Order and Dispute: An Introduction to Legal Anthropology

Order and Dispute

ORDER AND DISPUTE

An Introduction to Legal Anthropology

by

Simon Roberts

SECOND EDITION

Classics of Law & Society Series

Quid Pro Books

New Orleans, Louisiana

ORDER AND DISPUTE

Copyright © 1979, 2013 by Simon Roberts. All rights reserved.

Original work previously published in 1979 by Penguin Books, Ltd., Middlesex, UK, and Penguin Books, New York; and in 1979 by Palgrave Macmillan/St Martin’s Press, London; copyright © 1979 by Simon Roberts.

Published in 2013 by Quid Pro Books, at Smashwords.

ISBN 978-1-61027-185-1 (eBook)

Quid Pro Books

Quid Pro, LLC

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Publisher’s Cataloging-in-Publication

Roberts, Simon.

Order and dispute: an introduction to legal anthropology / Simon Roberts. — 2nd ed.

Originally published: New York, Penguin Books, 1979.

p. cm. — (Classics of law & society)

Includes bibliographical references and index.

ISBN 978-1-61027-185-1 (eBook)

1. Law and anthropology. 2. Culture and law. 4. Immigration. 5. Terrorism. 6. Judges—Judicial Process. I. Roberts, Simon. II. Title. III. Series.

K47 .A329 .R26 2013

342'.73'6—dc22

2013448372

Front cover image: The cover shows a detail of a nineteenth-century engraving, Hottentots Trying a Criminal, by courtesy of the Parker Gallery, London.

For my parents

Arthur and Margaret

Contents

Preface to the Second Edition

Preface to the First Edition

1 • Introduction

2 • Why Not Law?

3 • Order and Continuity in Everyday Life

4 • Disputes

5 • Nomadic Hunters and Gatherers

6 • Settlement and Property

7 • Stateless Societies

8 • The State

9 • Fighting and Talking

10 • Rules and Power

11 • Main Themes and Interests in the Literature

Afterword to the Second Edition

Bibliography

Index

About the Author

Footnotes

Preface to the Second Edition

Thirty years ago in the West the neo-classical model of law as command seemed pretty securely in place. A central feature of this metropolitan model was its quality as a regulatory regime, controlling even the activities of government. Associated with this quality were: law’s operation through discursively formulated, largely codified, rules; its association with a particular mode of dispute-resolution — adjudication; and its enforcement through centralised sanctions. In all of this, law’s presentation of itself as a sharply differentiated, specialised sub-system, regulating government and essential to the stability of the polity enjoyed pretty widespread, uncritical acceptance.

The parochial detail of this complex was largely explained through two features influencing its evolution from the medieval period: the struggle of Kings to remain in power and the parallel, related growth of a legal profession. In more general terms, law in the West represented a variant of a much more general constellation visible at widely different historical periods wherever serious efforts have been made to establish centralised power.

Looking back, I think few would have then forecast how rapidly and extensively central features of that landscape would change. Could anyone then have anticipated that by the early 21st century common law judges would be representing their primary responsibility as the sponsorship of settlement? Or that over the same period members of the legal profession would have complemented their historic role as fiercely partisan advisers and representatives with aspiration to non-aligned facilitatory roles?

At the same time, commentary on these structures generally reflected those dominant themes in modern social theory formulated by Marx, Weber and Durkheim. These themes encompassed:

-- the stratified character of, and widespread deployment of ideology in, contemporary society;

-- the notion that pattern and coherence in the social world are attributable to, made possible by, the skilled achievements of those in power;

-- the centrality of codified rules in reproduction of pattern in the social world;

-- an assumption that a strong contrast may be drawn between traditional and modern modes of society/government; and

-- the idea that ritual and symbolic productions are associated with traditional rather than modern government.

The ethnographic project

Beyond these substantive elements, it was still possible to get away with the naïve simplicity of the method and goals I proposed then for legal anthropological study. But in adopting the basic opposition of native theory to the observer’s analytic scheme formulated early on by Malinowski¹ and subsequently advocated by Bohannan, I was left open both to the devastating critique soon levelled by Clifford Geertz and to the later re-evaluation of Geertz’ own position by critical theorists.

More narrowly, it still seems appropriate to have emphasized the limited and ethnocentric character of the then dominant tradition in Western legal theory and the generally distorting effect which that had on any understanding of the questions of ‘order’ and ‘domination’. In conflating the analytically distinct question of how societies hold together and change over time with the phenomenon of government, Western political and legal theory even today conventionally presents order as the achievement of government.² So I consider the predominant, countervailing attention paid to ‘stateless’ societies in Order and Dispute was well justified. So also was the naturally ensuing attention to dispute processes with a primary focus on negotiation and facilitatory interventions — processes that have subsequently come to prominence in centralised polities as well.

