The Differing Realms of the Law

Author(s): Paul Bohannan

Source: American Anthropologist , Dec., 1965, New Series, Vol. 67, No. 6, Part 2: The
Ethnography of Law (Dec., 1965), pp. 33-42
Published by: Wiley on behalf of the American Anthropological Association

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The Differing Realms of the Law
PAUL BOHANNAN
Northwestern University

ANTHROPOLOGY, including legal anthropology, is faced with

that may be unique in social science: in order to present the result
field research without seriously warping the ideas, we must under
ond job of research, on the homologous institutions of our own society
the scientific disciplines that have investigated those institutions.
is an exercise in the anthropological investigation of jurisprudenc
vestigates three things: (1) definitions that jurisprudence has use
anthropological usefulness of such definitions, (2) the "double instit
tion" of norms and customs that comprises all legal systems, and (
the problems of the association between legal institutions and certa
political organization.

Legal Language
It is likely that more scholarship has gone into defining and explain
concept of "law" than any other concept still in central use in the
ences. Efforts to delimit the subject matter of law-like efforts to
usually fall into one of several traps that are more easily seen than
The most naive, on the one hand, beg the question and use "law"
they believe to be its common-sense, dictionary, definition-apparen
out looking into a dictionary to discover that the word "law" has six en
Webster's second edition (1953), of which the first alone has thirtee
meanings, followed by five columns of the word used in combin
most sophisticated scholars, on the other hand, have been driven
that, in relation to a noetic unity like law, which is not represente
thing except man's ideas about it, definition can mean no more th
mnemonics to remind the reader what has been talked about.
Three modern studies, two in jurisprudence and one in anthrop
show a common trend.
Hart (1954) concludes that there are three "basic issues": (1) How is law
related to order backed by threats? (2) What is the relation between legal ob-
ligation and moral obligation? (3) What are rules, and to what extent is law an
affair of rules? Stone (1965) sets out seven sets of "attributes usually found
associated with the phenomena commonly designated as law": Law is (1) a
complex whole, (2) which always includes norms regulating human behavior,
(3) that are social norms; (4) the complex whole is "orderly" and (5) the order
is characteristically a coercive order (6) that is institutionalized (7) with a de-
gree of effectiveness sufficient to maintain itself. Pospisil (1958) examines sev-
eral attributes of the law-the attribute of authority, that of intention of uni-
33

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34 Ethnography of Law
versal application, that of obligatio (the right-ob
sanction. In his view, the "legal" comprises a fiel
decision, and the various attributes overlap, tho
tended outside that overlapping field, and there
"zone of transition," between that which is unq
which is not.
It was Hermann Kantorowicz (1958) who pointed out that there are many
subjects, including some of a nonlegal nature, that employ a concept of law.
He proceeded to a more questionable point: that it was up to "general juris-
prudence" to provide a background to make these differing concepts sensible.
Kantorowicz' method for supplying such a jurisprudential background is very
like Pospisil's in anthropology-examination of some characteristics of law
that are vital to one or more of the more specific concepts. Law, he tells us,
is characterized by having a body of rules that prescribe external conduct
(it makes little immediate difference to the law how one feels about it-the law
deals in deeds). These rules must be stated in such a way that the courts, or
other adjudging bodies, can deal with them. Each of the rules contains a
moralizing or "ought" element-and Kantorowicz fully recognizes that this
"ought" element is culturally determined and may change from society to
society and from era to era. Normative rules of this sort must, obviously, also
be distinguished from factual uniformities by which men, sometimes with and
sometimes without the help of courts and lawyers, govern their daily round of
activity. Law is one of the devices by means of which men can reconcile their
actual activities and behavior with the ideal principles that they have come to
accept in a way that is not too painful or revolting to their sensibilities, and a
way that allows ordered (which is to say predictable) social life to continue.

