The social sciences have long avoided engaging in any systematic analysis of the use of anthropological knowledge for dispute resolution, lawmaking, and governance. In order to fill this gap, cultural expertise was defined in 2009 as the special knowledge that enables sociolegal scholars, experts in non-European laws and cultures, or, more generally speaking, cultural mediators—the so-called cultural brokers—to locate and describe relevant facts in light of the particular background of the claimants and litigants and for the use of the court.Footnote 1 Although the definition of cultural expertise is new, its existence is not. This article adopts a historical perspective to understand why sociolegal studies have not yet developed a conceptualization that encompasses the variety of the types of engagement of social scientists, and anthropologists in particular, with conflict resolution, lawmaking, and policy making.
This article explores the connection between law and culture in the history of anthropology of law since social evolutionism, and focuses in particular on the legal pluralism approach because of its interest in transcending black letter law. This article suggests that the reasons for the late conceptualization of cultural expertise lies on the one hand in the difficulty of defining the dynamics between law and culture, and on the other hand in the specific development of legal pluralism regarding the state. The undertheorization of the engagement of anthropologists with law is better understood in connection with the axiomatic binary opposition between state law and non-state law. This opposition has had a central role in the theoretical elaborations of legal pluralism since its inception. This article concludes that there is an urgent need to conceptualize and investigate cultural expertise as a field of research to comprehensively assess the contribution of sociocultural knowledge to the resolution of conflicts and governance, and proposes a broader definition of cultural expertise.
From Social Evolutionism to Legal Pluralism
The systematic study of the relationship between law and culture started in the second half of the nineteenth century, whose dominant paradigm in the social sciences was social evolutionism. The evolutionism that burgeoned in the late nineteenth century argued that there would be common stages of development for humanity as a whole, based on the model of Western countries. Undermined by Franz Boas, social evolutionism experienced a partial revival and readaptations between 1930 and 1960 and later again in the 1970s with Marvin Harris's ecological anthropology.Footnote 2
Against the backdrop of the dominant social evolutionist paradigm, the works of Henry Maine and Lewis Morgan represent two different approaches to law and culture. The former remained firmly anchored with written sources,Footnote 3 whereas the latter engaged with empirical research and social action. Notwithstanding the disparity of their methodologies, Maine and Morgan provided the first theoretical and empirical tools to investigate the relationship between law and culture: comparativism and fieldwork.
Henry Maine, a historian and legal comparativist, maintained that it was possible to understand non-Western societies by comparing their legal features to previous stages of development of Western societies: Roman law, particularly the thinkers of the Antonine Period, was his paradigm.Footnote 4 Relying mainly on written sources and the comparative method, Maine travelled very little and hardly conducted any fieldwork.Footnote 5 In contrast, Morgan developed his knowledge as a result of extensive periods of fieldwork among the Iroquois,Footnote 6 and engaged with what I see as antecedents of cultural expertise and advocacy by supporting the Seneca in retrieving the land fraudulently obtained by the Ogden Land Company.Footnote 7
Morgan's engagement with the Iroquois went as far as founding the “The New Confederacy of Iroquois” with the purpose of resurrecting the Iroquois spirit by learning the Iroquois language, adopting Iroquois names, and becoming Iroquois by undergoing a ritual called inindianation.Footnote 8 Similar phenomena of “Indian enthusiasm” occurred in Germany in the nineteenth and twentieth centuries and are still alive today as a form of advocacy in favor of minority groups, and are initiated and developed almost exclusively by individuals belonging to majorities.Footnote 9 This kind of top-down advocacy characterized much of early legal pluralism when social scientists were interested in the functioning of law in colonized societies and marvelled at the existence of so-called “indigenous laws.”Footnote 10
In the first few decades of the twentieth century, the new paradigm of cultural relativism started to undermine the foundation of the historical comparative approach grounded on unilinear evolutionism. Cultural relativism doubted that so-called primitive groups had laws, and argued that even if they had something similar, they would not be able to articulate them.Footnote 11 When E. Adamson Hoebel set out for his research on the law of the Plain Indians, he contacted, on Boas's advice, the lawyer Karl Llewellyn, who proposed a methodology that would remain widely known as the “case study method.” Two other conceptual tools elaborated by Llewellyn were adopted in their collaborative research: the law-job theory and the legal realism approach. The former underlines that the group's survival depends on the satisfactory performance of the system of dispute resolution,Footnote 12 whereas the latter indicates a break from deductive methodology grounded on the law on the books and an opening toward a scientific empirical analysis of the law in action.Footnote 13
