The Dilemma In Anglo-American Legal Anthropology: Gluckman-bohannan Debate

1955, the British anthropologist Max Gluckman in his first legalethnography——The Judicial Process among the Barotse of Northern Rhodesia,deliberated his attempt in proving that similarities between Barotse customary law inlocal Africa and Western law prevailed when compared with their difference, Which,Two years later, was opposed by the American anthropologist Paul Bohannan in hisJustice and Judgment among the Tiv. He believed that differences reflected appears tobe far more than similarities between the Tiv law of Nigeria and Anglo-American law.Thus he distinguished between folk system and analytical system: Western law is verydeveloped, but it is still a folk system, if we ignore this and use it as analytical system,will inevitably lead to misinterpretation of the research,and thus fall intoethnocentrism. He directed the criticism towards Gluckman, which has given rise totheir debate for over30years since then. This is just called the famousGluckman-Bohannan debate in Anglo-American legal anthropology.Apart from reasons arising from of the disposition of two sides, only oneexplanation is capable of accounting for such a long debate: no solution. There werestill issues having been explicitly debated by Gluckman and Bohannan Whethercommonality is superior to differences, or Vice Versa between African local law andWestern law? Whether and how to use the Western legal category to describe andanalyze non-Western legal systems? Whether methods applied by Law are entitled to the study of Anthropology?..., which are the embarrasments that Anglo-Americanlegal anthropology have been facing with no resolution sofar for a century.This dissertation is divided into four chapters, of which the first three chaptersaims to introduce the entire process, in accordance with the order of events on thecauses,passage, and finality of the debate; fourth chapter focus on the analysis andsummary on controversy. Specific arrangements are as follows:A detailed investigation of the inevitable and causal factors in the first chapter.Cecil Rhodes, the world's top colonial in the19th century, provided a research area forGluckman and Bohannan in order for fieldwork, but also helped them level up into themainstream academic circles of British anthropologist; in addition, Frederick Lugard,the inventor of the the most efficient colonial policy in the first half of20th century,granted a direct motivation, even the value for their research. Apart fromMalinowski's slight involvment in this issue, this field had not previously haddispute as it used to be. However, new changes had taken place in the academia of1950s: Anglo-American legal anthropology switched itself to humanities, theory ofrelativity of American anthropology culture was gradually perfected, culturaluniversalism appeared with a totally brand new image, structural linguistics wasexerting the effects on anthropology.Subjected to the influence of American cultural universalism, plus genious insecond language acquisition, Bohannan launched the debate. He targeted his criticismtowards Gluckman just because the literature by the latter was the first-published legalethnography based on observed cases in this field. Suffered from the his life andcareer, Gluckman, as a South African-born Russian jew, became a radical of racialequality with deep law complex brought by his family. Therefore, universalisticperspective tends to be brought by him to Western legal category. But it is injustice forhim to be criticized by Bohannan, and the latter's challenge is also somewhat hasty.Above conditions and factors determinied the Gluckman-Bohannan debate occurredin the Anglo-American legal anthropology.In accordance with the publication date of the document, Chapter II made aneutral and objective analysis and interpretation on the literature related to the Gluckman-Bohannan debate, and is divided into four stages in accordance with thecontent and its relevance. In the first stage-----their respectively published legalethnography, The Judicial Process among the Barotse manifested itself in originalform of Gluckman's theories and methods as result of not forseeing the consequentdenouncement while Justice and Judgment among the Tiv reflected the academic idealof the Bohannan in the fieldwork period.as the consequence. The next stage just pullsup the curtain of such debate. From1959to1968, both sides published12literatures,including books, papers, book reviews, and those are designed for specializedpublications.The conference of legal anthropology in Austria means the escalation of battle ofwords: they debated fiercely in person, which made this debate focus of theAnglo-American legal anthropology. However, due to a three-year interval betweenthe papers presented and that eventually published, the papers in the conferencerepeatedly referenced by Anglo-American scholars can not truly reflect what is allabout Gluckman-Bohannan debate. The two sides has no intention to cease thedisagreement after the conference. Gluckman made a reflection in the preface ofsecond edition his two classics. He, unfortunately, died two years later. Thus thisdebate became a drama in which Bohannan perform only by himself. In1989,Bohannan has mentioned the dispute for the last