This is an edited volume including papers on the intersection between law and anthropology presented at the thirteenth Annual Current Legal Issues Inter-Disciplinary colloquium in July 2008. The subject of legal anthropology has elicited a number of edited volumes in the last twenty years – indeed, these seem to be the format of choice for books with law and anthropology in their title.Footnote ¹⁵ The place of law in studies of anthropology is well-established. At its inception as a discipline in the late nineteenth century, anthropology was heavily influenced by the disciplinary training of its pioneer scholars, amongst them the jurists Oliver Wendell Holmes and Sir Henry Maine. Legal anthropology was treated not merely as a subdiscipline of anthropology but as a core theme within anthropological research, such that early anthropological studies of pre-state society almost always included a section on the ‘law’ or norms of the people under study. Many early legal anthropologists considered some grounding in law to be a prerequisite to undertaking studies of law in pre-state society. Into the mid twentieth century, well-known legal scholars, notably Karl Llewellyn, continued to influence the development of legal anthropology – Llewellyn's case method underlies anthropological field methods still today.

While the impact of law on anthropology is well-documented, the impact of anthropology on law has been less clear. In the introduction to this edited volume, Michael Freeman and David Napier begin by suggesting this link nevertheless has sound foundations, noting early jurists, Holmes, Montesque and Savigny among them, who recognised a close association between law and the ‘spirit of society’, captured through anthropological studies. While these jurists stimulated discussion and debate, the editors note that the overwhelming dominance of a positivist tradition in legal scholarship for much of the early twentieth century led mainstream lawyers and legal scholars to distance themselves from broader conceptions of law found in legal anthropological studies, particularly those influenced by the functionalist approach. The term ‘law’ was reserved for societies with formal codes, legal procedures and familiar structures of law enforcement. Indeed, some prominent anthropologists of the time, most notably Radcliffe-Brown (Reference Radcliffe-Brown1952) and Evans-Pritchard (Reference Evans-Pritchard1940), colluded in this fantasy and denied that chthonic societies had law–though others made a stand against this misconception (see, for example, Gluckman, Reference Gluckman1955). Bronislaw Malinowski's pioneering work (Reference Malinowski1926), which saw law as everywhere in the form of social reciprocities, represented a critical response to the ethnocentrism of legal and legal anthropological work in this period. The editors see his model definition of law as equally ethnocentric and as glossing over the normative element in law, presenting law as practice rather than as a set of abstractions from practice. In fact, however, notwithstanding its reliance on practice, Malinowski's concept of law without authority was important in facilitating developments in legal anthropology in the post-colonial era. For example, it was fundamental to Moore's (Reference Moore1978) concept of the ‘semi-autonomous social field’, which has been the foundation of the modern study of legal pluralism, one of the main branches of post-colonial legal anthropological literature. But it is another contemporary branch of legal anthropology, the study of dispute processes, emanating from the work of Simon Roberts (Reference Roberts1976), which is of interest to the editors, and which informs many of the chapters in the volume.

The fall of the colonial empire and the self-reflexive turn that characterised the aftermath of World War II provided a fertile backdrop for new consideration of the relevance of an anthropological approach for legal scholarship. European and American legal anthropologists returning home from Asia and Africa reflected on what the study of law outside the state meant for a now state-centred world. Emerging legal anthropologists taking social relations and the study of disputes as their starting point began to apply the study of law outside the state to their own societies and engaged more critically with themes of interest to lawyers, such as access to justice, community dispute resolution, and law as an instrument of social reform. The post-war developments in Alternative Dispute Resolution and the rise of legal realism and critical legal scholarship helped to de-centre notions of law, shaping new themes of interaction between lawyers and legal anthropologists.

This volume Law and Anthropology responds to the challenge of situating legal anthropology in the twenty-first-century more firmly in the realm of legal scholarship, and demonstrates the utility of the anthropological approach for addressing contemporary legal dilemmas. Some obvious themes, particularly the rights of cultural and religious minorities and rights-related issues for indigenous peoples (IP), are found here, as well as contemporary reflections on enduring questions in legal anthropology by some leading authors in this field. The challenge of representing the normative dimension of culture is addressed in a number of chapters in ways specifically relevant to lawyers, for example the representation of culture in the courtroom and how to understand and recognise customary law within the new dynamic of IP living on designated reserves. Accordingly, this volume manages to provide a useful resource both for those well versed with literature in this field and for those coming to it for the first time, who seek to understand what an anthropological approach might bring to legal studies.