Hoebel and Llewellyn's book, The Cheyenne Way, is hailed as the most successful example of collaboration between an anthropologist and a lawyer.Footnote 14 It is also considered to be the first book to lay the theoretical groundwork for the notion of legal pluralism, which would become one of the key concepts in future sociolegal scholarship.Footnote 15 However, recently, cogent criticism was raised against Hoebel and Llewellyn because, despite their efforts to understand Cheyenne law in their own terms, many legal categories that the authors employed came from Western legal vocabulary.Footnote 16
During the first half of the twentieth century, Arthur Shiller and Felix Cohen applied legal pluralism to field research. Shiller indicated as a model of legal pluralism the preservation of the Adat, or customary laws, by the Dutch in Indonesia. Cohen, who was a government lawyer and reputed scholar, defended the human rights of First Nations.Footnote 17 He is representative of the early scholarship that engaged both academically and administratively in favor of minorities, Footnote 18 and at a time when the engagement in favor of minorities stemmed from within, and despite, the colonial enterprise.Footnote 19
In the 1960s, the case study method was consolidated in the social sciences, but a new contention was raised by Paul Bohannan and Max Gluckman, which would engross legal anthropology for a long time: indigenous legal terminology versus the Anglo-American equivalent. The Bohannan–Gluckman debate continues on today, sometimes in disguise, to hunt and divide not only legal anthropologists but also sociolinguists,Footnote 20 and is particularly relevant for legal anthropology and cultural expertise: how to translate legal categories without deceiving their original meanings.
Until the mid-twentieth century, the boundaries between anthropology and sociology both in France and in Britain had been permeable, with Emile Durkheim and Marcel Mauss holding important positions in both disciplines. Sociologists and anthropologists alike used to contribute to prevalent sociology journals such as Cahiers internationaux de sociologie and Sociological Review. The distinction between the two disciplines was further blurred when anthropologists set out to study metropolitan communities through an anthropological lens.Footnote 21
Toward the second half of the twentieth century, the emphasis on the development of new emerging nations made sociology a more suitable discipline as a receptacle of funding. Between the 1950s and the 1980s in France, sociology came to be perceived by younger scientists as somewhat avant-garde, especially in contrast with ethnology, leading to a unbalanced distribution of scholars among the various disciplines of social sciences, with a majority favoring sociology.Footnote 22 Sociologists argued that their methods were more appropriate to the study of African societies because as developing countries, these were now subjected to the same dynamics as Europeans societies.Footnote 23 Moreover, local intellectuals in developing countries argued that they deserved to be studied by the type of scientists that studied so-called “civilized societies”: the sociologists,Footnote 24 whereas new African universities excluded anthropology or relegated it as a subfield of sociology.Footnote 25
In the early 1970s, the reaction to the crisis of sociological scholarship of the 1950s and 1960s gave rise in Europe and the United States to a radical scholarship influenced by Marxism.Footnote 26 The legal nihilism that characterized Marxist scholarship diverted sociology away from legal studies.Footnote 27 Since the 1980s, a renewal of interest in sociological studies of law led to the foundation of dedicated institutions,Footnote 28 whose methodology and research themes sometimes intersect those of legal anthropology, but tend to focus almost exclusively on industrialized nations with democratic political systems.Footnote 29
In summary, the relationship between law and culture in the early history of legal anthropology was largely overlooked, and this hindered a critical reflection on the use of social science knowledge for dispute resolution. The development of fieldwork methods and the emphasis on case studies facilitated the engagement of some social scientists, who played a role in advocating the rights of minorities, but this was not accompanied by any self-reflective stance on their own role vis-à-vis the state and colonial power. When such a reflection started to develop later on, with a new focus on industrial societies against the backdrop of postcolonial discourse and Marxist ideology, attention to the relationship between law and culture was sidelined in favor of a state-centered approach to law that often deemphasized minorities’ and subalterns’ rights.
