Despite the fact that the origin of legal anthropological thoughts is tied with the genesis of the field of anthropology (Tamanaha, 2008), some sources indicate that the inception of legal anthropological thoughts goes back to the classical political philosophers such as Plato, Aristotle, Hobbes, and Rousseau. This group of classical scholars considered law as the product of civilization, and hence lower stages were characterized by anarchy (Lewellen 2003:3). Others even push the origin 2000 years ago as it was practiced in what is known as European lands (Tamanaha, 2008). Nevertheless, the late 19th century laid the foundation for the beginning of the modern notion of legal anthropological inquiries. In this regard, with the involvement of biologists, social scientists and other scholars, anthropological thoughts started to sprout since the middle of the 19th century. As a primary architect of evolutionary theory, the British jurist Sir Henry Maine in his seminal work „Ancient Law (1861)“ postulated that primitive society was organized along the lines of kinship. It was patriarchal and was ordered by sacred prescriptions (Griffiths 2002:291; Lewellen, 2003). Maine further emphasized that evolution is in the direction of secularization, and organization based not on kinship but territory. He further states that „local contiguity“ became the basis for political action (Fortes and Evans Prichard 1940:10; Lewellen 1983:2; 2003:3). Maine's idea indicates that the change of a society based on kinship to one based on territoriality was crucial for the development of political action including legal systems.
An American anthropologist, Lewis Henry Morgan, further developed Maine's famous idea that kinship could be a primary socio-political structure. Maine's idea of a blood relationship bases to societies of primitive antiquity was a concept that was adopted by Morgan and his followers.
They embraced Maine's idea of primitive societies of the contemporary world (Colson1968:190).
Morgan further developed "an evolutionary sequence based on the mode of subsistence, the stages of which he termed as savagery, barbarism, and civilization“ (Lewellen 2003:3).
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However, early 20th century also witnessed fundamental changes as far as the developments of anthropological thoughts are concerned.
The reaction to the evolutionary thoughts and methodology appeared since the beginning of the 20th century. These paradigm shifts had got more strongholds in the United States and Europe.
In USA, Franz Boas’s historical particularism dominated the study of societies by anthropologists. Boas emphasized detailed descriptive studies of particular cultures. Europe also saw a paradigm shift in anthropological theory. This change was based on the work of Emile Durkheim who used structural analysis in the study of society. Durkheim's ideas led to the emergence of cognitive structuralism in France, which finally laid the foundation for the works of Claude Levi-Strauss. Nevertheless, Durkheim's ideas were also dominant in England, and this finally led to the emergence of scholars who gave more emphasis to social facts and theoretical point of view dominated by function and culture. In this regard, the 1930s England saw the coming into being of two brands of functionalism that competed for dominance: the psychobiological functionalism of Bronislaw Malinowski and the structural functionalism of Radcliffe-Brown. Malinowski was an important man as the founder of modern fieldwork techniques for his extensive research in Trobriand Islands which radically changed anthropological methods of evolutionists that had been labeled as armchair whose analysis was not based on actual natives' lives in the field. Despite this, he had little contribution to political anthropology. Nevertheless, Radcliffe Brown's structural functionalism dominated anthropological studies in the 20th century.
For Radcliffe-Brown, society was an equilibrium system in which each part functioned to the maintenance of the whole (Lewellen 2003:6). This theoretical approach focused on those norms, values, and ideal structures that form the framework within which an activity takes place. Based on this theory, British scholars developed a strong interest to study African societies to understand the social systems of societies for so-called „Divide and Rule“ colonial policy (Tamanaha 2008:382). The great lust for colonialism led to the production of a collection of studies that was published in 1940 called „African Political Systems“, edited by E.E. Evans–
Pritchard and Mayer Fortes. The publication of African political system’s ethnographic articles established the theoretical foundation of structural functionalism and its methodology for more
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than a decade of research into politics of pre-industrial societies (Lewellen 2003:7-9). This study also marked the beginning of modern anthropology (Lewellen 1983:7).
On the other hand, this type of indirect administration and transplantation of legal regimes in overseas „relied upon pre-existing sources of political authority using indigenous leaders. It involved the creation of so-called ‘native courts' that enforced customary or religious laws and hence led to the production of “new forms of legal pluralism” (Tamanaha 2008:182).
