Since commentaries on the future are inherently commentaries on the present, this essay starts by identifying two emergent and lively theoretical discussions in the anthropology of law. The first represents one element of a broader anthropological analysis of the idiosyncratic nature of legal culture, and concerns legal epistemology, or how law knows.
In order to determine any legal issue, such as whether a criminal defendant is guilty or innocent or whether an individual is liable for tortious behavior, the legal system must determine “the facts of the case.” Legal actors arrive at facticity by following a uniquely legal formula that combines special rules and procedures for admitting and evaluating evidence with “common-sense reasoning,” itself an unstable amalgam of prevailing cultural attitudes, class, race and gender biases and yesterday’s science. In its handling of evidence, law has an obvious preference for a paper trail of documentation and inter-textual knowledge construction (Latour 2004). It has a distinctive way of conceiving causation as a linear chain culminating in the “proximate cause” and, in contrast with social science, has trouble with multiple causation and facilitating (but not directly causal) background conditions.
Law constructs and operationalizes social identities and favors bounded and fixed categories of race, ethnicity, disability and gender. It struggles with flexible and mutable social identities, and, as Maria Sapignoli observes in this online exchange, in deciding whether and how non-human entities such as animals, plants and features of the landscape have legal standing. It is worth noting here that courts do not apparently struggle in the same way with the legal standing of certain other non-human entities, namely business corporations.
A fascinating dance commences when legal actors encounter other systems of knowledge, such as science, religion, and social research. International law and modern state law openly express a preference for scientific methods, but within carefully constrained parameters. Judges are the sanctioned gate-keepers of knowledge and are authorized to jealously guard their sovereign prerogative to admit evidence, or exclude it (Wilson, 2016). Law therefore positions itself not as a willing acolyte of science but as a fickle consumer of scientific knowledge. It may pick and choose which elements to accept and which to reject based on whether the scientific information in question conforms to pre-existing (and potentially adamantine) legal standards and norms.
The elasticity in legal consumption of science means that there is great variation in how scientific knowledge is handled in different kinds of courts (e.g., criminal v. immigration courts) in distinct jurisdictions (e.g., common v. civil law). Perhaps surprisingly given the avowedly modernist mantle of law, science is regularly subordinated in the courts to other systems of knowledge, for instance, when international criminal courts prefer qualitative approaches in social research to quantitative approaches, thus offering another angle on the anthropological study of social indicators and other statistical forms of knowledge (Merry et al. 2015). As Ron Niezen observes in his contribution to this series, the enhanced anthropological study of legal epistemology has necessitated a shift in ethnographic focus from the margins to the centers of state legality and global governance.
A second area that merits our attention is the conversation emerging at the boundary of medical and legal anthropology. There is a longstanding dialogue between legal anthropology, political anthropology, and the anthropology of religion, but more recently, medical anthropologists have sought to understand the ways in which laws and concrete legal processes influence medical treatment and health outcomes. At the most general level, they observe that there is a distinct and causal relationship between the degree of legal protection for the human and civil rights of social groups (and in particular the most vulnerable in society such as the disabled, immigrants, and refugees), and the dynamics of health care. Official legislation does not affect all social groups equally and ostensibly fair and non-discriminatory laws may have grossly unequal consequences in practice.
Lawyers already address collective discrimination to a certain degree under the “disparate impact” doctrine in which a law or policy could be considered discriminatory if it has a disproportionate “adverse impact” against any group based on race, national origin, color, religion, sex, familial status, or disability. However, there is much more to be done by anthropologists to flesh out the aggregate statistics by documenting the lived experience and health impacts of social exclusion so as to understand the social mechanisms involved in, for instance, falling longevity rates or rising infant mortality rates. Cesar Abadía-Barrero (2015) does just this in his account of the deleterious effects on health coverage for the poor of neoliberal state reforms and the privatization of health care in Colombia. Abadía integrates his study of health insurance companies and market reforms with a critique of the knowledge practices of health insurance providers who couch their denial of coverage in the technical language of evidence and procedure, thus integrating the two contemporary currents in the anthropology of law highlighted in this essay-knowledge and health.
