1 Clifford Geertz, Local Knowledge: Fact and Law in Comparative Perspective, in Local Knowledge 167–234. While it is unusual to review only one chapter of a book, in this case the effort is warranted. The chapter in question was originally presented as the Storrs lectures for 1981 at Yale Law School, and as a discourse by a well-known anthropologist from a respected law school platform held by only one other anthropologist (Max Gluckman), the chapter is likely to be read by many scholars from both anthropology and law.Google Scholar

2 For a very thorough review of the development of the anthropology of law, see Snyder, Francis G., Anthropology, Dispute Processes and Law, 8 Brit. J. L. & Soc'y 141 (1981).Google Scholar

3 The two major exceptions to the rule-centered paradigm were Bronislaw Malinowski, Crime and Custom in Savage Society (Totowa, N.J.: Littlefield, Adams & Co., 1967). and P. H. Gulliver, Social Control in an African Society (Boston: Boston University Press, 1963).Google Scholar

4 K. N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way (Norman: University of Oklahoma Press, 1941); Max Gluckman, The Judicial Process Among the Barotse of Northern Rhodesia (2d ed. Manchester, Eng.: Manchester University Press, 1967); Paul Bohannan, Justice and Judgment Among the Tiv (London: Oxford University Press, 1957); Leopold Pospišil, Kapauku Papuans and Their Law (New Haven, Conn.: Yale University Press, 1958); John A. Noon, Law and Government of the Grand River Iroquois (New York: Viking Fund, 1949); R. F. Barton, Ifugao Law (Berkeley: University of California Press, 1969).Google Scholar

5 Summarized in Max Gluckman, Concepts in the Comparative Study of Tribal Law, and Paul Bohannan, Ethnography and Comparison in Legal Anthropology, both in Laura Nader, ed., Law in Culture and Society (Chicago: Aldine Publishing Co., 1969).Google Scholar

6 Thus, Paul Bohannan, The Differing Realms of the Law, in Laura Nader, ed., The Ethnography of Law, 67 Am. Anthropologist 33 (1%5).Google Scholar

7 Cf. Leopold Pospišil, Anthropology of Law: A Comparative Theory 40 (New York: Harper & Row, 1971): “the form of law should be seen as principles abstracted from decisions of a group's authority”; and E. Adamson Hoebel, The Law of Primitive Man 28 (New York: Atheneum Press, 1954): “A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting” (in italics in original). It is interesting that The Cheyenne Way, supra note 4, did not contain a definition of law, because, while the anthropologist Hoebel wanted to include one, his coauthor, Karl Llewellyn, refused, apparently feeling that any such definition would be arbitrary, Twining, William, Law and Anthropology: A Case Study in Inter-disciplinary Collaboration, 7 Law & Soc'y Rev. 561, 570–71.Google Scholar

8 E. E. Evans-Pritchard, The Nuer 162 (Oxford: Clarendon Press, 1940).Google Scholar

9 Id. The Nuer of the Southern Sudan, in M. Fortes & E. E. Evans-Pritchard, eds., African Political Systems 278 (London: Oxford University Press, 1940).Google Scholar

10 See Gluckman, supra note 4, ch. 9.Google Scholar

11 J. Van Velsen, The Extended-Case Method and Situational Analysis, and A. L. Epstein, The Case Method in the Field of Law, both in A. L. Epstein, ed., The Craft of Social Anthropology (London: Tavistock, 1967).Google Scholar

12 Gluckman, supra note 4, ch. 10.Google Scholar

13 Id. at 370–71.Google Scholar

14 Laura Nader, The Anthropological Study of Law, in Nader, supra note 6, at 3.CrossRefGoogle Scholar

15 Id. at 23.Google Scholar

16 Laura Nader & Harry Todd, Jr., eds., The Disputing Process: Law in Ten Societies x-xiii (New York: Columbia University Press, 1978).Google Scholar

17 Id. at xi; Klaus-Friedrich Koch, War and Peace in Jalemo 28–29 (Cambridge: Harvard University Press, 1974).Google Scholar

