Document Type
Review
Publication Date
1986
Abstract
Evans-Pritchard probably knew he was exaggerating, but not being able to resist the chance to repay a gift in kind, he reversed Maitland's dictum and claimed that history must choose between being social anthropology or being nothing. If we substitute "tedious" for "nothing" we would have a truer statement. Legal history, if not quite heeding Evans-Pritchard, has in the past decade begun to learn some lessons from legal anthropology and the sociology of law. Studies of bureaucratic development, forms of action, formulae and writs, while still flourishing in the hands of several brilliant practitioners, are tending to give way slowly, but steadily, to the study of a broad spectrum of disputes and dispute processing. Under the influence of legal and social anthropology legal history has moved toward social history and away from administrative history. If anthropology had one thing to teach legal historians it was by example of showing that the category of the interesting did not always involve a king, his judges and courts, and the lawyers who hovered about them. Alternative modes of dispute processing-negotiation, mediation, arbitration, feud-just as much as THE LAW can be a part of the array of options a society might offer disputants. (For students of the early and central middle ages, legal history would be a pretty thin subject indeed without these so-called alternative modes.) Legal historians have also learned from legal anthropologists that a lawsuit needs a social context if it is to make much sense. It took anthropology to remind us what we must have already known: that cases have histories and that litigants have them, too; that the form a claim takes when it is presented to a court may have little to do with the real matter in dispute; that a lawsuit might be no more than a tactic in a wider dispute and the litigants may be surrogates for the real parties in interest; and that neither a dispute, nor a lawsuit, need lead to ajudgment of a court.
Recommended Citation
Miller, William I. Review of Disputes and Settlements: Law and Human Relations in the West, by J. Bossy, editor. Am. J. Legal Hist. 30, no. 2 (1986): 266-8.