Page 145November 2004

Mary RileyUniversity of Illinois-Chicago

Anthropology and LawJames M. Donovan and H. Edwin Anderson, III

(New York: Berghahn Books, 2003)

While there are periodic compendia examining law from a cross-cultural per-

spective, and various monographs devoted to the anthropological analysis of

sociolegal systems, there are few works concerning how law and anthropology

can work together as practicing disciplines to the mutual enrichment of both.

James M. Donovan and H. Edwin Anderson, III, the authors of Anthropology andLaw, create and sustain an extended discussion on precisely this question.

Donovan and Anderson do not dwell on potential directions for cross-collabora-

tive research in law and anthropology as strictly academic pursuits, nor do they

focus on the relatively recent appropriation of law as yet another “new” subject

for ethnographic study. Rather, the lens of inquiry is bi-directional, examining

the contributions law could make to anthropology, and anthropology to law.

Overall, the book explores: (1) how findings of anthropological fact could be

used to inform legal decision-making and fact-finding in the courtroom and in

legal jurisprudence; (2) how the field of law, because of the relatively high pres-

tige it enjoys as a profession, could elevate anthropology to new heights of visi-

bility and relevance in the public eye; and (3) the theoretical benefits each field

could contribute to the other. As the authors state, “Instead of looking at law as

a focus of anthropological inquiry, we inspect the intersection of the practice of

anthropology with the practice of law” (3).

As Donovan and Anderson recount, the book resulted from their experience of

team-teaching a course in law and anthropology at Tulane Law School, although

it is clear that the text is not merely an expansion of their course syllabus. In the

Introduction, the authors set out the central thesis guiding the book: that the fields

of anthropology and law should stand in relationship to one another in a system

of balanced reciprocity. Not only does each field have much to offer the other,

each field can also stand on its own and contribute to the exchange on equal foot-

ing. This mutual interdependence, Donovan and Anderson assert, is crucial to the

survival of both anthropology and law as fields of practice in the future:

“Anthropology, to fully realize its own vision, needs a collateral discipline of

jurisprudence; law, in order to achieve its goal of justice and social order, requires

the theoretical grounding and empirical conclusions of anthropology” (2).

Especially insightful and interesting for the reader is the authors’ discussion of the

influence of law upon anthropology during its early days as an academic disci-

Copyright © 2004 American Anthropological Association

Riley 3/15/05 9:04 AM Page 145

pline. Donovan and Anderson emphatically note that, unlike the legal education

of today, the traditional legal education required “the contemplation of anthropo-

logical questions” and that law itself was a popular subject of inquiry in early

anthropological studies. Just as the first anthropologists to study traditional med-

icine and healing cross-culturally were often physicians, likewise the first anthro-

pologists who examined law in “primitive” societies were often lawyers, former

lawyers, or else scholars who had completed legal studies as part of their aca-

demic training. The list of well-known anthropologists and anthropological writ-

ers who also were lawyers or who otherwise had the benefit of legal study include

none other than Sir Henry Sumner Maine, Edward B. Tylor, Lewis Henry Morgan,

Adolf Bastian—and in more recent times, Claude Lévi-Strauss, Max Gluckman,

and Robert Redfield. This past closeness between anthropology and law should

not be too surprising given that the original objective of the anthropological enter-

prise was to discover the underlying laws that govern all human society, i.e., the

search for, in Bastian’s terms, the “psychic unity of mankind” (18).

In chapter 1, Donovan and Anderson present several ways in which anthropo-

logical facts could be used to inform the development of the legal theory and

facts of a case, how anthropologists could serve as expert witnesses, and how

anthropologists could lend their expertise in cases that exhibit specific cultural

dimensions. The authors then provide several examples where anthropological

insights or anthropologists can be of special help and relevance to case develop-

ment and developing sound legal arguments: (1) in interpreting NAGPRA; (2) in

constructing (or limiting) “culture defense” arguments; (3) in helping flesh out

what constitutes “common sense” in other cultures with differing norms in order

to understand and evaluate an actor’s behavior and corresponding mens rea.

