Order and Dispute: An introduction to legal anthropology

215 Pages·1979·1.06 MB·English

by  Roberts Simon

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)
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UID RO OOKS
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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
1 “Living in the village with no other business but to follow native life” … “to
grasp the native’s point of view, his relation to life, to realise his vision of his
world.” (1922:25) “The scientifically trained mind, will push the enquiry along
really relevant lines…” (1922:12) “Indeed, the object of scientific training is to
provide the empirical investigator with a mental chart, in accordance with which
he can take his bearings and lay his course.” (1922:12-13).
22 On the opening page of their Theories of the State (1987), Patrick Dunleavy
and Brendan O’Leary assert “some form of government is intrinsic to human
society” (p. 1). Again, in his recent important work, The Idea of Public Law
(2003), Martin Loughlin introduces his discussion of “governing” thus (p. 5):
As a general phenomenon, the activity of governing exists wherever
people are drawn into association with one another…. In order to
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
maintain themselves … groups must establish some set of governing
arrangements, however rudimentary…. The formation of governing
arrangements is a ubiquitous feature of group life.
Reflecting on the form of government, Loughlin also insists on the paradigmatic
nature of the shape represented by leader and following (p. 5):
Since it is not possible for associations of any significant scale and
degree of permanence to be capable of governing themselves, the
business of governing invariably requires the drawing of a distinction
that has become fundamental to the activity: the divisions between
rulers and ruled, between a governing authority and its subjects.
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