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Anthropology and Law

Anthropology and Law

James M. Donovan
H. Edwin Anderson
Copyright Date: 2003
Edition: 1
Published by: Berghahn Books
Pages: 246
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  • Book Info
    Anthropology and Law
    Book Description:

    The relationship between Law and Anthropology can be considered as having been particularly intimate. In this book the authors defend their assertion that the two fields co-exist in a condition of "balanced reciprocity" wherein each makes important contributions to the successful practice and theory of the other. Anthropology, for example, offers a cross-culturally validated generic concept of "law," and clarifies other important legal concepts such as "religion" and "human rights." Law similarly illuminates key anthropological ideas such as the "social contract," and provides a uniquely valuable access point for the analysis of sociocultural systems. Legal practice renders a further important benefit to anthropology when it validates anthropological knowledge through the use of anthropologists as expert witnesses in the courtroom and the introduction of the "culture defense" against criminal charges.

    Although the actual relationship between anthropology and law today falls short of this idealized state of balanced reciprocity, the authors include historical and other data suggesting that that level of intimate cooperation draws ever closer.

    eISBN: 978-1-78238-606-3
    Subjects: Sociology, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vii)
  3. Preface to the Paperback Edition
    (pp. viii-x)
  4. Preface to the First Edition
    (pp. xi-xiv)
  5. Introduction: The Thesis of Balanced Reciprocity
    (pp. 1-28)

    Anthropology and law interact in several contexts, formal and informal, practical and theoretical, and deliberate and accidental. One accidental collision occurred on a law school torts exam. The test hypothetical set the scene with Cain and Abel of Biblical fame. Cain pointed a blowgun at Abel’s head, reasonably thinking him to be a statue of a Canaanite deity. Was Cain thereby liable to Abel for an intentional tort of assault?

    The correct answer in the professor’s mind was, “No.” Assault is a tort against aperson. Since Cain did not intend to assault a person, he lacked the requisite frame...

  6. Chapter One Practical Benefits of Anthropology to Law
    (pp. 29-81)

    Legislators, judges, and lawyers should be especially avid consumers of anthropological literature. At every turn, the legal profession invokes concepts that are the stock in trade of anthropology. Whenever culture and custom are relevant factors—and in legal practice, they frequently are—the obvious source of information should be anthropology.¹ The outcome of at least one important U.S. Supreme Court case hinged upon the substantial impact of well-considered anthropological data. InWisconsin v. Yoder²

    it was the testimony of John A. Hostetler, an anthropologist and expert witness who was himself raised in the Amish community, to which the Court frequently...

  7. Chapter Two Practical Benefits of Law to Anthropology
    (pp. 82-122)

    Chapter 1 identified as the practical benefit of anthropology to law the resources for laying an empirical ground for relevant legal findings. The thesis of balanced reciprocity expects that anthropology, too, will receive practical benefits from its relationship with law. To identify one such benefit, we look first at what we believe are some of the outstanding needs of anthropology. Finding that anthropology suffers from an ambiguous identity and low public esteem, we will suggest that law could use its high prestige in our society to elevate anthropology into more prominent public view.

    Anthropology is a fractured discipline, and perhaps...

  8. Chapter Three Theoretical Benefits of Anthropology to Law
    (pp. 123-174)

    The culture defense discussed in chapter 2 is not formally available to criminal defendants. “Although the rules of evidence now define relevance broadly enough to permit sympathetic judges to consider culture,” they are not required to do so.¹ Where the judge is not sufficiently “sympathetic,” the defendant’s lawyer may try to introduce the basic components of a culture defense under the guise of some other allowable defense. Renteln offers a list of such preexisting defenses: necessity, duress, self-defense, insanity, diminished capacity and partial responsibility, automatism, provocation, and ignorance of the law/mistake of fact.² The success of any particular defense would...

  9. Chapter Four Theoretical Benefits of Law to Anthropology
    (pp. 175-201)

    The thesis of balanced reciprocity demands that law make theoretical contributions to anthropology. At first, this expectation may seem easily fulfilled given the success of the specialty of legal anthropology. But that study does not satisfy the criteria for balanced reciprocity, since in legal anthropology the anthropologist treats law as a subordinate object of study rather than as a coordinate disciplinary peer.

    Just as anthropology intimately informs important concepts within law, law performs the same service for anthropology. We have already seen an example of this: although anthropology should be required to give content to the legal idea of the...

  10. Conclusion: Outlook and Recommendations
    (pp. 202-209)

    The organizing thesis of this volume has been that the relationship between anthropology and law is profitably evaluated against the standard of balanced reciprocity. When interacting within a relationship of balanced reciprocity, law and anthropology relate as true intellectual peers, with neither discipline consistently occupying a place of privilege over the other. Both anthropology and law have something essential to contribute to the larger project of understanding ourselves and our world, and of acting effectively therein. The contributions they make toward these ends are commensurate. Further, we have aimed to show the bases upon which this reciprocity could be built...

  11. Selected Bibliography
    (pp. 210-220)
  12. Index
    (pp. 221-229)
  13. Back Matter
    (pp. 230-230)