The development of legal anthropology parallels the development of anthropological theory. The concept of natural law first came from the ancient Greeks, namely Plato and Aristotle. They believed the way humans reason is natural and that society derives from that reason. Law is dictated by reason and is therefore also natural. This view now shapes the Western idea of law. In the seventeenth and eighteenth centuries, Enlightenment philosophers were also proponents of natural law, but they saw that law had fixed components. Enlightenment theorists believed law guided societies and should be documented in terms of universal rights. However, one particular Enlightenment thinker, Montesquieu, stated that attitudes towards law were not fixed in the same way in every part of the world. He thought of law as a social construct and shunned the evolutionary perspective.
The nineteenth century gave birth to legal anthropology. Sir Henry Maine wrote Ancient Law in 1861, The Early History of Institutions in 1875 and On Law and Customs in 1883. Maine developed a three-tiered model of law, paralleling the three-tiered models of other anthropological theorists of his time. In the first stage, man believed law was God-given and channeled through wordly leaders (in Lewis Henry Morgan's model this is the savage stage). The next stage (similar to Morgan's barbaric stage) included societies who identified law with custom. At the final stage, the stage of Western societies, law acquires a separate identity with its own category of rules. His model was an evolutionary model because societies passed through the first two stages before they reached the final and most civilized stage. Other anthropologists such as Morgan and Bachofen also worked with law, but their work was less influential and more embedded in studies of other cultural elements.
Malinowski had a more substantial influence on the study of law than the evolutionary theorists did. From the 1930s to the 1950s, Malinowski's structural-functionalism had a profound impact on the study of anthropology. Structural-functionalism states that every piece of a social structure, including law, functions for the well-being of the whole society. During this time, a debate broke out between normativists and processualists. Normativists thought that life is governed by rules and normal behavior conforms to these rules. Institutions are needed to enforce these rules. Processualists stated that rules were made as people cooperated through their own interests. Both groups, however, excluded from their focus societies that did not have a formal corpus of law.
Structural-functionalism was popular until the 1970s when legal pluralism, or the pluralist approach, gained popularity. Pluralists stated that in any society there may be one or more code or legal system. Leopold Popisil believed that every society consists of hierarchically arranged subgroups with their own legal systems, so that legal systems form their own hierarchy. Sally Falk More developed the idea of semi-autonomous subfields in 1973, stating that subgrougs with their own laws form their own semi-autonomous groups, and each group gives birth to its own laws.
Today, we have gone beyond the pluralist approach. Contemporary anthropologists, such as Collier, Greenhouse and Merry, believe that law should always be studied in relation to power and history. To study law, anthropologists can't just look at books; they have to look at the actual court cases and the applications of laws. Legal anthropologists look at law in wider systems of social relations. They study how law changes over time and look at the role of law and legal ideas in contested metaphors, such as the symbolism of rights. Legal anthropologists also look at how access to material resources affects representation in the courts and the role of human agency in the legal system. Critical legal studies are currently popular. These look at how law acts to legitimate the power of the ruling class and their ideologies. Legal anthropologists stress the asymmetry of power relationships--how these relationships affect law and how law affects these relationships. Legal anthropology needs to stress areas that concern anthropology as a whole if it wants to survive.
Margaret Locke, Anthropology class of '01
Last Updated: April 02, 2017