The authors compellingly argue that the tendency for society to demonize behav-

iors and belief systems it does not understand could be corrected by bringing in

anthropological insights to a case, and at the very least could prevent such demo-

nization from becoming part of a larger legal argument damning the behavior of

a defendant from a different cultural background. On this point I am in total

agreement; all too often this happens in criminal cases. For example, when

Minnesota resident Chai Soua Vang was charged with murdering six hunters and

wounding two others during deer-hunting season in northern Wisconsin in

November 2004, newspapers produced eye-catching headlines by stating that the

accused was a Hmong immigrant and a native shaman in his community. At the

time of this writing, with Vang’s criminal trial set for September 2005 in St. Paul,

it remains to be seen whether the shaman issue will be raised again, either as a

way to demonize Vang, or if it will be to be used to show that the accused is a

man of high status and respectability in the Hmong community of St. Paul.1

Donovan and Anderson continue by noting that sociologists and psychologists

are routinely used as expert witnesses in the courtroom; thus, anthropologists

should be called upon for their expertise to assist juries in evaluating the relevant

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facts as well. While I am also in general agreement with the authors here, I would

like to mention that there are accounts by other anthropologists that discuss the

problems inherent in using the anthropologist, who is traditionally an avowed

advocate on behalf of the community under study, as a detached expert appear-

ing before the court. Eugene Hunn cites the Canadian case of Delgamuukw et al.v. the Queen, whereby anthropological testimony offered on behalf of the plain-

tiffs in that case was disregarded and ruled to be inherently partial because the

anthropologist, Justice McEachern reasoned, is naturally an advocate for the

plaintiffs and therefore biased (Hunn 1999:3-4). This is not to say that anthro-

pologists are never utilized as expert witnesses in court cases involving tribal

claims or tribal rights; this is merely to show that the matter of how anthropolo-

gists can involve themselves as advocates or as experts in the legal system is not

always clear-cut.

In chapter 2, the authors explore the practical benefits law could confer upon

anthropology. Disturbingly, Donovan and Anderson conclude that the best con-

tribution law could make to anthropology would be to lend prestige, respect, dig-

nity, and a system of self-regulation (modeled on the ABA) to govern all anthro-

pologists. In so doing, anthropology would become a field that is taken more

seriously, is seen as more relevant to everyday concerns, and whose ideas are

worth thinking about. I find this argument to be disturbing, but not because it is

not compelling. Unfortunately, I find Donovan and Anderson to be dead-on cor-

rect in their assessment of anthropology as a field with “low public esteem” (82)

and in danger of passing into total irrelevancy, even on college campuses.

But having to wed anthropology to the field of law in order to lift anthropology

up and allow it to bask in the “reflected glory” of law might backfire. The cou-

pling might only show that anthropology is not an equal partner to law at all, but

instead is subordinate to it, and certainly not an equal in the exchange of bal-

anced reciprocity between the two fields. Anthropology went through a phase

some decades back of trying to resemble the hard sciences in order to legitimize

itself as a “real” science. One can only wonder what might happen if anthropol-

ogy tries to do this once again, only using law as the vehicle for legitimization

instead. The basic problem, it seems, would still be there. That said, I find their

extended discussion of the problems facing anthropology today—including its

very survival as a relevant discipline in the liberal arts—to be extraordinarily

frank and valuable. This chapter really should be required reading for every

anthropologist in the academy today, regardless of whether or not one is in total

agreement with Donovan and Anderson’s assessment of anthropology.

Chapters 3 and 4 describe the theoretical benefits that law and anthropology

could contribute to one another. Most significantly, anthropology could benefit

law through “conceptual clarification,” by demonstrating broader, more exten-

sive definitions for basic but culture-bound terms that often must be defined

under the law in the course of making legal arguments. An infusion of anthropo-

Riley 3/15/05 9:04 AM Page 147

logical thinking into even the most basic of terms, such as “religion,” “sex,”

“gender,” and “race” by legal practitioners could broaden the definitions of these

terms to the point where they are more useful and better serve the diversity of

people who ultimately use, and are served by, the legal system. Expanding the

notion of race to include, for example, cultural, social, and “lived” meanings of

race, rather than relying on strictly biological or blood quantum definitions under

the law, would demonstrate the reality of what race is for (and means to) many

people in their day-to-day lives—far beyond what a biological definition of race

alone can establish.

