Nader, Laura - The Anthropological Study of Law

The Anthropological Study of Law1
LAURA NADER
University of California,Berkeley
INTRODUCTION
T IS my belief that we are just now on the growing edge of an anthropo-
I logical understanding of law in its various manifestations. Despite the fact
that many of our pioneering ancestors were law) ers by training (Morgan,
Maine, Bachofen, hfclennen, 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 19.34; Schapera 1938)
several decades elapsed during which the majority of works on law in pre-
literate 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 ob-
servations on the actual application of such rules; in the 19403, Richardson
(1940), Hoebel (1910), and Llewellyn and Hoebel (1941) (whose work provides
the only examples of substantial results from joint research by a law professor
and a n anthropologist to date) began to publish on the ‘trouble case.’ Since
1954 a series of monographs have been published (Howell 1954, Smith and
Roberts 19.54, Hoebel 1954, (;luckman 195.5a, Uohannan 19.57, Pospisil 1958a,
Uerndt 1962, Gulliver 1963. It was this intellectual productivity which led
Hohannan 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 sub-
ject” (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 a t
least, the theory and methodology of the anthropological discipline, in the way
that studies of kinship and language have, for example. Witness in this connec-
tion 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 (19.54) of the anthropological study of law is relevant for those inter-
ested 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.
3
4 Ethnography of Law
MAIN THEMES AND QUESTIONS
Some of the main topics that have characterized anthropological work for
well over a century may be noticed in terms of the following questions: Is law
universally present in all societies? What are the universal characteristics of
law wherever it is found? How is the law related to other aspects of culture and
social organization? Is thc range of variation limited and patterned so that
typologies of law can be constructed and are such typologies of use in under-
standing the relation of law to other aspects of culture and social organization?
How and why does law change through time? What happens when the legal
systems of different cultural groups come into contact? What is the effect of a
multiplicity of legal systems within one society? How can we describe legal
systems? And under what conditions and how is the comparison of legal sys-
tems possible?
We may begin our sketch by noting that it was a common belief among
eighteenth-century intellectuals interested in the study of man that certain
general principles of law (the law as Frenchmen or Englishmen knew it) were
universal, although differentially reflected in any particular legal system. By
the twentieth century a raging debate was under way as to whether all soci-
eties had law. This was largely a definitional debate hinging on the question:
What is law? If law is defined in terms of procedure as Radcliffe-Brown and his
adherents define it, “social control through the systematic application of
the (physical) force of politically organized society” (1933: 202), then not all
societies could be said t o have law: for example, the Adamanese, the Yurok,
and the Ifugao. If, however, law is defined in the broadest sense as “most
processes of social control,” as Malinowski is alleged to define it, then all soci-
eties may be said to have law. However, a t this point one would have to take
into account the charge t h a t this use of the term “law” renders it meaningless]
or identical with social control. Nor was this debate of theory concerned solely
with the domain of “law.” The attempt to distinguish between law and custom
revealed a further confusion as to what custom was as well (Nadel 1956: 161-
164; Kantorowicz 1958). Whether law and custom were considered one and the
same depended upon whether custom meant culture (in Tylor’s sense),
customary behavior, or social norms-the “ought” or ideal aspects of culture.
The conflict of opinion on the meaning of law is a n old one in sister dis-
ciplines. I n political theory, for example, one tradition identifies the laws of a
society as the minimal rules of conduct acknowledged by the members of that
society, whereas the opposing tradition identifies the laws of a society as the
formal commands of the governing authority of that society. Thus a theorist
of the first tradition, such as Locke, would agree that there is law in primitive
societies, and a theorist of the second, such as Hobbes, would argue t h a t there
is no law without a state political organization. Interestingly enough, Marxian
theory takes a divided stand on this question. Lenin denies t h a t law exists in
societies without developed government, and Marx and Engels, having been
influenced by the American anthropologist Morgan, admit that law does exist
in primitive communities (cf. Moore 1960).
The Anthropological Study of Law 5
Hart (1961: 1-14), a legal scholar, makes the following clarifying state-
ments:
Feu questions concerning human society have been asked with such persistence and ered
by serious thinkers in so many diverse, strange, and even paradoxical ways as the question
“What is Law?” . . . No vast literature is dedicated to answering the questions “What is
chemistry?” or “What is medicine?”, as it is to the question “What is law?” . . . No one
has thought it illuminating or important to insist that medicine is “what doctors do about
illnesses,” or “a prediction of M hat doctors will do,” or t o declare that what is ordinarily
recognized as a characteristic, central part of chemistry, say the study of acids, is not really
part of chemistry at all. . . .
“What olticials do about disputes is . . . the law itself”; “The prophecies of what the courts
\till do . . . are what I mean by the law”; “Statutes are sources of Law . . . not parts of the
Law itself”; “Constitutional law is positive morality merely”; “One shall not steal; if some-
body steals he shall be punished. . . . If at all existent, the first norm is contained in the
second norm which is the only genuine norm. . . . Law is the primary norm which stipulates
the sanction.” These are only a few of many assertions and denials concerning the nature
of law. . ,
Hart goes on t o say that any educated man might be expected to identify
the salient features of a legal system as follows:
They comprise (i) rules forbidding or enjoining certain types of behaviour under penalty;
(ii) rules requiring people to compensate those whom they injure in certain ways; (iii) rules
specifying what must be done to make wills, contracts, or other arrangements which confer
rights and create obligations; (iv) courts to determine what the rules are and when they have
been broken, and to fix the punishment or compensation to be paid; (v) a legislature to make
new rules and abolish old oncs.
If this is common knowledge s a s~Hart, how is it that the question “What

is law?” has persisted?
Is it because, besides the clear standard cases constituted by the legal systems of modern
states, which no one in his senses doubts are legal systems, there exist also doubtful cases,
and about their “legal quality” not only educated men but even lawyers hesitate? Primitive
law and international law are the foremost of such doubtful cases . . . it is quite obvious why
hesitation is felt in these cases. International law lacks a legislature, states cannot be brought
before international courts without their prior consent, and there is no centrally organized
effective system of sanctions. Certain types of primitive law, including those out of which
some contemporary legal systems may have gradually evolved, similarly lack these features,
and it is perfectly clear to everyone that it is their deviation in these respects from the
standard case which makes their classification appear questionable.
These exceptions or questionable cases cannot, says Hart, account for the
“prolonged and somewhat sterile controversy . . . about the general nature of
law expressed in the question ‘What is law?’,’’ and he goes on to outline the
three recurrent issues that have formed a constant focus of argument about the
nature of law: “How does law differ from and how is it related t o orders backed
by threats? How does legal obligation differ from, and how is it related to,
inoral obligation? What are rules and to what extent is law an affair of rules?”
(see also Gluckman 1962).
Anthropologists have contributed indirectly to the definition of law by ex-
tending our knowledge of human variation in law ways. Direct attempts to
define law, however, have not borne much fruit. Presently our interest has
shifted from this philosophical and theoretical question to empirical questions
as to universal attributes of law and the multiple legal levels within a societ? .
I n each society there may be a multiplicity of legal frameworks corresponding
t o the multiplicity of groups within that society which may be independent
from the other, interdependent, interpenetrating, or all three. This idea was
iterated by Durkheim first in 1893 in The Division of Labor (1960), and recently
elaborated upon by a number of anthropologists (Schneider 1957, Pospisil
1958a, Gulliver 1963, Nader and hletzger 1963, Winans and Edgerton 1964).
Anthropologists are no longer attempting t o prove the absence or presence of
law in primitive societies by reference to any single definition of law. Rather
the question has become: How is the law best conceived of for research pur-
poses?
Certainly for cross-cultural purposes, for example, we would have to agree
upon an operational definition of law in order to agree upon what is to be com-
pared. Such a working definition might read as follows: All societies have
rules governing behavior; some are preferential and others are prescribed b?
society. I n some situations, when a prescribed rule is violated society will have
delegated and agreed upon ways of punishing the violator(s). This latter situ-
ation falls squarely within the domain of interest of the anthropologist of law.
However, the anthropologist could conceivably begin with one of the acts that
in our society are handled by legal apparatus, for example homicide or theft.
Bohannan (1960) poses the question, Do Africans kill one another for the same
reasons and in the same situations as Europeans and Americans? A cross-
cultural investigation of homicide or theft might lead us, as it did Hohannan,
t o an investigation of phenomena that Westerners call law or it might lead LIS
t o investigate phenomena that from the point of view of Western society are
only peripherally relevant to law.
Although it is not easy to separate the question “what is law” from “what
are the universal attributes of law,” I would like to mention some research that
has been done on the subject of universal characteristics. This subject has been
discussed for a long time, and from disparate points of view, by philosophers
before there were anthropologists, and more recently by jurists and anthro-
pologists. Certainly Blackstone in his Commentaries o n the Laws of Englaiid
(1765) was an example of a legal historian and philosopher in search of the
more general aspects of law. Boorstin (1958: 12-33) quotes the following state-
ments from Blackstone : “Certain uniformities are inevitable from the nature of
society,” and
..
the universal law of almost every nation . has either given the dying person a power of
continuing his property, by disposing of his possession by will; or, in case he neglects to
. ..
dispose of it ..
the municipal law of the country then steps in. . The general structure
of the courts is nearly everywhere the same-from Mexico to Peru, to that established in the
Jewish republic by Moses.
The manner in which Blackstone goes about finding universals is different

