1954 a series of monographs have been published (Howell 1954, Smith and Roberts 1954, Hoebel 1954, Gluckman 1955a, Bohannan 1957, Pospisil 1958a, Berndt 1962, Gulliver 1963. It was this intellectual productivity which led Bohannan to say: The literature in legal anthropology is small and almost all good-neither claim can be made for very many other branches of the (1964:199). For the most part, the studies mentioned above utilized the case method and were essentially descriptive. Furthermore, it must be confessed that the anthropological study of law has not to date affected, in any grand way at least, the theory and methodology of the anthropological discipline, in the way that studies of kinship and language have, for example. Witness in this connection the scant mention of law studies in the volumes of Anthropology Today, Current Anthropology, and the biennial reviews of Anthropology. Although why this should be so is not the subject matter of this essay, Riesman's analysis (1954) of the anthropological study of law is relevant for those interested in the broader picture of intellectual developments in anthropology. What follows is, first, a thumbnail sketch of the main themes and questions about law that have concerned anthropologists;2 second, a description of relevant studies in two related fields-the sociology of law and anthropological conflict studies; and finally, a discussion of present trends and new directions in anthropological studies of law.