Does Anthropology Matter to Law?

Does Anthropology matter to Law? As phrased, this provocation, worthy of address though it certainly is, may ultimately be unanswerable. The reason? Because, like all questions of this sort, it harbours others within it. Precisely which “anthropology”? “Law” as what? As everyday practice, as theorized praxis, as pedagogy, as politics by other means? What, moreover, counts as mattering? And from where, in particular, is the provocation being posed? All of these questions, patently, make a difference.

But first things first.

With limited exception, anthropology, broadly conceived, has comparatively little impact on the core of any of the other social sciences, law demonstrably among them. Why? For all the fact that we tend to look for answers to ourselves – as, indeed, the provocation paper implies that we should — they are as likely to lie in the epistemic construction of those other disciplines. Or, more precisely, in a negative dialectic between the sorts of knowledge regimes on which they are founded and those that ground most sorts of anthropology. Ours is an “indiscipline” (Comaroff 2010) whose essential critical gesture, like Brechtian theatre, is estrangement: the decentring of received knowledge/s, which we are wont to trouble by relativizing them in one or another way. Since the normative essence of the social sciences, sui generis, is the positivist, empirically-driven pursuit of universal truths – truths, Kuhn (1962) long ago noted, that are typically sustained against challenge until they collapse under their own involutionary weight – anthropology will always represent an epistemic exterior: an ontological supplement that marks the outer limits of those truths without deracinating the modes of their production. We may be interesting intellectual cabaret to much scholarly orthodoxy, but it is only at the critical margins of the other disciplines that anthropology tends to make any inroads at all; useful sources of collateral quotation for those who plough their more-or-less edgy edges. Clifford Geertz (1983), reflecting on the salience of culture to the law, may, in his famed Storrs Lectures, have given grist to some mills at the then-frontiers of legal theory. But his sort of hermeneutics scarcely breached the discursive horizons of juridical thinking.

In short, Euro-modernist law is, in all its inflections, a repertoire of naturalized cultural practices, one rarely concerned, save in spaces of exception, with what “others” do or think or say. In that respect, it exists in harmonic resonance with the ideological tenor of its times. That is why, in the history of the present, some its most powerful influences come from so-called “law and economics”, an inter-discipline that elevates post-Keynesian market rationality – the sort of thing that, for Foucault (2010), typified neoliberalism – from organic theology to a peculiar, and hegemonic, form of theoreticism; vide the impact of the likes of Richard Posner (e.g. 1973), whose effort to reduce academic law to the calculus of cost/benefit merely foreshadowed a growing trend in US courtrooms, or Gary Becker’s conception of “human capital” (1964), an elision, now taken-for-granted, of potentially Frankensteinian proportions. To the degree that anthropology confronts such Euro-modernist orthopraxis with its outsides, it is no wonder that the things we have to say are so often treated as little more than interesting curiosities. Which is what our forms of relativism, cultural or ethical or social, are generally taken to be. Even worse: inasmuch as legal philosophy, theory, and pedagogy are motivated by an impulse to the normative, and to the perfectability of the law, it is perhaps imperative that they do not pay anthropology any heed. We are not just irrelevant, we are anti-relevant. Even critical legal studies – and legal realism more broadly – which had good reason to seek substantiation in legal anthropology, rarely did so. Which is why, to reflect on the provocation paper, finding ways to matter more to law by doing better legal analysis or by better conceptual work is beside the point. Quality is not the issue. Epistemology is.

This, I reiterate, is not to say that anthropology has absolutely no impact on the practice or pedagogy of law. Banalities abound: many large law firms across the world now have culture departments. A number employ anthropologists. Or think they do anthropologically sensitive work. And, intermittently, ethnographic expertise enters courtrooms, the media, and everyday legal consciousness. Some law schools, moreover, offer electives, or cross-list courses, in legal anthropology. But such marginalia are not really material to the question at hand. Should anthropology matter more? Of course it should, for all the reasons offered in the provocation paper. However, given that we appear to be at the dawn of an age – a counter-Enlightenment? – in which the critical disciplines are under attack, in which reason is devalued, in which antitheory rides the rising tide of Big Data, there is not much room for optimism.

