LAW, CULTURE, AND RITUAL: DISPUTING SYSTEMS IN CROSS-CULTURAL CONTEXT

Vol. 16 No.5 (May, 2006), pp.331-335

LAW, CULTURE, AND RITUAL: DISPUTING SYSTEMS IN CROSS-CULTURAL CONTEXT, by Oscar G. Chase. New York: New York University Press, 2005. 224pp. Cloth. $45.00. ISBN: 0814716512.

Reviewed by: Gad Barzilai, Jackson School of International Studies and Law, Societies and Justice Program, and Comparative Law and Societies Studies Program, University of Washington. E-mail: gbarzil [at] u.washington.edu

Resolving domestic disputes without considerable resort to brute physical violence is a challenge to which various pre-modern and modern societies have embarked to respond in various cultural and institutional contexts. LAW, CULTURE AND RITUAL: DISPUTING SYSTEMS IN CROSS-CULTURAL CONTEXT is a witty and engaging endeavor to explore, once again, the classical phenomenon of “reflexive connection between culture and disputing processes” (p.2). The author, Oscar G. Chase, claims that venues of dispute resolution are embedded in culture, and furthermore, dispute resolution institutions and procedures have deeply affected various cultural settings. As I will note below, the book constitutes a good contribution to our professional knowledge, and it is a must reading, notwithstanding some problems and absence of some necessary theoretical, as well as comparative, discussions.

The possible theoretical relationships between power, culture and disputing processes are analyzed in the introduction. Chase argues, convincingly, that power is a cultural construct, since it cannot be de contextualized, and in turn it is a constitutive aspect of dispute processes. He criticizes the myth as if processes of disputing are neutral: “Dispute-ways are never neutral as between competing social groups, even if they are in fact neutral as between the individual disputants” (p.4). Chase’s claim is a good departure base for an innovative piece of research. The book aims to provide a cultural analysis of disputing processes because power itself is not merely a structural issue: “The metaphysics, values, symbols, and social hierarchy of any collectivity will set the bounds within which it organizes its dispute-handling institutions” (p.5). Although the book does not invite a new concrete definition of culture, it asserts that dispute process elite are themselves products of culture and are likely to produce and reproduce procedures that resonate effectively with the dominant culture. Referring somewhat questionably to Pierre Bourdieu, Chase postulates that law is immersed in the ability of elite to monopolize language and practices. Yet, he argues, culture is the setting through which law has its life and meanings.

But what is culture above a set of norms and practices? How and why does a society decide on a specific set of dispute procedures and how do those procedures change? Why might elites agree to have specific institutional arrangements and not others? The rest of the book replies to those questions with some degree of accomplishment. In the [*332] subsequent chapters, readers find insightful analysis of several systems of dispute resolution, primarily in the US, with a limited in-depth study of non-Western procedures. The second chapter narrates a fascinating case of the Azande of Central Africa and their reliance on oracles and ordeals to resolve disputes around infidelity. The pre-modern dispute resolution scenario is explored first in order to have better perspectives on modernity. The chapter exhibits how the Zande disputing ways have generated patriarchy and maintained social discipline and obedience to the political elite. However, since critical studies have long demonstrated that judicial procedures maintain social order and patriarchy (Kairys 1990; Olson 1990), the value of the Zande experience to our knowledge is somewhat limited since no additional analyses of pre modern societies are offered. Furthermore, the author does not develop a significant discussion of cultural relativism and its place in studies of comparative law. Only in the “Afterword” does Chase suggest some measures of cultural relativism. One could argue that no culture may be comprehensible without drilling emphatically into its own virtues and mechanisms (Barzilai 2003).

Instead, the book leaps to the North American experience of contemporary disputing systems. The third chapter contends that modern law functions as an oracle. Following a tradition of literature in law and society, Chase is skeptical about truth finding: “It is the skepticism that is also an aspect of modernity and that to some extent defines the ‘postmodern.’ The contingency, the relativity, the subjectivity of belief cannot be completely suppressed even in a process devoted to the discovery of the truth on which much value depends, for these doubts is another ingredient of the cultural mix. Available truth- and law-finding techniques are fallible and on one level seen to be so” (p.42). This argument is rooted in many previous studies (e.g., Scheingold 2004), but Chase provides us with an insightful analysis of dispute procedures in the US.

Accordingly, Chapter 4 looks into the exception of the American system of dispute resolution. Tracing its sources in English common law, Chase analyzes the distinctiveness of the jury system, its virtues and deficiencies. While Chase uncritically connects its embeddedness in the culture to American individualism and ‘egalitarianism,’ more room should have been devoted in the book to analyzing the jury system’s effects on power and culture. Such an effort demands more empirical research and comparative study, both of which are only partially provided. Chase points to the importance of the jury system to citizenship empowerment, however his treatment is unsatisfactorily brief with no in-depth original empirical study.