Double Institutionalization

Law must be distinguished from traditions and fashions and more speci-
fically it must be differentiated from norm and from custom. A norm is a rule,
more or less overt, which expresses "ought" aspects of relationships between
human beings. Custom is a body of such norms-including regular deviations
and compromises with norms-that is actually followed in practice much of
the time.
All social institutions are marked by "customs" and these "customs" ex-
hibit most of the stigmata cited by any definition of law. But there is one
salient difference. Whereas custom continues to inhere in, and only in, these
institutions which it governs (and which in turn govern it), law is specifically
recreated, by agents of society, in a narrower and recognizable context-that
is, in the context of the institutions that are legal in character and, to some
degree at least, discrete from all others.
Just as custom includes norms, but is both greater and more precise than
norms, so law includes custom, but is both greater and more precise. Law has
the additional characteristic that it must be what Kantorowicz calls "justici-

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 The Differing Realms of Law 35
able," by which he means that the rules must be capable of
and actually must be reinterpreted, by one of the legal instit
so that the conflicts within nonlegal institutions can be adju
thority" outside themselves.
It is widely recognized that many peoples of the world ca
less precise "rules" which are, in fact, the norms in accordance w
think they ought to judge their conduct. In all societies th
lapses from such rules, and in most there are more or less pr
times legal ones) for breaking rules.
In order to make the distinction between law and other r
necessary to introduce furtively the word "institution." I u
Malinowski's sense (Malinowski 1945; Bohannan 1963).
A legal institution is one by means of which the people of
disputes that arise between one another and counteract any g
abuses of the rules (as we have considered them above) of at
other institutions of society. Every on-going society has leg
this sense, as well as a wide variety of nonlegal institutions.
In carrying out the task of settling difficulties in the nonleg
legal institutions face three kinds of tasks: (1) There must be
which difficulties can be disengaged from the institutions in wh
and which they now threaten and then be engaged within the p
legal institution. (2) There must be ways in which the trou
handled within the framework of the legal institution, and
ways in which the new solutions which thus emerge can be r
the processes of the nonlegal institutions from which they e
dom that any framework save a political one can supply these
There are, thus, at least two aspects of legal institutions that
with other instititions of society. Legal institutions-and of
must have some regularized way to interfere in the malfunct
haps, the functioning as well) of the nonlegal institutions in ord
the trouble-case. There must, secondly, be two kinds of rules in
tutions-those that govern the activities of the legal institut
"adjectival law" by Austin and procedure by most moder
those that are substitutes or modifications or restatements of the rules of the
nonlegal institution that has been invaded (called "substantive law").
Listed above are only the minimal aspects that are all shared by all known
legal institutions. There may be other aspects, as for example the commonly
recognized fact that legal institutions on both the procedural and the sub-
stantive side can be in the fullest sense innovatory.
Seen in this light, a fairly simple distinction can be made between law and
custom. Customs are norms or rules (more or less strict, and with greater or
less support of moral, ethical, or even physical coercion) about the ways in
which people must behave if social institutions are to perform their tasks
and society is to endure. All institutions (including legal institutions) develop
customs. Some customs, in some societies, are-reinstitutionalized at another

