Clio@Themis

Revue électronique d'histoire du droit

15 | 2019
Droit et anthropologie (1)

Legalism: a turn to history in the anthropology of

law
Fernada Pirie

Electronic version
URL: https://journals.openedition.org/cliothemis/666
DOI: 10.35562/cliothemis.666
ISSN: 2105-0929

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Legalism: a turn to history in the anthropology of law 1

Legalism: a turn to history in the

anthropology of law
Fernada Pirie

1 The problem of subject matter has been a recurrent theme in the anthropology of law.
How do we identify what law is, in the absence of a state or centralized government,
institutions for adjudication, professions, and officials ? The unwritten rules and norms
that regulate social interactions have often provided a focus for study, as have
dynamics of conflict resolution. But does this adequately distinguish legal from other
sorts of social norms and legal from other types of conflict resolution ? Notorious
definitional debates have, at times, characterized the field. Amidst these controversies,
many anthropologists have simply pursued their own research agendas, studying legal
phenomena in all sorts of contexts, most recently matters of regulation and
government, justice, rights, and cultural property in the modern world 1. Difficult
questions about the nature and definition of law have simply been ignored. But should
they be left to the side ?
2 Using empirical material and cross-cultural comparison to ask about the nature of
social phenomena is at the heart of many anthropological projects. Ethnographic
research produces detailed case-studies, which often challenge common assumptions
about the nature, functions, and meanings of social forms – religion, marriage, the self,
ethics, art, illness, and so on. Definition is rarely the point, but anthropologists often
question, and suggest caution over, the concepts at play – the disparate phenomena to
which the concept of « religion » might be applied, for example, and the need for care
when describing Hindu, Buddhist, or other beliefs and practices 2. In the case of law,
anthropologists have revealed the unexpected consequences of legal activities, the
subversion and creative adoption of legal rules and forms, and the role of laws in wider
power relations. But their case studies raise deeper questions about the role that law
plays within these processes. What is distinctive about the legal resources to which
people turn ? Why do they appeal to laws to pursue political agendas, legitimate
nefarious activities, or try to make the world a better place ? 3 These questions can only
be addressed by asking about the nature of law. What can law be and do ?

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Legalism: a turn to history in the anthropology of law 2

3 Recently, an interest in combining the insights of anthropologists and historians has

offered new approaches to these questions. Standing back from modern societies,
scholars have sought out case studies from around the world and back in time to
identify cross-cultural patterns amongst legalistic rules and practices. This has
produced new insights into how and why laws come to be created, the different ways in
which they are important, and what they can tell us about the societies in which they
were made, used, and preserved. Careful comparison draws attention to the importance
of legal texts, too often neglected in legal anthropology, and to the significance of the
legal form. The focus has been on legalism, that is, generalizing rules and abstract
categories, and the ways in which these are used to describe and organise the world 4.
4 In this article I describe the importance of legalism as a social phenomenon. As an
object of study, I argue, it highlights common themes and patterns amongst the wide
variety of social phenomena we call « law », providing a fruitful basis for cross-cultural
comparison and for exploration of the nature, significance, and functions of law across
different contexts. In the following sections I review some of the anthropological
debates that have arisen about the nature of law, and then turn to case studies
illustrate the importance of legalism. Finally, I consider some of the ways in which
comparison amongst such examples can shed light on the role of law in the complex
processes of the modern world.

I. The nature of law in legal anthropology

5 In his pioneering work on the Trobriand Islands, Malinowski identified law in the
unwritten rules and norms that govern social interactions5. A well developed system of
obligations and duties, he found, regulated the fishing activities of the South Pacific
islanders, creating « law, order and definite privileges » 6. Since they functioned in the
absence of authority, government, and punishments, he argued, law is not only found
in a body of rules imposed upon society and enforced by an independent authority. It
may also consist of « rules conceived and acted upon as binding obligations » 7. Later, he
says that « civil law » is
the positive law governing all tribal life [which] consists of a body of binding
obligations, regarded as right by one party and acknowledged as a duty by the
other, kept in force by a specific mechanism of reciprocity and publicly inherent in
the structure of society8.
This is to identify law in terms of its functions, namely, the regulation of social
interactions. Indeed, Malinowski later declared that, « law ought to be defined by
function and not by form »9.
6 Anthropologists soon turned their attention to conflict, and the 1950s to 1980s
produced many studies of mediation and other processes of conflict resolution. As
Comaroff and Roberts noted, these scholars mostly approached conflict resolution as a
social process, and focussed on the negotiation of individual rights and interests, rather
than rule-dominated judicial activities10. Finding law in the management of conflict is
also, of course, to take a functionalist approach. In both cases, the subject matter is
identified by what law does, rather than the form it takes. There is nothing particularly
wrong with any of this – social norms and processes of conflict resolution are
important – but it does expand the concept of law, identifying it in activities we would

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Legalism: a turn to history in the anthropology of law 3

not ordinarily label as « law ». It also tends to divert attention from the other sorts of
things that law can be and do.
7 In the 1960s, a notorious and inconclusive debate between the legal anthropologists
Max Gluckmann and Paul Bohannan about the use of English legal terms for the
analysis of indigenous societies seems to have deterred further debate about the
concept of law. Indeed, Nader and Todd suggested that legal anthropologists should
simply concentrate on processes of conflict resolution11. As Greenhouse describes, the
« case method » was thought to be the most feasible means of discovering the rules,
both literally and figuratively, that govern a population12. However, although this
produces a detached display of problematic social relations in cultural contexts, she
argued, it also tends to obscure important distinctions between rules and other
normative formulations13.
8 Anthropological interest in law did not disappear, however, and the field was given
new impetus by Griffiths’s call to study « legal pluralism » 14. The term had already been
used by Franz von Benda-Beckmann, among others15, but Griffiths argued for its more
widespread application, in order to identify and describe the subject matter of
empirical legal studies. Inspired by Moore’s work on the « semi-autonomous social
field » – a study of unwritten working practices amongst garment-traders in New
York16 – he declared that what Moore had been describing was a case of legal pluralism,
that is, the coexistence of two or more legal systems in one society. The implication was
that scholars should study non-state norms as forms of law. A great deal of excellent
work, and a journal with the name, have resulted, but the popularity of the concept
reignited definitional debates17. Fuller has argued that the coexistence of plural legal or
normative orders is a universal fact of the modern world, so the concept points to
nothing distinctive18. The implicit broadening of the concept of law and the lack of any
satisfactory attempt to define its consequent ambit has attracted even stronger
criticism. In an article largely supportive of the project, Merry asked « where do we
stop speaking of law and find ourselves simply describing social life ? » 19 More
critically, Roberts has argued that the extension of the term to « negotiated orders » is
problematic : to characterize the understandings and practices of stateless societies as
legal orders and embrace all normative universes as equivalent, he says, does not tell us
much of what we might want to know about any of them20. As Fuller points out, we are
liable to fail to identify the distinguishing features of « law », properly so called, as well
as attributing negotiated orders with the characteristics of law-centred models 21. Our
concept of law has a specialized and differentiated character, Roberts argues, so the
result is a loss of analytic purchase. There is much force in these critiques.
9 Valuable anthropological work has continued under the label of legal pluralism,
although some scholars have modified their positions from the bold claims of earlier
days. Griffiths has argued that socio-legal scholars should simply study the diverse
forms of normative ordering that arise in the world, without being concerned to
distinguish legal from other orders22. Meanwhile Tamanaha – also apparently changing
his position, albeit from the opposite starting point – has argued that our analysis
should not be limited to what can definitively be regarded as law. Rather, he says, it
should start with a typology of social orders and continue with a typology of laws –
state, customary, religious, international, indigenous, and natural 23. The field should
not, then, be limited by any definitional issues. This is surely right, when it comes to
identifying what the anthropologist might study. It does, however, leave open the