The New Legal Pluralism, and Power and Justice Debates
The first legal pluralism, which valued so-called “customary law,” without critically challenging the impact of colonial power, was partially redeemed by the new legal pluralism. In the 1960s, Leopold Pospisil criticized legal comparatists for drawing on components of law that were similar to Western counterparts, even as they dignified the law of so-called primitive societies. For Pospisil, this approach obviated a more comprehensive understanding of non-Western law, which, he argued, should instead be understood in relation to non-Western culture.Footnote 30 Pospisil's legal pluralism diverted from the colonial origins of the concept by introducing a more widespread notion of plurality, which would be inherent to all societies at different legal levels.Footnote 31 According to Pospisil, all the different subgroups of society—including families, lineages, and political parties—feature their own legal systems.Footnote 32 This approach remains innovative today, especially in light of the recent reinforcement of state-centered approaches to law.
In “Legally Induced Culture Change in New Guinea,” Pospisil reveals that Dutch colonial administrators used his own works on Kapaku law for their determinations of customary law.Footnote 33 This underlines the role and involvement of social scientists in recording and interpreting customary law, but also suggests a critical reflection anticipating the now-emergent concept of lawfare, which is today defined as social change engineered by legal reforms used as political tools.Footnote 34 In the 1970s, Pospisil pushed classical legal pluralism toward the new legal pluralism, and was among the first to engage with criticism against colonialism.Footnote 35 Although classical legal pluralism generated from the discovery that colonial law coexisted with so-called indigenous law, Pospisil and others criticized the colonial definition of customary law or indigenous law because it romanticized a stereotypical perspective of primitive law.Footnote 36 The new legal pluralism also offered a new conceptualized plurality of law to denounce the power imbalance between less-developed societies of the world's global South and industrial societies in Europe and the United States.
Brian Z. Tamanaha later criticized the new legal pluralism scholars arguing that their approach was embraced by social scientists for opportunistic motives. He also maintained that customary law was nothing else than a creation of the legal pluralism approach.Footnote 37 His criticism undermined the political and historical background of the new legal pluralism, which resonated with the discussions of the 1960s and 1970s about power and justice, as in the notorious debate between Michel Foucault and Noam Chomsky.Footnote 38 Foucault denounced the pervasiveness of abuses perpetrated within state institutions, which were supposed to act for the well-being of citizens, whereas Chomsky proposed a model in which smaller subgroups would govern themselves. Both Foucault and Chomsky criticized the abusive power of legal systems as faceless and as unaccountable mechanisms that are supposed to provide justice. Both suggested that justice could also be pursued outside state institutions, inexplicitly rejoining the notions of legal pluralism that would see the presence of a legal system in all subgroups of society.Footnote 39
Pospisil's conceptualization of law as loosely linked with the state would have perhaps been the first opportunity in the history of legal anthropology to theorize cultural expertise. However, in the late twentieth and early twenty-first century, the sociolegal scholarship fractioned into three main positions: state-centered legal pluralism, deep pluralism, and global legal pluralism.