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36 Ethnography of Law
level: they are restated for the more precise p
When this happens, therefore, law may be rega
restated in order to make it amenable to the activ
In this sense, it is one of the most characteristic a
that some of these "laws" are about the legal i
though most are about the other institutions
nomic, political, ritual, or whatever.
One of the reddest herrings ever dragged into t
prudence was Malinowski's little book called C
Society. It is unfortunately almost the only ant
on the standard reading list used in many law
it has had an undue and all but disastrous infl
between anthropology and jurisprudence. Mali
he claimed that law is "a body of binding obliga
party and acknowledged as the duty by the other,
mechanism of reciprocity and publicity inhere
ety." His error was in equating what he had defin
that is "kept in force by ... reciprocity and p
have defined it here. Law is, rather, "a body of bi
right by one party and acknowledged as the duty
reinstitutionalized within the legal institution so th
tion in an orderly manner on the basis of rules so
ity is the basis of custom; but the law rests on th
tionalization. Central in it is that some of the customs of some of the institu-
tions of society are restated in such a way that they can be "applied" by an
institution designed (or, at very least, utilized) specifically for that purpose.
One of the best ways to perceive the doubly institutionalized norms or
"laws" is to break up the law into smaller components, capable of attaching to
persons (either human individuals or corporate groups) and so to work in
terms of "rights" and their reciprocal duties or "obligations." In terms of
rights and duties, the relationships between law and custom, law and morals,
law and anything else, can be seen in a new light. Whether in the realm of kin-
ship or contract, citizenship or property rights, the relationships between
people can be reduced to a series of prescriptions with the obligations and their
correlative rights that emanate from these presumptions. In fact, if it is not
carried too far and unduly formalized, thinking in terms of rights and obliga-
tions of persons (or role players) is a convenient and fruitful way of investi-
gating much of the custom of many institutions (Hohfeld 1923; Hoebel 1954).
Legal rights are only those rights that attach to norms that have been doubly
institutionalized; they provide a means for seeing the legal institutions from
the standpoint of the persons engaged in them.
The phenomenon of double institutionalization of norms and therefore of
legal rights has been recognized for a long time, but analysis of it has been only
partially successful. Kantorowicz, for example, has had to create the concept
of "justiciability" of the law. It would be better to say that legal rights have

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 The Differing Realms of Law 37
their material origins (either overtly or covertly) in the customs of
institutions but must be overtly restated for the specific purpose of enab
legal institutions to perform their task.
A legal right (and, with it, a law) is the restatement, for the purp
maintaining peaceful and just operation of the institutions of society,
but never all of the recognized claims of the persons within those institu
the restatement must be made in such a way that these claims can be
less assured by the total community or its representatives. Only so
moral, religious, political, and economic implications of law be fully e
Law is never a mere reflection of custom, however. Rather, law is
out of phase with society, specifically because of the duality of the st
and restatement of rights. Indeed, the more highly developed the legal in
tions, the greater the lack of phase, which not only results from the con
reorientation of the primary institutions, but also is magnified by t
dynamic of the legal institutions themselves (Stone 1964: Chapter 1, Secti
Thus, it is the very nature of law, and its capacity to "do something ab
the primary social institutions, that creates the lack of phase. Moreov
if one could assume perfect legal institutionalization, change within
mary institutions would soon jar the system out of phase again. What is l
vious is that if there were ever to be perfect phase between law and
then society could never repair itself, grow and change, flourish or wane
the fertile dilemma of law that it must always be out of step with societ
that people must always (because they work better with fewer contra
if for no other reason) attempt to reduce the lack of phase. Custom must
grow to fit the law or it must actively reject it; law must either grow to
custom, or it must ignore or suppress it. It is in these very interstic
social growth and social decay take place.
Social catastrophe and social indignation are sources of much law a
sultant changes in custom. With technical and moral change, new sit
appear that must be "legalized." This truth has particular and somew
ferent applications to developed and to less highly developed legal s
On the one hand, in developed municipal systems of law in which m
institutionalizing behavior on a legal level are already traditionally
trated in political decision-making groups such as legislatures, nonleg
institutions sometimes take a very long time to catch up with the law
other hand, in less developed legal systems, it may be that little or no
demand is made on the legal institutions, and therefore little real c
exists or can be made to exist between them and the primary insti
(Stone 1965: Chapter 2, Section 17). Law can, as we have seen in anoth
text, become one of the major innovators of society, the more effec
greater a people's dependence on it.

Beyond the Austinian Sovereign

To summarize the position so far, it is the essence of "law" to pr
double institutionalization of norms. A secondary criterion was added: a uni-

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 38 Ethnography of Law
centric political unit (no matter how pluralistic)
utilized to carry out the secondary or legal inst
Such a theory-although it may be charged with
seem, consonant with the state type of organiza
double institutionalization seems inadequate thu
situations: the situations of (1) law in a stateles
society, and (3) international law.
So far we have two assumptions. First, we h
state, whether it be seen as an Austinian sovere
that assumes the court whose actions are to be
lesser accuracy. Second, we have assumed that th
ture in such a situation-no matter, for the m
tions are to be found in it. A legal culture, for
which is subscribed to (whether they know an

