Prolegomenon to a Fairness-Centered Anthropology of Law

Abstract

Legal anthropology, which began with Malinowski's holistic reflections on law, has today drifted toward an emphasis on the study of dispute resolution. Part I outlines the three historical phases of this development - Holism, Realism, and Processualism - and identifies two shortcomings of viewing the dispute as the central problem for legal anthropology: (1) the collapse of law into dispute analyses has not been, and perhaps cannot be, fully theorized; and (2) the most pressing of current problems, such as human rights and intellectual property issues, cannot be reduced without distortion to the disputing paradigm. Part II offers fairness as an alternative organizing concept for legal anthropology. According to the essay's arguments from initial premises, law should be operationalized as one of a system of coordinated norms of social regulation, with the unique goal to foster perceptions of fairness about structural inequalities. Turning attention away from disputes and onto fairness allows legal anthropology to benefit from the insights into law-related phenomena (e.g., fair sanctioning) gained by other subfields of anthropology such as economic anthropology, but most importantly returns the field's orientation toward its original interest in law.

Keywords: Anthropology, Fairness, Dispute Resolution, Sanctioning, Cases