The colonial scene

On the other hand, there were gross and inexcusable failures in the first edition of Order and Dispute. The book says almost nothing about the overarching legal structures necessitated by any colonial enterprise. My virtually exclusive focus on Africa and Melanesia, and lack of attention to the great polities of the East, was naïve to the point of culpability. No story of human order and patterns of domination could be plausible without close attention to the histories of China and India. This failure has subsequently been made good in the work of others, notably by proponents of the invention of tradition thesis and writings under the now fashionable label of legal pluralism. But it is important to remember that the British Colonial projects of the 19th and early 20th centuries provide no more than a singular and instructive example of a much wider phenomenon. What was perhaps distinctive of the British colonial project was the concurrent imagination and reconstruction abroad of a metropolitan legal order and the making of explicit arrangements for the qualified survival of local governmental arrangements and normative orders.

With the evolving British colonial project the complex of institutions we can label law, and their attendant ideological productions, acquired a new life. The latent, unexamined growth of the neo-classical model in England came into the foreground and had for the first time to be conceptualised and re-presented for export as underpinning operations in the colonial world. In failing to tell that part of the story, and neglecting the lessons of Marx and Althusser, my original account gave no sense of the stratified context in which law operated and the ideological productions on which it relied.

The legacy of modern social theory

There is another reason why the original emphasis still seems justified today. Given that the short but influential period generally labelled post-modernism is now widely recognized as passing, we can anticipate a welcome revival in the body of theory underpinning the modernist project. Despite the overwhelming influence and popularity of both post-modern and neo-systems theory over recent decades, the former’s reluctance to engage with any analytic project and latter’s effacement of human actors leads to an inevitably impoverished account of the social world. So the premature claim of post-modernism’s adherents that the paradigm of modernity is exhausted still needs to be reconsidered. This is the moment to re-examine both Durkheim’s focus on cosmology and Weber’s advocacy of an ‘action’ perspective with his emphasis on processes of domination.

Looking first at Weber’s discussion of domination, there are for my purposes two general difficulties: First, a problematic tradition/modernity opposition; second, too narrow a notion of what people in apical positions, in leadership roles, actually do. Weber has in mind a particular view of what authority involves — the explicit exercise of a steering role, the business of telling other people what to do. This can only ever be part of the picture.

That is beautifully illustrated in Negara, Clifford Geertz’ ethno-historical study of Balinese kingship. Whatever arguments there may be about the quality of Negara as ethnography, 19th century Balinese kingship does not appear to have been only, or even primarily, an office of command. Geertz depicts the arrangements around the court in these Balinese polities as having an essentially exemplary, theatrical role, a matter of representing the Balinese to themselves. He describes the Balinese court as a microcosm of the supernatural order which, by providing a faultless image of civilised existance, shapes the world around it in a rough approximation of its own excellence. (1982:13) The ceremony and spectacle which the court represented was the central purpose, rather than a means towards political ends: they were ends in themselves, what the state was for.

So a lot of different things can be going on when we see people in apparently leadership roles. Writing about the Tswana kingdoms of the Kalahari at the end of the 19th century, I noted that Tswana rulers used a range of modes in addressing their people. Among these were: Informative, memorial, homiletic, permissive and rule-making modes — all more prominent than the conventionally central mode of command (Mann and Roberts, 1991:173-76).

Buried in the middle of Sorcerers of Dobu, Fortune reveals the homiletic dimension of some leadership roles in a superb little vignette. He starts off:

There is only the most embryonic germ of government by chieftainship. In each locality there are one or two persons of outstanding influence. Such leadership occurs when a man of unusual character happens to be born into a rich inheritance of magical ritual power. Such a man was Alo of my own village of the Green Parrot folk. He was to be heard now and again in guguia, the public admonition of a member of his own village. He would commonly talk for half-an-hour or so in loud, angry staccato sentences. The other … big men of the village took no part but listened quietly. (Fortune, 1932:83-84)

At the same time, we need to re-think the central position of cosmology generally, and the discursive formulation of norms in particular, in securing the foundations of social order. This is the Durkheimian part of the legacy. Durkheim spent the greater part of his working life preoccupied with the nature of social solidarity, the role of a shared cosmology, and the ways in which society, in terms of such a shared cosmology, might come into being and be sustained. In his last book, Les formes elementaires de la vie religieuse (1912), he locates the social firmly in shared understandings about how the world is and ought to be: a society is not made up merely of the mass of individuals who compose it, the ground which they occupy, the things which they use and the movements which they perform, but above all is the idea which it forms of itself (1912:422). This was primarily a matter of a shared cosmology. He insisted that even the humblest have their cosmology (1912:428). Religion provided the primary location for the formation of these cosmologies: the first systems of representations with which men have pictured to themselves the world and themselves were of religious origin. (1912:9) Religion is not merely a system of practices, but also a system of ideas whose object is to explain the world. (1912:428)

