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Overview
Law is integral to culture, and culture to law. Often considered a distinctive domain with strange rules and stranger language, law is actually part of a culture's way of expressing its sense of the order of things. In Law as Culture, Lawrence Rosen invites readers to consider how the facts that are adduced in a legal forum connect to the ways in which facts are constructed in other areas of everyday life, how the processes of legal decision-making partake of the logic by which the culture as a whole is put together, and how courts, mediators, or social pressures fashion a sense of the world as consistent with common sense and social identity.
While the book explores issues comparatively, in each instance it relates them to contemporary Western experience. The development of the jury and Continental legal proceedings thus becomes a story of the development of Western ideas of the person and time; African mediation techniques become tests for the style and success of similar efforts in America and Europe; the assertion that one's culture should be considered as an excuse for a crime becomes a challenge to the relation of cultural norms and cultural diversity.
Throughout the book, the reader is invited to approach law afresh, as a realm that is integral to every culture and as a window into the nature of culture itself.
Product Details
| ISBN-13: | 9781400887583 |
|---|---|
| Publisher: | Princeton University Press |
| Publication date: | 03/17/2017 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 232 |
| File size: | 6 MB |
About the Author
Read an Excerpt
Law as Culture
An Invitation
By Lawrence Rosen
PRINCETON UNIVERSITY PRESS
Copyright © 2006 Princeton University PressAll rights reserved.
ISBN: 978-1-4008-8758-3
CHAPTER 1
Law and Social Control
The law is an inexhaustible reservoir of good stories because it deals with humanity between the hammer and the anvil.
— E. Lipsky
Conflict and Relationship
Two businessmen enter into a contract. Both are well known to people in the trade and both have engaged in similar contracts — perhaps even with one another — over the course of time. Part way through the duration of their contract, however, one of them fails to perform as required. What options are open to the "injured" party? What resources — legal, conceptual, relational — may each draw upon to resolve a dispute, in what order, and with what implications?
In a famous article published in 1963, Stewart Macaulay argued that American businessmen, faced with such a situation, rarely sue for breach of contract. Even though they go to lawyers to draft the original agreement and the law is usually quite clear, they rarely bring a case to court. Was the contract, then, a wasted formality? As scholars have pointed out, a contract is more than the reduction to writing of mutual mistrust: Contracts clarify obligation, encourage negotiation, establish a working framework for voluntary agreement, aid memory, transmit group experience, and encourage a sense of seriousness. Nor is it simply the cost of litigation that dissuades people from suing for breach, even though cost certainly affects litigation prospects. For in addition, one has to look at the relationships of the parties within and beyond their own business community. To sue may well be to risk the loss of flexibility that may benefit all parties at different times, to undermine the informal mechanisms by which reputations are made and kept, and to disrupt ongoing relationships for momentary gain. Even if people have fewer cross-cutting attachments than at the time of Macaulay's original study and are less likely than they once were to contract with members of their own "club," bounded trade groups and business associates may still invoke informal pressures to avoid litigation. In even so "legalistic" an environment as contract law, therefore, it is the full array of social control mechanisms that informs the meaning and applicability of the law and the role it plays in the broader process of exchange.
The American response to disputes is hardly unique. Studies of other societies show analogous considerations. Descriptions of Israeli communal settlements suggest that where the ideology of collective ownership was strong, "informal" mechanisms — particularly gossip and scandal — were effective in communicating and enforcing acceptable behavior. Even so minor an intrusion as personal possession of a teapot could lead to clique formation that had to be met with strong pressures lest the sense of the whole community as the irreducible unit of society be undermined. In the antebellum American South, as among religiously oriented groups in some regions today, the informal pressures of public opinion — including the subtle power of women to exert moral authority by socially isolating those who violated accepted standards — may have outweighed apparently formal rules. Gossip, as various scholars have noted, is not mere backbiting: It articulates group standards, casts up group leaders, establishes collective boundaries, socializes newcomers to group history and traditions, and signifies personal inclusion. So divorced from individual creation may gossip appear and so strong its capacity to regulate conduct that the Greeks built temples to the god Rumor (Fama), whose epiphanies bespoke the unseen hand that orders social relations.
