Journal of Legal Anthropology

The forum in this issue, reflecting on the problematics of the relationship between anthropology and law, as a timely focus is also indicative of how these debates revolve around disciplinary and cross-disciplinary issues. That such co-presence of anthropology and law, incorporating research in informal and formal settings, various kinds of collaboration and, in some instances, sceptical views about its value, continues to merit close attention also signals how views of differences animate a well-populated and extended field. The concerns are often articulated around an epistemic divide between anthropology and law, and allow for questioning both within and across disciplinary areas, even as much is made of the richness of an ethnographic approach to law alongside other methods and analyses, as indicated. Lawrence Rosen, in his response to the commentators in the forum, notes ‘our special area of interest is actually a great doorway into many key issues for both disciplines’, as he identifies the spaces where it is incumbent for anthropologists to act to address these cross-disciplinary challenges.

This article aims to unravel the complex negotiations surrounding property settlements and custody in cases of divorce in customary courts in Botswana today in the light of an earlier legacy of penalising divorce initiators. It argues that women’s attempts to get their husbands to initiate divorce proceedings can entangle women in lengthy negotiations and ultimately frustrate the aim of achieving a divorce. Repeated court hearings can last for years, we show. At the same time, in Botswana’s statutory courts today, an equal division of property irrespective of the causes of marital breakdown has become established practice. In the article, we aim to show that customary laws regarding property settlement in divorce have indeed changed, gradually adjusting to notions of equity in women’s rights in marriage, in response to a wider ideological, critical movement, even though chiefs or headmen presiding over customary courts do not always explicitly acknowledge this change.

This article demonstrates how an integral element of the fabric of governance on the eastern Indonesian island of Lombok, and many other parts of the Indonesian archipelago, are non-state local security arrangements, such as night watches and militias. These groups play a significant role in the local infrastructure of security and law enforcement. Consequently, this article challenges a common assumption by legal scholars, and many other observers of Indonesia, that state-based institutions such as the police are the exclusive, and only legitimate, mode of law enforcement in Indonesia. Through an ethnographic engagement with the idea of law enforcement on Lombok, I seek to broaden these assumptions about legitimate modes of statecraft. These non-state entities fill a void in the Indonesian law enforcement architecture that the state is unable or unwilling to fulfil (or potentially finds it more practical to delegate to local non-state institutions).

Ethnographic studies of legal materiality and the bureaucratic mundanities of law often juxtapose their richly empirical approach to the material assemblages of law with the ‘grand talk’ and conceptual abstractions of law. This article considers the intersection of formal legal discourse and the mundanity of bureaucratic practice through an examination of two judicial opinions concerning the legal significance of the Bates number, a sequential digit inscribed onto documents produced in US pretrial discovery. Through this analysis, the article both illustrates the Bates stamp’s role in the material constitution of law, and offers a reminder that the stories law tells about its own materiality can offer insights into, and enact and extend, the sociolegal agency of bureaucratic tools.

At a time of ‘interdisciplinary’ scholarly debate and ‘transdisciplinary’ pedagogy, some disciplines appear more siloed and tone deaf to each other than ever before. This article will consider why law and anthropology as disciplines offer almost no impact upon each other’s educational or research agendas.

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 theorised praxis, as pedagogy, as politics by other means? What, moreover, counts as mattering? And from where, in particular, is the provocation being posed? All these questions, patently, make a difference.

As a researcher working within the field of collaborative or ‘engaged’ legal and political anthropology in Latin America, law does very much shape my research agenda and that of most of my colleagues. I would also contend that anthropology does impact law throughout the region, although to a much lesser extent. This is most evident in the legalisation, judicialisation and juridification of indigenous peoples’ collective rights to autonomy and territory in recent decades. Yet, the influence of anthropology on legal adjudication in the region is not only limited to issues pertaining to indigenous peoples: engaged applied ethnographic research is playing an increasingly important role in revealing to legal practitioners and courts the effects of human rights violations in specific contexts, and victims’ perceptions of the continuums of violence to which they are subjected.

This provocative question became the basis for a spirited discussion at the 2017 meeting of the American Anthropological Association. My first reaction, on hearing the question, was to ask, does anthropology care whether it matters to law? As a discipline, anthropology and the anthropology of law are producing excellent scholarship and have an active scholarly life. But in response to this forum’s provocation article, which clearly outlines the lack of courses on law and anthropology in law schools, I decided that the relevant question was, why doesn’t anthropology matter more to law than it does? The particular, most serious concern appears to be, why are there not more law and anthropology courses being offered in law schools? It is increasingly common for law faculty in the United States to have PhDs as well as JDs, so why are there so few anthropology/law PhD/JD faculty? Moreover, as there is growing consensus that law schools instil a certain way of thinking but lack preparation for the practice of law in reality and there is an explosion of interest in clinical legal training, why does this educational turn fail to provide a new role of legal anthropology, which focuses on the practice of law, in clinical legal training?

