Anthropological research on law since the early twentieth century has provided critically important perspectives on the way law is embedded in the social life of distinctive cultural groups. Yet over the last decade, the concept of culture on which many of these insights depend has come under siege. The nature of culture has been radically retheorized. This change demands an equivalent rethinking of the relationship between law and cultural phenomena. Using an example of legal transformation in the nineteenth-century Pacific, this Essay suggests an approach to analyzing relationships between law and culture that relies on a more complex, contested, and historically located understanding of culture. It examines the process of legal appropriation in the context of competing cultural logics and the expansion of European capitalism and imperialism into social worlds governed by other systems of exchange and power.
Between 1825 and 1850, the sovereign Kingdom of Hawai'i adopted a system of Anglo-American law, courts, and prisons to replace the Hawaiian system of kapu(tabu) and chiefship. The adoption was incremental: Small steps initiated broader, frequently unanticipated changes, shifting the landscape in ways that precipitated taking further steps. The transformation took place within a cultural field defined in part by European conceptions of sovereignty and of racial and religious difference. The reigning Hawaiian chiefs deliberately appropriated Anglo-American law in order to "civilize" their country and assert sovereignty in European terms. This was not an act of imposition, although the chiefs acted in a situation of considerable pressure and constraint. They did not simply accept the new system but resisted some of its features and redefined aspects of it according to their own categories and systems of meaning. Instead of seeing this situation as an instance of acculturation, a smooth blending of two "cultures" and their embedded legal systems, it should be understood as appropriation and resistance taking place on a field of contested cultural meanings and power relations. Examining cases of legal appropriation and the kinds of cultural meanings and social transformations that result provides a more dynamic and agentive way of understanding the linkage between law and culture.
Sally E. Merry,
Law, Culture, and Cultural Appropriation,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol10/iss2/16