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Legalism: a turn to history in the anthropology of law 4

question of whether there is anything distinctive about legal orders, forms, and
processes. It avoids the question of what law is.
10 Outside these debates, anthropologists have largely avoided questions of definition,
while exploring the different ways in which law can be used and abused in the modern
world. There has been interest in the new spaces and processes opened up by
contemporary developments, such as the popularity and use of human rights laws and
arguments, new procedures in international justice, intellectual and cultural property
regimes, the laws and legal processes that govern migration, patterns of legal inclusion
and exclusion, the effects of laws on gender and reproductive practices, transnational
laws, and so on. Goodale, in his review of the field, emphasizes the different ways in
which laws can produce meaning and establish identities, as well as the ways in which
they regulate and shape action24. What he, and others, do not do, however, is offer any
account of what distinguishes legal from other forms and processes, nor what unites
these disparate phenomena. What is it about law that enables it to perform so many
functions ? Law may be an instrument « to legitimize the take », as Nader has
maintained, but it is also used by the relatively powerless to pursue claims against
those who would expropriate their resources25. Do human rights laws necessarily
reinforce the role of the neoliberal state, as Speed suggests ? If so, why do indigenous
groups adopt the language of the law to call for justice against those same states ? 26
Laws are developed to stabilize social relations, but they can also act as agents of
exclusion27. What is it about law that makes it attractive and effective in many
circumstances, despite its abject failure to live up to the promise of justice in others ?
Although the Comaroffs raised many of these questions, they have barely been
addressed in subsequent scholarship28. To begin to answer them, we need to focus on
what is distinctly legal about the instruments, structures, and processes involved.
Questions about the nature of law cannot be avoided.

Legalism

11 In critiquing the concept of legal pluralism, Roberts has argued persuasively that it is
important to distinguish legal rules and structures from « negotiated orders » 29. To do
so, he maintains, we must recognize that the concept of law is linked firmly with
centralized government. Law emerges, he argues, when a political configuration
centralizes power, using command as a means of decision-making ; when it formulates
ideological justification for its authority and articulates rules, followed by attempts to
achieve compliance with them and the establishment of adjudicative agencies 30. This
draws a firm line between legal and negotiated orders. However, as I have argued
elsewhere, some case-studies suggest that distinctly legal phenomena can also be
produced by tribal societies without centralized governments31. The burgeoning studies
of human rights and other forms of international and transnational laws lend further
support to this argument32. If law is not firmly tied to centralized government, then
how are we to recognize and distinguish it ?
12 In a series of related publications, anthropologists and historians have demonstrated
that a focus on « legalism » can be used to explore the distinctive nature of law 33.
Legalism refers to the use of generalizing rules and abstract categories to describe the
world and to order community and social life. It is typically found in written rules and
law codes, although oral rules explicit and enduring in similar ways. The concept of

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Legalism: a turn to history in the anthropology of law 5

legalism does not serve to define what law is – the category of law is too heterogeneous
for neat definition – but it draws anthropological attention to important and distinctive
characteristics amongst empirical examples. It serves to distinguish law from
negotiated orders, while also avoiding a close association between law and the state or
centralized government. Legalistic rules are not always part of an organized legal
system, so the concept may not serve to distinguish these sorts of laws from the rules of
cricket – to use an example beloved of legal theorists – but this should not trouble the
anthropologist interested in explaining empirical legal phenomena. Laws and rules
often share important features.
13 As I describe below, a focus on legalism highlights important cross-cultural patterns as
well as explaining the widespread appeal of law to different people in different
contexts. This, in turn, draws our attention to the importance of what might be called
« idealism », namely the tendency for law to represent or invoke higher ideals or
standards. Together, I suggest, these features explain much about what law is and does.
Three examples from the Tibetan plateau will illustrate these points.

II. Tibet
14 Historic Tibet has not often feature in legal studies, largely because it had no organized
legal system. In the seventh to ninth centuries, most of the plateau was controlled by
kings who styled themselves as emperors and successfully united a number of powerful
and warlike tribes. They established a bureaucracy, made laws, and adopted Buddhism.
However, after regime collapsed in the ninth century, political organisation remained
fragmented for several centuries and the outlying areas – the subject of the first two
case studies below – were not brought firmly under governmental control again. It was
the absence of organised law that makes them anthropologically interesting.

Ladakh: refusing law in a legalistic world

15 At the western end of the Tibetan plateau, Ladakh was linked to greater Tibet through
language, religion, and trade, since the days of imperial expansion. An independent
kingdom until it fell under Kashmiri control in the 1840s, it is now part of the Indian
state of Jammu and Kashmir. Its villages form isolated patches of irrigated agriculture
in a mountainous, sparsely-populated desert, and their inhabitants, who rarely number
more than 1,000, are still largely dependent on subsistence farming. The region is now
administered by civil servants based in the regional capital, Leh, but in practice, village
affairs are still very much managed locally, under the direction of village councils.
16 The aim of my original research was to investigate processes of conflict resolution
conducted at village level34. It quickly became apparent that the villagers were inclined
to deal with all disputes as internal matters, and even a suspected murder had been
kept from the attentions of the police. They promoted internal conciliation. But there
were no rules or laws dealing with « offences » : a fight, or even a case of « rape », was
regarded primarily as the cause of problematic relations between two households,
which could be resolved through the shaking of hands and payment of a fine to the
village. It was not an event involving an « offender », « victim », or « rapist » 35. Without
referring to any rules or legal categories to address disputes or discipline those guilty
of aberrant behaviour, the villagers’ responses to conflict were dominated by a concern