Unicentric Bicentric (or Multicentric)

Power Power

One Municipal systems Law in stateless

culture of "Law" societies

Two (or more) Colonial La

cultures

FIG. 1. The legal realm.

whether they act within it or "agree" w

The secondary institutionalization fo
unit.
With these ideas in mind, it is poss
hence to build a four-square diagram in
ing the realm of the legal (See Fig. 1
by most jurists, deal with a single leg
tem. Subcultures in such a society ma
of phase with the customs and mores o
of phase.
Colonial Law. Colonial law is marked by a unicentric power system, with
greater or lesser problems of conjoining the colonial government with the
local government, and more and less overt theories (such as the British "in-
direct rule") of accomplishing the conjunction. All are marked, however, by
two (or more) legal cultures. Sometimes this situation is recognized, as it was
in preindependence Kenya with its two hierarchies of courts, one for "Euro-
pean" law and the other for African law joined only at the top in the Supreme

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 The Differing Realms of Law 39
Court. The mark of a colonial situation might be said to be
understanding between the two cultures within the single p
constant revolutionary proclivities resulting from what is,
misunderstanding."
In colonial law, the problem of disengaging a problem cas
in which it arises is often complicated by the existence of
ideas about the motives and goals to be achieved in resortin
Once disengaged, the culture of the court officials may be com
from that of the principals and witnesses in the cases, so t
best may seem arbitrary. Once "settled" in this more or less ar
re-engagement in the institutions of society may be very impe
lack of consensus about what was decided or lack of agreeme
ing qualities and the justice of it.
We are only now far enough removed from colonies-no
obsolete-to begin a thorough examination of the effect tha
had, via such a system, on the legal systems of the countries in
found.
Law in Stateless Societies. The mark of the stateless society i
a unicentric power system. All situations of dispute that oc
not within the same domestic unit ipso facto occur between
equal power units. The prime example of a bicentric system
lineage system based on the principle of segmental oppositio
reason that this type of solution need be limited to such si
however, only a single culture: the principals and witnesse
at vast odds about who did what and to whom, and hence w
But they understand one another's activities and plots-pe
stand them only too well.
In such a situation, all trouble cases are settled by some
mise, more or less in accordance with a set of overt "rule
cisions" there are "compromises." In a unicentric system, it
judicial decision and a recognized mechanism of enforceme
problems merely of efficiency, not of substance. In a bicen
body can be in a position to make decisions-it is organized
not be. The "judges" must make compromises, and their c
be enforced from two power centers, which often-to a ci
looks like no enforcement at all. Instead of implementing decis
are made to accept the principles and provisions of a compr
It is my feeling-but I cannot claim it is any more than
compromise, bicentric solution of problems leads to very much
statements of norms as law than does the decision-based unicentric solution.
Bodies of rules in stateless societies seem to be less precise, scarcely made in
anything resembling a corpus juris although, of course, the anthropologist
the intellectually inclined informant can create a system-even a system o
precedents-from the regularities that result from compromise between uni
in terms of their common cultural recognition of their common institutions.
In some societies the compromiser may be quite firmly institutionalized

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 40 Ethnography of Law
Among the Nuer (Evans-Pritchard 1940) for exam
is a firmly institutionalized compromiser who may
any specific instance. If he is, his task is to create a
parties will concur, saving the face of all by his
tions."
Most specifically, perhaps, the court-a body of men representative of the
political power-cannot have any part in a bicentric system, unless there is
some mode of organizing multiple judges. The more common methods of pro-
cedures are moots, contests, oracles, and self-help. In short, the bicentric, uni-
cultural system may not have a very great potential for organized, neat sys-
tems of "law."

