Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context (NYLJ)

It is always interesting to take a step back, to view your world as would an anthropologist from another planet or from the distant future. To do so is to question some of the basic assumptions you make on a daily basis, and the result can be disconcerting. You may learn that many of your most respected institutions are rooted in historical accident, or that some of your ‘sacred cows’ are, er, ‘bull.’

In ‘Law, Culture, and Ritual,’ Oscar G. Chase, a professor of law at New York University School of Law, studies the American legal system in the manner of an anthropologist. By comparing American ‘dispute ways’ with those of other systems, including some commonly believed to be more ‘primitive,’ he finds interesting similarities that challenge the premise that we live in a society regulated by a rational and just ‘rule of law.’

To shake the reader from complacency, Chase starts his book with a description of a dispute resolution system calculated to appear as absurd as possible to the modern reader. Thus he explains how the Azande (plural) people of Central Africa resolve conflicts with the use of witchcraft, oracles and magic. It seems a far cry from an adversarial system built upon an independent judiciary steeped in thousands of years of Judeo-Christian tradition and hundreds of years of common law but, Chase asks, is it?

An actual Zande (singular) adultery trial, preserved in a 1982 video recording, is offered for our consideration. A married woman and her alleged lover vehemently deny the charge of adultery, while several witnesses claim to have seen them in a compromising position. The village chief, acting as magistrate and wearing a special hat, listens to the accusations and the denials, but does not even attempt to determine the truth. Instead, he refers the matter to the ‘benge’ as follows:

The consultation of the benge proceeded out of doors some days later. An operator held a small chick in place with his foot and forced it to swallow a small amount of fluid containing the mystical benge, a ritually prepared toxic substance. A questioner then addressed the oracle, roughly as follows: ‘Oracle, if [so-and-so] slept with [so-and-so], if he knew her as a man,[etc.]let the chicken die.’ The question was repeated several times in a ritualistic form of speech. The chicken expired, thus proving to the satisfaction of the operator that the adultery took place. The oracle was consulted again, this time about the conduct of the female defendant, with the same result.
Talk about objection to the form of the question! The modern American (particularly a litigator) reads the above description and asks why the question was phrased in that manner. And who determines how much poison goes in the chicken, anyway?

But the Azande live in a world in which witches and magic are presupposed to exist. To the true believers among the Azande–even those who believe they have been found guilty in error– the benge system itself is never challenged, only the results. In the face of British attempts to impose a more ‘rational’ system, Azande benge proponents noted that witnesses can be intimidated or coerced, but the chicken never lies. And in any event, the Azande take comfort in the fact that a mistaken verdict can be appealed…to a new chicken poisoned under the authority of the king!

So, what has this to do with 21st century American ‘dispute ways’? Quite a bit, according to Chase.

Chase notes, quite correctly, that our modern system of justice has more than its fair share of mumbo-jumbo and ritualistic behavior. It is not a coincidence that our courthouses resemble ancient temples, that our judges wear the same black robes as clergymen and that the last bastion of Latin usage is in the courts. Chase quotes the following allocution, which will sound familiar to any practitioner in our modern system:

Magistrate: Do you plead guilty or not guilty?

Defendant: Yes, I did it.

Magistrate: No. I’m asking you whether you plead guilty or not guilty. You must use the words ‘not guilty’ or ‘guilty.’

Defendant: [looking towards probation officer] She said, ‘Say guilty.’

Magistrate: No, you must say what you want to say.

Defendant: Yes, I’ll say what you like. I did it.

Magistrate: No, you must use the language of the court.

In other words, it does not matter if the defendant’s words and intent are clear. The ceremony requires a ritual. The gods must be appeased.
Chase asks us to consider whether ‘the law’ has become modern humanity’s oracle. After both sides present their best arguments in court, the judge is asked to review ‘the law’ and reach the correct decision. How different is this from a shaman determining the answer to a question by studying the gizzard of a dead bird? Surely, if ‘the law’ were as objective as we pretend it to be, we would all be able to see it and agree upon it. Because it isn’t, we choose our oracle-readers as best we can (especially on the U.S. Supreme Court) and ask them to hand down decisions from on High.

But don’t despair. Lest you conclude that we are doomed to resolve our disputes through superstition and nonsense, Chase has some encouraging news to report. In many ways we are becoming less and less reliant on ritual and ceremony in our legal system. Modern rules of civil procedure have been drafted to place substance over form. Most significantly, a healthy amount of postmodern skepticism has moved many disputes out of the court system entirely and into the hands of mediators (who are within the control of the parties) and arbitrators (who can be more knowledgeable and practical).

The conclusion of this book is that every legal system is a product of the culture that produced it and, in turn, every culture is impacted by its legal system. Changes in the legal system have ramifications well beyond the courtroom, a fact that must be considered by would-be reformers.

In other words, people like a little hocus-pocus mixed in with their law, so you shouldn’t let them down.