Like many of the other contributors to this conversation, and as others have said many times before, I think one of the most important moves over the last 30 years has been the shift from what might be called legal anthropology to the anthropology of law. By this, I mean the shift from studying law like process to examining self-consciously legal practices, with the stress on seeing law and legal actors as just as culturally thick and complex as any other area of life. This approach has produced numerous immensely important insights. I think, though, that there are also some slight dangers in this move to the anthropology of law, and it is these dangers and the responses to them that I want mainly to focus on.
Before I say this, I want to also say that I think there is much to celebrate about legal anthropology. There is a strong sense that we are all legal anthropologists now—even if we do not know it. Maybe as part of the return of the concerns with the state that began in the 1980s, if not before, nearly all PhDs, at least in the UK, seem to have some reference to the law, no matter what the topic.
I also want to stress that my claim here is not prescriptive, but descriptive. I am not trying to make an argument about the sort of work anthropologists should or should not be doing. Neither is this to say that there are not other interesting ways of doing the anthropology of law. There is much great work being done that focuses resolutely on legal institutions. I am merely trying to describe what I see as merely one of the many interesting emerging trends.
The first issue I want to raise, and I want to put this delicately, is that the law can be very boring. It is arcane and technical and can therefore appear rather dull to the uninitiated. To take the law seriously and to write about it in a way that draws in non-lawyers is therefore a real challenge. In my experience at least, nothing causes people to walk away quicker at a party than when you tell them you are a legal anthropologist. For some time, I taught a course called legal anthropology. It was not the most popular course on our offerings. I then decided the change the name, but not the content, to the Anthropology of Crime, Rights and Justice. This was the same course, just a different name. The next year the course had five times as many students. After I did the marking that year, I decided to change it back to the less popular version.
The second issue is that in taking the law seriously, it is also important to not reduce the law to the handmaiden of lawyers. There are many more interesting things we can do as anthropologists than simply providing scraps for other people to use elsewhere. This also means not letting all our questions being set by the lawyers and coming up with some of our own.
But, the third and main point I want to make here is that one of the most interesting ways of doing the anthropology of law is not to focus too much on the law. The anthropology of law is a firmly and long established sub-discipline. And, like any sub-discipline, there is always a danger of turning in on yourself, of getting caught up in debates that do not matter to anyone else, or becoming increasingly specialized. This is, of course, a caricature of the sub-disciplines, but it serves to make my point, however unsubtly.
The law is of crucial importance to many people’s lives, but it is not the only thing that is important—and this was probably one of the key insights of an earlier generation of forum shopping literature, even if it did produce visions of rational choice that we are probably not so happy with now. Legality, in all its complexity and ambiguity, comes and goes, shimmering and haunting in the background, sticking and then disappearing, for good or bad. In keeping our eyes firmly focused on the law we can sometime miss this quality.
It is probably fair to say that the overriding, although not exclusive, thrust of much of the anthropology of law has been critical. The emphasis has been on the ways in which liberal legalism can be exclusionary and hides its own forms of violence. I would include my own work in this general description. But, at this moment in history, where we seem to have reached the high watermark of human rights, and the rule of law is openly disparaged as thwarting the ‘will of the people’ (at least in Britain), it can be equally important to pay attention to the ways in which law can lend itself to emancipatory projects and provide much-needed forms of protection. In the final analysis I stand also with E.P. Thompson (1975, 263) in seeing the rule of law as an “unqualified human good.” Doing so does not mean remaining uncritical in relation to legality. It does not require rejecting what Sherry Ortner (2016) recently called “dark anthropology” in favor of the “anthropology of the good.” Such a distinction is surely not helpful in any case. But, if we might have become too accustomed to the rule of law, taking it for granted too much, it can also be helpful to look a way for just a little while, to see what we might miss.
I think one way people have addressed these issues is through what might be called a problem-focused approach. What I mean by a problem-focused approach is taking as our starting point the problems—political, social, economic, even ethical—that our interlocutors grapple with, which may or not be legal. At the very least, though, law is one of the techniques and forms through which these problems are produced and grappled with, but not the only one. This means a decentering of the law in our ethnography as it falls in and out of the frame. My point here is methodological rather than conceptual. Unlike Rita Kesselring’s contribution to this conversation, I am not trying to imply a reconceptualization of what we mean by the law, but rather paying attention to some of the different paths through which legality can be encountered. This also means that some of the most interesting work on the anthropology of law is not being done by legal anthropologists in the narrow sense.
Jennifer Curtis’s forthcoming work on civil rights in Missouri is one of the best examples I know of this type of work. Her new research, which has become especially pertinent in the last few months, examines why claims to freedom have so often been exclusionary in both intent and effect. Her focus is on the particular American history of freedom, which has its roots in the history of slavery. This is about law but also more than the law. Being so it provides a key insight into the push back against civil rights, what Mark Goodale, elsewhere in this conversation, calls the “non-practice” of human rights.
Erica Weiss’s work on conscientious objectors in Israel provides another example (2014). She eloquently analyzes the ways in which Israeli Jewish pacifists grapple with their sense of obligation to intimate and distant others in the midst of violence. Legality becomes one of the key spaces through which these obligations are produced and resisted, but it is by no means exhaustive of their ethical and political possibilities. A decentering of the law here helps us appreciate its limits and potentials in the making and unmaking of social bonds.
But, I think the place where we can see this most of all is in anthropological work on immigration, and I don’t think this is an accident: immigration is after all perceived by many as one of the great “problems” (and, I use this word with scare quotes) of the early twenty-first century. There are numerous examples from an insightful body of work that has told us a great deal about legal processes but do not focus exclusively on the law, or even make the law their starting point (Cabot 2014; Ticktin 2011). One of the primary foci of this work is how people grapple with problems of care and solidarity in a world marked by gross inequality. Legality provides some of the most interesting and paradoxical answers to these questions.
To sum up, then, sometimes a little less law can produce particularly insightful legal anthropology.
Cabot, Heath. On the Doorstep of Europe: Asylum and Citizenship in Greece. Philadelphia: University of Pennsylvania Press, 2014.
Ortner, Sherry. “Dark Anthropology and its Others: Theory since the Eighties.” Hau: Journal of Ethnographic Theory 6, no. 1 (2016): 47-73.
Ticktin, Miriam. Casualties of Care: Immigration and the Politics of Humanitarianism in France. Berkeley: University of California Press, 2011.
Thompson, E.P. Whigs and Hunters: The Origins of the Black Act. London: Penguin, 1975.
Weiss, Erica. Conscientious Objectors in Israel Citizenship, Sacrifice, Trials of Fealty. Philadelphia: University of Pennsylvania Press, 2014.
This contribution is part of PoLAR’s sixth emergent conversation, which is on the future of anthropology of law.