Law before Government: Ideology and Aspiration

摘要

The extended notion of law evoked by the concept of legal pluralism has been subjected to powerful anthropological critiques. Simon Roberts, among others, has argued that law should be kept analytically distinct from forms of negotiated order. His persuasive argument in favour of a link between law and government, however, shuts the door on examples of law which arise before, or apart from, government, but which are nevertheless not negotiated orders. Law, it is argued here, can be identified neither by reference to the negotiation of order, nor by reference to government. It is, rather, an intellectual system, identified by its expressive and aspirational qualities and its ideological claims to promote order and justice. In order to distinguish law from other ideological systems it is, then, necessary for the legal anthropologist to pay more attention to the significance of the legal form.