Geertz on Comparative Anthropology and the Law-Fact Distinction

(Continuing my series of notes on Clifford Geertz’s Local Knowledge: Further Essays in Interpretive Anthropology, Basic Books, New York, 1983; earlier notes appear here and here.)

Geertz’s Local Knowledge: Fact and Law in Comparative Perspective (first presented as the Storrs Lectures for 1981 at Yale Law School; an online version is available) should be essential reading for philosophers of law. In it, Geertz explores the relationship between law and anthropology by way of examining how comparative anthropology–especially that concerned with legal systems in different cultures–provides us a means of examining how our legal categories and assumptions could be reconfigured. To confront a legal mind from another culture is to not only examine a new legal sensibility but to have ours made more aware of its particular qualities: how has it sliced up the world and established its categories, how has it come to this particular ontology? There is a whiff of relativism and incommensurability in the air but,

[I]t is one that neither argues for nihilism, eclecticism, and anything goes, nor that contents itself with pointing out yet once again that across the Pyrenees truth is upside down. It is, rather, one that welds the processes of self-knowledge, self-perception, self-understanding to those of other-knowledge, other-perception, other-understanding; that identifies, or very nearly, sorting out who we are and sorting out whom we are among. And as such, it can help both to free us from misleading representations of our own way of rendering matters judiciable (the radical dissociation of fact and law, for example) and to force into our reluctant consciousness disaccordant views of how this is to be done (those of the Balinese, for example) which, if no less dogmatical than ours, are no less logical either.

Geertz holds out this possibility of transformation because of the view of law that he holds, one which assimilates it to:

[N]ot… to a sort of social mechanics, a physics of judgment, but to a sort of cultural hermeneutics, a semantics of action. What Frank O’Hara said of poetry, that it makes life’s nebulous events tangible and restores their detail, may be true as well, and no less variously accomplished, of law.

Such an understanding of law has immense potential to inform philosophical debates on the nature of law, on whether natural law, positivist, legal realist or critical legal theories best describe it. Central to Geertz’s intervention in this debate–via his empirical attention to the three alternative systems that he considers–is his critique of the fact-law distinction:

The rendering of fact so that lawyers can plead it, judges can hear it, and juries can settle it is just that, a rendering: as any other trade, science, cult, or art, law, which is a bit of all of these, propounds the world in which its descriptions make sense. I will come back to the paradoxes this way of putting things seems to generate; the point here is that the “law” side of things is not a bounded set of norms, rules, principles, values, or whatever from which jural responses to distilled events can be drawn, but part of a distinctive manner of imagining the real. At base, it is not what happened, but what happens, that law sees; and if law differs, from this place to that, this time to that, this people to that, what it sees does as well…..

If one looks at law this way, as a view of the way things are, like, say, science or religion or ideology or art–together, in this case, with a set of practical attitudes toward the management of controversy such a view seems to entail to those wedded to it–then the whole fact/law problem appears in an altered light. The dialectic that seemed to be between brute fact and considered judgment, between what is so and what is right, turns out to be between…a language, however vague and unintegral, of general coherence and one, however opportunistic and unmethodical, of specific consequence.

Geertz’s essay makes for essential reading, not just because it abounds in marvelous insights like these, but because of the richly informed comparative study it provides of what Geertz terms the ‘Islamic, Indic, and Malaysian” legal systems. It should be read by anyone interested in the conceptual foundations of the law.

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