time, which indicated the end of thelast stage. Through a comprehensive display of the literature of theGluckman-Bohannan debate, this thesis argues that the dispute should involvecontroversy over similarities and differences between Western law and law ofre-industrial society, and argument on whether and how the Western legal categorycan analyze the law of re-industrial society.The third chapter discussed the reasons of the end of the debate. It, in the fisrplace, define time and sign of the end of dispute. Since the1970s, the researchconcentrating on the relationship between the law and society has featured ofAmerican legal anthropology, which means that America has surpassed Britain andbecame the leader in legal anthropology in the English-speaking world. Gluckmanand Bohannan were also affected by this shift. In spite of the continuing of the debate during this period, it is no longer regarded as the focus in the academics, also meaningthe termination of Gluckman-Bohannan debate in the sense of discipline, while thedivarication in the debate has not been resolved. Neither was winner with an impassereached. Dramatically, Gluckman and Bohannan's debate proved the inferiority ofAnglo-American legal anthropology on resolving the self-expression probles of theWestern law, thus directly contributing to the shift from the rule-centered paradigm tothe processual paradigm in this field.The so-called jurisprudence school and non-jurisprudence school are oftenvisible in Chinese literature. Gluckman was the typical representative of the former,while Bohannan was the leader of the latter. But I traced from Professor Lin Duan, theearliest user of those Chinese concepts, to Uwe Wesel, a German scholar who greatlyexaggerated this issue, and to Simon Roberts, a British scholar who never used thetitle though he made four division, finding that there was no antagonism of the twofactions in Anglo-American legal anthropology. Relevant scholars can not be called"school" in the handling of the issue, non-jurisprudence school also did not escapedthe shadow of the Western law.After the systematic analysis and comprehensive demonstration of the cause,passage and close of Gluckman-Bohannan debate, the fourth chapter explored theissues of the debate, and split it to into three-layer dilemma. The top one is theepistemological dilemma: how to understand the other law. Although the debate wasin the embryonic stage of the representative crisis of legal anthropology, it reflectedthe eternal problem of general and special. Compared with the debate on theresonableness aroused by religionary anthropology, Gluckman-Bohannan dabate haslittle self-examination on the epistemological consciousness, because the divaricationbetween the two sides focused on puzzlement of methodology that how other laws canbe shown up. There always exist two sharply different perspectives of emic and etic inAnglo-American legal anthropology, which typically embody itself as the debate.Compared with the essential-formal debate in economic anthropology, there are manysimilarities, but it also reflected the vulnerability of legal anthropology in size ofresearch, number of participants and the force. Cross or branch? Gluckman-Bohannan debate typically reflected the identitydilemma of Anglo-American legal anthropology. Gluckman tried to tie anthropologywith law in a communicative way. He believed that using the legal method isbeneficial to interdisciplinarity. But it is a legal research only applied byanthropologist on, is a kind of anthropologic law. Since there was no proprietaryresearch methods, it will not be recognized, thus it could not achievedinterdisciplinarity. Bohannan stressed the particularity of anthropology, advocatedanthropological methods, called for a anthropological research by anthropologist onthe law. This is the true meaning of legal anthropolog, but found no method with theuniversal explanatory power, coupled with the lost of research objects, and legalanthropology increasingly marginalized. Compared with the Netherlandish legalanthropology established and succeeded by jurist, two different routes but in the sameresult: did not crossed disciplines.In conclusion, this paper cited Sartre's existential perspective on the analysis ofthe other: Due to the emergence of his consciousness, self-consciousness will emerge.The other is a prerequisite for ego. In other words, understanding of the other actuallyopened the angle and depth of people's self-understanding. The author concluded thatself-examination and dilemma on the ontology are the only difference fromGluckman-Bohannan debate to the similar debate in other branch subject. This debatemade reflections on Western law and broke highness of Western law through the studyand discussion of non-Western law. Although seriously obstructed by law, legalanthropology offered another perspective for us to understand the law. However, theother faced by anthropology is not the "relative other", but the "complete other" or"absolute other" called by Levinas. Its character is that the other must not revert totheir identity or the same. This is always the ontological predicament of selfness. Andthis decides that anthropology of which come from the same body (Westernknowledge) with law, can not made a radical self-examination of Western law.