A Cultural Anthropologist's Take on Comparative Law

"Whether the adjudicative styles that gather around the Anschauungen projected by haqq, dharma, and adat are properly to be called 'law' or not (the rule buffs will find them too informal, the dispute buffs too abstract) is of minor importance; though I, myself, would want to do so. What matters is that their imaginative power not be obscured. They do not just regulate behavior, they construe it.

"It is this imaginative, or constructive, or interpretive power, a power rooted in the collective resources of culture rather than in the separate capacities of individuals (which I would think in such matters to be, intrinsically anyway, about the same everywhere; I rather doubt there is a legal gene), upon which the comparative study of law, or justice, or forensics, or adjudication should, in my view, train its attention. It is there - in the method and manner of conceiving decision situations so that settled rules can be applied to decide them (as well, of course, of conceiving the rules), in what I have been calling legal sensibility - that the informing contrasts lie. And it is there, too, that the passion of the anthropologist to set local views in local contexts and that of the jurist to set instant cases in determinate frames can meet and reinforce each other."

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"Taken together, these two propositions, that law is local knowledge not placeless principle and that it is constructive of social life not reflective, or anyway not just reflective, of it, lead on to a rather unorthodox view of what the comparative study of it should consist in: cultural translation....[A] comparative approach to law becomes an attempt, as it has become here, to formulate the presuppositions, the preoccupations, and the frames of action characteristic of one sort of legal sensibility in terms of those characteristic of another....This is, of course, like Englishing Dante or demathematizing quantum theory for general consumption, an imperfect enterprise, approximate and makeshift, as I trust I have proved. But, aside from resigning ourselves to the fixity of our own horizons or retreating into mindless wonder at fabulous objects, it is all there is, and it has its uses."

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"My concern is with what law is like when what most lawyers, and most anthropologists too, would probably regard as the sine qua non of its existence - 'agreement about the things that are fundamental' - is rather spectacularly absent.

"So far as we, anthropologically-minded lawyers or law-minded anthropologists, are concerned, the issue that faces us is, as I say, how to describe such situations in a usefully informative way; informative both as to them and as to the implications they have for how we need to think about legal processes as a general phenomenon in the world, now that the pieties of natural law, the simplicities of legal positivism, or the evasions of legal realism no longer seem of very much help. It is a matter of talking about irregular things in regular terms without destroying thereby the irregular quality that drew us to them in the first place; as noted before, a most irregular business."

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"Law, with its power to place particular things that happen - this promise, that injury - in a general frame in such a way that rules for the principled management of them seem to arise naturally from the essentials of their character, is rather more than a reflection of received wisdom or a technology of dispute settlement. Small wonder that it draws toward it the same sorts of passions those other begetters of meanings and proposers of worlds - religion, art, ideology, science, history, ethics, and commonsense - draw toward them." - from Clifford Geertz, "Local Knowledge: Fact and Law in Comparative Perspective"