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to avoid the consequences of overt conflict and antagonism. Rather than regarding a
dispute in terms of a clash of rights, they saw it as a tear in the fabric of the
community, which had to be mended with the payment of fines and a ceremonial
process of reconciliation.
17 Ultimately, it was the village meeting, organized by the headman and attended by all
adult men, that was responsible for resolving the most serious disputes. It did so by
promoting reconciliation, which generally involved apologies, presentation of
ceremonial white scarves, and the pouring out of local beer from brass jugs, although
fines were occasionally paid « to the village, for the fight ». Intense moral pressure was
put upon quarrelling parties to shake hands and forget their disputes, and an
individual who failed to apologize for a quarrel might be threatened with a social
boycott. The villagers’ responses to a case of « stubbornness », as they put it, were
directed at the need to restore peace and harmony in the village, through apologies and
gestures of conciliation. These practices of conflict resolution were obviously linked to,
and shaped by, ideas about anger and antagonism. A strong sense of civic morality
supported the micro-political organization of the village and its social structures :
complex relations between households, strategies for maintaining relations of equality,
and methods for distancing all manner of outsiders from village affairs.
18 The village meeting never resolved conflict by applying rules to determine a correct
outcome or appropriate punishment, then. However, it did occasionally formulate new
rules. At one point, the villagers decided that every household should send its second
son to the monastery. However, this rule was not consistently followed or enforced.
Failure to comply was presented as a matter of regret, not subject to sanctions : the
new rules were not regarded as having any authority in themselves. There were also
unwritten customs, which the Ladakhis refer to as trim36. These were explained as
things that « we do » – ways of cooking, dressing, organizing festivals, managing
property and household relations. They were constantly affirmed in everyday
conversation, but never debated or regarded as being in issue during processes of
conflict resolution. Occasionally, when a dispute involved something like a property
boundary, the headman recorded the final agreement in writing, but this was not
systematic, and the documents were rarely, if ever, referred to in subsequent cases. The
villagers did not take a legalistic approach to conflict, that is. The community as a
social whole had to be repaired order did not need to be imposed through law, even
internally-generated rules.
19 This refusal of legalism is all the more striking given that many of the villagers are
literate and the community forms part of the sophisticated cultural world of Buddhist
Tibet, which is replete with texts, rules, and documentary practices. They are not like
the Trobriand Islanders, who did not use writing for any purposes. The villagers’ lack of
written rules, a constitution, or case records begins to look like a deliberate rejection of
legalism. The Ladakhis could perfectly well formulate laws, so why do they not do so ?
Other quite small-scale communities, including medieval Icelanders, early Irish
societies, and villages in contemporary Algeria, have elaborated complex legal codes
and constitutions37. These examples raise interesting questions about the attraction of
laws that do not seem to have been applied directly, but they also throw into relief the
distinctive nature of the Ladakhi communities, which do not resort to legalism to
organise their communal lives.

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Legalism: a turn to history in the anthropology of law 7

20 In practice, of course, to posit a reason for the refusal of legalism can only be a matter
of speculation, it is impossible to elicit a meaningful response from the villagers,
themselves. They merely shrug their shoulders and look puzzled that someone should
be asking about written rules. But we might compare their unwillingness to judge one
another. The villagers are very reluctant to voice open criticism. They express
disapproval and make disparaging remarks about neighbours who perform village
duties badly, or fail to maintain their fields and households properly – they even
disparage those who openly display displeasure or take offence – but such attitudes are
expressed subtly and privately. The villagers do not hold each other openly to account.
As I have discussed elsewhere, this largely explains the failure of simple electoral
processes introduced into many Ladakhi villages under the panchayat system of local
government and demanded by development organizations for the management of their
projects38. Instead of promoting a collective spirit, these committees have often led to
the concentration and abuse of power in the hands of a few. The problem is that for a
system of elected representation to work well, bad leaders must be judged and publicly
removed from office. Yet, as Ladakhis themselves acknowledge, they are reluctant to
criticize one another openly : « If you talk at night, you will not be heard », as one put it
to me, explaining why his village had not removed a corrupt leader. Laws provide
standards against which behaviour can be judged, because they have an existence
independent of the particularity of daily life ; explicit rules can make it easier for
people to reach decisions. But applying a rule means that behaviour must be openly
adjudged to be good or bad, right or wrong. The Ladakhis prefer to address problematic
behaviour as a disruption to social order, which can be put right through a process of
conciliation. They do not want to mete out punishment on those who have infringed
village rules39.
21 Much more could be said about this example, which I have discussed extensively
elsewhere40, but its significance for the present article is that these questions and
insights only come into focus if we appreciate that the villagers maintain order and
resolve disputes without resorting to legalism, that is, without creating explicit rules
and standards and judging each other against them. These processes are distinct from
their unwritten customs, the trim, which are barely law-like, and their explicit rules,
which are mostly not enforced.

Eastern Tibet: formulating rules for tribal feuds

22 At the other end of the Tibetan plateau, some two thousand miles to the east, the
grasslands of Amdo are home to nomadic pastoralists, who move around with herds of
yak, sheep, and goats. The region was not politically unified before it was incorporated
into the Chinese state in 1958 : from the eighteenth century the representative of the
Qing emperor, his Amban, exercised some influence in the region, but local rulers
governed their own polities, while major monasteries appointed headmen to groups of
surrounding tribes.
23 The tribes in Golok (the southwestern part of Amdo) had hereditary ruling families and
were notorious for their ferocity and independence. Relations amongst them were, and
still are, governed by dynamics of vengeance and retaliation. Tribal groups pursue
feuds, which sometimes escalate into dramatic and long-running conflicts. Anyone who
has suffered an insult is expected to get angry and retaliate, and family members,

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encampments, and tribes are expected to combine to face a common opponent. There
are also expectations of restraint, however, and open violence inevitably leads to an
elaborate form of mediation. This can involve meetings lasting for several days,
characterized by extensive argument and flamboyant oratory. The object is to
negotiate a suitable amount of blood money and compensation for damage and injuries,
depending on issues of status and the gravity of the injury. High-status headmen or
Buddhist lamas may preside, but cases are negotiated on their own terms, with
reference to historic relations and arguments about status and reputation. There is no
question of applying rules and parties can, and do, walk away from the negotiations,
leading to apprehension of renewed hostilities. Although the revenge relations that
underlie these processes form a striking contrast with the social expectations of the
Ladakhi villagers, who frown upon all forms of violence and revenge, the processes of
conflict resolution are similar in that they take the form of negotiation and mediation,
rather than adjudication according to law-like rules. Nor is there any centralised
authority in Golok able or expected to enforce a settlement. Social pressure is placed on
disputants to agree to a solution, and once that is done, peace is largely restored, even
if resentment still lingers. These practices have a long history, as is evident from
accounts of the early twentieth century41.
24 This would seem to be an unlikely context in which anyone would think to elaborate a
lawcode, but this is what the Golok tribespeople have done. A number of the mediators
amongst whom I worked referred to their tribes’ laws, their trim, while explaining how
conflict was resolved. Although the same word is used in Ladakh to refer to unwritten
customs, the mediators were here referring to law-like rules, which they recited and
explained in some detail. The rules concerned payments – in horses and guns – that
must be made to secure a truce, and further payments – calculated in yaks, horses,
guns, and silver coins – that should count as adequate compensation in different cases.
These rules reflected the basic pattern of conflict resolution they had already
described, with exchanges leading to the calling of a truce and amounts to be paid for
different sorts of damage. However, they were specific, and also far more elaborate,
than the principles actually applied during processes of mediation. In particular, the
rules divided people into three different categories – high, middle, and low – marked by
different amounts of blood money and different types of animal. In practice, although
mediation involves arguments about reputation and status, explicit social distinctions
are not referred to, let alone any tripartite hierarchy.
25 The mediators explained that each of the Golok tribes has its own laws, and that these
are similar in content – the headmen apparently used to gather to discuss them. At
least one tribe had also written its rules in a law-book. The old texts were destroyed
during the Cultural Revolution, they explained, but this code subsequently been
reproduced from oral accounts in a publication on the history of the region 42. The
written version closely reflect the laws described by the mediators. Many, in turn,
reflect the practices described by local informants, including the giving of a horse and
gun to secure a truce, as well as the fact that the appropriate amount of compensation
depends on the status of the victim. But, like the rules recited by the mediators, the
rules in the published code are precise, detailed, legalistic, and complicated, in striking
contrast to accounts of mediation practice, both contemporary and historical 43. What,
then, were they for ?

