Law after Anthropology: Object and Technique in Roman Law

Abstract

Anthropological scholarship after Marilyn Strathern does something that might surprise lawyers schooled in the tradition of ‘law and society’, or ‘law in context’. Instead of construing law as an instrument of social forces, or as an expression of processes by which society maintains and reproduces itself, a new mode of anthropological enquiry focuses sharply on ‘law itself’, on what Annelise Riles calls the ‘technicalities’ of law. How might the legal scholar be inspired by this approach? In this article, I explore one possible way of approaching law after anthropology, which is to find within law’s own archive a set of resources for an analogous representation of law itself. Drawing on the historical scholarship of Yan Thomas, I suggest that the Roman conception of law as object offers an engaging counterpart to the anthropological take on law as a specific set of tools or, technicalities, or as a particular art of making relations.

Legal infrastructures: How laws matter in the organization of new markets

“…We examine how existing laws exert agency in market-building by mobilizing a set of theories in socio-legal studies, anthropology of law, and actor-network theory, which treat laws as entities with technical properties and affordances. Alain Pottage (2014) distinguishes two approaches to the relationship between the law and the social. The 'law and society' approach considers laws as expressions of forces outside law itself (see also Riles, 2005).…”

“…In contrast, according to the 'law itself' approach (Pottage, 2014), law cannot be derived only from power struggles or cultural frames external to it (Riles, 2005). Similarly, in his analysis of the French administrative court, Latour (2002) argues that beyond actual materialities (courtrooms, documents, etc.…”

Remorse in Context(s)

“…The centrality of remorse in criminal law is contingent upon a particularly Western and modern conception of the criminal subject. Where Roman Law, for instance, did not treat (criminal) acts as a manifestation of individual intentions, modern Law instead 'assumes a subject that is answerable for its acts in the world' (Pottage, 2014: 153, see Thomas, 1977), as it considers deviant acts 'expressions of some complex authorial psychology' (Pottage, 2014: 153). It is only with the development of a more modern conception of criminal subjects that the notion of remorse enters the picture.…”

Citizens United, citizens divided:

“…They make visible, too, the implications for the particular communities and individuals exposed directly or indirectly to the materiality of those terms, to the extent that they are implemented. “Law after anthropology” (Pottage ) is a political relation beset with asymmetries.…”