Distinctive legal institutions and informal mechanisms of social control fit with still other aspects of any culture. In many African and Native American groups, in-laws or siblings may be required to physically avoid one another, or jokes and salacious comments, rather than being privately relayed, must be publicly addressed to those kinsmen with whom conflict is seen as a real threat. On the surface these practices may appear simply as functional substitutes for dispute resolution, but as one looks more closely at their social and cultural involvement, other connections appear.
For example, among many Eskimo and Berber groups "song duels" were arranged between disputants. Characteristically, opposing parties and their supporters would face one another and hurl arguments, phrased with varying degrees of poetry and wit, at the opponent. The goal was to persuade those gathered of the justice of one's claims, public approval for the acts of one party or the other constituting the ultimate judgment. Closer inspection, however, reveals that while in some cases the "duels" do address disputes, in many instances what may be at work is the maintenance of the very ambiguity of social relations. Having learned since childhood that they should be allowed to do what they want so long as it does not elicit violence in others and that the human universe is radically unpredictable, Eskimos traditionally accorded one another a considerable amount of leeway in individual social arrangements. Eskimos of the central Arctic, like Berbers of the Atlas Mountains, thus retained the flexibility of negotiated ties to others by dramatizing tensions in such a way as to reassert their own capacity to maneuver. For them, song duels, with their magnified irony and barely masked antipathy, dramatized and preserved the ambiguous nature of all relationships — itself a process that may "resolve" the dispute. Indeed, as Herve Varenne suggests, what may be shared in a culture are less discrete beliefs than the terms for disagreement.
In other societies variants of the emphasis on flexible social relations may be deeply inscribed in legal practice. Comaroff and Roberts thus describe the customary law of the Tswana of South Africa as incorporating not a set of rules but an undifferentiated repertoire of norms that, far from removing ambiguity, lead to the "legitimization of competing constructions of reality in terms of which situational conflict is expressed."
As people negotiate the public recognition of their relationships, flexibility and uncertainty are, as in the conception of social life generally, inextricably united. Thus, as one of the authors' Tswana informants said, "reality is never what it seems; you think one thing and find out it is another, and then another." The result, however, is not chaos, but law that is only comprehensible as part of an entire array of mechanisms by which characteristic qualities are teased out of each situation, even as the particularities of each situation remain free from implacably constraining restrictions.
In each sociolegal system the fit with other elements of the culture is crucial to the mechanism's effect: The points of stress marked by joking relations usually connect with the lines of marital alliance and exchange, while song duels may track economic ties or the ambiguous nature of relationship itself. Commonly, where people have multiple, cross-cutting ties, the impact on relationships brought about by a lawsuit, self-help, or breaking off all ties will be muted by the interdependency formed across religious, kinship, and political bonds. Tribesmen who must exchange across ecological bounds, no less than Western businessmen who want ongoing commercial relations — or who are involved in the same church or golf club or charity — may all be made to feel the pressure to avoid an overt break. These pressures may be public and intense or play on an individual's own sense of self. Arbitration decisions in the American cotton industry, for example, do not list participants' names, but the gossip network is said to be so effective that few are willing to risk their reliability as trading partners by clearly violating group standards. At times various American magistrates have ordered the posting of public notices of an individual's criminal record or personal debts, prompting intense debate on the propriety of such shaming. In other instances, the focus is on a kind of enlightened self-control: Duke University's student honor code calls for no enforcement, appealing instead to one's "concept of honor," while the code at Mount Holyoke College speaks of the community as based on "an exchange of gifts" that has a profound effect on "the image one has of oneself." And the behavioral code at my own undergraduate college — which I should like to think was not without genuine content — consisted of just two words: "Be Discrete."