State-centered legal pluralism asserts the hegemony of state law over other concurrent legal systems and focuses on the interconnection between state law and other normative systems within the state.Footnote 40 It situates the locus of power in the state, which has the ultimate say. Early iterations of legal anthropology avoided a direct confrontation with state law because it focused on small groups, because of their supposedly unadulterated customs. However, even champions of minority rights such as Felix Cohen, while advocating for the rights of Indian Americans, left little margin for consulting them on legal provisions and policies concerning their rights.Footnote 41 Tamanaha's criticism of this early brand of legal pluralism that aimed to rebalance the status of non-state laws vis-à-vis state laws, is based on the failure of legal anthropology to define law outside the state law framework.Footnote 42 Similarly, Ralf Michales contends that the state remains the ultimate arbiter of law. Non-state legal pluralism fails to appreciate that the state, while dealing with non-state normative orders, may acknowledge their existence and find them a niche, without, however, recognizing them as binding law.Footnote 43 Joan Cohen identifies the factual incommensurability of state and non-state law even more strongly. For Cohen, any bargain between state and non-state laws, in particular religious law, is doomed to fail. Cohen also asserts that the acknowledgment of normative orders other than state law should rely on individual claims.Footnote 44
Yet, since the 1980s a number of scholars have extended the non-state legal pluralism approach and attempted to overcome the binary opposition between state and non-state law. Sally Engle Merry's seminal article “Legal Pluralism,”Footnote 45 offers an alternative to state-centered legal pluralism. Merry refuses to accept the legal hegemony of state law, reframes normative orders into their social and historical contexts, analyzes the relationship between law as a system of thoughts and power, and broadens the scope of legal pluralism to include social components of law.Footnote 46 Legal anthropologists have also developed deep legal pluralism or non-state legal pluralism, which focuses on small communities and their problem-solving methods. It assumes an emancipatory agenda, which is often overlooked because colonial administrators commissioned early deep legal pluralism studies.Footnote 47 Kaius Tuori's work is an example of this challenge to the purported hegemony of the state law example. Tuori illustrated the passage from a situation of state legal pluralism to one of deep legal pluralism in post-apartheid South Africa. Deep legal pluralism maintains that the paradigm of state legal pluralism is inapplicable to alternative normative cultures that exist independently and autonomously from the state legal system.Footnote 48
The most recent proponents of non-state legal pluralism counter the claim that state law retains a privileged role, by disputing its legitimacy and by reconfiguring the loci of law. Santos de Souza displaces and diffuses normative orders in six sociogeographical places—household-place, work-place, market-place, community-place, citizen-place, and world-place—that cohere because of the specific form of social relations that are being developed within them.Footnote 49 Furthermore, he bypasses the problem of strictly defining law by extending it to all normative orders, including, but not limited to, state law, and holding three characteristics: rhetoric, violence, and bureaucracy. Nonetheless, Emmanuel Melissaris takes to task de Souza and his interlocutors because their non-state legal pluralism has not yet fulfilled its heuristic and pragmatic potential, and suggests a more radical shift from positivism and classical legal anthropology to emphasize the sociocultural dimensions of law. Footnote 50
Global legal pluralism, which aims to eliminate the reliance on territory-bounded legal systems and offers a more fluid approach capable of describing transnational and transcultural conflicts, is a third emerging trend.Footnote 51 It emerged in the 1990s as a re-evaluation of the first wave of legal pluralism scholarship. But global legal pluralism broke new ground by emphasizing localized settings. Whereas many among the proponents of legal pluralism were concerned by the rise of liberal legality, which they saw as an instrument for asserting economic dominance, the representatives of global legal pluralism have abandoned much of the radical criticism against liberal legality. Law professors and legal philosophers dominate the ranks of global legal pluralists, whereas sociologists and anthropologists tend to be the majority among non-state legal pluralists.Footnote 52 Global legal pluralism posits that there is more than one normative order. and appreciates that non-state entities often brandish more power than state law. It avoids the issue of legal legitimacy, but focuses on how legal or quasilegal norms are perceived by social actors and how their perceptions affect power dynamics in negotiating legal spaces.Footnote 53
In sum, existing trends of legal pluralism, including also state-centered legal pluralism, should all be conducive to a reflection about cultural expertise, because the mere acknowledgement of a plurality of laws calls for a knowledge that exceeds the law on the books and highlights the links between law and culture. However, the very link between law and culture has been a source of preoccupation for legal pluralism scholarship. In particular, debates have revolved around the risk that cultural accommodation of minorities, as argued by legal pluralism, might in fact become or perpetuate discrimination against the very groups that it intends to recognize and protect.