One of the themes in this volume, mentioned by Freeman and Napier in their ‘Introduction’, is human rights, and in particular the challenges for law posed by multiculturalism. In Europe, centuries of migration, intensified in the aftermath of the colonial period, resulted in sizeable religious and cultural minority communities with strong cultural links to their original homeland. A number of chapters investigate the opportunities and challenges this has raised for the judiciary in US and Europe, grappling with practices which for many are totally outside their own system of knowledge. Freeman and Napier note an example of this in the UK. The Begum case involved the decision of a school to expel a Muslim schoolgirl of fourteen, Shabina Begum, who insisted on wearing the jilbab (long overdress) to school, in breach of school uniform policy.Footnote ¹⁶ The school, which had a majority of Muslim pupils (mostly of South Asian origin) and several Muslim governors, defended its position as preventing diversification among its Muslim pupils. It already permitted the wearing of native South Asian dress, the shalwar kameeze, but while the shalwar kameeze is worn across South Asia by young girls of all religions, the jilbab is not only distinctly Muslim but also associated with the more conservative practices of the faith common in Middle East and North African communities. The request of the young Bengali girl, guided by her conservative older brother, to wear the jilbab raised many interesting questions about the influence of conservative Islam on second-generation British South Asians, women's agency in the South Asian family and community as well as Islamic dress codes in this context and the place of religion in the secular European state, particularly the wearing of religious clothing in the public domain. Rather than engage in a discussion of the multiple complex issues at stake, the court used deference to ‘the local’ (the school governors as being in the best position to make a decision) to conclude that the ban was lawful (see Vakulenko's, Reference Vakulenko2007, critique of this). Interestingly, while Lady Hale's separate opinion in the Begum case boldly engaged with some of the issues mentioned above, she ultimately came to the same decision.

A few years later in the Ghai case, Footnote ¹⁷ the decision of a local council to deny the right of a Hindu man, Davender Ghai, to have an open-air funeral in accordance with his religious beliefs was dealt with by the Court of Appeal in a similarly cautious manner. The law allowed for cremations to be carried out only in a building, and Mr Ghai claimed this infringed upon his right to freedom of religion. In the preceding hearing in the High Court,Footnote ¹⁸ Mr Ghai's submission was contested as a straightforward clash of values, Mr Ghai's right to practise his religious belief clashing directly with ‘British values of public decency’ that would be offended by the sight of a burning body in the open. The High Court ruled that the government had a legitimate aim in limiting his rights. Given that the submissions for Mr Ghai were a direct appeal to his right to freedom of religion, a right subject to limitation by the state for public policy reasons, and given the timing of the case just a year after unanimous political and media rejection of the Archbishop of Canterbury's call for greater recognition for religious-based forums of social regulation, the outcome was perhaps unsurprising. The Court of Appeal, and Mr Ghai's lawyers in their appeal submission, avoided re-engaging with this debate. The Court of Appeal focused instead on the technical question of the definition of a building, reaching a compromise that would allow Mr Ghai to have his funeral while meeting the requirements of the law (see Cumper and Lewis, Reference Cumper and Lewis2011). While Begum and Ghai suggest the courts' unwillingness to engage with the lived reality of cultural minorities in the UK, this unwillingness may not have been simply a careless evasion of their duties but rather a very considered strategy of navigating around political debates.

However, these cases may also represent a missed opportunity, a point engaged in the chapter by Annelise Riles. While she does not examine the political contexts of individual cases, she criticises the reluctance of courts in the US to engage in genuine analysis of the conflicts of values that these types of case test out. Riles notes that while determining foreign law makes this exercise complex, particularly where that law pertains to a community rather than a state, anthropological insights can assist. In particular, legal pluralist approaches within the study of legal anthropology help to understand foreign law emanating from a community in terms of its hybridity and fluidity, and take into account the broad themes that such law works to deliver. ‘Lateral thinking’ that involves thinking through another's problems ‘“as if” through their knowledge devices’ (Riles, p. 117) is a critical method through which the understanding of other cultures should be approached. She also makes the point, borrowing from Roy Wagner (Reference Wagner1975), that in engaging more fully with foreign law and the cultural conflicts at stake, the court may begin to understand its own legal norms in new ways. Some may argue that this presumes too great a role for judges, but there is growing support for the proposition that judges should strive to be not only impartial but also open to alternative ways of viewing the world. The feminist judgment project in the UK is a good example of how judgments may address existing bias and engage self-reflectively with the world view of the parties before them (see Hunter, McGlynn and Rackley, Reference Hunter, McGlynn and Rackley2010).

The study of cases and case-law of the state courts preoccupies other chapters in this volume. Rebecca French opens up the possibility that legal anthropology, which has traditionally been a study of cultural norms in action, might reflect more substantively on the societal problems found in case-law. Her study of US case-law from 1963, 2001 and 2006 indicates the ways in which analysing the kinds of case being brought to state courts from a given period can improve our understanding of societal and political trends. In studying the types and number of cases involving religion she finds an exponential increase in the diversity of religions, in terms of both a proliferation of denominations (such as Coptic Christians, Gideon Christians) and other less easily identifiable religions (Voodoo, Taoist, Hebrew Israelites) represented in the case-law in the latter period. This is coupled with a clearer link between religious identity and a political agenda: cases brought involved non-mainstream Christians fighting issues such as abortion, homosexuality and prayer in schools. She finds that New Age Spirituality in the meantime has been overtaken by Green power and courts have become less interested in naming a particular belief system, making reference instead to ‘sincere and meaningful belief’ or ‘belief in God’. She notes a corresponding shift in the political and social landscape between the two periods through changes in immigration laws, the Vietnam War and Vatican II, although she does not explore those links in depth. In the final analysis the chapter, perhaps intentionally, raises more questions than answers.