Indeed, before 1930 anthropological studies were highly concentrated in a relatively small-scale society of Native Americans, Australian, and Melanesian societies while political and social organizations were not treated as a separate field of inquiry in mainstream anthropology. It was structural functionalists (e.g., Radcliff-Brown) who began to study still functioning large-scale political units in Africa since the 1930 (Colson1968:191). Thus, for about two decades, studies on political anthropology were dominated by the structural functionalist theoretical orientation of Radcliffe-Brown and his students.
The theory looks at society as a closed system in an assumed equilibrium (Radcliff-Brown 1952:3).The static structural-functionalist paradigm maintained through some studies of Evans-Pritchard, Raymond Firth, Daryl Ford, and Meyer Fortes. E.E. Evans Prichard's classical work,
„the Nuer (1940a)“, for instance, in its chapter on political system tried to show how a society of 200,000 people maintain equilibrium even though there was almost constant feuding with the lack of any centralized government. Nevertheless, structural functionalist theoretical orientation got ardent criticism since the 1960s. Its static nature and its being servant of colonialism became areas of criticism by later scholars (Lewellen 2003:82).
According to Colson (1968:190), the period after 1960 was marked by a paradigm shift in anthropological theories that gave wider rooms for “change, faction, party and political maneuver“. Thus, with the decline of the significance of structural functionalist’s approach for the understanding of various issues in anthropological studies, including legal systems, a new approach appeared on the stage. These theories considered social change, conflicts, processes and actions as significant factors for social developments rather than the vice versa. Turner's
‘Schism and Continuity in an African Society' (1975), and Edmund Leach's ‘Political Systems of Highland Burma'(1954) and Max Gluckman's various works, ‘The Zulu in African Political
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Systems' (1940), as well as ‘Custom and Conflict in Africa' (1956), and ‘Order and Rebellion in Tribal Africa' (1960) represented the new paradigm in political anthropology.
These seminal works focused on conflicts, processes, and changes as an inevitable part of societal development than as phenomena deterring social progress. Gluckman, for instance, said that „a phrase that came to represent a new orientation to society based not on structure and function, but on process and conflict“ (Lewellen, 2003; 9; Barnard, 2004:84).
Following the emergence of nation-states and industrial revolutions that brought about colonization, there emerged a need to directly or indirectly govern the colonies. This inevitably required having a law. Thus the legal system of the West was considered as a weapon to control the local community. Anne Griffiths (2002:291) noted that
"...while European or Western law was imposed on colonial subjects, it was also recognized that such law was inappropriate in certain cases, for example, in governing the family life of subrogated persons and that regulation of such matters should be left to the local, customary, or indigenous law of that group. It, therefore, became necessary to make a study of these forms of law to provide for its incorporation within the framework of the colonial state. In this way, the local, customary, or indigenous law was viewed as something 'other' than Western law, as a separate and distinct form of law. Under this model of legal pluralism, the state defines the parameters that mark the territories of legal systems within its domain, such as customary and Islamic law, in ways that depict them as separate and autonomous systems."
Tamanaha (2008:382) further outlined the three strategies the colonizing powers employed to expand their system of influence and incorporate customary or religious law. These strategies were: „the codification of customary or religious law; the application by state courts of unwritten customary or religious law in a fashion analogous to the common law; and the creation or recognitions of informal or ‘customary’ courts run by local leaders.“ We see from the excerpt, the emergence of legal pluralism in its „weakest“(Griffiths J.1986); (Merry 1988: 869), (Griffiths A.2002)) and “new form“ (Tamanaha 2008:384) dates back to the late nineteenth century. This time, however, does not by any means mark the genesis of strong legal pluralism.
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Rather, it marks the onset of the decline of the legal status of customary and religious laws vis-a-vis state law since the introduction of a nation state modeled after European context curbed the activities of customary and religious courts hitherto handled multiple of cases in the continent.
Therefore, these developments are considered as precursors for the development of legal anthropology in general and new form of legal pluralism that laid a foundation for contemporary legal pluralism, in particular, as an academic pursuit.
Recent research works indicate further that the contemporary emerging legal anthropology focuses on „the complex dynamics of plural legal constellations in current social formations in the context of globalization“(Franz von Benda-Beckmann and Keebet von Benda-Beckmann 2006:1).The general frameworks of this study also lie in the context of developments as mentioned earlier and try to link the empirical analysis with the mainstream literature on legal anthropology in general and legal pluralism in particular.