Legal Pluralism as Cultural Accommodation or a Source of Discrimination
The increasing demand for cultural accommodation in the first few decades of the twenty-first century has led to a significant development of legal pluralism. Roger Ballard, Werner Menski, and Prakash Shah have all argued that European countries must include non-European minorities and their laws within the current European legal systems.Footnote 54 Shah denounces the notion that indigenous legal traditions both in Western and non-Western countries suffer from a hierarchical imbalance because of the hegemony of Euro-American legal systems. Therefore, legal practices that originated in Asian countries are confined to an ethnic niche that never finds adequate recognition.Footnote 55 Shah, Marie-Claire Foblets, and Mathias Rohe attest to the fact that religious laws in concomitance with European secular state law allow for the resolution of family law disputes at religious jurisdictions established among minority groups.Footnote 56 Nevertheless, their findings have led thus far to neither a formal recognition of the multiple sources of law within and outside the state, nor a theorization of the expertise needed to deal with legal pluralism in conflict settlement. Among the objections formulated against the legal accommodation of plural societies, that most deserves attention, in my view, is the danger that non-state law may perpetuate the power imbalance suffered by minorities.
Some theoretically inclined legal pluralists caution against the unreserved support of non-state jurisdictions that are embedded in unequal and patriarchal social settings. Archana Parashar has criticized the supporters of personal laws in India for the lack of social responsibility that they afford to the cause of women's rights.Footnote 57 Samia Bano has disclosed women's perspectives on religious tribunals in the United Kingdom in order to point out that non-state jurisdictions, while upholding the values of minority groups, can also perpetuate the vulnerability of those who are minorities within minorities.Footnote 58 Overall, feminist and Marxist scholarships have remained skeptical about the opportunity to accommodate non-Western laws and customs, because doing so will be detrimental to the rights of vulnerable sectors of minority groups.Footnote 59 Thus, by opposing categorically the appreciation of non-state law, they have substantially rejoined the most conservative approaches that deny accommodation to minorities. Hence, the contention that legal pluralism might perpetuate discrimination and that state-centered law only would ensure equality remains unconvincing.
Other subscribers to legal pluralism have been attentive to social inequalities by adopting power as an analytical variable and arguing for social reforms. Melissaris, for example, refutes the hegemony of state legal pluralism and interprets resistance through persistent traditional law practices. He argues that legal pluralism should be more of a forum that allows a multiplicity of theories and legal discourses to communicate and creatively interact.Footnote 60 In my work, I show that the customary practices recognized by personal Hindu law embody the dichotomy of the plurality of legal sources in India: on the one hand as potentially supporting women's initiative in matrimonial remedies, and on the other, as potentially being an instrument for the perpetuation of gender inequalities.Footnote 61 I argue that it is possible to overcome the limitations of classical legal pluralism and the polarization of the new legal pluralism without missing out on their innovations. My findings in South Asia show that state law as much as non-state law, has the potential to be serviceable to objectionable endeavors and discriminatory political agencies. However, sometimes specific interpretations of state and non-state law can be of help to minorities. It might help, therefore, to again shift the focus of the analysis from the ontology of law to its practices, and perhaps re-evaluate Pospisil's notion of plurality beyond the opposition of state law and non-state law, for highlighting the dynamic linkages between law and culture.
Some studies have shown, for example, that within the professional sector of state law, lawyers, embassies, translators, nongovernmental organizations, and private offices do provide legal aid and lobby for legal change to protect the rights of minorities in Europe.Footnote 62 At times, members of the most influential minority communities can tap into available services for assistance on family and migration law issues, and manage to successfully negotiate between European laws and the legal system in their country of origin. However, less influential minorities usually lack adequate support.Footnote 63
However, most recent legal pluralist scholarship argues that multicultural accommodation should also include social reforms that account for intercommunity relations and new systems of governance that redress traditional vulnerabilities. In particular, the concept of transformative accommodation and prescriptive legal pluralism developed by Ayelet Shachar resonates well among sociolegal scholars because it offers a potential solution to the integration of communities branded as inequitable.Footnote 64 Ralph Grillo suggests that a compromise should be reached between the state and minorities that will allow the former to integrate minorities into mainstream society, while benefitting the latter with a certain degree of autonomy on matters that are deemed essential for their group identity.Footnote 65
Sachar's prescriptive legal pluralism has been criticized for inducing the state, whose responsibility is to ensure gender equality, into a power bargain with orthodox religious groups, whose patriarchy and misogyny will only be rewarded after state recognition. Cohen, while admitting the descriptive value of the legal pluralism concept as “a multiplicity of normative orders coexisting in a social space,” shows the pitfalls of its application in the concept of transformative accommodation.Footnote 66 According to Cohen, effective transformative accommodation ensuring gender equality, can and should be controlled by the state through incentives and by focusing on individuals instead of on groups.Footnote 67 In sum, both Cohen and Shachar share the assumption that state law and non-state law are necessarily opposed, and pursue diverging targets.
