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Transcript of Anthropology and Law
Page 145November 2004
Mary RileyUniversity of Illinois-Chicago
Anthropology and LawJames M. Donovan and H. Edwin Anderson, III
(New York: Berghahn Books, 2003)
While there are periodic compendia examining law from a cross-cultural per-
spective, and various monographs devoted to the anthropological analysis of
sociolegal systems, there are few works concerning how law and anthropology
can work together as practicing disciplines to the mutual enrichment of both.
James M. Donovan and H. Edwin Anderson, III, the authors of Anthropology andLaw, create and sustain an extended discussion on precisely this question.
Donovan and Anderson do not dwell on potential directions for cross-collabora-
tive research in law and anthropology as strictly academic pursuits, nor do they
focus on the relatively recent appropriation of law as yet another “new” subject
for ethnographic study. Rather, the lens of inquiry is bi-directional, examining
the contributions law could make to anthropology, and anthropology to law.
Overall, the book explores: (1) how findings of anthropological fact could be
used to inform legal decision-making and fact-finding in the courtroom and in
legal jurisprudence; (2) how the field of law, because of the relatively high pres-
tige it enjoys as a profession, could elevate anthropology to new heights of visi-
bility and relevance in the public eye; and (3) the theoretical benefits each field
could contribute to the other. As the authors state, “Instead of looking at law as
a focus of anthropological inquiry, we inspect the intersection of the practice of
anthropology with the practice of law” (3).
As Donovan and Anderson recount, the book resulted from their experience of
team-teaching a course in law and anthropology at Tulane Law School, although
it is clear that the text is not merely an expansion of their course syllabus. In the
Introduction, the authors set out the central thesis guiding the book: that the fields
of anthropology and law should stand in relationship to one another in a system
of balanced reciprocity. Not only does each field have much to offer the other,
each field can also stand on its own and contribute to the exchange on equal foot-
ing. This mutual interdependence, Donovan and Anderson assert, is crucial to the
survival of both anthropology and law as fields of practice in the future:
“Anthropology, to fully realize its own vision, needs a collateral discipline of
jurisprudence; law, in order to achieve its goal of justice and social order, requires
the theoretical grounding and empirical conclusions of anthropology” (2).
Especially insightful and interesting for the reader is the authors’ discussion of the
influence of law upon anthropology during its early days as an academic disci-
Copyright © 2004 American Anthropological Association
Riley 3/15/05 9:04 AM Page 145
pline. Donovan and Anderson emphatically note that, unlike the legal education
of today, the traditional legal education required “the contemplation of anthropo-
logical questions” and that law itself was a popular subject of inquiry in early
anthropological studies. Just as the first anthropologists to study traditional med-
icine and healing cross-culturally were often physicians, likewise the first anthro-
pologists who examined law in “primitive” societies were often lawyers, former
lawyers, or else scholars who had completed legal studies as part of their aca-
demic training. The list of well-known anthropologists and anthropological writ-
ers who also were lawyers or who otherwise had the benefit of legal study include
none other than Sir Henry Sumner Maine, Edward B. Tylor, Lewis Henry Morgan,
Adolf Bastian—and in more recent times, Claude Lévi-Strauss, Max Gluckman,
and Robert Redfield. This past closeness between anthropology and law should
not be too surprising given that the original objective of the anthropological enter-
prise was to discover the underlying laws that govern all human society, i.e., the
search for, in Bastian’s terms, the “psychic unity of mankind” (18).
In chapter 1, Donovan and Anderson present several ways in which anthropo-
logical facts could be used to inform the development of the legal theory and
facts of a case, how anthropologists could serve as expert witnesses, and how
anthropologists could lend their expertise in cases that exhibit specific cultural
dimensions. The authors then provide several examples where anthropological
insights or anthropologists can be of special help and relevance to case develop-
ment and developing sound legal arguments: (1) in interpreting NAGPRA; (2) in
constructing (or limiting) “culture defense” arguments; (3) in helping flesh out
what constitutes “common sense” in other cultures with differing norms in order
to understand and evaluate an actor’s behavior and corresponding mens rea.