Law in turn could most benefit anthropology in the theoretical realm by drawing

attention to the importance of law as the entry point for anthropological analysis

and understanding of an entire culture. At the risk of greatly over-simplifying

their argument here, Donovan and Anderson specifically assert that, because

death anxiety is a cross-cultural, universal feature of all human societies, one can

view religion, law, and culture as responses to this basic social fact—that people

die—and that the human concern for order, social production, and reproduction

all come forth from this underlying knowledge of one’s own mortality. Thus, law

becomes a privileged entryway into studying culture because of its nexus with

the most profound questions of human existence, which people attempt to

resolve, unsuccessfully, in a variety of ways at the individual, social, and politi-

cal levels in society.

While this assertion by Donovan and Anderson may sound like an elaborate

repackaging of the idea that law is a worthy object of anthropological study, I

believe that the point they make here is different. Like Bastian’s search for the

“psychic unity of mankind,” Donovan and Anderson are also searching for uni-

versals across human societies. By conducting an ethnographic study of law

itself—not simply to show how law is used as the mouthpiece for the powerful,

or as the agent of a larger hegemonizing societal discourse—but as a starting

point for examining how people think, act, live, and believe, the authors insist

that “entering” a society through a study of its legal system would prove to be

just as fruitful as the study of its cultural or religious systems. Moreover, the

study of a society’s legal system would be more fruitful toward understanding

that society as a whole than other potential points of departure.

Donovan and Anderson conclude with a review of the practical obstacles to col-

laboration between anthropology and law. These obstacles include the perceived

distance between the two disciplines today, the educational requirements one

must undertake to demonstrate professional competency in each field, and dif-

ferences in each field for career advancement. Despite these roadblocks, the

authors project a bright future for practical collaborations between anthropology

and law. They note that the numbers of individuals trained in both anthropology

and law are increasing, which may lead one day to a critical mass of legal and

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anthropological specialists who are interested in bringing the authors’ thesis of

balanced reciprocity to fruition.

I will have to say, reading this book is the ultimate experience in reflexivity, as

the authors are both trained in anthropology and law, and because the two disci-

plines are “naturally” reflexive. In law a logical (but reflexive) process is utilized

using case precedent, rules of law, and the factual circumstances of the case in

order to arrive at legal conclusions in opinions, rulings, and court decisions.

Similarly, anthropology is quintessentially reflexive by nature. Anthropological

analysis is an endless process of reflection and re-reflection upon the multiple

meanings of cultural phenomena under intensive study before a final epistemo-

logical contribution is made to the larger body of anthropological knowledge. So

the reflexivity inherent in any discussion involving anthropology and law just

seemed natural throughout the text.

In addition, I much appreciate the practical approach this book takes toward col-

laboration between anthropology and law in practice. As Riles (2003) mentions,

it seems that across the disciplines there has been a retreat from the postmodern

turn and a new scholastic fascination with the pragmatic, or what Riles calls the

pragmatic turn. While the timing of Donovan and Anderson’s book seems to be

a part of this movement in scholarship, I feel that, in this case, it is the academy

that is catching up to the authors’ viewpoint instead of Donovan and Anderson

writing in keeping with the newest intellectual trend. One hopes that the practi-

cal approach to how practitioners in anthropology and law can better connect

with one another, as well as how both fields can connect with the rest of the (non-

anthropological and non-legal) real world, is here to stay through Donovan and

Anderson’s insightful work.

Note

1. See “Hmong Hunter Charged With 6 Murders Is Said to Be a Shaman,”

New York Times, 1 December 2004, at

http://www.nytimes.com/2004/12/01/national/01hunter.html?th, accessed

February 22, 2005.

References Cited

Hunn, Eugene

1999 Ethnobiology in Court: The Paradoxes of Relativism, Authenticity,

and Advocacy. In Ethnobiology: Knowledge, Resources and Rights.

Theodore Gragson, ed. Pp. 1-12. Athens: University of Georgia Press,.

Riles, Annelise

2003 Introduction. In Ethnography in the Realm of the Pragmatic: Studying

Pragmatism in Law and Politics. PoLAR 26(2):1-7.

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