from the anthropological approach primarily because his basic assumption is
that every institution of English law has a n analogue in some other legal sys-
tem. This is principally because he concentrates solely on similarities rather
T h e Anthropological Study of Law 7
than differences, on development and independent invention rather than on
diffusion and the ways in which legal systems affect one another. The results
are interesting observations; the attempt admirable in that he touched on some
aspects of law, such as inheritance, which may possibly be universal.
I mention Rlackstone because he was attempting to ask and answer ques-
tions that some present-day anthropologists interested in making empirical
generalizations are attempting to ask and answer. Strangely enough, however,
little empirical work in the anthropology of law has touched on the question of
universals. Some nineteenth-century evolutionists postulated theories of
stages of legal development, such as Maine’s three stages (law by themistes,
customary law, and the code of law) 1861, which are still assumed to express
universals by a number of scholars in related disciplines. But since Maine, the
treatment of universals in the law remained in the background until Malinow-
ski (1926) and more recently Hoebel (1954), Gluckman (1955a, 1965), and
Pospisil (1958a). Their treatments of universals are, however, quite different
one from the other, and all differ from Maine. Malinowski, in his introduction
to Hogbin’s Law and Order in Polynesia, refers to law as one of the “derived or
instrumental needs” that in all societies “have to be satisfied as urgently as bio-
logical requirements if man is to survive” (1934:xxxii). Or, as Malinowski
states in Crime and Custom “there must be in all societies a class of rules too
practical to be backed up by religious sanctions, too burdensome to be left to
mere goodwill, too personally vital to individuals to be enforced by any ab-
stract agency. This is the domain of legal rules” (1926:67f). Pospisil (1958
:257-272), by means of cross-cultural research, derived four universal attri-
butes of law: authority, obligation, intention of universal application, and
sanction. Hoebel, taking a different route, gets into the question of universals
by means of an assumption: that certain legal relations are present universally
and thus may be used as categories in cross-cultural comparisons. “The essen-
tial and fundamental legal concepts have been reduced to simplicity, pre-
cision and universality in the system advanced by . . . Hohfield.” He was re-
ferring to four reciprocal relationships that Hohfield claimed for all legal rela-
tions, i.e., demand-right-duty, privilege-right-no-demand-right, power-liabil-
ity, immunity-no-power (Hoebel 1954: 46-63).
Glurkman (1955a) addresses himself t o the question, to what extent are the
features of the judicial process and legal reasoning invariant throughout the
cultures of the world? He attacks the question by an analysis of the “reasonable
man” concept, and the certainty-uncertainty attribute of legal concepts.
Nadel, only one of man)’ reviewers (March 1956, Hoebel 1961, Ayoub 1961,
and others) of the “reasonable man” concept, thinks that such a principle as
reasonableness is so basic as to be taken for granted: “ .. . inasmuch as reason-
able conduct equals customary conduct it seems clear that any legal system,
being after all meant to maintain the existing mores, must of necessity imply
the criterion of reasonableness . . . ” (1956a:166). But then again Nadel
qualifies his statement by pointing to the possibility that the principle of
reason may be applied only in certain contexts:
Since the courts whose activities he [Gluckman] describes do not deal with grave crimes and
accusations, e.g. of homicide, assault, or witchcraft, we learn nothing about the judicial
process appropriate to problems in the case of which reasonableness must prove a very inade
quate if not altogether meaningless standard. If I am right, the Lozi would, in these situa-
tions, discard their guiding fiction of “reasonable man” for the sharper dichotomy of things
simply lawful and unlawful, permitted and forbidden (1956a: 167).
Hoebel has mentioned a few general or universal characteristics of sub-

