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What is law for?

September 3, 2013

Authored by: Hannah Skoda, Fellow and Tutor in History at St John's College, Oxford, co-editor of Legalism: Anthropology and History, available via Oxford Scholarship Online.

Legalism: Anthropology and History

At this time of dramatic changes and cuts to the system of legal aid, and the inevitable narrowing of access to law that these will bring, we need to ask ourselves some fundamental questions.  Why do we need rules? What do we mean by law?  What are the relationships between law and power, law and community, law and justice?  Recognising that these pairings are not synonyms and acknowledging the multiple roles and forms of law will render these discussions much more fruitful.  Thinking about this historically and anthropologically helps to address many of these issues.

For example, much of the rhetoric justifying cuts to legal aid has focused on the supposed litigiousness of members of society anxious to defend their rights.  But if we look historically, we find that this connection between rights and the law is by no means a given – it is equally possible to conceive of a duties-based form of law (medieval India is a good example according to Don Davis, seen in his chapter “Centres of Law: Duties, Rights, and Jurisdictional Pluralism in Medieval India”).  Once we begin to accept that there are alternative ways of thinking about law, the political rhetoric collapses, and the central issues become clearer.

On both sides of the debate about legal aid cuts law tends to be seen in utterly hegemonic terms.  Again, if we look to other societies, we find the relationship between law and the state to be anything but automatic.  There are numerous examples of legal pluralism, as well as of extremely sophisticated non-state law (Yemen according to Paul Dresch’s chapter and the Algerian Touat in the chapter of Judith Scheele).

Separating law from the state helps us to think about who it is really for.  Law can be shown to empower in complex ways, in many cases because of the status or authority it implies, even if it lacks the practical means of enforcement.  In many cases, historians and anthropologists rapidly uncover perceptions that law was really there to serve the lawyers.  The latter is an argument which has been repeated by politicians wishing to justify legal aid cuts, but by uncovering these perceptions across a range of other societies we can critically interrogate the motivations behind such rhetoric.

Most obviously, anthropological and historical studies stress the contingency of law – there is nothing eternal or essential about its nature, despite the rhetoric.  Indeed, some historical examples actually serve to highlight the need for change by illustrating that law can become ‘out of sync’ with historical change and ill-suited to its new environment: T. B. Lambert’s chapter on the anachronistic nature of English sanctuary by the later Middle Ages highlights this.

Such a conclusion indicates the importance of change and adaptation, but taken together, these perspectives render the responsibility all the greater to think through the full implications of proposed changes, rather than respond simply to immediate economic and political concerns.
 


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