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Legalism: a turn to history in the anthropology of law 9

26 In practice, compensation is always a matter of negotiation, the outcome of long

processes – often days – of argument and rhetoric in front of respected mediators.
Informants from different parts of the region uniformly emphasized the importance of
oratory and Golok advocates are renowned for their use of specialized maxims and
proverbs, with which they expound upon the honour and status of the families
involved. The most renowned orators can baffle opponents from other regions, they
claim, using obscure proverbs and metaphors. During the course of numerous
conversations, none of the mediators suggested that the written laws were referred to
directly during these processes. Informants were usually evasive when asked about
them, although no-one in Golok dissented from the fact that their laws were important.
They are reproduced in modern printed editions, talked about by mediators, and
recognized by other tribes, who claim they maintain their own, similar laws. The
contrast between the specific, generalizing rules of the law-code and the allusive and
metaphorical rhetoric of mediation practice is striking. Rules can ostensibly be applied
to facts at hand to produce a definite answer ; proverbs are more suited to persuasive
argument, « impressing the mediators », as one put it, pushing the outcome in one
direction or another, rather than allowing for a definitive judgement. The rules of the
code seem irrelevant to the argument that, in practice, characterizes the mediation
processes.
27 How, then, should we understand them ? We need to separate their form from their
application. As I have argued elsewhere, we need to ask about their symbolism, about
what they stand for44. The code is made up of precise rules, but these, in turn, indicate
general principles : they elaborate a status hierarchy, affirm basic principles of loyalty
and revenge, and – in a general sense – confirm when it is appropriate to accept
compensation to settle a feud. They are also presented as if they have, and always had,
an independent existence, a matter of specialist knowledge, the preserve of the
mediators and tribal leaders. In these ways, they represent what it is right for
tribesmen to do : the fact that it is proper to accept compensation in lieu of taking
revenge, and on what principles it should be calculated ; the fact that it is right,
because honourable, for an injured and affronted tribesman to set aside his anger and
accept amends. The trim seem to have more ideological or symbolic, than practical,
value. Lengthy introduction to the code refers to the history of central Tibet and the
religious basis of its early laws, which are said to have inspired the authors of the code.
This is to represent the participation of the Golok tribes in the wider world of Tibetan
civilization, with its Buddhist foundations. It indicates that they share a common
cultural history with the rulers and monasteries of central Tibet, their lamas and
patrons. This is significant in a region where the tribes always fiercely guarded their
independence from the control of the Dalai Lamas in Lhasa, as much as the Amban
answerable to Beijing. The code is important for what it expresses, then, in terms of the
moral principles that shape the pastoralists’ world and the ideals of respect and
recompense that allow them to address conflict, while also insisting on individual
status and independence.
28 The rules of this code are mostly explicit and precise, that is, legalistic. As
anthropologists we might still ask whether this is an example of law. But what are they
if not laws ? Their precise and categorical nature distinguishes them from the
indefinite, allusive, metaphorical rhetoric of mediation practices. They stand apart
from practice, articulating rules and principles in categorical terms. Unlike the Ladakhi

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case, where the trim are barely-articulated customary practices, to call the written trim
of Golok anything other than « laws » would stretch normal language. Comparable
phenomena have been described by anthropologists working amongst tribal groups
elsewhere : nomadic pastoralists in northern Yemen wrote documents and rules, which
the anthropologist Paul Dresch describes as their « laws ». The Yemeni laws stood for
justice and order, expressed solidarity, and made explicit fundamental relationships of
protection and guarantee45. At the very least, these codes are on the fringes of what we
might reasonably call law, and this, in turn, makes them good examples with which to
explore our own concepts. Why does it seem difficult to say what the Golok rules could
be, if not a set of laws ? It is obviously their form that makes them hard to label in any
other way. By contrast, processes of mediation and the norms and customs of the
Ladakhi villagers can be described in other terms. If the code is law-like, this is because
of its form as precise and explicit rules and the ways in which they categorize
behaviour, that is, its legalism.
29 Much more could be said about the social and legal practices of the Golok tribespeople,
as I have done elsewhere46. The significance of the example, for present purposes, lies
in the fact that it draws attention to the importance of legalism amongst the
phenomena we think of as law. It also highlights the fact that laws may be recognized
as important and authoritative, despite not being guaranteed by any political
institution or even applied or enforced. They may not be directly invoked in the
mediation of conflict, but they evoke higher ideals and make external standards
explicit. It is this that I have elsewhere called their « idealistic’ aspects » 47. It is a feature
of law that it is too easy to overlook if we focus primarily on the regulation of
behaviour and resolution of disputes.

Law in historic Tibet

30 A final case-study exemplifies the variable and shifting meaning of the concept of trim
in historic Tibet, shedding further light on the combination of legalism and idealism
that characterizes these examples of law.
31 There was nothing resembling an established or bureaucratic legal system throughout
most of Tibet’s history48. The exception is the empire of the sixth to ninth centuries AD,
when the Tibetan kings established a royal court, creating a system of ranks and
offices, complex bureaucratic practices, and written laws. Records from this period are
sparse, but historians have identified fragments of legal texts, from which it is clear
that Tibetans both made laws and instituted legal processes with considerable
procedural complexity49. Some of the surviving laws are highly legalistic : they provide
for compensation payments to be made in the case of injuries on the hunting field,
carefully distinguishing between the ranks of both offender and victim, which are
marked by a hierarchy of payments. As I have argued elsewhere, these laws seem
unrealistically complicated and, like the Golok code, can hardly have been applied in
any detail50. They seem to have been more important for what they represented,
making the aristocratic status hierarchy explicit, rather than determining precise
amounts of compensation. They also exemplify the idea that deliberate and accidental
injuries ought to be treated differently, probably establishing principles to be applied
by analogy in other cases51. Like the Golok code, then, these laws are legalistic, without
having been applied directly in the resolution of disputes. It is evident that there were