stantive law, some of which are deserving of cross-cultural testing.
Homicide within the society is, under one set of conditions or another, legally prohibited
everywhere. . . . Virtually every society assumes the relative social inferiority of women. . . .
Thus it appears to be universal on the primitive level (and general on the civilized level)
that the husband may kill the adulterous nife caught in flagrante delicto. For the wife to
enjoy such a privilege-right is most rare. . . . Law universally supports the principle of rela-
tive exclusiveness of marital rights.
Adultery seems always to be punishable under the law, although just nhat constitutes
adultery will be variable as marriage and kinship forms vary. . . . All legal systems, primi-
tive and civilized, assume the importance of the kinship group, and all support it as a medium
of inheritance of property rights. . . . All legal systems give cognizance to the existence of
rights to private property in some goods; but among primitives land is legally treated as
belonging directly or ultimately to the tribe or the kinship group; it is rarely sustained legally
as an object of private property (1954:286-287).
The universality of Sir Henry Maine’s generalization, “The movement of
the progressive societies has hitherto been a movement from status to contract
-gradual dissolution of family dependency and growth of individual obliga-
tion in its place” (1861: 165), which was so quickly accepted in the nineteenth
century, has not been directly challenged by anthropologists. Maine’s work
has been evaluated by Kedfield (1950) and has been expanded upon by Gluck-
inan (1959, 1965). Apropos of Maine, V. C. Uchendu has sought to investigate
the universal elements in contracts made in nonliterate societies in order to
“gain methodological emancipation from the overworked idea that all institu-
tions of nonliterate societies are subsumed in the nest of kinship” (1964:93).
Other generalizations about the universal evolution of legal systems, such
as Durkheim’s postulate of the progressive substitution of restitutive law for
repressive law from primitive to civilized societies, given today’s body of
ethnographic information, would not stand the cross-cultural test. This postu-
late might prove useful in other than an evolutionary context, as Metzger
illustrated when he noted an interesting pattern in a RIexican village: property
cases end in restitutive sanctions whereas in personas cases there is a choice of
restitution or penalty sanctions. He concludes: “These findings suggest a basic
difference between people and goods in this culture: goods are replaceable, and
their values can be assessed and repaid in money or in kind; people are unique”
(1960:43). Mead (1961) suggested that the discovery of a set of universals in
law might effectively streamline the creation of new legal systems. Most of the
universal characteristics referred to above could be described as empirical gen-
eralizations. Apart from Malinowski’s contribution there has been little work
directed towards explaining these generalizations.
The idea t h a t there are as many frameworks of law as there are types of
groups has a long history. I t was Aristotle who spoke of monarchic, aristo-
cratic, tyrannic, oligarchic, and democratic law. He also discussed the law of
the conjugal and domestic family, the laws of villages or associations of fam-
ilies, of cities, of fraternal organizations, the law of the political group-the
State. And there were other European scholars who, in the seventeenth and
eighteenth centuries, continued to construct jural typologies, adding groups
important to their time: insurance societies, guilds, convents, and so forth, and
observing the conflict of these laws. As I have already mentioned, Durkheim
(1893) was also interested in typology based on the kind of sanction (repres-
sive or restitutive) that prevailed in a particular type of society (organic or
mechanical), whereas Maine in his discussion of tort and crime, for example,
described the law in kin organized versus territorially organized society in the
context of the progression from status t o contract. The only anthropologist in
recent times to attempt anything like a typology in law is E. A. Hoebel (1954)
and although his aim is to work out the jural postulates of societies from sub-
stantive cases, a typology of procedures used in law settlement is also achieved.
Functionalism as a descriptive approach characterized many of the nine-
teenth-century works, as did the comparative historical approach. Maine’s
central interest in comparing Roman and modern Western law with the law of
India and Eastern Europe was to link changes in social affiliation with changes
in the law (1861). Fustel de Coulange’s La Cit&Antique (1864) is a classic
functionalist study of the interrelations between religion and Greek and
Roman law. Bachofen in Das Mutterecht (1861) investigated the legal status
of women in various societies, and McLennen in Primitize Marriage (1865)
showed that rules of exogamy were widely prevalent in human societies. Frazer
in The Golden Rough (1890) explored the relations between magic, religion, and
the origins of the law. Durkheim, in the French intellectual tradition influ-
enced by Montesquieu’s The Spirit of Laws (1748), was inspired to speculate on
questions involving the relation between density of population and the forms of
legal systems available to a group; in The Division of Labor (1893) he postu-
lated that densely populated societies correlate with restitutive law, and less
densely populated ones with repressive law. Mauss and Beuchat (1906) con-
clude that among the Eskimos winter law was connected with concentrated
settlements and collectivist tendencies, whereas summer law, regulating the
life of small, scattered families, had a more secular character favorable to in-
dividualism. Jane’ Richardson (1940) in her study of the Kiowa Apache also
makes note of the seasonal variations affecting the law.
There are a few works on the interrelation of law and economics, among
them Marx’s works (1906, 1948) describing the determining effects of eco-
nomics on the law, Weber’s (1954) emphasis on the reciprocal influence be-
tween law and economics, and Hobhouse, Wheeler, and Ginsburg’s (1915)
cross-cultural attempt to find correlations between the level of economy and
the types of law. Hoebel (1954) attempts to relate the degree of complexity in
procedural law with different levels of subsistence. Nader (19651) contrasts
two societies on the same level of peasant subsistence and finds that social
organization is more determining than economy. Rothenberger, concerned
with but two aspects of a legal system, the substantive and the procedural,
states that: “The procedure, including the judicial process, was seen to be
correlated with and indeed a part of the political or governmental organization
of a society. The substantive law, on the other hand, is determined by and
correlated with the social and economic aspects of the society” (1963: 28).
The most obvious interdependence between law and other aspects of soci-
ety is that between law and politics. Indeed many students of politics assume
that judicial behavior is a part of political behavior. It is not surprising then
that most studies of political organization include a mention or a descrip-
tion of judicial organization and vice versa. One of the most elegant field
studies on the interrelation between law and politics is that of Nadel (1947);
for other contributions on this subject see Hoebel (1940), Kaberry (1941,
19-42), Busia (1951), Schneider (1957), Burridge (1957), S. F. Moore (1958),
Barnes (1961), Gluckman (1965:27-74), and Nicholas and Mukhopadhyay
(n.d.).
The degree to which modern anthropological studies of law insist that “the
law cannot be understood apart from its social and cultural context” depends
upon our descriptive methodologies. I stated a t the outset that recent con-
tributions in the anthropological study of law were primarily descriptive. Now
I raise the question, To what extent have we been consciously concerned with
the methodology of description? Two major contributors to the methodology
of describing particular legal systems are Llewellyn and Hoebel (1941), and
Bohannan (1957). I view the contributions of Llewellyn and Hoebel and of
Bohannan as being constructive in the following ways: Llewellyn and Hoebel’s
formulation of the law jobs and in particular their use and explication of the
trouble-case method came as a fresh approach. Their very use of the term law
jobs, rather than the law or legal systems, precluded endless fruitless criticism
about what indeed a definition of law or the domain of law should include. The
use of cases was not unique to Llewellyn and Hoebel (Barton in 1919 and
Richardson in 1940 had used case materials extensively), but they served to
remind anthropologists why, in fact, cases are collected and to illustrate
clearly one extensive use that can be made of case materials. I n their own
words :
The case of trouble, again, is the case of doubt, or is that in which discipline has failed, or
is that in which unruly personality is breaking through into new paths of action or of leader-
ship, or is that in which an ancient institution is being tried against emergent forces. It is
the case of trouble which makes, breaks, twists, or flatly establishes a rule, an institution,
an authority. Not all such cases do so. There are also petty rows, the routine of law-stuff
which exists among primitives as well as among moderns. For all that, if there be a portion
of a society’s life in which tensions of the culture come to expression, in which the play of
variant urges can be felt and seen, in which emergent power-patterns, ancient security-
drives, religion, politics, personality, and cross-purposed views of justice tangle in the open,
that portion of the life will concentrate in the case of trouble or disturbance. Not only the
making of new law and the effect of old, but the hold and the thrust of all other vital aspects
of the culture, shine clear in the crucible of conflict.
The trouble-cases, sought out and examined with care, are thus the safest main road into
the discovery of law. Their data are most certain. Their yield is richest. They are the most
revealing (Llewellyn and Hoebel 1941:21),
Llewellqn and Hoebel, then, see society and culture in the law; they discover
the law in trouble cases, but they are not seeking to relate patterns of law with
any other aspect of society.
Bohannan’s contribution to methodology of description lies in his formula-
tion of the folk versus the analytical system-while not “new,” an argument
that strikes a t the very core of the translation and meaning problem in an-
thropology. H e raises for inspection statements made by Hoebel(1954:46) and
more recently by Gluckman (1962) that encourage anthropologists t o discuss
tribal law using the principal concepts of Western jurisprudence. Gluckman
states, “The very refinement of English jurisprudence makes it a better instru-
ment for analysis. . . than are the languages of tribal law” (1962:14).
Bohannan (1957), on the contrary, contends that to describe and analyze the
system of justice and judgment of one culture through the interpretation of a
system indigenous t o a second society can only lead t o confusion and distor-
tion. He implicitlj- charges Gluckman with having converted the Western
legal folk system into an analytical sytem and with having forced the Lozi folk
concepts into a Western model. He presents a variety of instances illustrating
for example how the Tiv concept of “correction” when translated to “sanc-
tion” may misconstrue what final action does actually involve for the Tiv.
Ayoub (1961), Gluckman (1962)’ and Hoebel (1961) discuss the problems in-
herent in Bohannan’s approach. Nadel (1956) and Ayoub (1961) discuss the
perplexing questions inherent in Gluckman’s assumptions, as does the whole
body of literature in ethnoscience. See in this volume the paper by Black and
RIetzger. The answer probably lies solely neither with Gluckmannor Bohannan,
for how an ethnographer goes about laying bare or describing his society is in-
timately related to what use he believes can be made of such a description. This
brings us to the question of comparison. Bohannan’s intention is to discover
and portray the Tiv view of justice and judgment. H e shirks the problems that
such a relativistic approach implies for comparison, but then he was not inter-
ested in comparison a t the time. Gluckman’s work has been characterized as
analogous to that of a linguist who attempts comparison by jamming Rarotse
grammar into Roman Dutch categories.
Gluckman’s (1962) is the only major attempt of late to discuss the oh-
stacles deterring comparison in the anthropology of law, and in the process he
makes a number of very basic suggestions.
. . . when the anthropologist has set out as clearly as he can the classifications of the tribe
he is studying, he has merely taken the first step. We have thereafter to relate these clas-
sifications to the types of social relations which characterize this tribe, and this inevitably
involves comparative analysis, with translation of concepts from one culture to another (p. 9).
I n his paper, he explores three areas of inquiry which are specifically relevant
here:
1) why a particular people have the ideas about law, government, enforcement, debt, con-
tract and agreement, injury and wrong, which they do have; 2) the study of judicial process
and the enforcement of law; and 3) the problems involved in the study of social control, and
the nature of obligatory rules, in particular domains of relationship (p. 11).
His intentions may be made quite clear by his own statements:
This [the process of adjudication] is the process by which, in African tribes with courts,
judges take and assess the evidence, examine what they regard as the facts, and come to a
decision in favour of one party rather than another. Epstein and I have tried to analyze this
situation by comparing it with the models of the judicial process erected by jurists in Europe
and America. We considered that this comparison enabled us to relate similarities and dif-
ferences in the processes of trial in these varied societies so as to bring out how judicial aims
and reasoning were related to other elentents in social life (p. 3). (Emphasis supplied.)
Gluckman is interested in testing the implications of certain observations; e.g.,