From the perspective of evolutionary and functionalist theory, even conflict may appear as socially and culturally integrative. Some ethologists thus claim that conflict in our nearest primate cousins correlates with higher rates of grooming and solidary behavior, thus suggesting that it is not the conflict that is adaptively advantageous but the socializing that follows it. Earlier, sociologists like Georg Simmel and Lewis Coser had argued that conflict intensifies in-group structures and identity, forges shared orientations, and acts as a safety valve for potentially more serious divisions. It can even be argued that conflict with outsiders has its advantages: The feud limits violence to tit-for-tat attacks rather than the war of all against all, and (as among the Arabs, for example) the legitimacy of a leader may depend in no small part on his acknowledgment by the group's enemies, thus reinforcing the norm that one does not utterly destroy the enemy but always leaves him a way out. Even the ancient principle of "an eye for an eye" may be seen not simply as a mark of retribution but as a structured limitation on potentially escalating violence. When one looks at legal disputes and cultural norms in the light of these theories, one can, again, see that dispute resolution may arguably be secondary to forces aimed at preserving a sense of orderliness and options for the future.
Law does not, therefore, depend on express sanctions or even the existence of an actual sovereign; nor does it require utter precision to possess content. The disjunction between formal contract law and actual relationships among businessmen, for example, may have far less to do with legal efficiencies or even the history of courts and lawyers than with the cultural ideas of the autonomous person, the image of human sociality, and the role of formal law in maintaining a sense of order even when the primary mechanisms of social control, in fact, lie elsewhere. It is not, as some claim, that "law cannot bear very much reality": It is that the reality of law is not self-proscribed, living in its own institutional context, working itself pure to its own rationale. Like every other aspect of a culture, law lives in a place that is not solely of its own making. As we open up the idea of law to intersect those other domains where we fabricate the categories of our everyday experience, we open up the possibility not just for an enlarged sense of how law draws upon all the other domains of life for its own ends: We also see how cultures embrace both the order law seeks and the open- endedness that life requires to fashion a world that, for those who entangle their lives in its terms, gives order and flexibility to individuals and groups alike. An excellent place to see these processes at work is in the implementation of moral precepts in a context where some action must be taken.
Morals, Law, and Culture
The literature of law has long centered on the relation of law to morals, and the contributions of philosophers and jurists in every culture have highlighted the contested relations between these two domains. Although some have argued that law and morals should be kept distinct analytically, if not practically, it is crucial to address the issue of how, as part of the larger culture, moral precepts find their voice in different legal systems. By exploring several examples of how this process operates we can see some of the connections through which law and morals contribute to one another's very structure and meaning.
Among a group in the Philippines called the Tiruray it is believed that men are, by their very nature, disposed to violence. Accordingly, if a man feels some sense of injury, of being ill at ease, he must be attended to quite carefully. Within the society a number of individuals over the course of time have been recognized as possessing a refined sense of appropriate conduct as well as personal sensibility. When the injured party addresses himself to one of these respected figures, the latter consults with other knowledgeable men and, if they feel it appropriate, a collective hearing is arranged. The one who attends to a person's sense of injury must, therefore, balance the subjective sense of discomfort with the standards of the group as a whole. Lacking any enforcement powers but drawing on moral rules as the sole source of his guidance, the system's representative seeks a recognizable causal connection and a remedy that joins both the individual's felt sense of unease and the criteria by which legitimate support for his injured feelings may be publicly addressed. Because they do not believe that a simple assertion of right and wrong ever really ends a potential dispute, the Tiruray's focus is constantly on the delicate interplay of personal discomfort and moral principles that can express and momentarily articulate the bases for continued interaction. This style of legal-mindedness is, moreover, consonant with the way in which leadership, political influence, and personal repute are made manifest in the society in many other domains.
Such mechanisms thus have distinct boundaries, in their determination of what constitutes a "fact" as much as in the goals of any proceeding. Where distinctive legal institutions exist, the means for addressing these concerns may take quite varied forms. In his analysis of the Barotse of present-day Zambia, Max Gluckman discusses cases in which royal judges may, for example, impress upon a man that he should be more generous to the wife he is divorcing than the law requires while still acknowledging that as judges they have no power to force the man to be more forthcoming. However, during a break in proceedings, others may remind the husband that he has multiple ties to the members of the court — as kinsmen, village mates, and trade partners — and not infrequently the litigant succumbs to these related pressures. The party may then be praised by the court for being such a good man. Thus where the Tiruray have regularized a process through which experienced individuals may draw directly on the moral precepts of their community — precepts that include attention to the individual's sense of injury — Barotse judges are not allowed to have resort to moral principles alone. Instead, they may use their multiple ties to an individual to conduce proper role behavior, even though the formal limitations on their ability to impose their own moral sense is quite circumscribed. At issue, then, is the "constitutional" dispersal of power in each of these societies, a process that depends not on recourse to strict rules but on the maintenance of order through diverse social, economic, and psychological pressures.