There is a caveat here, though. It relates to another of the questions-within-the-Question raised at the outset.

Usually, when we ask whether anthropology matters to law, we confine the

conversation to Euro-America. Nor is this surprising. Anthropological self-reflection tends overwhelmingly to centre itself in the academies of the global north. But what if we re-situate our archimedian point of reference in the other hemisphere, the one in which most the work of the discipline has historically been done?

Let me take South Africa as a proxy, although many of the things to be said about it occur elsewhere.

South Africa, like many ex-colonies, is a country in which Euro-modern, liberal conceptions of the law, while still institutionally dominant, are no longer hegemonic – no longer taken to be universal in their rationalities, their knowledge practices, or the values for which they stand. Per contra: they are increasingly contested, increasingly seen as one cultural provenance – a minority one at that – in a poli-cultural nation; a nation, that is, in which assertions of alterity are framed not as polite appeals for recognition, but as strong demands for the sovereignty of indigenous politico-legal orders, each with its own constitutionally authorized institutions, its own notions of belonging, its own jurisprudence (Comaroff and Comaroff 2010). This is one of the many contradictory bequests of colonialism: the kinds of difference once conjured up to govern the formerly colonized are now insisted on by them as a right to difference. Thus does indirect rule now boomerang back as a claim to “authentic” African governance. And decoloniality as recoloniality. Not by or for everyone, clearly:opposition against the Euro-modern legal regime – sometimes bundled into a struggle against “white monopoly capital” – is complicated, far from universal, and often internally unresolved. But it manifests itself broadly across the socio-political spectrum.

In this context – often subsumed, reductively, under the sign of legal pluralism – there has been an escalation of legal processes involving conflict over cultural differences, sovereignty, and constitutional rights, processes in which conventional anthropological concerns have tended to insinuate themselves. And so the discipline enters: sometimes explicitly, sometimes organically, sometimes unmarked, but there all the same. Not everyday, obviously, yet enough to be noticed by the ethnographic eye. Perhaps the most visible of its manifestations is in the realm of expert witnessing and citation. Recently, for example, the evidence of Ørnulf Gulbrandsen (University of Bergen) was decisive in a successful suit – brought by the Bafokeng Land Buyers Association against the Royal Bafokeng Nation in the High Court, North West Division (CIV APP 3/17, 2018) – that contested the limits of chiefly authority, with consequential implications for the future disposition of mineral rights; some years earlier, our work was cited at the Constitutional Court in Shilubana v. Nwamitwa (CCT 03/07 [2008] ZACC 9), a case that awarded a chiefship to a female heir against the apartheid imposed, patriarchal presumption that primogeniture prescribes male succession – the action having hinged on the right of an indigenous community to amend its prevailing rules, under vernacular law, by popular consensus.

Anthropology also finds it way into the language of legality, and into public discourse, in respect of cases in which a “cultural defence” is advanced, especially those that call upon ethno-racial alterity as a challenge to Euro-legal reason. The most notorious instance, probably, is ex-President Jacob Zuma’s successful effort to counter a rape charge by citing “traditional” female sexual expectation, thus to exonerate himself by recourse to his constitutional right to Zuluness; the commentariat at the time repeatedly mouthed anthropology-lite statements, in sub-ethnographic form, about vernacular social practices. There are many other, less graphic examples, all the more so since there has lately been a move in the country to essay an Afro-modern jurisprudence. For its most vocal proponents, that jurisprudence is already immanent in the indigenous principle of ubuntu (lit., “humanity”, connoting the value of social interdependence). Some landmark legal-scholarly writings on the topic, which argue that South African law ought to replace its Kantian foundations with this precept, are heavily indebted to legal anthropology (e.g. Cornell 2014). What is more, among the earliest Constitutional Court justices to assert the juridical centrality of ubuntu to post- apartheid South Africa, Yvonne Mokgoro (1997), is wont to tell that she learned what she knows of “customary” (i.e. African vernacular) law from an anthropological monograph, Rules and Processes (Comaroff and Roberts 1981). In this light, it is ironic that some of those calling for a new, decolonized “Africanist” constitution, and doing so in terms that owe much to anthropology, are legal activists who have nothing good to say about the discipline and its colonial roots.