The authors compellingly argue that the tendency for society to demonize behav-
iors and belief systems it does not understand could be corrected by bringing in
anthropological insights to a case, and at the very least could prevent such demo-
nization from becoming part of a larger legal argument damning the behavior of
a defendant from a different cultural background. On this point I am in total
agreement; all too often this happens in criminal cases. For example, when
Minnesota resident Chai Soua Vang was charged with murdering six hunters and
wounding two others during deer-hunting season in northern Wisconsin in
November 2004, newspapers produced eye-catching headlines by stating that the
accused was a Hmong immigrant and a native shaman in his community. At the
time of this writing, with Vang’s criminal trial set for September 2005 in St. Paul,
it remains to be seen whether the shaman issue will be raised again, either as a
way to demonize Vang, or if it will be to be used to show that the accused is a
man of high status and respectability in the Hmong community of St. Paul.1
Donovan and Anderson continue by noting that sociologists and psychologists
are routinely used as expert witnesses in the courtroom; thus, anthropologists
should be called upon for their expertise to assist juries in evaluating the relevant
Page 146 PoLAR: Vol. 27, No. 2
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Page 147November 2004
facts as well. While I am also in general agreement with the authors here, I would
like to mention that there are accounts by other anthropologists that discuss the
problems inherent in using the anthropologist, who is traditionally an avowed
advocate on behalf of the community under study, as a detached expert appear-
ing before the court. Eugene Hunn cites the Canadian case of Delgamuukw et al.v. the Queen, whereby anthropological testimony offered on behalf of the plain-
tiffs in that case was disregarded and ruled to be inherently partial because the
anthropologist, Justice McEachern reasoned, is naturally an advocate for the
plaintiffs and therefore biased (Hunn 1999:3-4). This is not to say that anthro-
pologists are never utilized as expert witnesses in court cases involving tribal
claims or tribal rights; this is merely to show that the matter of how anthropolo-
gists can involve themselves as advocates or as experts in the legal system is not
always clear-cut.
In chapter 2, the authors explore the practical benefits law could confer upon
anthropology. Disturbingly, Donovan and Anderson conclude that the best con-
tribution law could make to anthropology would be to lend prestige, respect, dig-
nity, and a system of self-regulation (modeled on the ABA) to govern all anthro-
pologists. In so doing, anthropology would become a field that is taken more
seriously, is seen as more relevant to everyday concerns, and whose ideas are
worth thinking about. I find this argument to be disturbing, but not because it is
not compelling. Unfortunately, I find Donovan and Anderson to be dead-on cor-
rect in their assessment of anthropology as a field with “low public esteem” (82)
and in danger of passing into total irrelevancy, even on college campuses.
But having to wed anthropology to the field of law in order to lift anthropology
up and allow it to bask in the “reflected glory” of law might backfire. The cou-
pling might only show that anthropology is not an equal partner to law at all, but
instead is subordinate to it, and certainly not an equal in the exchange of bal-
anced reciprocity between the two fields. Anthropology went through a phase
some decades back of trying to resemble the hard sciences in order to legitimize
itself as a “real” science. One can only wonder what might happen if anthropol-
ogy tries to do this once again, only using law as the vehicle for legitimization
instead. The basic problem, it seems, would still be there. That said, I find their
extended discussion of the problems facing anthropology today—including its
very survival as a relevant discipline in the liberal arts—to be extraordinarily
frank and valuable. This chapter really should be required reading for every
anthropologist in the academy today, regardless of whether or not one is in total
agreement with Donovan and Anderson’s assessment of anthropology.
Chapters 3 and 4 describe the theoretical benefits that law and anthropology
could contribute to one another. Most significantly, anthropology could benefit
law through “conceptual clarification,” by demonstrating broader, more exten-
sive definitions for basic but culture-bound terms that often must be defined
under the law in the course of making legal arguments. An infusion of anthropo-
Riley 3/15/05 9:04 AM Page 147
logical thinking into even the most basic of terms, such as “religion,” “sex,”
“gender,” and “race” by legal practitioners could broaden the definitions of these
terms to the point where they are more useful and better serve the diversity of
people who ultimately use, and are served by, the legal system. Expanding the
notion of race to include, for example, cultural, social, and “lived” meanings of
race, rather than relying on strictly biological or blood quantum definitions under
the law, would demonstrate the reality of what race is for (and means to) many
people in their day-to-day lives—far beyond what a biological definition of race
alone can establish.
