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It’s Personal

Two books, one on law as culture and the other on Arabs, unexpectedly illuminate both subjects when read together.

Published on November 1, 2006

 

Mark Allen, Arabs (Continuum, 2006), 145 pp., $21.95.
Lawrence Rosen, Law as Culture: An Invitation (Princeton University Press, 2006), 230 pp., $24.95.

Two new books about culture strangely complement each other: Mark Allen’s introduction to Arab culture and Lawrence Rosen’s essay on culture in relation to law. Everything Allen says about Arabs bears out Rosen’s message, which is that Arab culture is the Arab way of seeing the world, of organizing how Arabs relate to each other, of making the universe meaningful to them. Read Arabs if you can’t quite follow the abstractions of Law as Culture; read Law as Culture to understand why Arabs doesn’t need a separate chapter on law.

Both Allen, a thirty-year veteran of the British Foreign Service, and Rosen, the William Nelson Cromwell Professor of Anthropology at Princeton, focus on knowledge and uncertainty. Allen explains how knowledge of the Quran gives the Arab teacher authority, and how this knowledge is the sacred touchstone of truth and certainty. The old Arab society generated the sustaining context for certainty; now modernization is breaking down that cultural framework, so certainty is fading away. Arab identity is becoming vulnerable and confused. The trend of Allen’s argument suggests somber conclusions about the loss of certainty in the Arab world, for Arabs, to be sure, but also for others.

Rosen’s focus on knowledge operates in the other direction, but comes to the same place. He exposes as false the view that law is an independent source of truth. Jurisprudence has a tendency to treat law as something given in nature, with a capacity to discern facts and attain absolute truth. This idea Rosen is determined to denounce. He accuses various named and unnamed jurists of this error. Law, for him, has a much more creative and important role than settling disputes by revealing hidden facts and providing correct answers. Moreover, in his philosophy, certainty itself is suspect. Rosen doesn’t believe in independent facts, nor in absolute truth, nor in any absolutes whatever: “There is no such thing as natural law”, he writes, “only law naturalized.” His appears to be an extreme case of cultural relativism, the only absolute thing being the autogenic quality of human culture itself.

It is best to pay attention first to Arabs because it makes Law as Culture more accessible. Obviously we want to know more about the Arabs, and Arabs appears at one of these all too frequent moments when the whole world is acutely anxious about Arab-Israeli political tension. We wish we knew the Arabs better. We are concerned about the supply and price of Arab oil. Europe’s central and looming demographic problem of maintaining the proportion of workers to pensioners could be relieved by Arab immigration, but the violence of Middle Eastern politics makes that a daunting prospect. Allen’s little book explains why we find Arabs difficult to understand, and why they can’t understand us either. The charm of the writing conceals the power of the argument. We read it easily without noticing how thoroughly our old misconceptions are being transformed as we go page to page.

Since boyhood Allen has been fascinated by falconry. As a student reading Arabic at Oxford some forty years ago, he acquired a team of hawks and a camel and traveled widely through Jordan, making friends with fellow falconers as he went. As a Foreign Office official he has been closely involved with Arabs ever since. Written for a general readership, Arabs neither romanticizes the Arabs nor attacks them with polemics. It focuses on the Arab as a person. It describes a social order entirely built around people, household and family. These are the crucial units. Princes and dynasties don’t count, but power does. A recurrent theme of Arabs is that the modern rise of supra-domestic agencies such as the nation-state conflicts with the old Arab tradition in which persons and power come to make sense in a social whole.

Anthropology started in the 19th century as a study of exotic peoples deemed to be “primitive” (meaning simple, backward, mentally undeveloped). After World War II, anthropologists mounted a sustained attack on the very idea of “primitivism.” Fieldwork demonstrated sophisticated political ideas flourishing in small-scale village life along with institutions for dispersing power and wealth. Kofi Busia’s The Constitution of the Ashanti, published before he became prime minister of Ghana in 1969, was the first of many analyses of a sophisticated social balance of power in ancient African kingdoms. His account of the checks and balances built into Ashanti political institutions would have done credit to Bagehot. So it should not surprise us that Allen can explain Arab traditions as resting upon highly refined survival strategies of small-scale social organizations.

Arab culture is built around the concept of the person in community. Allen distinguishes four main aspects of this central theme: family, religion, Arabism and power. All of them essentially honor the respect due to a person. In this culture the ideal is for a person to live his life as he pleases; it is very much a “live-and-let-live” tradition that demands mutual tolerance. At this I feel a guilty surprise; I had always thought of Arabs as strong and fierce, so I never expected so much gentle forbearance. Allen is careful to say that he is describing Arab culture as a shared ideal, an aspiration, rather than a working system. I imagine that any living culture would be a shared ideal for how individuals are expected to behave, or how they would like to be known.