Comparisons to the American situation are intriguing in this regard. In a famous case involving a Jehovah's Witness who had gone to the hospital with a bleeding ulcer, Judge Skelly Wright, after rushing to the hospital to personally interview the patient and her husband, overruled the lower court and allowed the doctors to administer a blood transfusion. He later said that, faced with a life-and-death decision, he had an "instinctive reaction," and he was therefore prompted to conclude his written opinion with the striking words, "I vote for life" — even though his decision clearly went against the formal tenets of the woman's religion. Unlike the Tiruray figure who, in H.L.A. Hart's terms, is expected to give direct implementation to the primary moral rules, American judges, like their British counterparts, are not supposed to bring their own moral values into their decisions. Nor may they, like the Barotse judge, play on their extrajudicial ties to the parties. Thus, in a case of naturalization, where the candidate had been found guilty in his home country of the "mercy killing" of his deformed child, Judge Learned Hand expressed the dilemma when he said of the court: "Left at large as we are, without means of verifying our conclusion, and without authority to substitute our individual beliefs, the outcome must needs be tentative," but that he imagined "as to legally administered euthanasia, we feel reasonably secure in holding that only a minority of virtuous persons would deem the practice morally justifiable, while it remains in private hands." Judge Jerome Frank dissented, arguing that the standard was not "virtuous persons" at large: "I incline to think the correct statutory test is the attitude of our ethical leaders," though he was unable to specify precisely who these leaders were. Unlike the German judge, who, as in the post-Nazi case mentioned at the outset, is personally authorized to look for "good moral precepts," the common-law judge must find some other way of bringing morality into his opinions if he chooses to do so. He may try to avoid imposing his own morality — as, for example, Justices Frankfurter and Blackmun did with great poignancy when they went against their consciences in death penalty cases for the sake of upholding the law. If common-law judges are to reach out to moral propositions, therefore, their views may have to be couched indirectly — sometimes even hypocritically — or through a claim that they accord with such deep, shared sentiments of society as to be almost invisible in the process. When they do so, it is important to ask in what other ways such practices are licensed in the culture: When is it appropriate to tell a "white lie" or ignore an "open secret"; how can one fashion a bargain with one's conscience through a key cultural category like "entitlement" ("I've worked hard so now I'm entitled ...") or trump law with "fairness"? In each instance, the meaning of a legal system's style of implementing moral propositions is incomprehensible without seeing its reverberations in other cultural contexts.
(Continues...)
Excerpted from Law as Culture by Lawrence Rosen. Copyright © 2006 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents
List of Illustrations ixPreface xi
Introduction 1
CHAPTER 1: Law and Social Control 14
CHAPTER 2: Creating Facts 68
CHAPTER 3: Reason, Power, Law 131
CHAPTER 4: Law as Cosmology 169
Conclusion 198
Further Reading 201
Index 213
What People are Saying About This
Rosen's book is remarkable not only for its breadth but because it is one of the few that identifies cross-cultural similarities and differences. The whole work is written with grace and brevity. The formal architecture of the argument is there, but not obtrusive, and the learning is broad, but not paraded.
— James Gordley, University of California, Berkeley
Rosen offers an excellent introduction to the key issues in the field and, particularly, to his own contributions to it. An eminent senior legal anthropologist, he provides a sophisticated and broad overview as well as a more intensive examination of questions of facts and evidence. The analysis is succinct and the book is well written.
— Sally Merry, New York University
"Rosen's book is remarkable not only for its breadth but because it is one of the few that identifies cross-cultural similarities and differences. The whole work is written with grace and brevity. The formal architecture of the argument is there, but not obtrusive, and the learning is broad, but not paraded."—James Gordley, University of California, Berkeley"Rosen offers an excellent introduction to the key issues in the field and, particularly, to his own contributions to it. An eminent senior legal anthropologist, he provides a sophisticated and broad overview as well as a more intensive examination of questions of facts and evidence. The analysis is succinct and the book is well written."—Sally Merry, New York University