. . . most African cases involve disputes between closely related persons, involved in a close-
knit network of relations, whereas most English cases involve persons who are strangers to
one another outside of a single linking relationship (pp. 5-6),
and of certain hypotheses:

. . . how does the existence of enforcing mechanisms influence the process of judicial reason-
ing? A priori, we should expect that where a judge is backed by powers of enforcement, he
may feel that he can shorten the process of listening to the evidence and coming to a decision,
while the judge who is not thus supported, may be more patient (p. 6 ) .
Or:
But procedures of enforcement where there are no courts differ radically from enforcement
through courts, even if both types of process are associated with what may he called the
political organization (p. 7).
Furthermore he specifies the kind of data and the specializing words that we
need :
. . . I suggest here that if we distinguish the champion-at-law, the intermediary, the negotia-
tor, the mediator, the conciliator, and the arbitrator, in augmenting authoritativeness, we
would clarify our problems by focusing attention on the ranges of social pressure which
back their actions. Secondly, we would make clear how far they call for evidence and cross-
.
examine. . . Thirdly, and most importantly, we would examine in which several ranges of
relationships between parties the different procedures are effective, or ineffective, both within
single societies and comparatively (p. 6 ) .
Comparison through time and space is a t least implicit and some times ex-
plicit in the works mentioned thus far. But as has been noted by Leach
(1961 :1) and others, most recent anthropological works are descriptive rather
than comparative. This certainly applies to the law monographs of the 1950’s
which have been heavily slanted towards studies of individual societies. There
are comparative data buried in chapters of monographs such as those by
Nadel (1947), Colson (1958), and Nader (196413). There are, furthermore, sev-
eral relevant articles that are comparative: Schneider (1957), Harper (1957),
Gluckman (1962), Hazard (1962), Nader and Metzger (1963), Schwartz and
Miller (1964), Nader (1965a), Nicholas and Mukhopadhyay (n.d.). Curiously,
the only recent cross-cultural law studies are not written by anthropologists
but rather by scholars in other disciplines-a political scientist (Nagel 1962),
sociologists (Schwartz and Miller 1964), and psychologists (Bacon, Child, and
Barry 1963). The papers in this volume by Whiting and Roberts are firsts in
this respect. (It is interesting in this context to note Nagel’s comment: “Corn-
parative law, like comparative government in general, has largely confined it-
self to unintegrated descriptions of European legal principles” [1962 :1471.) The
outstanding work in twentieth-century comparison, resembling in its manner
of parallel presentation African Political Systems, is, of course, E. A. Hoebel’s
The Law of Primilive Man (19.54).
There is only one outstanding within-society comparison. Gulliver’s work
(1963) is an extraordinary contribution to the study of law in the total context
of adult social control systems because little attention has been paid to com-
parisons of the structure and functions of various social control patterns within
a society. Indeed, this was one of Malinowski’s most vehement criticisms of
jurisprudential studies, l 1 . . . If anthropology can influence jurisprudence to
the extent of making it recognize the positive side of law and also acknowledge
that law is only part and parcel of a wider system of norms, this will be of
some benefit to all social science” (1934:xvii). Needless to say, Schapera is
quite correct in chastising Alalinowski for this statement since many prominent
jurists such as Ehrlich, Pound, and Vinogradoff are quite aware that laws take
their place among other rules of conduct. To be aware, however, is not neces-
sarily to be influenced, and the work of men such as the aforementioned does
not concentrate on an ethnographic description of law in the context of these
other systems of social control. But neither perhaps should we expect this of a
scholar in jurisprudence. I t is interesting to note that legal scholars interested
in experimental jurisprudence have found it wise to consider the law in the
broader context. When anthropologists have concerned themselves with such
questions (Whiting 1950; Colson 19.53; Gulliver 1963), they are usually deal-
ing with societies where there are “no obvious political institutions concerned
in the maintenance or order” (Colson 1953: 199).
The study of change and the law has been pursued in terms of the evolu-
tion or development of a particular system, in terms of the differences in
growth between the ideal and real aspects of law and their relative rates of
change, and, more recently, in terms of the contact between legal systems;
such a study may also examine the change of law due to internal rather than
external or acculturative influences; and such change may be directional,
cyclical, or repetitive. The evolutionary approach is best illustrated b y Maine’s
works (1861, 1871), although Barton (1919, 1930, 1949) attempted t o analyze
Ifugao and Kalinga materials in terms of an evolutionary system such as
postulated by Maine. Hoebel (1954) implies an evolutionary development in
his societies that illustrates varying levels of economic complexity.
At present, most legal anthropologists are working in societies with little or
no written history. The interest in change over long periods of time has been
largely replaced by studies of short-time change and by a study of change re-
sulting from culture contact situations. Since the turn of the century, studies
of the change resulting from culture contact have been carried out principally
by administrators or legal specialists. Two modern examples are Allott (1960,
1961) and Howell (1954). Keuning (1963) presents an interesting view of the
problems faced by administrative legal specialists. Some of the noteworthy
anthropological studies in this field were made by Nadel (1942, 1947), Stirling
(1957), Cohn (1959), Barnes (1961), Fallers (1962).
14 EthPcography of Law
There is a striking difference between the goals of anthropologists and non-
anthropologists in this area. Anthropologists are interested in what is happen-
ing, in describing a changing situation in order to understand the implications
that follow from change. They are not (with the exception of Fallers 1956 and
Kaplan 1965) directly concerned with the practical problems confronting new
nations; that is, they are not seeking “to arrive at one truly national law”
(Keuning, 1963 :3). The administrative legal specialist is principally con-
cerned with policy questions, which ips0 facto seems to mean that they do not
carry out depth studies. Allott succinctly distinguishes the concerns of an-
thropologists from administrators as follows:
The anthropologist seeks to show the social purpose of customary rules, and how they fit
into the structure of behaviour. The aim of legal research is narrow, t o record those rules of
custom or usage which are either enforced in the courts, or are of a kind which the courts
would enforce. Appreciation of the part which these rules play in the social structure is
therefore irrelevant, or at most only needed as background-knowledge, or for the better
elucidation of the meaning of these rules (1953:172).
The above-quoted opinion is extremely narrow in its conception of the

study of law and certainly does not reflect the opinion of some of the great
legal researchers of our time such as Pound and Frank. Certainly the anthro-
pologist has not developed his methodology to the point where nonanthro-
pologists could acquire depth materials in a relatively short time.
Apart from the acculturation studies that we have mentioned above, short-
term studies of change within a society are few. One such study of legislation in
preliterate societies is that by Pospisil (1958b), in which he records how a
marriage “rule” was deliberately altered by a single individual. Pospisil’s inter-
pretation of where change begins, however, is challenged by Leach (1959) who
suggests that Pospisil was merely describing the phenomenon of fission in a
segmentary society. I n an earlier work Schapera (1943) notes examples of
legislation by chiefs in council but as Gluckman (1965b) has noted, such ma-
terials are rare. Rheinstein (1963:241-243) comments on the order of change
in Africa in the light of similar occurrences in the history of European law:
With respect to both institutions of customary law, status of women and land tenure, changes
of the law are needed, but in the former field the task will be primarily that of following
social change, in the latter that of rendering the social change possible 1e.g. through legisla-
tion]. . . . The courts of customary law have more and more to deal with problems for which
certainty and predictability of judicial decisions become important. Such predictability is
essential to all those topics that belong to the modern market and credit economy, that is,
especially, the fields of contract and property.
Anderson (1957) describes the mechanisms used for changing Moslem law-
“a divine law which as such is essentially immutable.” Change has been
achieved in part by putting Islamic law to one side, such as in reference to
penal and commercial law, or by means of a series of ingenious expedients with
reference to the law of personal status and family relations. One example of such
ingenuity is described in this volume by Hoebel. Nader (n.d.) attempts to
correlate change in Zapotec legal procedure with concomitant change in the
forms of social grouping, the style of architecture, and a system of intervillage
T h e Anthropological Study of L a w 15
competition patterns. Nicholas and Mukhopadhyay (n.d.) describe change in
village politics as affecting the character of traditional judicial decision making.
THE SOCIOLOGY OF LAW AND ANTHROPOLOGICAL CONFLICT STUDIES