While French's research is mostly quantitative, two other chapters (by Cassell and Sapignoli) engage in fruitful qualitative analysis of cases, this time involving indigenous people. Maria Sapignoli analyses the transcripts from the court proceedings in the Bushmen of the Central Kalahari Came Reserve case in Botswana. She addresses the enduring and critical question of the relationship between the anthropologist, here serving as ‘expert’ on the lives of the Bushmen/San/Basarwa and Bakgalagadi/Bantu, and the people themselves, who are present in the courtroom during the trial. The transcript shows a dialogue occurring in the courtroom not only between the anthropologist expert and his co-professionals but also between himself and the Bushmen – at one point during the trial he addresses them directly asking for their forgiveness in using the term ‘primitive’ in his early writings about the Bushmen. The chapter also addresses the enduring question of reinvention of culture through its interaction with the state as the Bushmen seem unable to explain and categorise the practices of their everyday lives, leaving their identity to be revived and reinvented through the courtroom drama. These processes of reinvention, often associated in traditional legal anthropology with the colonial encounter, are shown here to be still reflective of engagement between indigenous peoples and the state today.

Other chapters in the volume tackle more theoretical questions relating to multiculturalism and rights. Merry's important chapter tackles the emerging and controversial debate on human rights, cultural rights and individual agency. In particular, Merry considers the difficult questions that arise when the individual chooses to engage in a cultural practice that the state or international society has deemed not to accord with her human rights. This clash between human rights and agency, more commonly seen in feminist scholarship (Abu-Lughod, Reference Abu-Lughod2002), is currently one of the most contentious, but critical, questions for those working on women's rights in cultural communities. Merry suggests that while human rights discourse claims to encourage agency, it only protects a very particular model of agency compatible with Western liberal notions of freedom and individuality. Women of culture who seek to exercise agency, or choice, that functions within a cultural setting deemed by the West to be unreasonable are unlikely to be considered worthy of protection. These highly contentious issues are discussed directly in relation to some of the most pressing dilemmas of women's rights: female genital mutilation, forced marriage, trafficking for prostitution. Coming at a time when the Council of Europe has passed an international treaty requiring states to outlaw these practices, this chapter is both timely and of great significance in forcing some much needed self-reflection on where the power to decide is being situated in this debate – who is speaking for whom – and in demonstrating that subjective analysis (that takes the subject as its starting point) is critically important in taking women's rights discourse forward.

The rich complexity of culture and religion and dilemmas surrounding their treatment by the state is also the subject of a chapter by Samia Bano. She uses the legal pluralist concept of interlegality to explore the interrelationships between host and minority cultures in the modern multicultural state. Her chapter examines the integration of what she calls the Muslim legal order in the UK legal system. She shows that the Muslim legal order is of necessity a complex and heterogeneous entity that is subject to change and bifurcation. Citing examples from the work of Werner Menski (Reference Menski, Milton and Wagle1993), she notes that the relationship between the state and the Muslim legal order is also transformative. She concludes that the shifting and contested boundaries of the Muslim legal order in the UK challenge the presumption of conflict and incompatibility that underlies contemporary discussion of this interaction.

I have not had the space here to review every chapter. The plight of IP features across many of them. Techera considers possible legal foundations for recognising indigenous customary laws including legal pluralism, collective rights and environmental justice, while Pirie notes that customary law has an unpredictable, mediated form and examines how best to understand customary norms in this context. Abramson, Plancon and Ituarte-Lilma examine IP's land and property rights, including intellectual property rights, and Wheatly examines political autonomy rights of IPs. Expansive and important chapters in the book include those by Anne Griffiths on power and governance in the transnational world, Franz von Benda-Beckman's extensive review of legal anthropology's journey, first published in this journal in 2008, and Carol Greenhouse's thought-provoking reflections on the relationship between law and anthropology.

While the breadth of coverage in this edited volume ensures its appeal to a wide audience, it is difficult to navigate, especially for the reader wishing to locate specific fields of interest. The generality of many of the chapter titles means it is very difficult to grasp from the contents page alone which topic each chapter seeks to address. It would have been useful to have clarified the themes covered by the chapters either through the organisation of chapters or in the ‘Introduction’. Given that the book comprises a mixture of theoretical and empirical work that addresses questions of both methodology and substance, and covers a vast array of subjects from a wide range of perspectives, a clearer and more comprehensive map of the chapters in the ‘Introduction’ would have been invaluable. Nevertheless, with some investment of time, readers from the fields of law, globalisation, anthropology, sociology and development studies will find topics of interest here.