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Legalism: a turn to history in the anthropology of law 11

procedural rules which governed the stages of a judicial process, the giving of evidence,
and the role of guarantors.
32 The structures of the empire, and with them the bureaucracy of the judicial system,
substantially collapsed in the mid ninth century, for reasons that are still not entirely
clear52. Several centuries of political disunity followed, known as « the age of
fragments » by Tibetans. Local rulers established small polities, but power gradually
coalesced around the monastic institutions, which developed into substantial seats of
wealth and learning. From here, Tibetans set off over the Himalayas to study and
translate ancient Buddhist texts, and to invite Indian scholars back to their
monasteries. Although Buddhism had been adopted as the state religion by the early
Tibetan kings, this second wave of translation work gave it a new impetus. It also
prompted Tibetan scholars to rethink the nature of their polity, which they now
envisaged as founded upon Buddhist principles.
33 Between the eleventh and twelfth centuries, a succession of writers, most monastically
trained, produced a set of narratives in which they described the history of their
religion, their state, and its kings and scholars53. Central to most of these accounts was
law, trim. In what became a standard narrative, they described how the first Buddhist
kings made a set of laws based upon the ten principles of Buddhist morality and, in this
way, brought peace and stability to their kingdom, as well as ensuring moral behaviour,
and hence good rebirth, on the part of their people. These « royal laws » were said to be
closely related to the « religious laws », implicitly the rules of Buddhist morality.
Subsequent periods of disruption, involving the persecution of religious practitioners,
were described as times in which these laws were disregarded – they disintegrated like
a rope of rotten, in one evocative metaphor. These narratives never set out what the
laws were supposed to have been in any detail : some of them mention practices of
compensation for theft and injuries, oath-taking, and mutilation penalties for sexual
misconduct, probably reflecting contemporary practices ; some suggest that the trim
were rules for personal discipline, supposed to ensure that people followed the
principles of Buddhist morality. In this, they were almost certainly inspired by the
Vinaya, the elaborate code of Buddhist monastic discipline created in India, which had
been translated into Tibetan. As a matter of presentation, therefore, while the imperial
administration had used the concept of trim to refer to legalistic rules and
administrative practices, now writers were deploying it within idealistic accounts
about the foundation of the Buddhist polity. It here came to refer to rules of personal
discipline, based on the moral principles of Buddhism.
34 In the thirteenth century Tibet came under the influence of the Mongols and was
incorporated into their Yuan empire. The new administrators introduced bureaucratic
and documentary practices, along with postal systems and standardized ways of
recording political agreements and taxation arrangements. Tibetans now came to use
the concept of trim to apply to the power and administration of their imperial over-
lords. There is no evidence that the Yuan legal code, itself, extended to Tibet, but these
experiences seem to have inspired Tibetan writers to rethink their ideas about law.
After the collapse of the Yuan empire, in the late fourteenth century, Tibet was able to
establish a measure of political independence under the much lighter control of the
Ming regime, and a member of what was then the most powerful family, the Pagmodru,
wrote a treatise about law entitled The Mirror of the Two Laws 54. This was probably part
of a project to systematize legal practices and consolidate political power on the part of

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the Pagmodru. However, the writer obviously thought it important to link this
ambition to the idealistic accounts of law found in the historical narratives.
35 In the opening sections of the treatise, he discusses and explains the ten Buddhist
moral norms, employing short morality tales to explain « the law against killing », and
so on, implicitly the « religious laws ». He then explains that both religious and royal
laws have the same purposes, namely the entrenchment of Buddhist morality. In two
following sections he describes « the application of the royal law » 55. The second of
these consists of fifteen « edicts », which describe the ways in which judges and
mediators should deal with disputes. It deals in turn with cases involving killing,
injuries, stealing, lying, sexual misconduct, divorce, loans, and so on. There are also
general provisions about weights and measures and court fees. In subject matter, the
first five of these edicts mirror the first five of the ten Buddhist moral principles.
However, they are concerned with the practical business of conflict resolution,
describing compensation payments for injuries, how divorce should be managed, and
the oaths that might be employed to test the truth of evidence. They do not articulate
matters of personal morality. Indeed, the edict on killing recites rule-like directions for
compensation, prescribing specific amounts of blood money for people of different
status. These seem to reflect the old legal codes, which may still have been known or
remembered by Tibetans. However, the nature of the currency and status distinctions
they specify are obscure, giving these provisions a schematic character. The provisions
concerning fines, compensation payments, and the small payments due to the imperial
administration are also expressed in rule-like terms. However, the text often notes that
it is reflecting what the « elders and wise people » say. It recognizes that mediators had
to negotiate settlements, rather as they do today in Golok, and places considerable
emphasis on the qualities of honesty, thoroughness, care, and judgement required of
them. It seems very much as if the writer has conducted or commissioned a survey of
mediation practices, identifying common principles and indicating approval of certain
practices.
36 It seems highly unlikely that these, or any other laws, were applied systematically. The
text repeatedly recognizes the autonomy and skill of the mediators in negotiating
compensation. The edict on lying, for example, contains a lengthy discussion of the
directions a mediator might give if there is a disputed allegation of theft, when an oath
might need to be strategically administered. It is more of an advice on best practice
than a set of explicit rules. The idea that the Tibetan trim were disciplinary rules based
on moral principles has, that is, been reworked to reflect the pragmatic and non-
legalistic nature of contemporary mediation practices. There is no evidence of how this
treatise might have been used and there are no references to it in surviving texts from
this period. However, in the early seventeenth century, its contents appear to have
inspired the writer of another text on law, which was itself taken up by the Fifth Dalai
Lama and copied several times during the early years of his new regime. Almost
identical texts were then reproduced and distributed to administrators throughout the
region56. This was the closest that the central Tibetan regime came to producing a
general code of law.
37 Much of the interest of these developments lies in the combination of matters to which
the Tibetan concept of trim was used to refer. Within the early empire, the trim were
legalistic rules, which supported the centralizing projects of the government, making
explicit a structured hierarchy. The writers of the subsequent historical narratives

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described the kings’ laws as disciplinary, rather than administrative, rules, claiming
that they were based on religious morality. A fourteenth-century treatise continued to
claim a close association between religious and royal laws, now describing practices of
mediation as « the application » of the king’s law. Bureaucracy was associated with
legalism during the empire, that is ; the political fragmentation and religious
developments of the post-imperial period gave rise to a new and idealistic model of
kingship, in which law was based on religious principles ; while the introduction of new
bureaucratic practices by the Yuan and attempts to centralize practice of conflict
resolution, led to an association between law, government, and mediation. Later again,
the trim of the Golok tribes were elaborate rules that reflected the mediation of blood
feuds, while in Ladakh, the term became associated with unwritten village norms. It is
evident that we need to keep these different phenomena analytically separate, if we are
to understand Tibetan legal practices and ideas. Again, a lot more could be said about
this complicated history, but what is striking, for present purposes, is the multiplicity
of phenomena to which the Tibetan concept of trim applied: rules for compensation and
punishment, rules for personal morality, penalties and discipline, governmental
practices, and the moral symbolism of religious laws. This is not dissimilar from the
range of phenomena to which the English concept of « law » can refer, and it returns us
to the question of how were are make sense of this variety.
38 An element of legalism is found in all the phenomena to which the Tibetan concept of
trim is applied, albeit only very lightly in the case of the Ladakhi village customs. It is
also evident that the legalism of rules and categories can, in turn, evoke a sense of
higher abstract standards. In the historical narratives the laws were said to be central
to the civilizing project of the Buddhist kings. In this way they represented an ideal
form of government, onto which disparate and unsystematic practices of mediation
could later be projected. In the Golok case the trim made explicit the principle of
compensation and affirmed tribal identity and independence. In each context, the laws
articulated moral values, whether the principles of Buddhist morality, appropriate
measures of compensation, or tribal loyalty and bravery. They represented, at least
indirectly, the justice of Tibetan responses to conflict.
39 The laws also did ideological work for kings, king-makers, and tribal leaders. In the
fourteenth century, in particular, they seem to have been part of an attempt to
establish more centralized administrative and governmental structures, a process that
has considerable resonance with Roberts’s discussion of the development of law. On his
account, governments formulate ideological justification for their authority, followed
by the elaboration of rules and means to ensure compliance 57. However, the Tibetan
examples demonstrate that the uses and appeal of legalism are not solely associated
with centralizing governments. Laws were also invoked by the writers of religious
histories when the elaborate administrative structures of the empire were a distant
memory, and they were created by tribespeople who resisted the expansionist aims of
neighbouring political regimes. These disparate phenomena are united by the use of
legalism, that is general rules and abstract categories. Even the edicts that describe
mediation practices purport to concern the application of general laws. But they do so
in very different ways and for different purposes. This brings us back to the themes of
the opening section of this article.