One of the dominant aspects of Arab culture Allen stresses is pure blood. Like the pedigree of a horse, pure descent is one of the important qualities of a person such that genealogy is a matter of great interest in assessing a person. Common blood underpins the solidarity of a community. It involves the idea of honor for the family, the household and the tribe. A man should expect to be ready to die for his honor, or to kill a man or woman who blemishes it. It should not be a surprise to learn, then, that Arab women are strong and powerful personalities. On reflection, in a culture that centers on mutual respect of the individual, women would have to have freedom and scope for initiative.

At the level of large households based on kinship, the egalitarian ideal is largely implicit, conveyed by everyday acts of inclusion and respect. Small groups of people, defined by blood and geography, look after their own affairs in a collective privacy freely accorded by their neighbors. The all-pervasive influence of the Islamic religion makes the implicit egalitarian ideal explicit. Everyone is equal in theory under God and God’s law.

It sounds fine, but individual equality is, in fact, full of difficulty for the group. If everyone is supposed to be equal, no leader can easily emerge. Anthropologists’ experience of studying small would-be egalitarian groups elsewhere finds them torn by rivalry, for there is no instituted authority to make and enforce decisions. It may be that the principles of common blood and family honor produce enough solidarity to hold the Arab group intact. In other societies, the egalitarian group is prone to splitting and collapse.

Equality gives free rein to competition, but when a dispute between Arabs threatens, it is possible to call in the local sage who knows the Quran and can speak with authority. The truths of revelation are objective. The Quran affords true knowledge. Uncertainty about ultimate things would have bothered no one in the early period of Arab homesteads and lineage segments competing with each other, but it could be very disturbing in conflicts between large political units. Thanks to the authority of the Quran, certainty can be acclaimed. That this religion can give decisive, authoritative answers is a largely unappreciated part of the secret of its spread over a huge part of Asia Minor, and beyond.

The Arab culture is particularistic; the Islamic religion, however, is universal, not concerned with differences of tribe or clan. Allen sees some confusion resulting from this. The main problem with Arab culture arose when a modern political leader could assume a monopoly of religious authority. With God behind him, and with the unprecedented power and wealth of industrial capitalism supporting him, nothing can restrain the oppressive sheikh or caliph or king. There is no functioning constitutional structure to balance one source of power against another. Small clan units are helpless to circumvent a powerful oppressor.

Nonetheless, Allen inveighs against Western attempts to push Arabs toward the voting booth and other appurtenances of Western democracy. How much better, in his view, if the Arabs could renew their own ancient democratic and egalitarian traditions.

Turning to Rosen: By his definition culture is the outcome of the human “capacity to make categories.” He asserts that this basic capability, allied with a drive for conceptual consistency, is what endows the world with meaning. Further, he claims that “culture” (in this sense) must have preceded our “becoming human.” He supposes that having culture originally gave our Paleolithic forbears the selective advantage that enabled Homo Sapiens to evolve. “This capability, having largely replaced instinct, came before—and was instrumental in creating—the animal we have become.” The paleontologists I consulted were puzzled by the phrase “capacity to make categories.” If culture means the capacity to recognize and remember different kinds of things, most animals could then be said to have culture, so Rosen’s claim would be either trivial or wrong.

But Rosen is not tilting at windmills. He is rather tilting at some distinguished targets: H.L.A. Hart and Ronald Dworkin believe that “truly correct answers by a right-minded adjudicator are not only possible but requisite.” This uncovers a lot of issues on which lawyers will wish to argue. On Rosen’s side, Stanley Fish claims that it is in its own interest that law continually tries to “present itself as a discourse which is context independent in its claims to universality and reason.” Rosen is wary of any such claims. For him, it is culture that makes facts—law is the creature of culture, and law fabricates facts—so there can be no truly correct answers. Rosen’s theory of knowledge is radically constructivist and consensual. So boldly put, his skepticism is dizzying. He needs some philosophical support, and for this he quotes Alfred North Whitehead’s Adventures in Ideas (1933):

In the study of ideas, it is necessary to remember that insistence on hard-headed clarity issues from sentimental feeling, as it were a mist, cloaking the perplexities of fact. Insistence on clarity at all costs is based on sheer superstition as to the mode in which the human intelligence functions. Our reasonings grasp at straws for premises and float on gossamers for deductions.

The lines that mock “clarity at all costs” chime with Rosen’s rejection of absolutisms. But the last sentence might seem to give his critics license to dismiss his premises and deductions. He is not afraid of that: The same sentence gives him license to brush off their objections as mere straws and gossamers. But with that he can be charged with nihilism. It means that conversation is impossible, argument is pointless, anything said can mean anything at all. It sounds to me as if he is caught in the nihilist trap. But he has a method for escape: By enriching his arguments with fascinating case histories, he entices us into his world. Everything seems consistent. In many Bantu languages, Rosen points out, the word for “to believe” is translated as “to assent.” We have no trouble assenting to his stories. They are consistent and they respond to what he calls our natural drive for coherence.