The list of authorities I have thus far alluded to in this paper is parochial in
the omission of great minds that have surely influenced, and in turn have
been influenced by, anthropologists. Such are the pitfalls of a thumbnail
sketch. Among these omissions are Pound, to be remembered for his contribu-
tions to the analysis of the legal system; Brandeis, to be recalled in connection
with his analysis of legal change arising in response to modern technology; and
Oliver Wendell Holmes, a comparative ethnographer of law par excellence.
Although these men influenced anthropologists, there has never developed a
tradition of joint research between law professors and anthropologists in this
country.
There is also little joint research (and few spheres of mutual influence) be-
tween sociologists and anthropologists. Some of what is being done and what
has been done by sociologists should be of central interest to anthropologists,
especially those working in societies where social stratification is a factor to be
considered. For as Skolnick (1965)3 has noted, stratification is a theme which
runs through much of the sociological studies-for example, the jury studies
(Strodtbeck 1962), investigations of the legal profession (Carlin 1963)’ pat-
terns of selective administration of justice (Carlin 1963, O’Gorman 1963,
Smiegl 1964, Carlin and Howard 1965), and the general question of justice in
mass society. (For an intelligent analysis of arbitration in mass society see
Jones 1964.) Furthermore, in their studies of jurimetrics, sociologists, political
scientists, and lawyers have again raised the question of the judge’s role in
society, the question being, What is the basis of judicial decision making? Cer-
tainly this is an area of interest to anthropologists and most would do well to
examine Schubert’s Quantitative Analysis of Judicia2 Behavior (1959) (espe-
cially sections on how the political process of recruitment affects judicial deci-
sion making) as well as his excellent review of the literature (Schubert 1963).
But it still remains true that anthropologists for the most part have had little
to do with sociological studies of law.
Riesman (1954: 444) comments on some possible reasons:
.
Sociologists. . have until quite recently been as much concerned with immediate social
reform as their brethren of the bar; thus, they have looked at the law only where it impinged
on the disadvantaged groups in society-on the criminal, the juvenile delinquent, the poverty-
stricken seeker of divorce, etc.. .. they view the law as unjust as well as irrational; their
aim is to show up, perhaps to change, the law and the legal mentality rather than to under-
stand it sympathetically. Furthermore, the sociologists who are theoretically inclined have
..
concerned themselves with formal definitions of law . and with the problem of the origins
of law-both perfectly valid enterprises but not good ways to bring the sociologist into actual
contact with the legal profession as a going concern.
One need only scan the table of contents of a text such as Evan (1962) to
realize that there are differences in approach and interest. Most obvious is the
fact that we deal with different units. The sociologist deals with the prison, the
court, the D.A.’s office, the administrative agency; the anthropologist’s unit is
usually a settlement, that is, the village, ward, town, city, and the like. Fur-
thermore, Skolnick (1965) states, “Virtually all empirical studies directly in
the sociology of law in America-that is, work by professional sociologists that
is not mainly criminological-began later than 1950.”
Sociologists, then, do not have a long tradition of empirical field work; they
are policy oriented. Anthropologists, on the contrary, have thus far not shared
the applied and policy orientation of the sociologists; they have been oriented,
implicitly a t least, by a cross-cultural or comparative perspective. Such works
as Tappan (1947) on the juvenile court is aimed a t suggesting reforms in
juvenile legislation and administration, or in delinquency rehabilitation; Car-
lin and Howard (1965) are interested in revealing selective enforcement pat-
terns of a court system supposed to be egalitarian; others are interested in the
social consequences of various types of criminal law labels. Regardless of
whether he is interested in applied aims (or law for that matter), the anthro-
pologist will nevertheless be interested in some of the sociologists’ findings,
such as the general suggestion, for example, that an accusation is virtually as
stigmatic as an acquittal on a criminal charge of assault, revealed by the ob-
servation that various types of criminal law labels (accused, acquitted, certified
innocent) all affect a job applicant’s ability to get menial work.
If the anthropologist turns his attention to the American law scene there
will be many more meeting grounds in the future. Apropos of this as yet un-
explored possibility is an article by a practicing lawyer John Simonett (1963)
“The Common Law of Morrison County.” His introductory paragraphs
should encourage anthropologists.
“There are three great branches of the law,” the Senior member of the Bar told me when I
..
just arrived at the county seat. . “First, there is the statutory law, the law enacted by
the legislature, found in the codes and statute books; second, there is the common law, the
law handed down in court decisions since before the days of Coke and found in the reported
court cases; and finally, and most important, there is the common law of Morrison County.”
. . . Never a day passes but new volumes appear off the presses, but all of them deal with
the first two great branches of the law, never the third.
Anthropologists interested in law would also do well to scan the conflict