Cosmologies are both expressed and kept in place through ritual. Through ritual members expressed their society at a symbolic level; at the meetings associated with religion the bonds which attached the individual to society were strengthened:

There can be no society which does not feel the need of upholding and reaffirming at regular intervals the collective sentiments and the collective ideas which make its unity and its personality. Now this moral remaking cannot be achieved except by means of the reunions, assemblies and meetings where the individuals, being closely united to one another, reaffirm in common their common sentiments. (1912:427)

So religion performs both a cognitive and a reinforcing role: without religious symbolism, a society could not become conscious of itself; and without ritual this consciousness could not be sustained.

The overriding importance of a shared cosmology for Durkheim is underlined by the way he talks about government on the relatively rare occasions when he does so. For him, in sharp contrast to Weber, the skilled achievements of those in power lie very much in the background; but when he does speak of government, he makes it clear early on that it is in the harnessing and maintenance of collective consciousness that the primary role is located:

...whenever an authority with power to govern is established its first and foremost function is to ensure respect for beliefs, traditions and collective practices — namely, to defend the common consciousness ... It thus becomes the symbol of that consciousness, in everybody’s eyes its living expression. (1893:42)

In explicitly rejecting the Durkheimian position, Maurice Bloch has argued against the central importance of a shared, discursively formulated cosmology. He argues that the greater part of our acquired understanding seems built up through everyday practice and experience, rather than the imagination of learned rules. He makes this point strongly in writing about the way the Zafimaniry, a small society of Madagascan shifting cultivators, learn to live in their world:

...it is learnt as one learns as a baby to negotiate the material aspect of one’s house, as one follows other children looking for berries in the forest, as one enjoys the pleasure of working harmoniously with a spouse, as one cooks with the implements of the hearth, as one sees one’s grandfather lean against the central post, as one cuts through a massive tree trunk, and as one sees the beauty of the house of a fruitful marriage. (What Goes without Saying..., in A. Kuper (ed.), Conceptualising Society [London: Routledge, 1991]; cf. also Language, Anthropology and Cognitive Science (1991) 26 Man 183-98)

There are two linked points here: First, we learn to live in the world through practice, rather than through assimilation of taught, discursively formulated or codified rules. Second, much of our knowledge is tacit, not acquired through language or necessarily subject to explicit discursive formulation.

If we take Bloch’s position, tradition in the pure sense takes on a central importance. This is tradition or custom as shared, implicit, tacit assumptions, linked to past and current practice, about how things are and should be done — what one theorist has labelled the ‘purest’ and most innocent mode of social reproduction. (Giddens, 1979:200) Where norms are discursively formulated and explicitly justified in accordance with past practice (the ways of the ancestors), this is tradition in a quite different sense. As Giddens puts it: "the sloughing off of tradition in a certain sense begins with its understanding as tradition: tradition has its greatest sway when it is understood simply as how things were, are (and should be) done. The encapsulation of certain practises as ‘tradition’, however, undermines tradition by placing it alongside other modes of legitimating established practices." (1979:200)

We also need to position ourselves carefully so far as the understanding of ritual is concerned. In his important paper, Symbols, Song, Dance and Features of Articulation (1974) and his subsequent monograph, From Blessing to Violence (1986), Bloch postulates a special link between ritual and ‘traditional authority’, claiming that ritual represents the primary resource drawn on by traditional authorities. Writing specifically of the Merina of Madagascar he argues that Merina elders sustain domination over their juniors through their control over oratory and religious ritual. He concludes with the radical suggestion that religion itself originates as a strategy of traditional authority, with ritual operating as ideology to mask and justify hierarchy and inequality. In looking at ritual as exclusively a vehicle through which hierarchy is maintained, Bloch challenges and transforms the Durkheimian link between ritual and social solidarity.

In giving substance to the Weberian concept of traditional authority, and linking it specifically to the Marxist theory of ideology, Bloch deploys arguments originally formulated under conditions very different from those of the Merina context. It is not clear that Marx’ theory of ideology has much explanatory power where you do not have opposed groups with differential access to scarce resources, or that legitimation can be much of an issue where positions of rank do not involve incumbents in telling other people what to do.

