Chapter 2
- For just a few examples of debates and commentaries on this issue, see the classic
discussions by Bohannan, Beidelman, and Gluckman: Bohannan, Justice and Judgment and
“Ethnography and Comparison”; Gluckman,Ideas in Barotse Jurisprudence; Beidelman,
“Swazi Royal Ritual”; as well as more recent writings. See also John Comaroff and Rob-
erts,Rules and Processes; Lazarus-Black and Hirsch, Contested States. - Anthropologists and sociolegal scholars have for many years provided trenchant
attacks on singular notions of the law in particular societies, pointing out that there are
usually multiple visions in any given society of what the law is and how it operates. Thus,
how law is conceived may in part depend on to whom you are speaking. See, for example,
Greenhouse et al., Law and Community; Lazarus-Black and Hirsch, Contested States; Starr
and Collier, History and Power. - On the issue of divergences between lay and expert conceptualizations of the law,
see, e.g., Bumiller, Civil Rights Society; Sarat and Felstiner, Divorce Lawyers; Sarat and
Kearns,Law in Everyday Life. On divergences among experts in approaches to law, see,
e.g., Conley and O’Barr’s discussion of the way judges differ in their approach to decision
making. Conley and O’Barr, Rules versus Relationships. On differences among laypeople
in their views of law, see, e.g., Greenhouse, Praying for Justice; Williams, Alchemy. And for
a nice blurring of any sharp division between lay and expert understandings, see Yngvesson,
Virtuous Citizens. - Early legal realism cast doubt on the conventional legal conception that “a decision
of any lawsuit results from the application of a legal rule or rules to the facts of the suit.”
Frank,Law and the Modern Mind, xii. Realists were also concerned about the way law worked
in people’s lives apart from formal court decisions. See, e.g., U. Moore and Callahan, “Law
and Learning Theory.” The social scientists who took up the challenge left by the legal real-
ists in the past two decades formed the field of law-and-society scholarship, which brings
together many different disciplines in the study of the real-world effects of law. See, e.g., Abel,
Law & Society Reader; Lempert and Sanders, Invitation; Macaulay et al., Law & Society. - See Pound, “Law in Books and Law in Action”; see also Llewellyn’s famous list of
“common points of departure” for “real realists,” which includes a “distrust of traditional
legal rules and concepts in so far as they purport to describe what either courts or people
are actually doing” and “a distrust of the theory that traditional prescriptive rule-formu-
lations are the heavily operative factor in producing court decisions.” Llewellyn, “Some
Realism about Realism,” 1222. This distinction in legal discussions has interesting paral-
lels with a wider cultural distinction between “book” learning and “practical” learning,
which might be fruitfully explored. - This is an insight that is by no means original to me; the legal realists themselves and
many scholars following in their footsteps since have taken formal legal doctrine seriously,
of course without assuming that the formal framework in any way captures the full picture
of what happens in the translation of formal doctrine to practice. See, e.g., Llewellyn, “On
Warranty of Quality”; Scheppele, Legal Secrets. Law-and–social science scholars have also
taken quite seriously the study of legal experts and have looked carefully at how their expe-
rience shapes the practice of law. See, e.g., Abel, American Lawyers; Abel and Lewis, Lawyers
in Society I, II, III; Nelson et al., Lawyers’ Ideals; Sarat and Felstiner, Divorce Lawyers. For an
examination of the gendered dimensions of legal epistemology in action among practicing
attorneys, paralegals, and legal secretaries, see Pierce, Gender Trials.
A similar debate about the place of expert knowledge in the understanding of social
institutions can be found among scholars (especially anthropologists) studying religion.
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