literature, for much in the coverage of such studies is relevant: Beals (1964),
Colson (1953), Gluckman (1955b), Jayawardena (1963), Lewis (1958), Siege1
and Beals (1960), Simmel (1956), Turner (1957), t o mention only a few.
Especially relevant are the descriptions of trouble cases before they are found
in a recognized court or tribunal (cf. Turner 1957 and Beals 1964). Such de-
scriptions are important if we are to enhance our understanding of the origin of
breaches of norms and the reaction of society to breaches of its rules; such
“social dramas” are important as well for an understanding of the function of
conflict as a product of culture change, a source of culture change, or as an
aspect of a stable social system. Such data would help us to evaluate the role
and function of formal agencies such as the courts; they would help us to know
what the range of conflict-indicating patterns are-for undoubtedly it would
be a much broader range than is ever found adjudicated by formal institu-
tional arrangements. Finally the literature on conflict resolution should be of
obvious interest to scholars concerned with processes of adjudication. I
merell- draw attention to the mutual lack of interest of those who study sonie-
thing called “conflict resolution” and those who study “legal procedure” or
“judicial process.” Indeed in the presentation of Cohn’s paper (in this volume)
it was interesting to note that when the author spoke of village councils he
spoke of law and legal procedure; where he spoke of the absence of village
panchayats he talked of conflict and conflict resolution. The similarity of in-
terests of ‘conflicts people’ and ‘law people’ is often unappreciated by both.
PRESENT TRENDS AND NEW DIRECTIONS
During the past two decades the major contributions to the ethnography of
law have been descriptive, functional analyses of systems both isolated and in
contact situations. The tendency has been to treat the legal system as an insti-
tution virtually independent and isolated from other institutions in society,
except insofar as ‘society’ is gleaned from the law materials. This last tendency
is especially evident where courts are present, less so where the lack of court in-
stitutions virtually forces the anthropologist to elicit the whole life history of
the case. Furthermore, we have not been interested in historical developments
although the history of our civilization is rich in data (cf. Rheinstein 1963 and
H. Kay in this volume). Nor have we pursued to any great extent the examina-
tion of hypotheses-either in the manner which Evans-Pritchard (1963) refers
to as illustrative (the citing of examples in support of a thesis arrived a t de-
ductively), or by cross-cultural statistical studies, or by means of intensive
controlled comparison. Our work for the most part has not been comparative.
If we are to develop a true ethnography of law the angle of vision of the
ethnographer needs to be broadened in order to include descriptions that would
explicate law as part of a many-threaded fabric. Furthermore we should look
a t both the latent and the manifest functions of the law. We need to under-
stand what the generally agreed upon functions of the law are, as well as to
note its other functions which may or may not be recognized in a society.
Malinowski observed years ago, “An ethnographer who sets out to study only
religion, or only technology, or only social organization cuts out a n artificial
field for inquiry, and he will be seriously handicapped in his work” (1922: 11).
A legal system reflects many facets of a society; because of this an ethnographic
study of law is more than a study of judicial institutions. Law and politics are
sometimes discussed together in anthropology-what about other aspects of
social life that ma!. be relevant to the “law,” such a n economics, language,
ecolog!., or stratification and rank systems?
As a working frame I would like to reiterate what others have said before-
namely that (1) empirical studies of law should be set in the general context of
social control (although of course not equated with social control); (2) we
should consider the PossibilitJ- that the range of functions of a legal system may
vary cross-culturally; and (3) we should aim a t both empirical and explanatory
generalizations.
It has often been stated that legal systems constitute only a part of a larger
system of social control, and that sometimes the social control functions of law
can be understood only when viewed as part of the larger system. Schneider
(1957) provides us with one example of the way in which the legal and super-
natural systems complement each other in the differential handling of fratri-
cide and patricide on Yap. Nader and hletzger (1963) describe the procedures
for handling husband-wife conflict in the court and family systems of two
Mexican villages where an important variable is the amount of authority allo-
cated to the court and kinship groups. However, in most of the recent mono-
graphs, Gulliver (1963) being a major exception, the law has been treated as
isolated from other social control systems, and indeed in some monographs it
has been left for the reader to place the law in its socio-cultural context. This is
a criticism that Malinowski (1942: 1253) leveled a t Llewellyn and Hoebel as
authors of The Cheyelzne Way. It is also a criticism that can legitimately be
made of most of the law monographs produced since The Cheyenne Way.
Furthermore it is not always clear whether the social control functions of
law are to “clean up social messes” (Llewellyn and Hoebel 1941), or to main-
tain order (Alalinowski 1942), although how the law handles the breach is usu-
ally clearer than how in fact it serves to maintain order. Law may settle con-
flicts by a variety of means (adjudication, mediation, arbitration, etc.) ; it may
perform solely a punitive function; it may prevent or deter breaches of the
law; it may maintain order in the fields of law, politics, and economics-or it
may accomplish all these tasks. I t is not always clear which of these functions
the law in a particular society is intent upon performing. Our elaboration of
these tasks is not always as precise as we would wish if we are to use ethno-
graphic data for comparative ends, or even if we are to explore the relations be-
tween means and ends. I n this context I would like to call attention to Aubert’s
example (1963: 19) of the function of legislative formulations. I n his discus-
sion of the Norwegian housemaid law he noted that “the language of the law is
shaped more profoundly by the function of solving conflicts than by the func-
tion of influencing the legally naive”; that is, it was directed a t the legal profes-
sional rather than a t informing the lay citizen of what the law was.
While we have assumed that there was a probable cross-cultural difference
in the content and form of a legal system, we have a t the same time ignored
the variety of different functions a legal system may have. This is in spite of
the fact that Riesman (1954: 445) credits anthropologists with thinking other-
wise :
The anthropologist is not likely to harbor the naive assumption that the law, or any other
institution, serves only a single function-say, that of social control-and that any other
functions which in fact it serves are excrescences or “contradictions.” The concept of am-
bivalence is part of his equipment; he tends to search for latent functions, transcending the
ostensible.
The truth of the matter is, however, that (anecdotal exceptions to one side) the
functions of law have generally been assumed to be universally the same,‘ and
this is as true of anthropologists as of other social scientists. Aubert (1963: 17)
states the essence of these functions: “Law seems to have two distinct although
interrelated functions: to create conformity with norms, and to settle con-
flicts.”
The oral tradition of the practicing American bar is full of esamples which
lead us to believe that the law performs many other functions. Ever)- lawyer
and perhaps most citizens could cite examples: A businessman may bring a
competitor to court with the express purpose of ruining his credit rating.
During political campaigns opposing candidates have accused one another of
innumerable legal wrongs, usually ending with the filing of a lawsuit for libel,
with the object of winning elections. Wives may demand or even initiate di-
vorce actions with little intention of actually obtaining a divorce but rather to
frighten the husbands into behavior more acceptable to them. Or an ex-hus-
band may request a change of child custody to harass an ex-wife. Similarly
arbitrary enforcement of vagrancy laws or Sunday “blue laws” provides an
avenue by which “the law” may harass a less than ideal citizen. Selective ap-
plication of obscenity laws may perform the function of witchcraft hunts in
other societies.
Riesman (1954: 448-449) brings two interesting novels to our attention:
James West’s Plainville U.S.A. and James Gould Cozzens’ The Just and the
Unjust. These novels provide examples of the trial as both a cohesive and
devisive force in small towns, as in West’s case of the garagekeeper and the
undertaker-a trial that caused a factional split in town. Or, Riesman states,
the trial may serve as a divisive point “in terms of a moral turning point, such
a s . . . the Western world experienced in the trial of Sacco and Vanzetti.”
A familiar example of the political function of judgeships is also quoted by
Riesman (1954: 442) : “In the big cities . . . judgeships become part of the sys-
tem of ethnic brokerage by which the party machines keep the urban peace-
the rise of the Italian judge is a recent illustration.” Riesman also comments
on the entertainment value of the law as well as its socialization functions.
Thurmond Arnold (1935) adumbrates some of the latent functions of the
law. He comments on the drama of the court as partly a socialization or en-
culturation agency-a place where values are tested, changed, or consolidated,
and further notes that these may be “legal” values or other such as religious
values. (Cf. Hoebel’s paper in this volume as an example.) His observations on
the ritual value of the trial should be of interest to anthropologists.
Ethnographic examples from other societies are not easy to locate in the
literature although they are probably well known to most fieldworkers. I n
this volume Cohn states:
The use of the courts for settlement of local disputes seems in most villages to be almost a
minor one. In Senapur, courts were, and are, used as an arena in the competition for social
status, political and economic dominance in the village, Cases are brought to court to harass
one’s opponents, as a punishment, as a form of land speculation and profit making, to satisfy
insulted pride, and to maintain local political dominance over one’s followers. The litigants
do not expect a settlement that will end the dispute to eventuate from recourse to the state
courts.
And as Cohn notes these were ‘functions’ of the court that the British failed to
understand; the British system was in many ways a t odds with traditional
Indian procedures.
Beals (195.5:91) reports: “After 1920, a number of individuals in Namhali
used the [urban] law courts to acquire land or to bring about the economic ruin
of their enemies.” The law may function to bring about a more equitable dis-
tribution of resources or alternatively it may function to maintain an unequal
distribution of power. Rerrenian (1963: 270) gives an example of a typically
false legal charge.
A villager’s prosperity was envied by his caste-fellows. They had once tried unsuccessfully
to get some of his land by bribing the government records officer to testify that he had ac-
quired the land illegally. Failing in this, they obtained revenge by hiding liquor in his house
and calling the police to say that he was dealing in illicit liquor.
Along these same lines Bailey (1958: 106) mentions various measures taken
by the village (i.e. the high castes) to insure that the village servants (i.c. the
low castes) do not become too rich:
This particularly applies to the washerman since his eldest son has been working. He has
been fined 2 or 3 times for letting his buffaloes stray into other men’s gardens, and the fine
has been demanded in cash while other offenders are penalized only by admonition or a
demand for a small amount of paddy in compensation.
When a village servant shows signs of getting a lot of money, the village seems to resent
this and penalizes him. In the dispute that follows, the victory goes always to the village,
since the specialist castes are not organized to protect their members against these attacks.
Different sorts of models are brought t o our attention by others. I n discus-
sing the therapeutic function of Kpelle moots, Gibbs (1963:6) notes: “Moot
procedures are therapeutic in that, like psychotherapy, they re-educate the
parties through a type of social learning brought about in a specifically struc-
tured interpersonal setting.’’ Gluckman (1955) illustrates the potential
socializing effects of the judicial process. Armstrong (19.54) considers the case
of a Nigerian inquest into the death of a prominent politician. The inquest is
shown to serve various functions in Senne Province: it enforces respect for the
elders forming the council of the conclave, allows leaders to enhance their
social position, serves to place the blame for the death, repair relationships
among the living, excite public spectacle, and so on.
Nader (n.d.) illustrates the use of Zapotec courts to increase the revenue of
the town treasury.
The court sees itself as an institution which protects community interests at all times and
places. Therefore they reason, the court may readily look for redress in situations where a
party has not complained. . . . There are also practical considerations which have modeled
this court initiative, for in Talea laws governing personal behavior are being redefined with
economic gain in mind. During one of my field stays when the Talean treasury needed re-
plenishing for the big fiesta of the year, the president ruled that any individual echando un
grit0 would be fined five pesos for each grito. Earlier in this century when the new municipio
was still being built the presidente would send a regidor out on market day with money
especially destined to get visiting Rinconeros drunk. The court would then jail them for
drunkenness and the following day would fine them a day or two labor on the municipal
building. Although Talean citizens easily discuss the economic motives of the court, the court
officials insist that new laws are being created to impress the neighboring towns, as well as
the citizens of Talea, with peace and orderliness.
That law courts should be used for purposes other than the maintenance of
peace and order is not unique with the Talean Zapotec. Throughout the de-
velopment of the British common law, the King’s court was well known for de-
fining property laws with economic gain in mind.
Colson’s materials however, illustrate another way in which the law may
