It takes two to tango

In the forum, we invited six anthropologists and legal scholars to write short pieces in response to our provocation paper: Does Anthropology Matter to Law? Here, I share some of the responses to the provocation paper, suggesting how anthropologists could become more attractive partners for legal scholars and practitioners, and why this effort is worth the effort.   

The blunt point made in the provocation paper was that anthropology and law offer almost no impact on each other’s educational or research agendas. We claimed that the rich scholarship emerging out of legal anthropology (see for example Falk More 2001, Goodale 2017) still has limited impact on the legal imagination and on the curriculum of most law schools, and asked why legal scholars and practitioners have ignored the work of legal anthropologists despite many of these scholars being politically active and advocating for social and legal reform? We identified a disjuncture between how anthropology and law consider their activities. In overly simple terms, law seeks to establish normative answers and prioritizes problem solving, while anthropology provides ‘thick description’ with answers embedded in rich contextual nuance. These orientations, we suggested, lead to different research questions and often miscommunication as to the utility of each other’s research.  

Happily, not all respondents accepted this admittedly crude and pessimist diagnosis. Sally Engle Merry found the diagnosis that there is a problem with anthropology’s lack of presence in the law school curriculum premised on ‘too narrow an idea of what anthropology is and what it contributes to the study of law.’ Insisting that the anthropology of law is ‘doing very well’, she identified human rights law as a particularly ripe territory for collaboration but acknowledged that the disciplines ‘have quite different ideas about how to develop knowledge about the social world.’ Rachel Sieder’s contribution ‘Anthropology and Law in Latin America: Towards Transformative Collaborations’ showed how anthropological scholarship and advocacy have facilitated greater recognition of indigenous people’s  collective rights and enabled moves towards more plural legal orders. John Comaroff found that the question may ultimately be unanswerable, before arguing that the prospect of anthropology mattering to law is markedly greater in the so-called Global South than in Euro-America. Dubbing anthropology an ‘indiscipline’ whose critical gesture is estrangement, Comaroff noted that although anthropologists may offer ‘interesting intellectual cabaret to much scholarly orthodoxy’, it is only at the critical margins of the other disciplines that the field makes any inroads. Yet, as Lawrence Rosen observed in his forum response, ‘the overriding conclusion remains that lawyers are, perhaps among other issues, troubled by either anthropology’s relativistic urge or its inability to speak to the ultimate questions of the law (e.g. guilt or innocence, liability or no liability).’                                    

In hindsight, our provocation paper largely attributes the limited engagement between the two fields to legal scholars. To extend John Comaroff’s cabaret metaphor, we show that anthropologists are capable of tangoing alone, but almost forget that it takes two to tango together. Indeed, the key point in Rosen’s epilogue is that we must set our own house in order, if we are to improve the interaction of law and anthropology. For one, anthropologists must overcome the assumption that law is so specialized that it is beyond the scope of those lacking training in its arcane elements. It is vital to persuade anthropologists and lawyers ‘that our special area of interest is actually a great doorway into many key issues for both disciplines,’ as he puts it. Rosen encourages anthropologists ought to be bolder about the discipline’s contributions with respect to law (see Rosen 2017) but adds that ‘if the anthropologists have not educated themselves to their discipline’s accomplishments, then the lawyers can hardly be blamed for failure to note how much the two fields can contribute to one another.’ Although law may seem intensely positivist in orientation, Rosen concludes that ‘many law professors and practitioners know that indeterminacy and ambiguity are rife in law’, thus ‘the high degree of tolerance for ambiguity that good anthropology also embraces is not without its value in relativizing a wide range of legal arguments.’

Addressing the institutional context in which legal education operates in the UK, Insa Koch aptly notes that ‘what a student needs to learn become a successful lawyer is often at odds with what makes a good anthropologist.’ The practitioner-oriented structure of most legal education partly explains the limited presence of anthropology in the law school curriculum. But as Michael G. Peletz observes in ‘Why Anthropology Doesn’t Matter Much to Law’, anthropologists are often disinclined to accord legitimacy to, let alone empathize with, the aspirations of the vast majority of students entering law school. This tendency is partly a reflection of long-standing Western disdain for lawyers and the legal profession. According to Peletz, these sentiments inform prominent anthropologists’ deep skepticism with respect to rights-based discourses of those who articulate them, which includes lawyers, women’s rights groups and human rights organizations.   

To illustrate this skepticism, Peletz turns to Lila Abu-Lughod’s (2013) Do Muslim Women Need Saving? Peletz acknowledges that this is an important work and critique of Orientalist discourses invoked since 9/11 to justify US military intervention in Afghanistan, Irak and elsewhere. Abu-Lughod’s core arguments are that Muslim women’s lives are exceedingly complex; that Islam per se has little to do with the challenges they encounter. Another argument is that ‘discourses and queries focusing on rights are altogether inadequate as optics through which to view the nuances and complexities of the lives that Muslim women live.’ The problem, following Peletz, is that Abu-Lughod also extends her critique to Muslim feminist organizations. Rather than inviting students to tango, the takeaway message that rights-based discourses are deeply flawed and otherwise lacking – as are scholarly investigations that focus primarily on rights – can have a deleterious effect on undergraduates who may be interested in law and social justice and may be in a position to bring anthropological insight into law school arenas and beyond.         

All this suggests that anthropologists need to do a much better job of identifying potential areas of collaborative research (rather than simply highlighting our critiques) and communicating what we have to offer to students and legal professional as a whole. Yet anthropologists also ought to, as John Comaroff puts it, ‘persist in the effort to estrange Euro-modernist law and its epistemic grounding’ by treating it as an ethnographic object, ‘all the better to understand its place in the contemporary Order of Things.’

References/Further Reading

Mark Goodale. 2017. Anthropology and Law: A Critical Introduction. New York: New York University Press.

Lawrence Rosen. 2017. The Judgement of Culture: Cultural Assumptions in American Law. London: Routledge.