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III. Law and legalism: themes and comparisons

40 To return to our original questions, what is distinctive about legal rules, forms, and
processes, and why does law seem to be and do so many things ? What we need is not a
theory that encompasses as many examples as possible, as some socio-legal scholars
have argued58, but a means to distinguish amongst them. The broader the subject-
matter, the greater the need for analytic precision within it. I have argued that appeal
to generalizing rules and abstract categories, that is the use of legalism, unites
distinctively legal phenomena amongst the Tibetan examples. These examples also
suggest an association between phenomena with legalistic, idealistic, and pragmatic
aspects, which is not dissimilar from the English-speaking concept of law. But what
explains the multiple functions of law and its attractions to different people in very
different contexts ?
41 Legalism, at its simplest, establishes rules, principles, and categories, which stand apart
from practice and which can be used to order the messy reality of everyday life. As a
style of thought and argument, it makes relations and distinctions explicit, specifying
the categories into which things and people may fall, bringing social forms into focus
and rendering them precise59. As legal theorist Honoré puts it, law is concerned with
the relations between human beings, but it transforms the data of ordinary life into
those of a special drama, with its own persons, costumes and conventions 60. It
categorizes actions, events, personalities, and conditions in a special way and draws
conclusions as to the legal position of the dramatis personae and their mutual relations.
As the anthropologist Sally Merry has also recognized,
law works in the world not just by the imposition of rules and punishments but also
by its capacity to construct authoritative images of social relationships and actions,
images which are symbolically powerful. Law provides a set of categories and
frameworks through which the world is interpreted61.
42 The significance of this aspect of legal language is often overlooked by legal
anthropologists. Goodale, for example, emphasizes law’s « instability », and what he
describes as its « heteroglossia » – the fact that « legal discourse always embodies many
voices, many competing perspectives, many registers of power » 62. This may be true of
court-room argument, in which everyday language is used to discuss real events,
people, and relationships, but it is to miss the point about the language of the law. Laws
impose explicit rules and categories on reality. It is this aspect of legalistic language, I
have argued here, that the Ladakhi villagers resist, and it is because of the power of
legalistic rules that so much effort is put into subverting elsewhere. Many of the
examples discussed by Goodale describe precisely this63. At the same time, it is because
they promote order according to a general framework, that laws can be used by the
powerful to organise the world in their own interests. To overlook the legalism of the
law and the nature of its language is to miss much of what makes it both distinctive and
powerful.
43 The focus on legalism, then, enables us to identify the role and force of law amidst the
more complex processes with which it is inevitably entangled, and with which the
anthropologists must also be concerned. At the same time, it opens up new insights
into what law is and does. For the early Tibetan kings, the rules on hunting accidents
made explicit an ordered hierarchy. For their judges, the same rules probably
established principles about accident and intention, which they could apply in other

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cases. The Golok laws provided a system of measurement for lives and injuries on
which decisions about compensation could be based, even if they were not directly
applied. Laws are often, in these ways, symbolically important, as well as being tools of
government and regulation : the representation of order can be as important as the
practical organization of social relations. As Dresch puts it, legalistic thought addresses
the world through legal categories and rules that stand apart from the flux of events
and personalities64. The world can then be classified in a way that allows for the explicit
discussion of moral order. In many cases laws invoke higher ideals, as the writers of the
Tibetan narratives did. They allow claims to be formulated in terms that project
particular interests onto a wider moral sphere. This is obvious in the case of Islamic,
Hindu, and other « religious laws », or human rights provisions in the modern world ;
but even pragmatic rules about compensation, property, or family relations, allow
claims to be projected onto an objective and ideal social order. The laws of the Golok
tribespeople tell them that they are right to claim compensation for injuries and accept
settlement, even when their norms of revenge point towards direct retaliation. At the
same time, by claiming to be guardians of this legal order – as the tribes’ ruling families
did – the politically powerful can claim legitimacy for their status and activities.
44 This appeal to higher principles underlies the ideal of the « rule of law ». This is the
more abstract (and related) sense that laws represent standards with which even kings,
rulers, and their governments ought to comply. It is sometimes thought of as a Western
ideal, which supports the interests of modern states and reinforces their individualistic
cultural values, but in fact it reflects a more ancient and fundamental aspect of much
historical law65. As many scholars have noted, law is not always just an instrument of
the ruler, or a means to « legitimize the take », although it may do these things. Many
anthropologists have described the ways in which indigenous groups adopt human
rights norms and arguments in an attempt to hold the powerful to account 66. The
attraction of the law for these groups is only comprehensible if we appreciate what the
law represents and the power of its language.
45 It is in the nature of law as explicit and generalizing rules that it can perform these
dual functions, to both exercise power and resist it. The fact that the articulation of
moral principles in legalistic terms sets them apart, giving them an independence and
authority, explains many of the puzzles raised by the Comaroffs 67. Remarking on the
rise of « lawfare » in the modern world, they ask why people turn to courts and laws to
pursue what are essentially political campaigns. This was the tactic of the Hawaiian
Sovereignty Movement, described by Merry, which convened a quasi-legal tribunal to
assert independence and autonomy, using legalistic language to hold the US to
account68. The appeal to legalistic language lifted the Movement’s claims into a realm of
universal legal principles, as it does for people everywhere. This is to evoke
commitments that it is hard for governments, states, and other powerful actors to
deny. It does not, of course, mean that such claims will always be successful – legal
processes can be manipulated and subverted by the ruthless and unscrupulous, as well
as those simply intent on pursuing their own interests – but it explains the attractions
of legal argument and the rise of ‘lawfare’ among those who might otherwise have little
use for legalism.
46 The themes that come into view if we consider legalistic phenomena comparatively
could be multiplied. A widespread feature of many laws is, for example, the extent to
which they may be borrowed from elsewhere, rather than crystallised out of unwritten

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norms and practices : law-makers often emulate other traditions because they wish to
indicate participation in a wider moral world, and this is as true of financiers in
contemporary Japan as it was of the Golok tribespeople69. None of this is to define
precisely what law is, but it is to ask about the features of what is distinctively legal
amidst the great variety of forms and processes described by legal anthropologists.