Jeremy Kingsley and Kari Telle’s provocation article raises several important issues. The thrust of their argument as I understand it is that anthropology does not matter much to the field of law in many parts of the world. They are quick to point out, however, that this is a relative point and that their comparative frame takes as its point of departure the much greater degree of intellectual engagement that obtains between schools of medicine and public health on the one hand and the field of anthropology on the other. I concur with their overall argument but will phrase it in slightly different terms: despite the robust collaborations that sometimes involve legal scholars and anthropologists (e.g. in legal clinics at New York University and elsewhere; see Merry, this issue), faculty in law schools are much less likely to embrace the work of anthropologists than are their colleagues who specialise in medicine and public health. In this brief comment, I offer tentative hypotheses as to why this situation exists in the North American context. I approach the relevant issues from a historical perspective, focusing on hierarchies of legitimacy and prestige, shifts in both academia and the job market for anthropologists, and the rise of neoliberal doctrines in academia and beyond.

Does anthropology matter to law? At first sight, this question might seem redundant: of course, anthropology matters to law, and it does so a great deal. Anthropologists have made important contributions to legal debates. Legal anthropology is a thriving sub-discipline, encompassing an ever-increasing range of topics, from long-standing concerns with customary law and legal culture to areas that have historically been left to lawyers, including corporate law and financial regulation. Anthropology’s relevance to law is also reflected in the world of legal practice. Some anthropologists act as cultural experts in, while others have challenged the workings of, particular legal regimes, including with respect to immigration law and social welfare.

When I was thinking of going to law school, I went to speak with a law professor at the university where I had done my PhD. ‘Well, Mr. Rosen,’ he said, ‘the thing about law school is it will teach you how to think.’ I kept waiting for the other shoe to drop: think about law, think like a lawyer. No, he meant think – period. With all due humility, I was at that time coming from the Institute for Advanced Study in Princeton, NJ, and should like to imagine that I had actually learned a few things while doing my doctorate at his own university. In the forty years since, while serving as an adjunct professor of law and visiting professor at several such institutions, I have also encountered the occasional law scholar who, in a moment of academic noblesse oblige, has regarded my anthropology credentials as quaint but insufficient evidence that one has the tough-minded capacity that flows from a legal education. The lawyers may pay some attention to a few other disciplines, but, even though they may have given in to the allure of economics and bolstered their intellectual self-image with the odd philosopher or historian, the question remains why the law schools still tend to regard anthropology as almost entirely irrelevant.

Goldstein, D. M. (2012), Outlawed: Between Security and Rights in a Bolivian City (Durham: Duke University Press), 344 pp., 9 photographs, 1 map, ISBN: 978-0-8223-5311-9 (paperback).

Daniel M. Goldstein’s Outlawed: Between Security and Rights in a Bolivian City (2012) is a thickly described and richly detailed ethnography of uncertainty in the barrios of Cochabamba, Bolivia. It holds important insights for legal anthropology, particularly where the sub-discipline intersects with the anthropology of the state and the anthropology of human rights. The ethnographic detail is exemplary, with the work here having serious implications for anthropological theory and opening up several avenues for further investigation. That it opens new debates more than it offers cohesive answers – as is, admittedly, possibly fitting for the ‘uncertain anthropology’ that Goldstein advocates – both is the prime strength of the work and can be offered as a gentle critique. I consider this to be because of the ambitious breadth of the work to the extent that directions that were implied were ultimately left somewhat unexplored. This review article is an attempt to consider the prime contributions of Outlawed and to tentatively map some of these implied connections.

This review considers how another outdated postcolonial law has been struck down in a former British colony amidst campaigns, global change and action by an appellate court. This follows from the historic 2018 Supreme Court ruling from Trinidad and Tobago in the Jason Jones judgement, in which it was decided that existing laws prohibiting consensual adult intercourse and sexual acts between consenting same-sex adults were unconstitutional. This review adds to that decision to highlight further social and sociolegal change in the region which has direct implications for future challenges to postcolonial laws which are ‘sitting on the books’. My review looks at recent case law which has overturned Guyana’s Victorian-era cross-dressing prohibition, as it relates to 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act of Guyana.

Shah, A. (2018), Nightmarch: Among India’s Revolutionary Guerrillas (London: Hurst Publishers). ISBN: 978-1-849-04990-0.