Anthropological Approaches

shikin@unisza.edu.my
 Introduction
• It was believed widely that all societies passed through
clear and unavoidable stages of development, distinguished
by increasing complexity, and this was extended to include
stages of legal development.
• Various legal systems were studied and compared with the
aim of charting a general evolutionary direction, from a
primitive to a civilised state.
• The main concern of this approach is to study the
structure, social life, religious beliefs, rituals, taboos and
habit of the primitive people.
• AA uses case study method and empirical facts to study the
real dispute settlement among the primitive people.
• It is not as “a philosophy but a technology “
 Introduction
• Since the late nineteenth and twentieth centuries, there
have been three separate periods in the development of
the field of legal anthropology.
• The first was the publication of the major empirical
monographs before the 1960s that were mainly historical,
ethnographic descriptions of a single ethnic group and
were concerned with seeking to understand whether all
societies had law or its equivalent.
• A small number of monographs, including Maine’s Ancient
Law (1861), Malinowski’s Crime and Custom in a Savage
Society (1967) and Llewelyn and Hoebel’s The Cheyenne
Way (1941), provided the baseline for the discipline.
 Introduction
• The second phase was in the mid-1960s, there was then a
shift towards the study of dispute settlement and of law as
a process, in which the study of substantive rules and
concepts was subordinated to the analysis of procedures,
strategies and processes.
• It gave rise to a new epistemological base in legal
anthropology—namely, ‘processual analysis’, which studied
the processes involved in the settlement of disputes.
• It is the move since the mid-1970s towards the gradual
elaboration of a plurality of approaches and more explicit
concern with theory and attention to the role of the State.
 Introduction
• In the 1980s, anthropologists came to feel
that the ethnographic case-study
methodology of dispute processes was too
narrow a canvas of analysis.
• This third period suggested that that local
disputes needed to be analysed within their
socioeconomic and historical context.
 Hoebel & Llewellyn
• The first notable advocates of the case method approach were the
team of anthropologist Edward Adamson Hoebel (1906-1993) and
law professor Karl Llewellyn (1893-1962).
• Llewellyn and Hoebel’s major publication was The Cheyenne Way:
Conflict and Case Law in Primitive Jurisprudence.
• Llewellyn and Hoebel conducted ethnographic work among the
Cheyenne in Montana in the 1930s, but it is important to note that
they did not observe actual cases.
• Rather, they asked elderly Cheyenne informants to describe how
“trouble cases” from the past were handled; most of the cases they
collected were from the nineteenth century, and they were related
to Hoebel and Llewellyn through an interpreter.
 Gluckman
• Another advocate of the case method approach was Max
Gluckman (1911-1975), a prominent South African
anthropologist and student of Isaac Schapera.
• Gluckman used the case method developed by Hoebel and
Llewellyn, but conducted field research in working courts,
where he listened to cases in the Lozi language, rather than
learning about trouble cases from the memories of elders.
• In the judicial process among the Barotse, Gluckman focused
on the dispute settlement process of the Lozi, a society
consisting of a number of interrelated ethnic groups
located along the Zambeze River in Barotse Province in
western Zambia.
 Gluckman
• He systematically studied the Lozi court in action, listening
to cases and the legal arguments presented as they
unfolded.
• From an analysis of the cases and legal arguments, he
sought to extract the way in which Lozi judges approached
their task, how they assessed evidence, what sources they
drew on in making their decisions, the logic of their
arguments, and how they applied legal rules to social life.
• To achieve these objectives, Gluckman distinguished Lozi
norms that were special to their society from the logical
principles that judges used to decide what norms to apply
in court and how and when to apply these norms.
 Gluckman
• Gluckman believed that the results of his research
demonstrated that the judicial process used in Lozi
courts represented logical principles or modes of
reasoning found wherever individuals apply norms to
settle disputes, that is, that indigenous African legal
systems and practices were as rational as those found
in Western societies.
• Therefore, Gluckman argued that although the
premises of the Lozi court were different from those of
Western courts because the social context of the
society was different, the logical principles used and
the reasoning process were the same as in Western
courts.
 Function of law in primitive society
Hoebel’s theory
• The law in primitive societies has the following
functions:
1. to identify socially acceptable lines of behaviour
for inclusion in the culture- to define
relationships among the members of a society.
2. To allocate authority and who may legitimately
apply force.
3. To settle trouble cases.
4. To redefine relationships as the concepts of life
change.
 Functions of law- Application in
Nigeria
• Definition and Regulation of Social Relationships: This
means that the law helps to define the kinds of
relationship among individual members of the society
that would be recognised by it.
• For instance, under the Marriage Act, a valid marriage
is a union between a man and a woman. Thus, unions
between couples of the same sex are not recognised in
the Nigerian Legal System.
• In all, the law regulates the relationship between
members of the society in order to prevent
associations or relationships that would end up being
harmful to the society.
 Function of law in primitive society
Hoebel’s theory
• Identification and Allocation of Official
Authority: Another function of law is that it helps
to grant authority in those chosen by the society
whether expressly or indirectly.
• For example, the 1999 Constitution establishes
the Legislature, Executive and Judiciary in the
provisions of SS.4, 5 and 6 respectively. The
provisions not only establish them, their specific
duties are also provided for.
 Function of law in primitive society
Hoebel’s theory
• Dispute Settlement and Remedies: In the course of interaction
amongst members of the society, there is always bound to be
trouble between members. The law comes in situations like this to
provide for the procedures in which these issues can be resolved
and if need be, the provisions of remedies for the breach of the
rights of members of the society.
• The law achieves this through the instrumentality of the judicial
system.