For example, take the idea he rejects, that the law’s function is to reveal the true facts of a case. For Rosen, facts are not there to be discovered; each society makes its own facts. He gives us many ancient and exotic illustrations of methods of establishing facts by law, such as trial by ordeal, collective oaths and torture. Cultural pressures have eliminated these procedures, but in modern times there are inevitably some baffling moments. American and British judges are not supposed to bring their own moral values into their decisions. For example, in death penalty cases the judge is supposed to uphold the law, whatever his own convictions. This is not at all universal. Similar conflicts arise with regard to euthanasia, deviant sexuality, abortion and many other topics that he explores.

Often the issue goes beyond the judges’ personal morality by arousing public conscience. For example, contract law seems straightforward until the contractual terms offend the moral conscience by being excessively one-sided, or harsh, or contrary to local convention. Then the contract may be annulled because it is “unconscionable.” “Unconscionability” is one of those difficult concepts that Rosen adroitly manages to set in a comparative perspective.

The idea of a contract being “unconscionable” falls right into the middle of Law as Culture’s main theme. The stories about culture in conflict with law give rise to fascinating comparisons. A case arose in Israel in which it was claimed that a contract requiring only Hebrew dates to be used on a tombstone was unconscionable. The case eventually went to the Israeli Supreme Court, where it was found indeed to be unconscionable. Practice on unfairness differs between France, England, Germany and the United States. It is a question of culture. The British courts do not like to interfere with contracts on grounds of “perceived unfairness”, a bias Rosen attributes to the long tradition of laisse faire. The French use contract law to prevent dissipation of family patrimony. German courts tend to protect the party who will suffer from an unfair differential of bargaining power. These are examples of law and culture interacting. For another, the Japanese aversion to litigation is attributed to the country’s hierarchical organization; every person is embedded in corporate groups. They don’t go to court much, but the courts force the high ranks to honor their obligations to the lower ranks, thus making the hierarchical culture work.

As it happens, Rosen knows a good deal about Arabs, having done field work in North Africa and having written several books based thereon. Throughout Law as Culture, Rosen uses examples from Arab legal thought to press his relativist, instructivist argument about the interpenetration of law and culture. What is so striking is that Rosen’s characterizations of Arab cosmology as gleaned from the Arab approach to law match perfectly Allen’s descriptions and analyses. Allen states, for example, “There is no word in Arabic for privacy. . . . What we would call a ‘private affair’ would be called a ‘personal affair.’ The sense of the personal . . . is very strong.” Says Rosen: “[T]he idea of the divisible self—one in which a person could play multiple, even contradictory roles—is unimaginable. Political power is personal, not institutional. . . . [P]roperty is conceived not as one’s relation to a thing but as a set of relationships with others as concerns a thing.” Show a Westerner and an Arab a series of photographs involving people known to the viewer, says Rosen, and the Westerner will see the photos in terms of the flow of events common to all, while the Arab will see the photos in terms of the personal relationships suggested by the photos. Exactly right, Allen would say.

Rosen stresses that any uncertainty tends to put the law under cultural pressure. Though Rosen sees law’s main function as establishing faith in an orderly universe, he pays due attention to its many areas of uncertainty. When there are problems of definition, as for instance the difficulty of defining “pornography”, culture steps in. Taking uncertainty into account, English juries are instructed to decide guilt or innocence beyond “reasonable doubt”, and many legal arguments are based on the idea of “the reasonable man.” But the meaning of “reasonable” is, of course, uncertain.

Ironically, there may be advantage in leaving important concepts poorly defined. Rosen quotes Max Gluckman saying that the “certainty of law depends on the uncertainty of its basic concepts.” He meant that poor definition allows for flexibility and gives scope for respecting local culture. Paradoxically, Rosen’s skeptical culture may have arrived at the place to which Allen sees Arab culture going. It is interesting to carry the question of beneficial uncertainty back to Allen’s account of the gradual loss of certainty in modern Arab culture. Greater ambiguity may make for flexibility, which is one of the good things he is anxious for the Arabs to rediscover, act on and preserve.

Both authors have reason to be nervous about their reception. Rosen can be sure that his extreme radical skepticism will rouse antagonism from legal critics. Allen says he knows that most Arabs won’t like his book. Their culture is proud and personal, and he does them no favor by peering into their affairs; so they will be quick to spot mistakes. Two other things are certain: Both books deserve to be widely read, and, to the surprise of both authors, no doubt, they are best read together.

Mary Douglas is professor emeritus of social anthropology at the University College London and author of Purity and Danger (1966) and Natural Symbols (1970).