Conclusion
47 Historians offer us a wealth of valuable examples to set alongside the case studies of
anthropologists, and through which we can explore what law is and does. They point to
the importance of legalism as a means of identifying what is distinctively legal within
the wide category of legal phenomena, and a basis for comparison amongst them.
48 In a world dominated by forms of law with European roots and the pressing problems
of migration and exclusion, justice and human rights, power, and domination, it can be
tempting to concentrate on contemporary forms and avoid more critical questions
about what law is and does. But it has long been the success of anthropology to use
marginal examples to throw such questions more effectively into relief. In the case of
law, written records allow us to add historical evidence of the ways in which law has
been significant to those who have made, preserved, used, or resisted it. Using
historical examples to ask about the nature of law highlights form as well as function,
and the symbolic and expressive qualities of legalistic phenomena. It helps to make
sense of the complicated relationship between law and power, and the paradoxical
ways in which laws are invoked by those who would claim justice and resist the
domination of the powerful. These dynamics were as important to the peoples of
ancient civilizations as they are to those concerned with human rights and the rule of
law in the contemporary world.

NOTES
1. M. Goodale, Anthropology and Law, New York, University Press, 2017.
2. D. Gellner, « What is the Anthropology of Buddhist About ? », Journal of the
Anthropological Society of Oxford, 2, 1990, p. 95-112.
3. These questions were raised by J. and J. Comaroff, « Introduction », in Law and
Disorder in the Postcolony, Chicago, University Press, 2006.
4. Legalism : Anthropology and History, P. Dresch and H. Skoda (eds), Oxford, University
Press, 2012.
5. B. Malinowski, Crime and Custom in Savage Society, London, Kegan Paul, 1926.
6. Ibidem, p. 21.
7. Ibid., p. 15.
8. Ibid., p. 58.

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Legalism: a turn to history in the anthropology of law 17

9. B. Malinowski, « Introduction », in Law and Order in Polynesia, H. I. Hogbin (ed.),

London, Christophers, 1934, p. LXIII.
10. J. Comaroff and S. Roberts, Rules and Processes : The Cultural Logic of Dispute in an
African Context, Chicago, University Press, 1981.
11. L. Nader and H. F. Todd, The Disputing Process : Law in Ten Societies, New York,
Columbia University Press, 1978.
12. C. Greenhouse, Praying for Justice : Faith, Order, and Community in an American Town,
Ithaca, Cornell University Press, 1986, p. 29.
13. Ibidem, p. 30-31.
14. J. Griffiths, « What is Legal Pluralism ? », Journal of Legal Pluralism, 19, 1986, p. 1-47.
15. F. von Benda-Beckmann, Rechtspluralismus in Malawi : geschichtliche Entwicklung und
heutige Problematik, München, Weltforum Verlag, 1970.
16. S. F. Moore, « Law and Social Change : the Semi-Autonomous Social Field as an
Appropriate Subject of Study », Law and Society Review, 7, 1973, p. 719-746.
17. B. Tamanaha, « The Folly of the “Social Scientific” Concept of Legal Pluralism »,
Journal of Law and Society, 20, 1993, p. 192-217 ; S. Roberts, « Against Legal Pluralism :
Some Reflections on the Contemporary Enlargement of the Legal Domain », Journal of
Legal Pluralism, 42, 1998, p. 95-106 ; S. Roberts, « After Government : On Representing
Law Without the State », Modern Law Review, 68, 2005, p. 1-24.
18. C. J. Fuller, « Legal Anthropology, Legal Pluralism and Legal Thought », Anthropology
Today, 10, 1994, p. 9-12.
19. S. E. Merry, « Legal Pluralism », Law and Society Review, 22, 1988, p. 869-896, at
p. 878-879.
20. S. Roberts, « After Government », art. cit.
21. C. J. Fuller, « Legal Anthropology, Legal Pluralism and Legal Thought », art. cit.,
p. 10.
22. J. Griffiths, « The Idea of Sociology of Law and its Relation to Law and to Sociology »,
Law and Sociology, M. Freeman (ed.), Oxford, University Press, 2006.
23. B. Tamanaha, A General Jurisprudence of Law and Society, Oxford, University Press,
2001, ch. 8.
24. M. Goodale, Anthropology and Law, op. cit.
25. L. Nader, « The Americanization of International Law », in Mobile People, Mobile Law,
F. and K. von Benda-Beckmann and A. Griffiths (eds), Aldershot, Ashgate, 2005, p. 199.
26. S. Speed, « Exercising Rights and Reconfiguring Resistance in the Zapatista Juntas
de Buen Gobierno », in The Practice of Human Rights, M. Goodale and S. Merry (eds),
Cambridge, University Press, 2007, p. 176-178.
27. F. Pirie and J. Scheele, « Justice, Community, and Law », in Legalism : Community and
Justice, Oxford, University Press, p. 1-24, at p. 21-23.
28. J. and J. Comaroff, « Introduction », in Law and Disorder in the Postcolony, op. cit.
29. S. Roberts, « After Government », art. cit.
30. Ibidem, p. 14.
31. F. Pirie, « Law Before Government : Ideology and Aspiration », Oxford Journal of Legal
Studies, 30, 2010, p. 207-228.

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32. M. Goodale and S. E. Merry, The Practice of Human Rights : Tracking Law Between the
Global and the Local, Cambridge, University Press, 2007 ; S. E. Merry, « Anthropology and
International Law », Annual Review of Anthropology, 35, 2006, p. 99-116 ; A. Riles,
« Collateral Knowledge : Legal Reasoning in the Global Financial Market », Chicago,
University Press, 2011.
33. The principal publications are : Legalism : Anthropology and History, op. cit. ; Legalism :
Community and Justice, op. cit. ; Legalism : Rules and Categories, P. Dresch and J. Scheele
(eds), Oxford, University Press, 2015 ; and Legalism : Property and Ownership, G. Kantor,
T. Lambert, and H. Skoda (eds), Oxford, University Press, 2017 ; as well as F. Pirie, The
Anthropology of Law, Oxford, University Press, 2013.
34. I undertook ethnographic fieldwork, primarily in one village, over several lengthy
periods from 1999 to 2008. See, F. Pirie, Peace and Conflict in Ladakh : The Construction of a
Fragile Web of Order, Leiden, Brill, 2007. I also conducted fieldwork in eastern Tibet,
described later, from 2003.
35. F. Pirie, The Fragile Web of Order : Peace and Conflict in Ladakh, DPhil diss., University of
Oxford, 2002, p. 253-256.
36. This is the phonetic transcription of the Tibetan word, khrims, used in other
contexts to refer to law-like rules, as described in the following section.
37. W. I. Miller, Bloodtaking and Peacemaking : Feud, Law, and Society in Saga Iceland,
Chicago, University Press, 1990 ; M. Gerreits, « Money in Early Christian Ireland
according to Irish Law », Comparative Studies in Society and History, 27, 1985, p. 323-339 ;
J. Scheele, « A Taste for Law : Rule-Making in Kabylia (Algeria) », Comparative Studies in
Society and History, 50, 2008, p. 895-919.
38. F. Pirie, « Rules, Proverbs, and Persuasion : Legalism and Rhetoric in Tibet », in
Legalism : Rules and Categories, F. Pirie and J. Scheele (eds), Oxford, University Press,
p. 108-128, at p. 248.
39. One might also speculate that, at some deeper or unconscious level, Ladakhi
villagers have wanted to avoid the danger of external powers taking control of their
small community, by adopting and enforcing, or altering, their laws, as happens
elsewhere : G. Bédoucha, « Libertés coutumières et pouvoir central : l’enjeu du droit de
l’eau dans les oasis du Maghreb », Études Rurales 155/156, 2000, p. 117-141. This would
also be consistent with their resistance to development initiatives, F. Pirie, « Doing
Good Badly, or at all ? », Ladakh Studies, 17, 2002, p. 29-32.
40. F. Pirie, Peace and Conflict, op. cit. ; Id., « Community, Justice, and Legalism : Elusive
Concepts in Tibet », in Legalism : Community and Justice, op. cit.
41. R. Ekvall, « Peace and War among the Tibetan Nomads », American Anthropologist,
66/5, 1964, p. 119-148. The administration of the modern Chinese state, of course,
complicates these dynamics, but this is beyond the scope of this article.
42. Mgo log rig gnas lo rgyus (A history of Golok culture), Golok Prefecture Committee for
Historical Research, 1991.
43. They also cover « the arts of war », with rules about how contributions to the war
effort (we should understand tribal conflict) are to be made by different families, again
distinguished by status.
44. F. Pirie, « Law Before Government », art. cit.