But it is not only into litigation and constitutional debate that anthropolog y has made its way. It has a rising presence, as well, in legal pedagogy. In a country in which indigenous courts remain the first resort for much of the population, in which the demand for the Africanization of almost everything is rising, law schools have felt pressure to embrace what is now referred to, awkwardly, as “living customary law”. That law still lives at the margins of legal education, to be sure, but at margins growing in proportion to ever louder calls for the constitutional recognition of difference, for decoloniality, and for acknowledgment of the limits of liberalism. Again, the legal anthropology brought to bear in local law schools is not always the most enlightened. But its presence is increasingly underwritten by the violent historical sociology that continues to haunt this poly-ethnic, poli-cultural nation-state.

At the same time, an altogether more contemporary anthropology is also making itself heard here. It flows from the global fetishism of the law and the judicialization of everyday life, especially political-economic life. Take two examples. The first arises from the legal recognition, as intellectual property, of “indigenous knowledge”, a gloss for culture as it is increasingly commoditized and enters the market. This is a domain in which anthropologists are widely cited not only in Africa, but across the world, alike in courtrooms, the academy and the media. The second is more rarified: it refers to what has become known as “lawfare”, a term with multiple meanings (Jones 2015). One relates to US national security, specifically, to the role of legalities as a weapon in the conduct of war. Another is owed to anthropology: “the resort to legal instruments, to the violence inherent in the law, to commit acts of political coercion, even erasure” (Comaroff and Comaroff 2006:30); “insurgent lawfare”, its complement, denotes the deployment by the disenfranchised of those same instruments against the state, capital, and other powerful institutions. This anthropological variant has become common usage in South Africa, where it is regularly invoked by law professors, judges, and journalists. Also in Brazil, where lawyers who defended ex-President Lula have accused the state of resorting to it against their client; in consultation with anthropologists, myself included, they have gone so as far as to create a Lawfare Institute. By these means has anthropology found a conduit into legal practice, pedagogy, and public life. This in a country where the discipline has many other resonances in the law as well – not least in fighting for the rights, indeed material survival, of indigenous populations. Here, unquestionably, anthropology does matter.

As all this suggests, the prospect of anthropology mattering to law are markedly greater in the global south than in Euro-America. This, arguably, is because of the historical conditions that have produced its political sociology, a sociology in which the pressing demands of difference may presage the future of the nations of the north, whose founding fiction of horizontal fraternity is under rising threat of heterodoxy. If these polities do become more like those of the south in this respect, the nature of their legal regimes – the dialectical embedding of law in economy and society, that is – may well change too. In which case, anthropology could well come to matter more, and in similar ways. It is noteworthy that, to date, ex-colonies have had at least three anthropologist presidents (Kofi Busia, Jomo Kenyatta, and Ashraf Ghani); the first glimmer, in our own hemisphere, was Barack Obama, son of an anthropologist mother and a Kenyan father, and, incidentally, sometime professor of constitutional law. Meanwhile, anthropology ought to persist in the effort to estrange Euro-modernist law and its epistemic grounding, to demystify its ideological and ritual forms, and to learn the lessons to be gleaned from the global south. It may or may not really matter whether anthropology matters to law. What does, however, is the way that the former addresses the latter as an ethnographic object, a polymorphous ensemble of signifying practices that require to be laid bare, to be analysed and theorized, all the better to understand its place in the contemporary Order of Things.