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Law, Culture, and Ritual

Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context

Oscar G. Chase
Foreword by Jerome S. Bruner
Copyright Date: 2005
Published by: NYU Press
Pages: 224
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  • Book Info
    Law, Culture, and Ritual
    Book Description:

    Disputing systems are products of the societies in which they operate - they originate and mutate in response to disputes that are particular to specific social, cultural, and political contexts. Disputing procedures, therefore, are an important medium through which fundamental beliefs, values, and symbols of culture are communicated, preserved, and sometimes altered. In Law, Culture, and Ritual, Oscar G. Chase uses interdisciplinary scholarship to examine the cultural contexts of legal institutions, and presents several case studies to demonstrate that the processes used for resolving disputes have a cultural origin and impact.Ranging from the dispute resolution practices of the Azande, a technologically simple, small-scale African society, to the rise of discretionary authority in civil litigation in America, Chase challenges the claims of some scholars that official dispute systems are more reflective of the interests and preferences of elite professionals than of the cultures in which they are embedded.

    eISBN: 978-0-8147-4517-5
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Foreword
    (pp. ix-xii)
    Jerome S. Bruner

    Disputing is, of course, inevitable. No culture ever achieves the utopian harmony necessary to rise above it. To survive, every culture everywhere requires an acceptable means for settling disputes so as to forestall losers’ revenge, or their alienation. To achieve this necessary acceptance, “Justice must satisfy the appearance of justice,” to cite one of Felix Frankurter’s famous dicta.

    To resolve disputes in this even-handed way requires not just aspiritof justice but also agreed-uponproceduresfor judging the claims of contending parties—what we grandly call in Western society a “legal system.” But the means by which disputes are...

  4. Preface
    (pp. xiii-xvi)
  5. 1 Introduction
    (pp. 1-14)

    No human society is free of disputes. But how will the disputes be addressed? Here we encounter myriad manifestations of human ingenuity and imagination. “Institutionalized responses to interpersonal conflict, for instance, stretch from song duels and witchcraft to moots and mediation to self-conscious therapy and hierarchical, professionalized courts.”¹ We find all these “dispute-ways” and more.² Even apart from what it is they dispute about, and what kinds of claims will be validated by their society, a people must decide how to process those claims and grievances. Will (or must) the parties allow a third person to resolve their quarrel (so-called...

  6. 2 The Lesson of the Azande
    (pp. 15-29)

    For the people who are the subject of this chapter, the Azande of Central Africa,¹ common sense dictates that the best way to determine the truth of contested facts is to consultbenge, the poison oracle. Because this practice makes no sense to observers from a technologically advanced society, it challenges us to understand it in the context of Zande culture. Observing their society in some detail allows us to see the interpenetration of officially countenanced disputing practices and the culture in which they operate—a gaze we can later direct elsewhere. That is the lesson that I take from...

  7. 3 “Modern” Dispute-Ways
    (pp. 30-46)

    We have seen how the formal disputing institutions and processes used by the Azande reflect and influence such disparate aspects of their society as political hierarchy, relations between the sexes, the nature of reality, and the means of finding truth. Can these processes of reflection and influence be seen in modern societies as well?

    In this chapter and the next I explore the relation between culture and disputing in my own society, the United States. I will divide the analysis into two levels. On the first, presented in this chapter, I look at American disputing as more or less congruent...

  8. 4 American “Exceptionalism” in Civil Litigation
    (pp. 47-71)

    In the previous chapter we saw how the main features of “modern” disputing—the reliance on law as a source of norms, and evidence as a source of fact—were culturally situated. The cultural connection with disputing practices is obvious when we juxtapose modern systems with those of cultures that rely on supernatural methods of obtaining truth, such as oracles or ordeal. But in this chapter I will make a more difficult point—that variations in disputing practices evenamongmodern states are traceable to underlying cultural differences. I will connect the considerable differences between disputing in the United States...

  9. 5 The Discretionary Power of the Judge in Cultural Context
    (pp. 72-93)

    In this chapter I examine a problematic development in American disputing: the striking rise of discretionary judicial power over legal procedures that began early in the twentieth century and continues into the twenty-first. This phenomenon constitutes a case study of the interplay of cultural and professional influences on American procedure. I will argue that the concept of judicial discretion, which is classically distinguished from the concept of law, is in part a rhetorical construct rather than a decisional process of a special kind. The key background fact, however, is the marked and unquestionable growth of judicial procedural authority that is...

  10. 6 The Rise of ADR in Cultural Context
    (pp. 94-113)

    Another puzzling and controversial shift in American dispute processing was the turn away from the formal courtroom adjudication described in chapter 4, and towards Alternative Dispute Resolution. ADR took off later in the twentieth century than the expansion of discretion described in the last chapter and was responsive to societal currents that only partially overlapped those described there. Was it the result of a “crisis” in the courts? If so, what were its ingredients? I will argue that quite apart from a perceived litigation crisis, the move to ADR in the late twentieth century had institutional, political, and cultural causes....

  11. 7 The Role of Ritual
    (pp. 114-124)

    Whether it is the variety of mystical practices the Azande lavish on the collection, preparation, and use ofbenge, or the elaborate rules of speech, deportment, and place that regulate behavior in an American courtroom, disputing practices are replete with ritualized, ceremonial behavior. Why is ritual so prominent in the formal disputing practices of many societies? How does this ritualization of dispute relate to the themes of this book? I will make two specific claims in this chapter in the service of my central argument for the reflexive nature of culture and disputing. The first is that disputing institutions employ...

  12. 8 How Disputing Influences Culture
    (pp. 125-137)

    In the preceding chapters we saw how institutionalized disputing practices reflect the culture in which they are found. As defined in chapter 1, culture includes the “traditional ideas, values and norms” that are widely shared in a social group.¹ It encompasses normative and cognitive beliefs as well as the symbols that represent those mentalities for its people.² We saw that the specific features of formal dispute-ways involve a public acting out and affirmation of the beliefs and assumptions that unite that collectivity, including its shared understanding of the nature of reality, its gender relations, its social hierarchy, its political arrangements,...

  13. 9 Conclusion
    (pp. 138-140)

    I have presented two claims about institutionalized dispute processes and society: first, that these dispute-ways reflect the culture in which they are found—its values, its social arrangements, its metaphysics, and the symbols through which these qualities are represented; and second, that the relationship is reflexive—that the processes by which disputes are addressed will be an influential ingredient in the ongoing social task of maintaining or “constructing” the culture in which they are located. If these contentions are valid, my theory of disputing will have both predictive and normative utility: it predicts that when the culture goes through substantial...

  14. Afterword: The Classroom and the Terror of Relativism
    (pp. 141-144)

    Colleagues who have been kind enough to read drafts of this book have occasionally raised an eyebrow of the following sort: cultural sensitivity is all well and good, but surely you do not mean to say that the only difference between the oracle consultation of the Azande and the evidentiary analysis of the modern court is that they reflect different cultural assumptions. Don’t you agree, they press me, that our methods are more rational and will yield better results than theirs? (This is a variant of wondering whether the traveler returning from years abroad has “gone native.”) It is clear...

  15. Notes
    (pp. 145-184)
  16. Bibliography
    (pp. 185-196)
  17. Index
    (pp. 197-206)
  18. About the Author
    (pp. 207-207)