be used for economic gain :
They [court councillors] claim that if a man brings his wife to court a third time on an adultery
charge they will refuse to grant damages and will instead inform the husband that his only
recourse is t o divorce his wife and get back his bridewealth, that the woman is now making
a business of adultery and is a professional woman of the road [1958:170].
Fathers refuse to listen to a suitor until after an elopement, for they realize that they can
then collect both elopement damages and bridewealth. They also disregard the legal limita-
tions on elopement damages, and their demands for damages have steadily increased. The
lover, if he wishes, can take the matter to court and refuse to pay more than the legal amount.
If he does this, the girl’s father will refuse to listen to his suit. He will then have to elope
with another girl, and again pay elopement damages before he can hope to pay bridewealth
and receive his bride 11960: 1121.
I n terms of conflict theory the function of the breach varies. Disputes may
serve to solidify groups or individuals in a society (Reidelman 1959: 66, Nader
1965b); they may prevent the formation of political factions (Glasse 1959), or
serve to intensify disharmon) and cause the development of new factions
(Lewis 1958: 148, Beidelman 1959:66).
And finally Frake (1963: 221) reports on a Philippine group:
Litigation in Lipay, however, cannot be fully understood if we regard it only as a means of
maintaining social control. A large share, if not the majority, of legal cases deal with offenses
so minor that only the fertile imagination of a Subanum legal authority can magnify them
into a serious threat to some person or to society in general. . . . A festivity without litiga-
tion is almost as unthinkable as one without drink. If no subject for prosecution immediately
presents itself, sooner or later, as the brew relaxes the tongues and actions, someone will
make a slip.
I n some respects a Lipay trial is more comparable to an American poker game than to our
legal proceedings. It is a contest of skill, in this case of verbal skill, accompanied by social
merry-making, in which the loser pays a forfeit. He pays for much the same reason we pay
a poker debt: so he can play the game again. Even if he does not have the legal authority’s
ability to deal a verbalized ‘(hand,” he can participate as a defendant, plaintiff, kibitzer,
singer, and drinker. No one is left out of the range of activities associated with litigation.
Litigation nevertheless has far greater significance in Lipay than this poker-game analogy
implies. For it is more than recreation. Litigation, together with the rights and duties it
generates, so pervades Lipay life that one could not consistently refuse to pay fines and re-
main a functioning member of society. Along with drinking, feasting, and ceremonializing,
litigation provides patterned means of interaction linking the independent nuclear families
of Lipay into a social unit, even though there are no formal group ties of comparable extent.
The importance of litigation as a social activity makes understandable its prevalence among
the peaceful and, by our standards, “law-abiding” residents of Lipay.
More examples can be found. However, for the most part the inclusion of
such extralegal functions in the anthropological literature has been anecdotal.
The previous series of examples are not meant to illustrate the law; rather they
are examples of what should be included in any trul) ethnographic study of the
law.
And finally a word about comparison and generalization. One function of
comparative study is to identify uniformities and differences and to explain
them. Although it is true that we have a healthy handful of excellent mono-
graphs on certain aspects of law, are they indeed comparable? I n some respects
they are. For example, the mechanisms for dispute settlement (the procedural
aspects of law ways) could profitably be compared to isolate answers to ques-
tions such as those proposed by Kluckhohn (1960: 136) : first, “What is appar-
ently incompatible with what else?” Endogamous dual organization villages
are found to be incompatible with the development of a court system of judge-
made decisions (Nader 196%); second, “What is extremely likely to be found
with what else?” The use of a go-between as an important mechanism of
nonfaniily dispute settlement will be characteristic of societies which are
politically decentralized and bilateral in kin form; finally, “Are some concan-
tenations of cultural features or elements indifferent as far as minimal neces-
sary coherence of the system is concerned and hence found associated or not
associated merely as a result of the accidents of the historical process?” Here,
we may note that crime rates may or may not be related to any procedural
characteristic of law, and some evidence for this is presented by Beatrice
Whiting in this volume. Whiting compares the frequencies of assault and
homicide in six societies and considers the differences in the light of the concept
of “protest masculinity” and the status envy hypothesis of identification.
But there are problems inherent in comparison, even leaving to one side the
difficulties of comparing total legal systems, which we believe to be a task not
likely to yield much fruit. A major problem, common to all cross-cultural com-
parative studies, relates to the formulation of concepts or categories which
will permit cross-cultural analysis without distortion of the “folk-system” of a
particular society. Or phrased in another way, how do we reconcile “the new
ethnography” and the importance of generalization in anthropology. Bohan-
nail (1957) is correct in viewing the description of the folk and the analysis of
the system as two separate tasks, but his threefold social action model (action,
counteraction, correction) is much too general for comparative usefulness. So
is Gluckman’s (1955a) conceptual model used to describe the judicial process of
the Barotse. Yet a comparison of the formal institutions used for settling dis-
putes raises certain problem inherent in Hoebel’s volume T h e L a w of Primitive
Mavz (1954), that is, the problems of comparing a court system, with a go-
between system, with an Eskimo song duel, or even the problems in comparing
a grade D court among the Tiv with the presidente’s and/or the alcalde’s courts
among the Zapotec. We get into further complications by comparing the func-
tions of these formal systems. These problems are similar to those faced in kin-
ship research. For example, we compare a kinship system based on lineage and
clan principles with one based on the nuclear family. I n kinship we never
‘solved’ the problem of comparable units and yet comparison was not ignored.
Rather we started with certain assumptions about the regularity of kinship
forms and with certain questions the answers to which were sought through
comparison: Why is it that “marriage” is more brittle in some societies than in
others? What aspects of social organization are intimately connected to the
marriage pattern? The comparative papers in this volume on law ask such
questions. Whiting asks: Why is there more physical aggression resulting in
legal wrongs in some societies than in others? Roberts queries: Why do only
some societies have oaths and ordeals? Cohn pursues yet another question:
What relation is there between coalition formation in villages and frequency of
dispute? But if we are going to ask and answer such questions we need good
descriptive data, which leads us back to questions of description.
If field studies of law are to result in comparable data what essential ma-
terials should be covered by the e t h n ~ g r a p h e r ?First,
~ several assumptions
should be made clear: 1) there is a limited range of dispute for any particular
society; that is, all societies do not fight about all the possible things human
beings could fight about; 2) a limited number of formal procedures are used
by human societies in the prevention of and/or settlement of grievances (e.g.
courts, contests, ordeals, go-betweens, etc.) ; 3) there will be a choice in the
number and modes of settlement (e.g. arbitration, mediation, compromise, ad-
judication, and so on). How people resolve conflicting interests and how they
remedy strife situations is a problem with which all societies have to deal; and
usually they find not one but many ways to handle grievances. I n any society
also there are various remedy agents which niay be referred to when a grievance
reaches a boiling point, and an understanding of all such agencies is necessary
for a comprehensive analysis of social control and for a sophisticated contextual
analysis of the court system, should one exist.
Having in mind the range of remedy agents (or agencies ) in a society cer-
tain empirical questions come to mind: 1) What do people fight and argue
about publicly, and how, when, and where do conflicts come about? 2) How do
societies handle disputes and what is the outcome for the individual(s) in-
volved as well as for the society? 3) Within what groups are disputes concen-
trated? 4) How do disputes a t one group level (family, kindred, lineage, etc.)
affect that at another (village, region, nation, etc.)?
Information on these four areas should enable us to provide answers to
such developmental questions as: At what ages (speaking of biological and
sociological age) in the life cycle, in what roles, a t what rank, and under what
conditions do citizens fit into the picture as parties to specific disputes? What
is the relation between the composition of the family, the frequency of crime,
and the use of the courts? The Gluecks (1950) and B. Whiting in this volume
suggest a relation between the composition of the family and delinquent acts.
A relation between family structure and the use of the courts is illustrated by
the Zapotec situation where the absence of a father and/or brother often
forced women to take recourse to formal law agencies as plaintiffs. WhJr should
this be? What are the social and cultural correlates of sex and age-linked
offenses? Aniong the Zapotec for example, women are rarely defendants in dis-
pute cases involving assault and battery, while men on the other hand are
rarely defendants in slander cases. These informations should also enable us
to answer the question: 5 ) What are the manifest and latent jobs of the law
and how are they related t o the social structure?
24 Rthnography of Law
A quantitative and qualitative sampling of dispute cases from each society
could provide key material around which comparison would be made-pro-
vided that sampling problems are resolved or indeed that one could guarantee
witnessing more than a handful of cases in some populations. The dispute case,
unlike any particular form of adjudication or class of disputes or functions, is
present in every society. Universally such cases share most of the following
components depending on what stage the dispute is in: the dispute or griev-
ance (property, custody, theft, homicide, marital obligations, or however the
society may class such disputes) ; the parties to a grievance (sex, age, rank,
status, relation between parties) ; presentation of the grievance (before a
remedy agent such as a judge, go-between, lineage head) ; procedure or manner
of handling a grievance; the outcome; the termination of the grievance; and
the enforcement of a decision. Mapping the component parts of a case so that
the sociological aspects of conflict can be systematically discerned has been at-
tempted for the Zapotec material (Nader 1964a). The results are mainly de-
scriptive generalizations which have proved useful as a springboard for com-
parative work (Nader and Metzger 1963).
I n examining monographs that included case materials, certain neglected
areas were noted: frequency estimates, sociological data on the parties such as
age and status, detailed descriptions of the legal and extralegal factors deter-
mining the outcome. The decision-making process is often ignored or barely
mentioned. Typically, for example, there might be a statement of a case, then
a sentence declaring that “after much wrangling” the case was settled in such
and such a manner. We need to know more about the “wrangling.” If we are
dealing with a society with courts we need to investigate the dispute case in
the context of the range of social institutions which adults use in the resolu-
tion or prevention of trouble situations, that is, we should sample out-of-court
cases as well as court cases. I n this way we may reveal the intricate balance be-
tween the use patterns of various authority systems. See Schneider 1957,
Nader and Metzger 1963, and Gulliver 1963.
But how do we arrive a t an understanding of our last question: 6) What
jurisprudential ideas are expressed in legal reasoning? If prior to field work we
attempt to make a category listing of substantive areas of the law such as
family law, tort law, property law, we run into difficulties. Who could say, a t
this stage of knowledge, what the major categories of family law would be
when viewed cross-culturally? The range of possibilities in terms of substan-
tive law are too great to be handled in the same way as procedure, given our
present knowledge. Is inheritance, for example, a universal category of law?
(Cf. Hoebel 1948 for an example of a comparative treatment of inheritance.)
Llewellyn and Hoebel might suggest that we “find” substantive law by noting
cases of breach, and this one can do in the field only. But there is another pos-
sibility, one which admittedly has its drawbacks. Field workers, both implic-
itly and explicitly, have described the law ways of preliterate and nonliterate
groups usually against a backdrop of Western European law. Hence the
familiar chapters of family, property, contract, torts, etc. This has been the
subject of much criticism. While I do not believe that we can adopt wholesale
Western jurisprudential categories of law for use in non-Western cultures, i t is
possible that we could explicitly state that we are using an outline of Anglo-
American common law, for example, against which or from which we view
exotic legal systems. A t least we would be clear about what our biases were.
Such straightforward comparisons might serve field workers a t least as one
system against which to contrast their materials. It would also enable us to
provide answers to the question, What jurisprudential ideas are expressed in
legal reasoning? We could thereby test a suggestion made most recently by
Gluckinan (1965a) that certain jurisprudential ideas found in English and
Roman law are universal ideas.
For example, Gluckman (1965a: 113) states as a universal legal distinction
that
Both developed and underdeveloped legal systems distinguish sharply between immovable
and movable property. Basically the distinction is between rights and duties of persons in
relation to land, and rights and duties in relation to others with respect to goods, animals
and people.
He continues his discussion by accepting a more generalized version of this

