I should probably resist the temptation to allow my perception of the current state of legal anthropology to be colored by my individual circumstances and interests, but I suppose that in addressing the question of the state of legal anthropology some degree of personal perception is inevitable, and I will try to generalize as much as I can.
As someone who is trained as an anthropologist and appointed in both the Anthropology Department and the Law Faculty at McGill University (which also on occasion takes an interest in legal anthropology or anthropologie juridique), I see the anthropology of law from two perspectives, one (from anthropology) centered on a critical approach to law, the other (from law) an applied approach to the tools of anthropology oriented toward making social science contributions to legal process. My understanding of the contemporary state of legal anthropology is that these two approaches are fairly widespread, and form very different, often irreconcilable bodies of literature, even though they sometimes involve the same actors and overlap in many places.
Let’s begin with the applied approach, from the perspective of anthropologists engaged in law. It asks: what can the tools of anthropology do to make legal processes better, more inclusive, humane, just? Anthropologists in this approach to the field serve as consultants and experts, bringing information to legal experts in order to improve their application of the law, not just in terms of efficiency, but also, more importantly, ethics, resulting in judgments, agreements, forms of mediation, etc., that are better informed. There is a symbiosis at work here. Understanding the plight of refugees as they move through the asylum system, for example, will lead to better informed, more compassionate judges, allow practitioners to modify their practices, and help states to review and revise their policies. All of this is important work, without which the power of the state and the justice systems that are part of it would be, quite literally, blind, or at least more myopic.
The critical approach can be seen in Sally Falk Moore’s (1987) observation in Social Facts and Fabrications to the effect that anthropology is defined by its subject matter. If one is not immediately concerned with intervening in an established legal process, one can take a step back and consider the places where law has been, where it is going, and what is happening behind the scenes. One of the things that characterizes the sub-discipline as it has developed in recent years is an insatiable curiosity about every conceivable form of legal process and consequence of law, with the limits of ethnography being constantly poked and prodded.
This was not always the case. Until quite recently, at least by intellectual historical standards, the anthropology of law was concerned with legal pluralism on the margins, with how the legal systems of those people who lacked bureaucracy managed to deal with social conflict and control. A short twenty years ago I had difficulty convincing some of my colleagues at Harvard to recognize the work of a student planning to do research in the International Labor Organization (ILO) headquarters in Geneva as legitimate ethnography. The great strides that have taken place in the anthropology of law, which make it such a vital sub-discipline, have involved the steady extension of its research agenda, following people from the margins of states to the centers of legal power and authority, making the legal institutions of states and global governance, including the civil society resistance to those powers, central to its subject matter. This has made the anthropology of organizations a significant area of research within past several decades. There is now in principle virtually no realm of legal practice that is off limits to the inquiries of ethnographers, provided, of course, they can negotiate a regime of ethnographic access.
In short, the applied approach to the ethnography of law adapts to the needs of law for expertise in the areas in which law is being applied. The critical approach to law is attentive to the ways that law is changing, and particularly the ways that people on the margins of dominant societies are finding new uses for it. It is centrally concerned with the issues and field sites that are produced as law opens up into new areas.
What new fields do I see developing? There are of course many, and it is impossible in the short space I have available to pursue them all. One of the more significant changes I see that has occurred—and that continues to unfold—is the place of public outreach in securing legitimacy for legal institutions and for resistance movements alike. New media are to me one of the unfolding ways that legal processes are working in practice, even though this field can be seen as having roots in the work of Gabriel Tarde and the origins of French sociology more than a century ago.
Tarde was overlooked in the post-World War II period of the consolidation of sociology and anthropology as disciplines. More recently, though, he has undergone a bit of a revival, in some places generating a certain amount of fervor, what might even be called “Tardomania,” with Bruno Latour as one of his more prominent champions (Latour and Lepinay 2009). Tarde combined a career based in law—at one point he was a juge d’instruction, or investigating magistrate—with an abiding interest in communication “from mind to mind” and imitation as the foundations of social life.
To me, his work on publics is particularly relevant today, in ways that justify his revival (Niezen 2014). For Tarde, the (then) revolutionary new means of communication—the railroad, telegraph, and high-circulation newspapers and journals—were the significant new sources of social interaction and influence. Social life was an outcome of the communication of ideas and the imitation that results from exposure to them, rather than of a priori forms of social existence. Society cannot be assumed, but must be explained as a consequence of acts of communication. From the perspective of legal anthropology, what we can take away from Tarde’s approach is above all the idea that communication can be seen much more broadly than in the arguments presented in legal processes and documents. Public persuasion has wider reach in law than might readily be assumed, influencing the values, institutions, and identities in which legal process is based.
Where recent changes taking place in public involvement in legal process are most clear is in international public law, above all in the activism and lobbying behind human rights claims and compliance processes. Communication and persuasion are central to the working of global governance, allowing ever-greater expansion of NGOs, and, at least ideally, public participation in meetings of multilateral organizations. We can see this mainly through electronic recordkeeping and online access to information, including meetings streamed online. This, of course, is not just resulting in new vehicles of “transparency,” but also cuts both ways and includes control of information and the promulgation of organizational “spin,” a tool that now extends from the very powerful to ordinary activists working as tech-savvy users of the Internet (on the latter, see Coleman 2014).
One of the most important ways we see communication taking form in legal phenomenon is in the development of online communities, with distinct conditions at the foundation of their knowledge. In my work on Internet suicide (Niezen 2013), I referred to these as “communities of affirmation.” These communities bring together people whose ideas are disparaged in a wider public discussion, but who support one another, and reinforce one another’s beliefs in ways that are isolated from contrary and potentially challenging opinion. This is the opinion that is susceptible to the invisible boundaries of algorithms and “filter bubbles,” or the “personalized internet” of Eli Pariser’s (2014) “ecosystem of information” in which a user’s preferences shape the information to which they are exposed.
What are the implications of this electronic architecture of the Internet and the communities it creates for activism, claims-making, and the opinion and persuasion behind the compliance of non-binding obligations? I am curious to know more about how this phenomenon of knowledge production and enclosure (which we saw amply in the recent U.S. election) plays out in claims-making, in recourse to judicial process, or challenges to its legitimacy. Does online activism reinforce the markers of identity that are at the foundations of collective legal claims? How are rights movements legitimated and strategically facilitated by the resources of new media? What are the ways that the “democratization” and refraction toward the self of the tools of propaganda are influencing justice claims? And, what are the consequences of the new ways of assessing and developing commitments to the “truth” in online legal activism? We are just at the beginning of being able to formulate answers to these questions.
Coleman, Gabriella. Hacker, Hoaxer, Whistleblower, Spy: The Many Faces of Anonymous. London: Verso, 2014.
Latour, Bruno and V. Lépinay. The Science of Passionate Interests: An Introduction to Gabriel Tarde’s Economic Anthropology. Chicago, IL: Prickly Paradigm, 2009.
Moore, Sally Falk. Social Facts and Fabrications: “Customary” Law on Kilimanjaro 1880-1980. Cambridge: Cambridge University Press, 1986.
Niezen, Ronald. “Internet Suicide: Communities of Affirmation and the Lethality of Communication.” Transcultural Psychiatry 50, no. 2 (2013): 303-322.
Niezen, Ronald. Gabriel Tarde’s Publics. History of the Human Sciences 27, no. 2 (2014): 41-59.
Pariser, Eli. The Filter Bubble: How the New Personalized Web is Changing What We Read and How We Think. New York: Penguin, 2011.
This contribution is part of PoLAR’s sixth emergent conversation, which is on the future of anthropology of law.