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45. P. Dresch, The Rules of Barat : Tribal Documents from Yemen, Sanaa, Centre français
d’archéologie et des sciences sociales, 2006.
46. F. Pirie, « Law Before Government », art. cit. ; « Rules, Proverbs, and Persuasion »,
art. cit.
47. F. Pirie, The Anthropology of Law, op. cit., ch. 9.
48. Consequently, little has been written about law in historic Tibet. The exceptions are
R. R. French, The Golden Yoke : The Legal Cosmology of Buddhist Tibet, Ithaca, Cornell
University Press, 1995, on the cosmological aspects, and work by Tibetanist scholars,
notably the many publications of Dieter Schuh, on agreements, court records, and
other documents.
49. B. Dotson, « Introducing Early Tibetan Law : Codes and Cases », in Secular Law and
Order in the Tibetan Highland, D. Schuh (ed.), Andiast, International Institute for Tibetan
and Buddhist Studies, 2015.
50. F. Pirie, « Oaths and Ordeals in Tibetan Law », in Secular Law and Order in the Tibetan
Highland, ibidem, p. 177-195.
51. B. Dotson, « Introducing Early Tibetan Law », art. cit.
52. Historical details in this section are largely drawn from : M. Kapstein, The Tibetans,
Oxford, Blackwell, 2006 ; S. van Schaik, Tibet : A History, London, Yale University Press,
2011 ; and L. Petech, Central Tibet and the Mongols, Rome, IsMEO, 1990.
53. F. Pirie, « Buddhist Law in Early Tibet : The Emergence of an Ideology », Journal of
Law and Religion, 32, 2017, p. 406-422.
54. F. Pirie, « The making of Tibetan law : the Khrims gnyis lta ba’i me long », in On a Day
of a Month of a Fire Bird Year, J. Bischoff, P. Maurer, and C. Ramble (eds), Lumbini,
International Research Institute, forthcoming.
55. Between them, there is a section on the history of law in Tibet, which closely
follows one of the recent historical narratives.
56. These texts are generally referred to as the thirteen or sixteen zhal lce (literally,
edicts). French, in The Golden Yoke, refers to them as « law codes », although their form
is similar to the text described here. Several manuscripts are kept in the Library of
Tibetan Works and Archives, in Dharamsala, and there are others in the City of
Liverpool Museum. Printed versions are reproduced in Bod kyi snga rabs khrims srol yig
cha bdams bsgrigs, Lhasa, Bod ljongs mi dmangs dpe skrun khang, 1989.
57. S. Roberts, « After Government », art. cit. In practice, the Tibetans barely
institutionalized their processes of justice.
58. B. Tamanaha, A General Jurisprudence of Law and Society, op. cit. ; W. Twining, General
Jurisprudence : Understanding Law from a Global Perspective, Cambridge, University Press,
2009.
59. F. Pirie, The Anthropology of Law, op. cit., ch. 6.
60. A. M. Honoré, « Real Laws », in Law, Morality, and Society, P. M. S. Hacker and J. Raz
(eds), Oxford, University Press, 1977, p. 112. This, in turn, makes possible the organized,
critical reflection of jurisprudence and the type of deliberative reasoning typical of
court judgments : P. Dresch, « Legalism, Anthropology, and History », in Legalism :
Anthropology and History, P. Dresch and H. Skoda (eds), p. 1-37, at p. 15 ; F. Pirie, The
Anthropology of Law, op. cit., p. 141-142.

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Legalism: a turn to history in the anthropology of law 20

61. S. E. Merry, Getting Justice and Getting Even : Legal Consciousness Among Working-Class
Americans, Chicago, University Press, 1990, p. 8-9.
62. M. Goodale, Anthropology and Law, op. cit., p. 39.
63. Ibidem, ch. 1.
64. P. Dresch, « Legalism, Anthropology, and History », art. cit., p. 15.
65. B. Tamanaha, On the Rule of Law, Cambridge, University Press, 2004.
66. M. Goodale and S. E. Merry, The Practice of Human Rights, op. cit.
67. J. and J. Comaroff, « Introduction », in Law and Disorder in the Postcolony, op. cit.
68. S. E. Merry, « Legal Pluralism and Transnational Culture : The Ka Ho’okolokolonui
Kanaka Maoli Tribunal, Hawai’i, 1993 », in Human Rights, Culture and Context, R. A. Wilson
(ed.), London, Pluto Press, 1997, p. 28-48.
69. F. Pirie, The Anthropology of Law, op. cit., p. 176-178 ; A. Riles, « Collateral
Knowledge », art. cit.

ABSTRACTS
Notorious definitional debates have characterized the anthropology of law, and scholars have not
reached consensus over how “law” is to be distinguished from other social phenomena. This
article suggests that light can be shed upon this issue by combining the insights of
anthropologists and historians. Careful comparison among empirical examples highlights the
importance of texts and the legal form. Case studies from Tibet are used to illustrate these points
and draw attention to the phenomenon of legalism, that is, the use of generalizing rules and
abstract categories to describe and organise the world. This provides a basis for exploring the
nature and significance of law, both in the modern world and societies of the past.

Des débats notoires sur les définitions caractérisent l’anthropologie du droit. En particulier,
aucun consensus n’a été trouvé sur la façon dont le « droit » se distingue d’autres phénomènes
sociaux. Le présent article suggère que cette question requiert de combiner l’érudition des
anthropologues et celle des historiens. Une comparaison minutieuse entre plusieurs exemples
empiriques met en évidence l’importance des textes et de la forme juridique pour saisir l’essence
du droit. Des études de cas relatives au Tibet illustrent ce point et permettent de souligner le
phénomène du « légalisme », c’est-à-dire de l’utilisation de généralisations et de catégories
abstraites pour décrire et organiser le monde. Cette analyse empirique fournit une base pour
explorer la nature et la signification du droit, à la fois dans le monde moderne et dans les sociétés
du passé.

INDEX
Mots-clés: légalisme, textes, règles et catégories, comparaison
Keywords: legalism, texts, rules and categories, comparison

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Legalism: a turn to history in the anthropology of law 21

AUTHOR
FERNADA PIRIE
University of Oxford

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