distinction :
As Maine pointed out, the difference between the two types of property is not absolutely
between land and chattels-between immovables and movables. The Roman res mancipi
included slaves, horses, and oxen besides land. Maine cites Scottish law as ranking a certain
class of securities with land, and Hindu law as grouping slaves with land.
And he proposes an interesting h j pothesis to explain what contributes to this

dichotomy in classifying property:
Immovable property and chattels have different functions in the maintenance, through time,
of a social system as an organized pattern of relations. Immovable property provides fixed
positions which endure through the passing of generations, through quarrels, and even
through invasions and revolutions, and many social relationships are stabilized about these
positions (p. 116). . . . Chattels . . . break up the exclusiveness of corporations aggregate by
drawing their individual members into other relationships [cross-linkages] (p. 133).
Even disagreement with the universality of the dichotomy that Gluckman

poses does not detract from the fact that Gluckman in these recent essays
makes a distinctive contribution to an anthropological understanding of both
\Vestern and Barotse jurisprudence. His essays also clearly illustrate the
stimulus value of Western jurisprudential ideas. However, another approach
in the exploration of cognitive categories is illustrated in this volume b y Black
and Metzger. Their approach is a contribution to the methodology of descrip-
tion while Gluckman’s essays provide an example of anthropological legal in-
terpretation of given descriptive categories. At any rate it remains clear that
aspects of law assumed to be universal by eighteenth-century intellectuals re-
main a matter of search for twentieth-century scholars.
NOTES
In conceiving the original outline of this paper I have profited immensely from the papers
and discussions a t the Winner-Gren Conference on law, April 1964 I am especially indebted to
Paul Rohannan, Herma Kay, and Julius Stone for many stimulating interchanges at the Center
for Advanced Study in the Behavioral Sciences. For their critical comments and readings of
earlier drafts I wish to thank Eugene Hammel, Me1 Perlman, Penny Addiss, Carl McCarthy,
John Rothenberger, and most of all Norman Milleron. Penny Addiss served as research assistant
during the writing of this paper. Anne Brower kindly edited several drafts. My colleagues a t
Berkeley, especially Elizabeth Colson and C. Lancaster were helpful in directing me to African
and Indian materials. The responsibility for the paper in its present form, alas, is solely mine.
This paper is not a swuey of the literature past and present. Such would be the subject for
a book. The examples quoted are primarily in English; a few French references are included.
There is a long German tradition totally ignored here. We have elsewhere (Nader, Koch, and
Cox 1964) annotated the German literature but for the most part the German literature is not
utilized here. It would be important to consider such obvious scholars as Kohler and Trimborn
in any historical treatment of the subject. Most relevant work can be found in Zeitschrift fiir
Vergleichende Rechtswissensckaft, but see especially Leonhard Adam (1937) “Ethnologische Rechts-
forschung,” still the best review article on the development of German legal ethnology.
For a broad review of trends in American sociology of law see Skolnick 1965.
Anthropologists have more commonly analyzed other institutions as having legal functions
rather than legal institutions as having other than legal functions. See Kaberry 1941 and 1942
for example.
The Berkeley project on comparative village law has been concerned with the problem of
conducting comparable ethnographic field studies of law. This group met during 1963-64 to work
on the formulation of a field guide. In its broadest scope the field guide was intended to cover the
social relations and contexts in which breaches of the law tend to develop, the institutions and
mechanisms which serve to prevent social conflict, and the systematic collection of dispute cases.
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The Anthropological Study of Law1

If this is common knowledge s a s~Hart, how is it that the question “What

The manner in which Blackstone goes about finding universals is different

Hoebel has mentioned a few general or universal characteristics of sub-

Gluckman is interested in testing the implications of certain observations; e.g.,

and of certain hypotheses:

The above-quoted opinion is extremely narrow in its conception of the

THE SOCIOLOGY OF LAW AND ANTHROPOLOGICAL CONFLICT STUDIES

Anthropologists interested in law would also do well to scan the conflict

He continues his discussion by accepting a more generalized version of this

And he proposes an interesting h j pothesis to explain what contributes to this

Even disagreement with the universality of the dichotomy that Gluckman

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