Law’s Autonomy in Action: Anthropology and History in Court
| DOI | 10.1177/0964663906069550 |
| Date | 01 December 2006 |
| Published date | 01 December 2006 |
| Author | Robert van Krieken |
| Subject Matter | Articles |
LAW’SAUTONOMY IN ACTION:
ANTHROPOLOGY AND HISTORY
IN COURT
ROBERT VAN KRIEKEN
University of Sydney, Australia
KEY WORDS
anthropology; Bourdieu; history; knowledge; legal reasoning; Luhmann
INTRODUCTION
THE AUTONOMY of legal reasoning, based on its capacity to manufacture
its own conditions of existence, has been described as law’s ‘amazing
trick’ (Scheiber, 1984: 236–7), ‘the trick by which the law rebuilds itself
in mid-air without ever touching down’ (Fish, 1993: 171). This article reflects
on what more can be said about the means by which this ‘amazing trick’ is
performed by examining the ways in which the theoretical work done on law’s
autonomy by Niklas Luhmann and Pierre Bourdieu can be related to specific
empirical case studies. It also asks what might be gained from seeing law as
a form of knowledge much like the natural and human sciences, albeit with
a unique role to play both in relation to other forms of knowledge produc-
tion and in relation to the business of power, authority and governance.
Law’s ‘claim to truth’ in relation to other human sciences is based to a large
extent on its privileged institutional position within the ‘reason of state’
(Tomlins, 2000). If we ask what is specifically ‘legal’ about legal reasoning,
the answer given by the US Supreme Court in Daubert v Merrell Dow
Pharmaceuticals (1993) is framed in terms of the differing functions of law and
science. Science is understood as the generalized pursuit of truth and ‘cosmic
understanding’, backed by persuasion, law as the particularized, time-bound
resolution of disputes, backed similarly by persuasion but also by force
(Posner, 1990: 83). Law’s relationship to other disciplines is then organized
around either (a) the displacement of alternative sources of explanatory
SOCIAL &LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(4), 574–590
DOI: 10.1177/0964663906069550
authority, or (b) the appropriation of the knowledge produced by those other
disciplines in order to enhance that privileged position, without granting
authority to other modes of knowledge production (Tomlins, 2000; Nelken,
2001; Edmond, 2004).
However, this does not prevent us from approaching legal thought as a
very specific form of knowledge rather than a completely different beast: it
certainly fits Nico Stehr’s (1994) preliminary definition of knowledge as ‘a
capacity for social action’ (p. 95), and can also usefully be seen as straddling
the categories of ‘meaningful knowledge’ (Deutungswissen or Orientierungs-
wissen) and ‘action knowledge’ (Handlungswissen) (p. 100), despite his own
exclusion of law from his survey of knowledge societies.
There is now a large body of work on ‘science in court’, but its central
focus remains the admissibility and operation of expert evidence: what
constitutes expert knowledge, under what conditions is and should it be
admitted into evidence, and how judicial reasoning relates to it (Lipson and
Wheeler, 1986; Mosteller, 1989; Freeman and Reece, 1998; Nelken, 1993,
1998; Jasanoff, 1995; Reece, 1998, 1999; Faigman, 1999; Foster and Huber,
1999). The more theoretical accounts of law, in contrast, have different
concerns, including the ways in which the legal ‘system’ or ‘field’ is both
autonomous from and interdependent with other social sub-systems, insti-
tutions, fields and practices (Bourdieu, 1987; Luhmann, 1992, 2004).
Addressing these kinds of issues is particularly important when the relation
between normative, evidentiary and strictly legal arguments is especially
complex, and the authority appealed to in the development of judicial reason-
ing is more essentially contested and variable. Theoretical abstraction may be
a vice in some senses, but we should not get too carried away with that obser-
vation, it is also a virtue for particular analytical purposes, such as giving us
broader conceptual vocabulary for our empirical narratives, the perception
of underlying patterns, the operation of power, or the latent affinity between
apparently divergent institutional arrangements.
The article both draws on the arguments regarding the internal function-
ing of the legal system/juridical field, and extends them with reference to the
particular empirical example of the role of extra-legal forms of knowledge in
one field of Australian law where this role has become particularly complex:
the legal regulation of Indigenous interests in land. My focus will be on the
‘social’ sciences – here history and anthropology – rather than medicine,
information technology, engineering, and so on. The overall aim will be an
improved understanding – theoretical as well as empirical – of the particular
position of legal rationality within relations of tension and ‘agonism’ in
relation to other, competing, modes of thinking about human behaviour and
social institutions.
VAN KRIEKEN: LAW ’SAUTONOMY IN ACTION 575
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