Law, Culture, and Ritual: Disputing Systems in Cultural Context
NYU Press 2005 (Book)
The argument of this book consists of two core ideas: First, that the processes societies use for dispute resolution reflect the culture in which they are found. For this purpose, culture includes social arrangements, belief systems, values, and shared symbolic meanings. Second, that disputing procedures are an important medium through which these fundamental aspects of culture are communicated, preserved, and sometimes altered.
The cultural context and import of legal rules and institutions is the subject of increasing scholarly interest. Also taking a cultural turn, this book insists that the processes of resolving disputes, as much as the normative rules that are applied to them, have a cultural origin and impact. I demonstrate these connections first in a technologically simple, small scale society that relies on oracle consultation to resolve disputes (the Azande of central Africa), and build on that to show how dispute institutions play an important role in the construction and transmission of culture in technologically advanced societies. I argue that, like the Azande oracle, the “modern” concepts of law and evidence serve social and cultural functions. They not only reflect deeply held values, metaphysics and social hierarchies, they help to replicate them as well. The book therefore challenges the claims of some scholars that official dispute systems are more reflective of the interests and preferences of elite professionals than of the cultures in which they are embedded.
Separate chapters offer a cultural explanation for the peculiarities of American civil procedure, for the rise of discretion as an important feature of American law, and for the growth of ADR in the late twentieth century.
The final section describes the psychological and social mechanics through which dispute institutions operate as agents of social construction. In this context I direct attention to the importance of ceremony in dispute systems. Building on the insight that dispute resolution processes are ceremonies of social transformation, I claim that dispute processes gain legitimacy through the use of rituals and that these processes then take on a symbolic power of their own. These and other properties of dispute resolution processes (their public nature, dramatic qualities, and official status) give them an inordinate influence on society. I locate this discussion in the context of modern theories of cultural transmission. Finally, I show how these understandings can and should be used by policy makers in evaluating proposals for changes in dispute systems.
Date of Authorship for this Version
Chase, Oscar, "Law, Culture, and Ritual: Disputing Systems in Cultural Context" (2005). New York University Public Law and Legal Theory Working Papers. Paper 9.
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