Although the contemporary de facto plurality generated de facto arrays of instruments that fall under the umbrella concept of cultural expertise and thereby transcend the binary opposition between state and non-state law,Footnote 68 the latter remains central to classical legal pluralism. It relegates culture to a component of non-state law that tendentially supports discrimination against minorities, and perpetuates the power imbalance against minorities within minorities. In such a framework, cultural expertise tends to play an informal and peripheral role in conflict resolution and therefore escapes theorization. Yet contemporary debates on law and culture offer a new dimension that might open up to a more articulated consideration of the practices that I propose to see as cultural expertise.
Contemporary Debates on Law and Culture
Even though most sociolegal scholarship assumes the usefulness of accommodating multiple sources of law, which emphasize the connection between law and culture, it nonetheless retains a dichotomy between black letter law, as potentially ensuring equality, and law in action, as potentially fostering diversity but undermining human rights. Franz and Keebet Benda-Beckman have mobilized the notion of the plurality of laws approved by the state,Footnote 69 whereas Marie-Claire Foblets and Alison Dundes Renteln advocate for the development of policy making in favor of under-represented groups within minorities,Footnote 70 perhaps in order to overcome the growing criticism against legal pluralism. Notably, the Benda-Beckmans have expanded the notion of legal pluralism to become an operational tool, and thus emphasize the power of the descriptive analytical role of the concept.Footnote 71 If, however, scholars address legal pluralism from the point of view of the attainment of social justice, they should embrace empirical analysis, especially in the implementation of international human rights and long-term economic transformations in favor of the unprivileged. As a consequence, they must also investigate the role of social scientists in collecting, elaborating, and disseminating data, because these practices ultimately influence the perception of law and its relationship with justice.
How are data accessed? And what data can be considered to be reliable in order to measure social justice? Because of the difficulty in finding a satisfactory answer to these questions, some sociolegal scholarship has scrutinized the very capacity of the law to address global inequalities, and has become disenchanted with the world of global and inclusive citizenship. Criticism is now focused on the ideology of global commensurability, in which the world would be revealed through different kinds of numerical representation. Renè Urueña, in “Indicators and the Law: A Case Study of the Rule of Law Index,” questions the reliability of the indicators of the rule of law, because their ostensible simplicity and neutrality make them rife for political manipulation.Footnote 72 Mihaela Serban explains how the selective mobilization of the indicators of the rule of law serves the interests of their users, both state and non-state actors. Serban emphasizes that their interpretation is “highly context motivated” insofar as defeating the very reasons, neutrality, and impartiality, of their production.Footnote 73 Sally Engle Merry, Kevin E. Davis, and Benedict Kingsbury have shown that the overvaluation of indicators in international law has brought about a conundrum in which it is the very action of measurement that makes a phenomenon apparent and existing. Yet whatever cannot be measured does not exist.Footnote 74 It could be inferred that from this quantitative perspective the link between law and culture is deemed to be underscored by more measurable social phenomena. In other words, the relationship between law and culture might not only be useless, but, quite paradoxically, might not exist at all.