• The method of dispute resolution adopted by the society depends
on its size and complexity. If it is a small and simple society, disputes
would be resolved in a way that would ensure continued
relationship among the members. If it is a complex society in which
parties have no need for further relationship, the disputes would be
resolved in a way that apportions blames and grants remedies as
adequately needed.
 Function of law in primitive society
Hoebel’s theory
• Change of Law: Another function of law is that it provides
methods by which the laws can be modified in order to
meet the needs of the changing times. For example, the
Constitution in S.4 vests in the legislature the power to
make laws for Nigeria. This means they can re-enact laws
and correct anomalies in them. The specific processes to be
followed by the legislature in enacting laws for the
federation are provided for by the Constitution in S.58.
• Also, the Constitution provides in S.9 the procedures to be
followed in amending its content. The provision of methods
for amending laws goes a long way to end ambiguity as to
how the laws should be modified to suit the needs of the
society.
 The principles of mutual aid
• Peter Kropotkin (1842-1921) was a Russian prince,
geographer, and self-proclaimed anarchist, who gave
up wealth and a privileged lifestyle in exchange for one
of scientific discovery and political activism.
• It was his desire to help emancipate his fellow Russians
from economic and political exploitation.
• Kropotkin's most famous book, Mutual Aid, maintains
that cooperation within a species has been an historical
factor in the development of social institutions, and in
fact, that the avoidance of competition greatly
increases the chances of survival and raises the quality
of life.
 The principles of mutual aid
• He contended that mutual aid is a factor that is both
biological and voluntary in nature, and is an enabler of
progressive evolution.
• Without it, life as we know it could not exist.
• This can be also seen in the animal kingdom. Horses and
deer unite to protect each from their foe, wolves and lions
gather to hunt, while bees and ants work together in many
different ways. Kropotkin said that mutual support is an
established fact within the feathered world, with eagles,
pelicans, vultures, sparrows, and other fowl, collectively
searching for and sharing food. Some species of birds even
gather together at the end of the day to sleep
 The principles of mutual aid
• Kropotkin also believed that we have a
predisposition to help one another, and we do so
without governmental coercion.
• A centralized government is not necessarily
needed to set an example or to make people do
the right thing. People were doing so before the
rise of the State.
• In fact, Kropotkin maintained that it is
government that represses our natural tendency
for cooperation.
 The principles of mutual aid
• He accused historians of giving little attention to the lives of the masses
and their inclination to help each other, offering up instead, a distorted
view of civilization through a series of "epic poems, the inscriptions on
monuments, the treaties of peace - nearly all historical documents bear
the same character; they deal with breaches of peace, not with peace
itself" (Kropotkin 1989, 117).
• He makes in the book concerns the guilds/unions of the Middle Ages.
• He discusses temporary guilds of cooperative, just in time groups, formed
by the union of like-minded individuals, who shared a common goal and
space.
• These groups could be found aboard ships, at the building sites of large-
scale public projects, such as cathedrals, and anywhere where "fishermen,
hunters, travelling merchants, builders, or settled craftsmen came
together for a common pursuit" (Kropotkin 1989, 171).
 The principles of mutual aid
• These examples of temporary guilds can be seen as Smart
Mobs, where cooperative groups are spontaneously
formed in order to fulfill a common goal, the only
difference being the loss of distance due to the rise of
mobile communications. The formation of temporary guilds
on board ships is a good example of dynamic cooperation in
a mobile situation. After leaving port, the captain would
gather the crew and passengers on deck, telling them they
were all in this together, and that the success of the voyage
was dependent upon all of them working as one. Everyone
on board would then elect a "governor" and "enforcers,"
who would gather "taxes" from those who broke the rules.
At the end of the voyage, the levies would be given to the
poor in the port city (Kropotkin 1989, 170).
 The principles of mutual aid
• The emergence of these types of collaborative techniques
made possible new forms of cooperation, and therefore,
expanded the ways in which people could succeed and
survive more efficiently and effectively.
• Self-sacrifice and loyalty to a common cause and concern
for the well being of the whole, were the norm within
these on the fly cooperative communities.
• This could be seen not only in associations, societies,
brotherhoods, and guilds, but also in neighborhoods,
towns, villages, and cities, with mutual aid being a
prerequisite for survival among the working classes
throughout the evolution of civilization.
 The principles of mutual aid
• Solidarity is central to mutual aid and remains
strong, even when government control,
power, and bureaucracy seem destined to pit
one against the other with the hope that it
can suppress initiative. Instead, strangers are
seen helping each other. Peasant women of
Russia gave bread and apples to German and
Austrian prisoners of war during WWI, and
tended to the wounded, regardless of their
nationality (Kropotkin 1989, preface).
 Conclusion
• The legal anthropology has made a number of useful
contributions to answering the specific questions.
• This study is concerned with: first in research
methods and second in emphasising certain aspects
of the legal system that legal scholars tend to
overlook, including the numerous modes of conflict
management outside the courts and the general
social context of the law.
• At present, however, legal anthropology is limited in a number of respects.
1. Law and anthropology have proceeded from different premises and have
embraced different goals. Anthropology’s primary aim is accurate
description; the pre-eminent aim of law is prescription. As a result, there
is little general comparative work or theorising about the universal basis
of norms or legal institutions in contemporary legal anthropology. For
example, Benda-Beckmann argues that it is rare in legal anthropology to
have systematic comparisons of legal systems.
2. With the significant exception of the development of the theory of legal
pluralism, legal anthropology has been in a period of stagnation and
largely devoid/lack of theoretical innovation in the past 20 years.
3. Legal anthropologists seem currently to be turning their attention away
from their traditional focus of analysing the intersections between
indigenous and European law, to analysing non-colonised societies such
as Europe, and also the United States.