18 Koch, supra note 17; June Starr, Dispute and Settlement in Rural Turkey: An Ethnography of Law (Leiden: Brill, 1978); Nader & Todd, supra note 16; Cathie J. Witty, Mediation and Society (New York: Academic Press, 1980).Google Scholar

19 E.g., June Starr & Barbara Yngvesson, Scarcity and Disputing: Zeroing-in on Compromise Decisions, 2 Am. Ethnologist 553 (1975); Laura Nader & Barbara Yngvesson, On Studying the Ethnography of Law and its Consequences, in John Joseph Honigmann, ed., A Handbook of Social and Cultural Anthropology (Chicago: Rand McNally, 1973); Starr, June & Pool, Jonathon, The Impact of a Legal Revolution in Rural Turkey, 8 Law & Soc'y Rev. 533 (1974).Google Scholar

20 Abel, Richard L., A Comparative Theory of Dispute Institutions in Society, 8 Law & Soc'y Rev. 217 (1974).Google Scholar

21 Apart from the works cited in notes 16–19, supra, see Jane Fishburne Collier, Law and Social Change in Zinacantan (Stanford: Stanford University Press, 1973); David M. Engel, Code and Custom in a Thai Provincial Court (Tucson: University of Arizona Press, 1978); Carol J. Greenhouse, Nature Is to Culture as Praying Is to Suing: Legal Pluralism in an American Suburb, 20 J. Legal Pluralism & Unofficial L. (1982).Google Scholar

22 This can be seen by looking through the Law & Society Review after 1973, particularly vol. 9 nos. 1 & 2 (1974 & 1975 special issues on litigation and dispute processing) and vol. 15 no. 314 (1980–81) (special issue on dispute processing and civil litigation).Google Scholar

23 Sally Falk Moore, Law as Process (London: Routledge & Kegan Paul, 1978); id., Individual Interests and Organisational Structures: Dispute Settlements as “Events of Articulation,” and J. L. Comaroff & S. A. Roberts, The Invocation of Norms in Dispute Settlement: The Tswana Case, both in Ian Hamnett, ed., Social Anthropology and Law (London: Academic Press, 1977); Carol Jane Greenhouse, Avoidance as a Strategy for Resolving Conflict in Zinacantan, in Klaus-Friedrich Koch, ed., 4 Access to Justice: The Anthropological Perspective (Milan: A. Giuffre; Alphen aan den Rijn: Sijthoff & Noordhoff, 1979).Google Scholar

24 Michael Barkun, Law Without Sanctions: Order in Primitive Societies and the World Community (New Haven, Conn.: Yale University Press, 1968).Google Scholar

25 Moore, Individual Interests, supra note 23; Comaroff & Roberts, supra note 23; Danet, Brenda, Language in the Legal Process, 14 Law & Soc'y Rev. 445 (1980);Mather, Lynn & Yngvesson, Barbara, Language, Audience, and the Transformation of Disputes, I5 Law & Soc'y Rev. 775 (198081); Collier, supra note 21; and id., Political Leadership and Legal Change in Zinacantan, 11 Law & Soc'y Rev. 131 (1976).Google Scholar

26 One hesitates to say' “development” of the paradigm because Comaroff and Roberts do not discuss certain important and relevant works. Particularly noticeable by their absence, or too-brief reference, are Moore, Law as Process, supra note 23; id., Descent and Legal Position, in Laura Nader, ed., Law in Culture and Society (Chicago: Aldine Publishing Co., 1969) reprinted in Moore, Law as Process, supra note 23; and Collier, Law and Social Change, supra note 21; id., Political Leadership, supra note 25. Further, their own point of theoretical departure–-a contrast between the rule-centered and processual paradigms (at 15–17)–-seems forced. As noted above, the rulecentered paradigm was superseded in the 1970s, even if a few scholars (e.g., Ian Hamnett, Chieftainship and Legitimacy: An Anthropological Study of Executive Law in Lesotho (London: Routledge & Kegan Paul, 1975), cited by Comaroff & Roberts at 8) still used it; cf. Snyder, supra note 2.Google Scholar

27 See Isaac Schapera, A Handbook of Tswana Law and Custom (London: Oxford University Press, 1938).Google Scholar

28 The rest of this paragraph is derived from this chapter, and specific references will not be given.Google Scholar

29 This point had been made earlier by Moore, Descent and Legal Position, supra note 26, in the context of a different African group.Google Scholar

