REVIEWS: IS IT SIMPLE TO BE A MARXIST IN LEGAL ANTHROPOLOGY?1
| Published date | 01 July 1985 |
| Date | 01 July 1985 |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00856.x |
REVIEWS
IS
IT
SIMPLE
TO
BE A MARXIST IN LEGAL
ANTHROPOLOGY?’
LAW
AND
ECONOMIC ORGANIZATION: A COMPARATIVE STUDY
OF
PREINDUSTRIAL SOCIETIES. By
KATHERINE
S.
NEWMAN
[Cambridge: Cambridge University Press.
1983.
xii and
264
pp. Cloth:
f20.00.
Paperback:
f5-95.1
To
criticise can on occasion be to compliment and this is one such
occasion. Newman’s large project makes large claims
to
an
historical
materialist explanation
of
why different types
of
law are found in different
types
of
preindustrial society. It is
a
courageous and instructive failure,
one rooted in basic limits
of
legal anthropology and the comparative
sociology
of
law.
I
shall first review the book generally, then explore these
limits.
The encounter between the academic book and the review is never a
fair one. The book has at least to pretend to a form
of
completeness. The
form of the review is essentially incomplete. The review can smugly evoke
a shadowy completeness beyond its own requirements (and use that
completeness to belabour the always vulnerable completeness of the
book). Obviously,
I
hope not to rely on this easy evasion. Rather, what
I
intend here is a correspondence between the form of the review as
incomplete and a focal concern with what is not known or, more palpably,
with the incompleteness, the limits
of
certain types
of
knowledge applied
to people
of
the “third world.”
I
hope that is honest enough. Newman is certainly no less revealing
of
her purposes. She claims to take up where Marx unavoidably had to leave
off.
The accumulation
of
“data” on societies studied by anthropologists
and developments in social scientific techniques enable us now to pursue a
Marxist comparative anthropology
of
law. Her parting summary says that
“[tlhe bulk
of
this book has been dedicated to elaborating an empirically
substantiated theory
of
legal development based on the historical-materialist
approach developed” by Marx and Engels (p.214). She sees her findings as
suggesting that “it is time for a rapprochement” between legal anthropology
and “the materialist approach (p.210). There are gaps in our knowledge
which she aims to fill and which have to do with “why particular kinds
of
societies exhibit the structures
of
conflict resolution they do” and “[wlhy
are certain kinds of legal institutions found in some societies and very
different ones found in others” (pp.2 and
3).
All
of
this is in line with the
perception by Roberts
of
a “shift in interest” in anthropology away from
the intensive study
of
small groups towards “a much greater emphasis on
‘change’ and ‘development”’ and a related perception
of
“signs
of
a return
to those large questions which preoccupied scholars in the nineteenth
century,” questions involving, for example, “the conditions under which
The title
is
derived, with only some irony, from Louis Althusser,
“Is
it Simple
to
be
a Marxist in Philosophy?” in his
Essays
in
Self-Criticism
(1!376),
pp.
163-207.
Origins for
the present piece were provided in kindnesses
of
Bronwen de Gaay Fortman and Jerry
Eades.
472
July
19851
REVIEWS
473
different institutional forms and dispute processes are likely to be found”
and “even
. . .
sequential stages for the growth
of
legal
system^."^
Such a developmental, not to say evolutionary, thrust provides Newman’s
starting point and pervasively inhabits her work. It provides, then, apt
ground
for
an initial encounter. Newman briefly surveys the developmental
thought
of
the ancestor figure-Maine, Durkheim, Marx and Engels, and
Weber. Although she is broadly sympathetic to them, and to Marx and
Engels in particular, she considers that it is now time to do better with
“modern techniques and more reliable data sources” (p.
25).
She also
surveys “contemporary theories
of
legal development” provided by Hoebel,
Fried and Donald Black, the last being dismissed, which does leave some
surprising
omission^.^
Although she supports developmental perspectives
and recent evolutionary revivals, Newman never fully commits herself to
these stands. They do however intimately inform her discourse. Things are
“early,” “precede others,” are “successive,” “emerge,” “disappear,”
“develop,” have their “growth
. . .
stimulated,” acquire an “evolutionary
status” or become “stages.” In scholarship as in love:
“.
. .
metaphors are
dangerous. Metaphors are not to be trifled with. A single metaphor can
give birth to love.”4 It may well be such danger that stops Newman
adopting a more explicit dynamic. It should be enough
to
mention some
of
the main historical contenders to understand why, such as the Spencerian
perfection
of
the species and Marxist notions
of
the increasing rationality
of
the development
of
productive forces. By the end of the book Newman
is “content
to
argue for the synchronic veracity”
of
‘‘an evolutionary-
materialist theory
of
legal development” (p.
210).
How synchrony can
account for such a theory is never made clear. There is a brief and, for
this sort
of
work, standard invocation
of
the archaeological record as a
self-evident provider
of
developmental stages, the societies recently studied
by anthropologists being seen as having counterparts at various stages
archaeologically perceived (pp.
33-34).
Newman does not pursue this. Her
foundational data are derived almost wholly from diffuse anthropological
studies conducted in ahistorical, synchronic frames. Some anthropologists
would want to dissent, but Leach is right to rejoice in anthropology’s
concern with “the study
of
the statics
of
social systems” and its inability to
say much about the “dynamics.”’ It is able to say even less about the
dynamics
of
transition from one type
of
society to another, much less
about the overall direction
of
the evolution or
of
the development of
society in general.
Newman proceeds
to
rely on some implication
of
progression by erecting
her focal categories as
“a
typology
of
legal institutions” reflecting increasing
degrees of legal complexity.
I
will look firstly at the limits
of
such
essentially static typologies and then at the idea
of
complexity. The
typology is constructed from numerous anthropological studies
of
“a
sample
of
sixty preindustrial societies.” This must have required an
immense amount
of
work and the outcome is a valuable contribution to
Simon Roberts,
“The
Study
of
Dispute: Anthropological Perspectives,” in John
Bossy (ed.),
Disputes and Settlemenu: Law and Human Relations in the West‘(1983),
pp.
1-24
at p.
6.
The most notable is the work
of
Schwartz and Miller whose methods and lines
of
argument are close to her own: see Richard D. Schwartz and James C. Miller, “Legal
Evolution and Societal Complexity,” in Rita James Simon (ed.),
The Sociology
of
Law:
Interdisciplinary Readings (1968),
pp.
647-662.
‘
Milan Kundera,
The Unbearable Lighfness
of
Being (1985),
p.
11.
Edmund Leach,
Social Anfhropology (1982),
p.
224.
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