Empirical approaches to law are commonplace now, but once they were rare and occasionally looked down on by classically trained lawyers who favored doctrinal methods of analysis. Francis Snyder’s engaging paper on the contribution of anthropology to teaching comparative and international law raises questions and issues on empirical law. Economics and law is probably the best known and most widespread combination of social science and law, although law and society was the first entrant to this new academic field. Law imports many concepts and methods from sociology, psychology, history and others. And yet legal education still struggles with how to incorporate these other disciplines into its syllabus. How then is legal education affected by incursions from other fields? For American readers the research discussed by Snyder takes place outside the US although recent work on legal ethnography by Eve Darian-Smith, The Crisis in Legal Education: Embracing Ethnographic Approaches to Law brings it firmly back onshore.
Snyder came to anthropology indirectly, first as a political scientist interested in one-party government in Mali, second as a research assistant for a Chinese law professor, and thirdly in doing a PhD in Paris on comparative law and legal anthropology (p. 1). These early experiences fed through into his teaching of comparative law in Canada. It was while at Warwick, the home of law in context, that Snyder introduced the anthropological framework into EU law and its Common Agricultural Policy (CAP), the key common policy of the EEC. Instead of analysing rules and decisions, Snyder examined the formation of CAP from the ground up, how the different political actors negotiated with each other, and how the policy impacted on farmers and consumers. In extending this into food policy, students were required to negotiate, draft and apply rules in relation to the regulatory regime for lamb meat. This was part of Warwick’s drive to incorporate non-legal materials into legal subjects. (See the Law in Context series by CUP for further examples.) These approaches were reinforced by the tackling of bigger topics such as globalisation and China and establishing a new journal, the European Law Journal, which encouraged alternatives to black-letter law.
Students benefited enormously from these new directions. Along with hard rules and decisions, they were exposed to soft law and other types of norms that operated outside the direct legal sphere, such as guanxi (the reciprocal interlocking relationships that form the basis for networks in China). One difference between the anthropological approach and the formal doctrinal one is the role of the state. For anthropologists who frequently studied small societies, acephalous in kind, the role of the state was secondary. It is the fine web of relationships people form and the management of these that engenders order in society, or as Llewellyn and Hoebel put it in The Cheyenne Way, the law-ways of the group. The method adopted was to examine “trouble cases” for their rich data, a preferable way to the dry examination of “what is your rule for X?”
Snyder rounds off his paper with his experience teaching law in China at the Peking University School of Transnational Law in Shenzhen, China. This is a graduate school where the students study for two degrees: one a US-style JD degree, which is taught in English, and a Chinese-style JM degree taught in Chinese, both over four years. He gives the example of teaching EU Law in which “one objective is to enable the students to ‘think like a European lawyer’, in other words to understand EU law from the inside as well as from the outside.” (Pp. 9-10.) Indeed, in his article on traditional Chinese medicines and the EU he invokes Llewellyn and Hoebel referring to the law job of ‘channeling’ by which they mean “the preventive channeling and reorientation of conduct and expectations.” Traditional Chinese medicine and the EU regulatory regime arrived at an uneasy accommodation even though their cultural logics were incompatible. The anthropological approach to teaching enables these differences to be seen and understood from the perspective of their different cultural milieux. A formal analysis of rules wouldn’t be able to explain any of this.
Snyder’s paper advances a strong case for adopting the anthropological approach in the modern teaching of law, even in its global and technological contexts. In this respect he traces a line from James Boyd White’s 1985 call, “What kind of sociology or history or anthropology are we implicitly practicing in this legal rule, in that legal action or argument, in this judicial opinion?”1 It increases students’ understanding of what processes constitute the legal system in its more abstract form. It achieves this by using ethnography and cultural analysis. I can illustrate this from my own teaching in the last year. (I should add, however, my first experience of anthropology was at the feet of the late Simon Roberts who taught a course that is summarized in his book, Order and Dispute: An Introduction to Legal Anthropology.) At University College Dublin I taught a masters course on international law and business. One of the modules was ‘Corporate Networks’ and for this I used Actor Network Theory among other methods. Developed out of Science and Technology Studies ANT opens the black box and shows how different parts of networks operate on each other. Taking a complex transaction, say the construction of an international railway, it is both highly instructive and fun to take it apart and examine all the possible types of actor—animate and inanimate—involved in building such a complex entity. (Darian-Smith herself uses the Keystone XL Pipeline as a case study of how to examine the local through to the transnational.) Moreover, it situates the lawyer’s role more accurately among the myriad of actors who participate and it also demonstrates how important and crucial the contracting process can be. For their summer projects the students obtained internships in law firms, accounting firms, paper goods manufacturers, legal tech firms and the like, in which they became anthropologists producing ethnographies of their “societies”. For future lawyers it is an invaluable experience showing abstract law is first encountered in the many details of everyday life. As Snyder says
it requires that students (and teachers) explore the relationship between norms, knowledge and power, exemplified for example in teaching on new forms of dispute settlement, such as international arbitration, or on ‘soft law’, a normative phenomena which has assumed increasing importance in linking together parts of our fragmented world. These aspects of anthropology can help law students to understand better the global shift which … will shape the lives of students (and their teachers) now and in the future. Anthropology has an essential role to play in our understanding of its implications. (P. 11.)
Today and tomorrow’s lawyers have many challenges to face—political, technological and professional—so the role of the social sciences like anthropology will become more vital and essential.
- James Boyd White, “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life”, 52 University of Chicago Review 684, 699 (1985).