30 Nader & Todd, supra note 16, at 12–14.Google Scholar

31 Starr & Yngvesson, supra note 19.Google Scholar

32 Estin v. Estin, 334 U.S. 541 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957).Google Scholar

33 This judgment is based on his failure to consider most of the work cited supra notes 16–23. He does cite Comaroff & Roberts (at 214 n.76) but in a way that indicates that he missed the point of their work.Google Scholar

34 AS evidenced by his view of the “defining feature of legal process” as “the skeletonization of fact so as to narrow moral issues to the point where determinate rules can be employed to decide them” (Geertz at 170); cf. id. at 215.Google Scholar

35 McKim Marriott, Hindu Transactions: Diversity without Dualism, in Bruce Kapferer, ed., Transaction and Meaning: Directions in the Anthropology of Exchange and Symbolic Behavior (Philadelphia: Institute for the Study of Human Issues, 1976); Ronald B. Inden & Ralph W. Nicholas, Kinship in Bengali Culture (Chicago: University of Chicago Press, 1977); the implications of this world view for litigation at the level of the caste are explored in Robert Hayden, Excommunication as Everyday Event and Ultimate Sanction: The Nature of Suspension from an Indian Caste, 42 J. Asian Stud. 291 (1983).Google Scholar

36 See his excellent chapter “Common Sense as a Cultural System,”in Local Knowledge, at 73–93.Google Scholar

37 Sanskrit: dharma (right, just, proper, virtuous) and śāstra (science); thus, roughly, “science of right conduct,” and much broader than the English word law, as it embodies also manners and morality (see generally Robert Lingat, The Classical Law of India, trans. with additions by J. Duncan M. Derrett (Berkeley: University of California Press, 1973). The dharmaśāstra is often referred to simply as (the) śāstra. Google Scholar

38 Galanter, Marc, The Displacement of Traditional Law in Modern India, 24 J. Soc. Issues 65 (1968); J. Duncan M. Derrett, Tradition in Modern India: The Evidence of Indian Law, in Richard L. Park, ed., Change and the Persistence of Tradition in India–-Five Lectures (Ann Arbor: University of Michigan Center for South and Southeast Asian Studies, 1971); L. Rocher, Schools of Hindu Law, in J. Ensink & P. Gaeffke, eds., India Maior: Congratulatory Volume Presented to J. Gonda (Leiden: Brill, 1972); Ludo Rocher, Hindu Conceptions of Law, 29 Hastings L.J. 1283(1978); J. Duncan M. Derrett, The Death of a Marriage Law: Epitaph for the Rishis (New Delhi: Vikas Publishing House, 1978).Google Scholar

39 Rocher, Schools of Hindu Law, supra note 38; J. Duncan M. Derrett, Religion, Law and the State in India (London: Faber & Faber, 1968), at 225–320.Google Scholar

40 Derrett, Death of a Marriage Law, supra note 38, at 50; Hayden, Robert, A Note on Caste Panchayats and Government Courts in India, 23 J. Legal Pluralism & Unofficial L. 43 (1984).Google Scholar

41 Moore, Individual Interests, supra note 23; Engel, supra note 21; and David M. Engel, Legal Pluralism in an American Community: Perspectives on a Civil Trial Court, 1980 A.B.F. Res. J. 425; Collier, supra note 21.Google Scholar

42 Collier, supra note 25.Google Scholar

43 This is, of course, the basic stuff of traditional legal analysis as well as the more recent variety subsumed under the rubric of critical legal studies (see, e.g., Karl E. Klare, Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law, 4 Indus. Rel. L. J. 450 (1981); and Elizabeth Mensch, The History of Mainstream Legal Thought 32–33 in David Kairys, ed., The Politics of Law (New York: Pantheon, 1982)). The difference between the two approaches seems mainly to be one of goals, not methods. Where traditional legal scholarship analyzes inconsistencies to show that the doctrine in question needs revision, critical legal studies scholars use similar techniques to show that the ideology underlying the decisions is flawed.Google Scholar