But we need to revise — or at least think carefully — about two of the positions that he then took: First, ritual cannot be thought about just in terms of domination. Bloch goes too far in rejecting Durkheim’s link between ritual and social solidarity, the generation of commitment. Second, in linking ritual to traditional authority, he implies that ritual is not important in modernity. Clearly this is not the case. As Bloch himself points out, the survival and power of ritual is not dependent on its propositional content — in fact we should not think about it in those terms at all.

So in broad schematic terms these discussions call for a twofold shift of focus. First, from a Weberian conception of ‘tradition’ as a more or less discrete precursor of ‘modernity’ to one under which tradition constitutes a central element of the lifeworld of the present. Second, in contrast to Bloch, I argue that we need to see the symbolic and ritual domain as part of modernity, rather than a surviving, fragmentary attribute of traditional authority.

SIMON ROBERTS

Emeritus Professor of Law

London School of Economics

Blackheath,

23 February 2013

Preface to the First Edition

Even if Malinowski could fairly complain in 1934 that the anthropology of law had been neglected ‘to an extent which the layman would find unbelievable and which the specialist realizes with shock,¹ this deficiency has long been made up. His own vivid writings on the subject preceded books by Llewellyn and Hoebel, Schapera, Gluckman, Turner, Bohannan and Gulliver which have all come to be regarded as classics of their kind. Some good textbooks, collections of essays and selected readings have followed, but there is still nothing of an introductory nature beyond some terse chapters in books on general anthropology and a few rather inadequate sections on ‘historical jurisprudence’ in works of legal theory. So my primary object here is to provide something for the newcomer, whether an interested layman or the prospective student.

Despite the sub-title, it must be said at the start that this is not a book about law. Two quite distinct traditions of scholarship have grown up under the general label of ‘legal anthropology’; one explicitly concerned with law, and another with broader questions of order in society. Despite a legal education, my own sympathies are firmly in the latter camp, as I doubt the value of attempting to isolate the ‘legal’ as a generic field of study in the small-scale societies with which this book is concerned. The approach adopted here has meant abandoning familiar legal perspectives and modes of analysis, and then feeling my way among those developed in other social sciences; as a result, some of the arguments are likely to appear naïve and stilted to the professional.

Quite apart from questions of perspective, this does not pretend to be a comprehensive survey of the field. In particular, I have neglected the important subjects of pluralism and change; and said nothing about the relationships of these small-scale societies to those larger nation-states within which they are encapsulated. Nor is the growing interest of anthropologists in the legal systems of contemporary western societies reflected here at all. Some readers of the manuscript complained vigorously about these omissions; but introductions to these topics can be found elsewhere, and an adequate treatment of them here could only have been provided by leaving out other material which I felt it essential to include.

Anyone attempting an introduction to legal anthropology must owe a huge debt to the scholars I mentioned at the beginning, and also to the major attempts at synthesis by Moore, Nader² and Abel.³ There is also a more immediate debt to Isaac Schapera, who gave constant encouragement and expert help; it is a pity he could not have been persuaded to write a book on ‘law’ himself. At Penguin, Jill Norman provided friendly assistance throughout. This book grew in conjunction with a course of lectures at L.S.E., and numerous students in successive years read and commented on drafts as these were prepared. Later, as something like a final form appeared, several good friends agreed to read it, particularly Stuart Anderson, Simon Coldham, Patrick McAuslan, and David Schiff. I am very grateful for the help they gave, but they must not be taken to agree with any or all of what follows. John Comaroff also read the manuscript and made innumerable helpful suggestions; but his contribution goes beyond that as, in the course of a close collaboration on several projects, we have repeatedly discussed many of the questions written about here. Without the help and support of my wife, Marian, I would not have got anywhere with this at all.

S. R.

Blackheath,

14 August 1978

1

Introduction

Although contemporary debates in some western societies reveal an almost obsessive concern with questions of social order, there is very little agreement as to the foundations upon which such order rests or how it can best be secured. Some see it as depending upon widespread approval of mutually understood rules, while others consider that it is primarily maintained through the exercise of force. At the same time, there is argument over the degree of order that is necessary or desirable, and consequently as to the significance of disputes; these can be viewed as pathological events, signs that something is ‘wrong’ in society; or as normal and inevitable features of social life. Such disagreements are certainly not confined to laymen, and are reflected in the opposition of ‘conflict’ and ‘consensus’ theories advanced by professional social scientists.¹

In this book these and other questions concerning the maintenance of order and the handling of disputes are examined in the different context provided by those less complex societies which anthropologists have traditionally studied. Small in scale and with relatively simple technologies,