Law in turn could most benefit anthropology in the theoretical realm by drawing
attention to the importance of law as the entry point for anthropological analysis
and understanding of an entire culture. At the risk of greatly over-simplifying
their argument here, Donovan and Anderson specifically assert that, because
death anxiety is a cross-cultural, universal feature of all human societies, one can
view religion, law, and culture as responses to this basic social fact—that people
die—and that the human concern for order, social production, and reproduction
all come forth from this underlying knowledge of one’s own mortality. Thus, law
becomes a privileged entryway into studying culture because of its nexus with
the most profound questions of human existence, which people attempt to
resolve, unsuccessfully, in a variety of ways at the individual, social, and politi-
cal levels in society.
While this assertion by Donovan and Anderson may sound like an elaborate
repackaging of the idea that law is a worthy object of anthropological study, I
believe that the point they make here is different. Like Bastian’s search for the
“psychic unity of mankind,” Donovan and Anderson are also searching for uni-
versals across human societies. By conducting an ethnographic study of law
itself—not simply to show how law is used as the mouthpiece for the powerful,
or as the agent of a larger hegemonizing societal discourse—but as a starting
point for examining how people think, act, live, and believe, the authors insist
that “entering” a society through a study of its legal system would prove to be
just as fruitful as the study of its cultural or religious systems. Moreover, the
study of a society’s legal system would be more fruitful toward understanding
that society as a whole than other potential points of departure.
Donovan and Anderson conclude with a review of the practical obstacles to col-
laboration between anthropology and law. These obstacles include the perceived
distance between the two disciplines today, the educational requirements one
must undertake to demonstrate professional competency in each field, and dif-
ferences in each field for career advancement. Despite these roadblocks, the
authors project a bright future for practical collaborations between anthropology
and law. They note that the numbers of individuals trained in both anthropology
and law are increasing, which may lead one day to a critical mass of legal and
Page 148 PoLAR: Vol. 27, No. 2
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Page 149November 2004
anthropological specialists who are interested in bringing the authors’ thesis of
balanced reciprocity to fruition.
I will have to say, reading this book is the ultimate experience in reflexivity, as
the authors are both trained in anthropology and law, and because the two disci-
plines are “naturally” reflexive. In law a logical (but reflexive) process is utilized
using case precedent, rules of law, and the factual circumstances of the case in
order to arrive at legal conclusions in opinions, rulings, and court decisions.
Similarly, anthropology is quintessentially reflexive by nature. Anthropological
analysis is an endless process of reflection and re-reflection upon the multiple
meanings of cultural phenomena under intensive study before a final epistemo-
logical contribution is made to the larger body of anthropological knowledge. So
the reflexivity inherent in any discussion involving anthropology and law just
seemed natural throughout the text.
In addition, I much appreciate the practical approach this book takes toward col-
laboration between anthropology and law in practice. As Riles (2003) mentions,
it seems that across the disciplines there has been a retreat from the postmodern
turn and a new scholastic fascination with the pragmatic, or what Riles calls the
pragmatic turn. While the timing of Donovan and Anderson’s book seems to be
a part of this movement in scholarship, I feel that, in this case, it is the academy
that is catching up to the authors’ viewpoint instead of Donovan and Anderson
writing in keeping with the newest intellectual trend. One hopes that the practi-
cal approach to how practitioners in anthropology and law can better connect
with one another, as well as how both fields can connect with the rest of the (non-
anthropological and non-legal) real world, is here to stay through Donovan and
Anderson’s insightful work.
Note
1. See “Hmong Hunter Charged With 6 Murders Is Said to Be a Shaman,”
New York Times, 1 December 2004, at
http://www.nytimes.com/2004/12/01/national/01hunter.html?th, accessed
February 22, 2005.
References Cited
Hunn, Eugene
1999 Ethnobiology in Court: The Paradoxes of Relativism, Authenticity,
and Advocacy. In Ethnobiology: Knowledge, Resources and Rights.
Theodore Gragson, ed. Pp. 1-12. Athens: University of Georgia Press,.
Riles, Annelise
2003 Introduction. In Ethnography in the Realm of the Pragmatic: Studying
Pragmatism in Law and Politics. PoLAR 26(2):1-7.
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