However, a third way beyond quantitative and qualitative perspectives should also be possible, in order to account for the plurality of sources of law and the close relationship between law and culture. I contend that precisely in this landscape of the global rule of law, in which measurable phenomena are deemed to be more real than other less measurable ones, there is an interest in overcoming the polarization between state law and non-state law of the early days of legal pluralism.Footnote 75 Legal anthropologists have never directly challenged this binary opposition, which is perpetuated by the theoretical approaches of state legal pluralism versus non-state legal pluralism. Instead, I suggest, state law and non-state law, even if coming from different sources, very often act as a continuum and eventually achieve what Foucault called in critical terms “governamentality”: the art of governments to produce citizens that follow practices to implement their policies.Footnote 76 This approach allows the miscommunication, which stems from the asymmetrical discussions among social groups that suffer from social inequalities yet have developed legal awareness, to be addressed. Such legal awareness neither necessarily refers to the state, nor is it ipso facto against the state, unless antagonized, usually by the state.Footnote 77 Hence, a shift toward governance and governamentality dissolves the polarization between state law and non-state law.Footnote 78 However, this is only possible, as Melissaris argues, if we collapse observation into participation in order to allow dispersed legal discourses and theories to become visible at last.Footnote 79 Looking at state law and non-state law as a potential continuum instead of a binary opposition resonates with Gunther Teubner, Robert Cover, and Boaventura de Sousa Santos's conceptualization of interlegalities as an interpenetration of different normative orders.Footnote 80
Tuebner's concept of mutual constitution is of particular relevance for cultural expertise in confrontations between state and non-state law.Footnote 81 If, on the one hand, “mutual constitution” admits the impossibility of adequately translating the sociolegal framework of the former into the latter and vice versa, then, on the other hand, through a process of internal adjustment, it opens up to the possibility of internally reconstituting the legal meaning. Cultural expertise provides the instruments to oversee the process of reconstitution of the legal meaning and, by reducing the selectivity of the internal constraints of both state and non-state normative systems, the loss of communication can be prevented. Equally relevant is the concept of dispersed normativities in relation to cultural expertise, as it theoretically accounts for how sociocultural elements affect different normative orders and different orders of normativity.Footnote 82 Hence, the concept of cultural expertise should be able to further develop to enable understanding of how diverse normative orders, which cannot be reduced to state law even from a broad perspective, can be accessed and understood empirically in their everyday connection with culture.
Toward a Reformulation of Cultural Expertise
Although anthropologists’ engagement with law is not new, the development of the concept of cultural expertise has been hindered by the fact that sociolegal studies on state-centered approaches have informed the way social sciences have apprehended the law.
Social scientists and especially anthropologists have been involved with law, lawmaking, policy making and the implementation thereof, dispute resolution, and governance since the times of Lewis Morgan. However, anthropologists’ engagement with law has seen a constant struggle between the theorization of diversity on the one hand and the yearning for advocacy in favor of vulnerable groups on the other. These two components should have gone hand in hand, yet this has not always been the case. As a result, anthropology's sister discipline, sociology, has been perceived at times to be less compromised than anthropology vis-à-vis colonial power.
Legal pluralism is perhaps the theoretical approach that could have best defined the engagement of anthropologists with law, because of its valorization of culture and customary laws. Yet the difficulty of theoretically positioning customary law, and subsequent theoretical ramifications, has proven to be a persistent obstacle. This has in turn progressively crystallized the binary opposition between state law and non-state law, and has marginalized considerations of the relationship between law and culture. Similarly, the dominance of quantitive methods has led to the overvaluation of indicators of impact that are susceptible to political manipulation. State-centered legal pluralism and conventional quantitative methods do not allow for contextualization, and give little room for the theorization of cultural expertise, because they stress the link between law and the state, instead of between law and culture.
The most recent trends of radical legal pluralism, which elude the legitimacy contest between state law and non-state law, appear more fertile to a systematic reflection on the notion of cultural expertise. It is worthwhile to redefine cultural expertise as the special knowledge that enables sociolegal scholars, experts in laws and cultures, or, more generally speaking, cultural mediators—the so-called cultural brokers—to locate and describe relevant facts in light of the particular background of the claimants and litigants and for the decision-making authorities. This reformulation overcomes the Eurocentric limitations of the first definition of cultural expertise, and opens up to out-of-court dispute resolution, but keeps focused on its procedural neutrality. Procedural neutrality, which is not to be confused as neutrality tout court, allows for a differentiation from the concept of cultural defense, in which cultural expertise is used for the purpose of the defense. In that sense, cultural expertise proposes itself as an umbrella concept for all the sociolegal instruments, including cultural defense, which use cultural arguments in court and out of court and hold a variety of roles in the process of dispute resolution. The greatest advantage of conceptualizing cultural expertise is, in fact, not the limitation of its scope, but rather the opportunity to engage in scrutiny of its use, in order to strengthen the ethical engagement of sociolegal scientists in a perspective of societal problem solving.