Underneath a macro-societal perspective on health and law there is another, more intimate approach to the “medico-legal” that draws attention to the embodiment of suffering and analyzes the therapeutic consequences of legal classifications and interventions. Sameena Mulla (2014) vividly illuminates the conflict between a hospital’s therapeutic obligation to treat women who have been sexually assaulted and the legal imperative to gather forensic evidence that can be used in criminal proceedings against the perpetrator. Mulla concludes that this tension is not a productive one, but instead inflicts an additional form of violence on the victims of sexual assault. Recent developments in medical anthropology such as these have been accompanied by a concomitant rethinking in the scope and analytical subject of the anthropology of law. Rita Kesselring (2017) has responded to the turn to the body by analyzing how legal procedures for damages for apartheid-era crimes committed in South Africa relate to victims’ bodily memory of harm. The vibrant dialogue that is emerging between medical and legal anthropologists is, in my view, only likely to grow and flourish.
Both areas of inquiry—legal epistemology and health/the body—occur at the interface between law and other fields, when law encounters, and often becomes enmeshed with, other systems of thought and practice. A decentered approach to the study of the law, apparently shared by a majority of the contributors to this conversation, was advocated by Simon Roberts many decades ago and is developed in greater depth by Mark Goodale (2017) in his contribution. Intriguingly, these conversations are successfully dispensing with a time-honored theoretical stumbling block; namely debates about what constitutes law. Such definitional debates, while starting as a conceptual discussion that contributes to anthropological theory, often deteriorate into authoritative pronouncements and boundary-policing (“this is law, this is not”) or internecine squabbles over periodization (“modern human rights didn’t appear until the 1970s”).
At this juncture, I heartily endorse Toby Kelly’s call for the anthropology of law to engage more in problem-solving, and I would add that anthropologists might agonize less about what law is and dedicate more energy to explaining what social actors and interest groups do in the domain of law. A Malinowskian methodology asks, how are social norms created, articulated, and enforced in a social setting and what role does law play? To what degree do other normative ordering processes such as religion or informal social shaming, reinforce or compete with legal measures? And apart from social ordering, what other social processes occur under the ordinary language rubric of “law” (e.g., mediation, competition, negotiation, moral denunciation, ideological obfuscation)?
As a final point, I encourage anthropologists of law to transcend narrowly disciplinary boundaries and to also write for a wider audience of law-and-society scholars and legal practitioners. Anthropological explanations of what activities take place in legal institutions have much to offer and are more likely to be influential in political science, sociology and law if they make bold and robust claims. And by bold and robust, I mean causal. This means identifying more transparently the relationships between Durkheimian social facts and their corollaries in morality and law. Even though anthropological claims about causation may not always take the form of sine qua non or statistical causation, they can still be grounded in ethnographic and other kinds of qualitative evidence. This will require anthropologists to be much more explicit about how we use evidence to support our claims. Here, we might learn from law which, for all its idiosyncrasy, at least sets out the evidentiary criteria required to demonstrate causation.
Abadía-Barrero, César. “Neoliberal Justice and the Transformation of the Moral: the privatization of the right to health care in Colombia.” Medical Anthropology Quarterly 30, no. 1 (2015): 62-79.
Goodale, Mark. Anthropology and Law: A Critical Introduction. New York: NYU Press, 2017.
Kesselring, Rita. Bodies of Truth: Law, Memory and Emancipation in Post-Apartheid South Africa. Stanford: Stanford University Press, 2017.
Latour, Bruno. “Scientific Objects and Legal Objectivity” in Alain Pottage and Martha Mundy, eds., pp. 73-114. Law, Anthropology and the Constitution of the Social: making person s and things. Cambridge: Cambridge University Press, 2004.
Merry, Sally Engle, Kevin Davis, and Benedict Kingsbury, eds. 2015. The Quiet Power of Indicators: Measuring Governance, Corruption, and Rule of Law. Cambridge: Cambridge University Press.
Mulla, Sameena. The Violence of Care: Rape Victims, Forensic Nurses, and Sexual Assault Intervention. New York: NYU Press, 2014.
Wilson, Richard Ashby. “Experts on Trial: Social Science Evidence at International Criminal Tribunals.” American Ethnologist 43, no. 4 (2016): 730–744.
This contribution is part of PoLAR’s sixth emergent conversation, which is on the future of anthropology of law.