International Law

This section is set forth with great circumspection, because I know very
little about international law. Yet it is obvious, even to a rank amateur, that
there has been a long dispute in jurisprudence about whether international
law is really "law" (Williams 1945-1946).
The difficulty arises among scholars who derive their model too narrowly
from that law which is associated with a unicentric power system. It is un-
doubtedly true that the most "developed" legal systems occur within organ-
izations such as states that have a single power system-indeed, the growth of
states has been coincident with the growth of such legal systems. For all that
such a power sytem may be pluralistic, it nevertheless is not legally divisible
into warring and treating factions. "Law" is seen as one of the supreme activ-
ities of such an institution. The elements of coercion and prediction that have
been emphasized in the definitions of law have lent credence to the point. These
qualities have carried over and indeed obscured discussions of international
law.
The situation in international law is, however, made more complex in that
two or more unicentric power systems are bound together by means other than
a more inclusive unicentric power system. In each of them, custom is "legal-
ized." In international law, then, the process of "reinstitutionalization" must
take place yet again-but with the qualitative difference that this time it must
be done within the limitations of a multicentric power system. The difficulties
in this secondary reinstitutionalization of international law are compounded
because there are likely to be cultural differences in the two or more primary
legal systems.
The "law" must, in short, be reinstitutionalized not out of a single related
set of institutions, but rather out of two separate sets of interrelated institu-
tions, including the interrelationship of the two unicentric power systems.
Many cultures can exist within a unicentric system-the United States pro-
vides a vivid example; moreover, what might in other aspects be neatly re-
garded as a single culture may be representative of two or more states. How-
ever, it is usually reasonable to assume that the two separate but interrelated
sets of institutions on which international law must draw in the process of

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 The Differing Realms of Law 41
legalization, exhibit somewhat different cultures. Therefore
take place in terms of two cultures that are often vastly foreig
Obviously the legal institutions of a bicentric and bicultural
different types of organization, different goals-different c
from those of unicentric systems. More specifically they m
ways of disengaging the trouble situation from its matrix. Pro
must be more subtle precisely because the power distributio
centers, and a preliminary legalization has likely been made in
as yet have adequate legal institutions for bicentric system
agreed ways for legalizing international law that is suffic
consonant with multiple cultural evaluations (Jones 1962).
not be solved merely by the creation of a single "sovereign
only a few years ago.
It is a characteristic of unicentric legal systems that they ar
reach and enforce decisions. It is, just so, characteristic of
that they must reach legal compromises that are sufficientl
both cultures as to be acceptable and ultimately enforceab
power centers. Western judges have lost and are just regain
rights to compromise within the framework of the adversary
societies such as some of those in Africa, are only beginnin
sion" procedure in place of or in addition to a compromise
In short, it would appear that in international law-or at
fashioned view of it-there is a treble institutionalization: once at the level of
custom, once at the level of the legal institutions of states, and again at the
level of the bicentric, bicultural "international" accord.

The Differing Realms of Jural Ethnography

It is a truism to say that if the law is to be discovered in differing realms,
that legal ethnography must also be found there. But the question comes up:
What should we and our students be doing? Without in any sense wanting to
close any avenues, it seems possible to list several important tasks:
(1) First of all we must study the relationship between the social institu-
tion and the legal institution in which some of its norms are (doubly or trebly)
reinstitutionalized. We must know the relationships between families and
family law or between received behavior and criminal law.
(2) We must get a full range of the types of institution that fulfill legal
functions, and the social situations under which each is either tried or has
proved successful.
(3) We must discover which customs are reinstitutionalized into law in
different social, cultural, and political situations, and in accordance with what
postulates. We must examine the institutions that precede and follow from
such reinstitutionalization.
(4) We must seek out situations of cross-cultural conflict resolution and
examine them against a set of legal qualities. (Anthropologists have been lax
here.)

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42 Ethnography of Law
In short, jural ethnography, like the law itself,
one hand, as broad as life itself; on the other, as n
institutionalization in given situations of power
There are three grave dangers: We may, like Ba
phy as if it were law. We may, like Gluckman's
short by defining the "legal" too rigidly before
like my own Justice and Judgment (1957), sto
neither does the ethnography fit easily into the
nor are methods made overt that allow ready comp
of all the sorts discussed here.

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