Similarly, the book offers an investigation of the rather passive role of the judge and the significant weight given to discovery of documents and evidence of experts in the American adversarial system. On the one hand, somewhat like legal realists in the first half of the 20th century, Chase insightfully points out that the expert witnesses in American courts invoke the [*333] myth of law as do the oracles in Zande trials (p.66). On the other hand, he circumvents a critical examination of the sources of that myth and only very partially uncovers the interests of political and economic elites to maintain it. The cultural explanation offered to explicate the exceptionality of the American legal system is rather vague and refers to “egalitarianism, individualism, laissez-faire, liberty, and populism identified in so many areas of America’s social life” (p.69). It remains, however, to examine how such an explanation is in some disjunction from previous studies that trace the intergenerational and genealogical sources of the myth of law as ‘professional’ and ‘objective’ (Fitzpatrick 1992; Barzilai 2004).

The exceptionality of the US legal setting is only one facet of the effort to understand the reflexivity of culture and disputing systems. Chapter Five focuses on the rise of discretionary power as part of judicial disputing processes. Two main developments are underscored as sources of discretion. The first process is the rise of business efficiency and private economy, producing pressure to have more inclusive and accessible legal systems that in turn generate more de-centralized political, social and economic life. The second process is the uncertainty and lost of faith in the rule of law. In this cultural context, Chase successfully explicates why the development of discretion serves power: “Observe, then, that discretion fits rather well with individualism. It is, after all, the facilitation of individualized justice that is discretion’s claim to legitimacy. A litigant might well accept even dramatic growth of authority if convinced that it would lead to more respect for his particular condition” (p.92). However, the theoretical connection between the finding that discretion has maintained political power amid privatization, and critical studies that understand discretion as a central phenomenon legalizing the very essence of capitalist order, is missing.

We need to de-center our vision of disputing systems. Indeed, the sixth chapter explores the cultural reasons for development of ADR [alternative dispute resolution]. Chase correctly points out that ADR in the US, although historically rooted in English settlers’ communities, originated in a judicial interest to ease court overload. More interestingly, however, he presents several other explanations. First, counter-cultural forces have protested against the hierarchy of judges and protested a dependency on lawyers. The second force is privatization that has encouraged out-of-court means of dispute resolution. However, the chapter is lacking comparative perspectives. The literature on mediation is vast, and the cumulative comparative knowledge is insightful. Why not mention the TRC [Truth and Reconciliation Committees] in South Africa and Latin America, or private judging in Middle Eastern societies to inform our insights (e.g., Gibson 2004)? A more comparative perspective would have enabled us to examine reflexivity of culture and law in more detailed and powerful ways.

Chapter Seven, advancing our understanding of litigation as ritual and law as a setting of rites, is the most [*334] important chapter in the book. Chase powerfully demonstrates that “[t]hese qualities of ritual empower it to affect human belief and behavior because it enlists emotion in the service of persuasion” (p.116). The rituals in courts, much like the special formal cloths, lingual formulations of arguing, and rules of evidence and behavior, as part of litigation, are ceremonies of transformation through which judges empower themselves and litigants yield to judicial power. These rituals also de-personalize social relations in the courtroom, in ways that mythologize courts and judges.

Disputing processes significantly influence society. Although this argument is one of the fundamentals of the book, the analysis in Chapter Eight is rather secondary and is not well elaborated. Chase primarily relies on previous theoretical studies and presents no new data: “That a set of social practices predominant in one area of human life, such as disputing, can importantly influence practices, beliefs, and norms in other areas of society has been recognized by, among others, Pierre Bourdieu” (p.127). Chase refers to studies on the generation of culture through institutional processes, he does not fully explicate why and how the influences of disputing processes are significantly different from any other routine practices that affect culture. However, since the presumption is that disputing processes may represent constitutive sources of cultural change, Chase concludes by inviting policy makers to consider how public policy reforms affect the overall culture. Thus, as Chase claims, even if canceling the civil juries in the US will make trials more efficient and less costly, their importance to the empowerment of citizenship outweighs such a reform. The book recommends policy makers to consider that: “The jury is an institution that serves well the functions Kelman and Hamilton describe as important to the maintenance of a nonauthoritarian society. It promotes individual agency, dispersion of authority, and the recognition of multiple perspectives. This cultural role should not be ignored” (p.140).

REFERENCES:

Barzilai, Gad. 2004. “Culture of Patriarchy in Law: Violence from Antiquity to Modernity.” 38 LAW & SOCIETY REVIEW 864- 887.

Barzilai, Gad. 2003. COMMUNITIES AND LAW: POLITICS AND CULTURES OF LEGAL IDENTITIES. Ann Arbor: University of Michigan Press.

Fitzpatrick, Peter. 1992. THE MYTHOLOGY OF MODERN LAW. London: Routledge.

Gibson, James L. 2004. OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? New York: Russell Sage Foundation.

Kairys, David (ed.) 1990. THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE. New York: Pantheon Books.

Olson, Frances. 1990. “The Sex of Law.” In David Kairys (ed.) THE POLITICS OF LAW. New York: Pantheon Books, pp.453-467. [*335]

Scheingold, Stuart. 2004. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE. Ann Arbor: University of Michigan Press.

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