ANTHROPOLOGICAL STUDY OF LAW& CULTURE AND EVOLUTION
By: Tevfik Kaan Yavru
Tags: Sociology

Anthropology is a science that studies various aspects of people living in past and present societies. It is very important for the development of law to examine the law in past societies by following up to the present. It will shed light on the present and give us many experiences. The need for justice and property rights has been preserved since ancient times. In this context, ‘decisive criteria for primitive society: low population, simple economy, weak division of labor, no writing and no state.’ The point we will examine within the framework of these is, in the anthropological study of law, is it necessary to look at the legal order and changes of primitive societies, and what is its importance? We will also examine the relevance of this research to evolution. Many different opinions have been made on this issue.

Firstly, ‘Most recent anthropological works are descriptive rather than comparative. This certainly applies to the law monographs of the 1950’s which have been heavily slanted towards studies of individual societies. There are comparative data buried in chapters of monographs such as those by Nadel, Colson, and Nader. There are, furthermore, several relevant articles that are comparative: Schneider , Harper, Gluckman, Hazard, Nader and Metzger, Schwartz and Miller, Nader, Nicholas and Mukhopadhyay. political scientist, sociologists (Schwartz and Miller), and psychologists (Bacon, Child, and Barry). Nagel’s comment about Comparative law, it’s interesting.’

‘What we need to examine first is the contribution of social control models to the study of law. ‘Paying little attention to comparing the structure of the various models of social control in a society is a contribution to the study of law. Indeed, this was one of Malinowski’s most severe criticisms of the study of jurisprudence. For him, anthropology is part of the law. Needless to say, Schapera is quite correct in chastising Malinowski for this statement since many prominent jurists such as Ehrlich, Pound, and Vinogradoff are quite aware that laws take their place among other rules of conduct. The evolutionary approach is best illustrated by Maine’s works , although Barton attempted to analyze Ifugao and Kalinga materials in terms of an evolutionary system such as postulated by Maine. Hoebel implies an evolutionary development in his societies that illustrates varying levels of economic complexity.’

‘Anthropologists are interested in what is happening, in describing a changing situation in order to understand the implications that follow from change. They are not directly concerned with the practical problems confronting new nations; that is, they are not seeking “to arrive at one truly national law”. One such study of legislation in preliterate societies is that by Pospisil (1958b), in which he records how a marriage “rule” was deliberately altered by a single individual. Pospisil’s interpretation of where change begins, however, is challenged by Leach (1959) who suggests that Pospisil was merely describing the phenomenon of fission in a segmentary society. In an earlier work Schapera (1943) notes examples of legislation by chiefs in council but as Gluckman (1965b) has noted, such materials are rare. Rheinstein (1963) comments change in Africa in the light of similar occurrences in the history of European law. Anderson (1957) describes the mechanisms used for changing Moslem law- “a divine law which as such is essentially immutable[1].’

According to Oliver Wendell Holmes, a common research tradition has never developed between law professors and anthropologists[2].

In terms of, ‘Kin selection theory posits that non– self-interested (altruistic) behavior among related individuals occurs because individuals will accept costs when the net result is an increased likelihood of transmitting shared genes to future generations. Theories of indirect reciprocity focus instead on the self-interest that is served by accruing a good reputation through altruistic behavior.[3]’ ‘While reciprocity and kin-based models appear inadequate to account for the natural selection of cooperation in humans, a compelling alternative has been proposed. Evolutionary models support the idea that strong reciprocity can maintain cooperation among genetically unrelated individuals, and studies in primates show that chimpanzees will sanction conspecifics who have directly harmed them, suggesting phylogenetic origins for normenforcement behavior. Data from behavioral economic studies provide empirical support for the critical role of punishment in enforcing norms of distributional fairness and cooperation.[4]’ ‘The widespread propagation and consistent intergenerational transmission of beliefs about appropriate behavior highlight the importance of social learning processes in promoting norm-compliant behavior. Recent evidence from human neuroimaging demonstrates the involvement of mesolimbic circuitry, particularly the ventromedial prefrontal cortex (vmPFC) and ventral striatum, in the generation of these observational learning signals[5].’ ‘Mitchell and colleagues have argued that we evaluate the state of mind of others through a process of “self-projection,” whereby another’s mental state is inferred by referencing it to a projection of our own state in that situation. Self-projective “mentalizing” engages a core network that includes the medial prefrontal cortex , temporo-parietal junction and posterior cingulate[6]’. ‘Cross-cultural data indicate that costly second- and third-party punishment is practiced across the globe, from Tanzanian villages and Amazonian rainforests to American college campuses. Worldwide, the degree of altruism present in a society is directly relatable to its punishment practices: when norms are enforced, cooperation follows. Taken together, this evidence suggests that the mechanisms of third-party punishment may be deeply ingrained in H. sapiens[1].’ Here, we talked about the criminal law as an example. But it applies to all areas of law. This is a development process that awakens from primitive societies line Homo sapiens to the present day.

‘Applying such models to the evolution of altruistic punishment leads to the prediction that people will not incur costs to punish others to provide benefits to large groups of nonrelatives. However, here we show that an important asymmetry between altruistic cooperation and altruistic punishment allows altruistic punishment to evolve in populations engaged in one-time, anonymous interactions.[2]’ These models will explain cultural evolution to us. Cooperation in bilateral relations, altruistic cooperation, Interdemic group selection, another mechanism requires asocial, lonely types, which is an illogical assumption for people, to leave behind individuals living in non-cooperative social groups. These concepts are always in confusion within each other. Altruistic punishment provides a solution to this confusion. ‘In laboratory experiments, people punish noncooperators at a cost to themselves even in one-shot interactions and ethnographic data suggest that such altruistic punishment helps to sustain cooperation in human societies. It might seem that invoking altruistic punishment simply creates a new evolutionary puzzle.[3]’ ‘Two simulation programs implementing the model were independently written, one by R.B. in Visual Basic, and a second by H.G. in Delphi.[4]’ ‘Base case parameters were chosen to represent cultural evolution in small-scale societies.[5]’ As you can see, the representation of cultural evolution also changes according to the size of societies. Although the underlying logic of altruistic cooperation and altruistic punishment is similar, it must be said that they have no evolutionary dynamics. ‘These results suggest that group selection can play an important role in the cultural evolution of cooperative behavior and moralistic punishment in humans.[6]’

Norms are the rules of a group of people that determine what is appropriate, permissible, necessary or prohibited for various members in different situations. ‘The psychological focus of cognitive-evolutionary approaches to norms gives them a fairly clear research agenda.[7]’ ‘A working hypothesis of cognitive-evolutionary approaches is that the psychological mechanisms underlying norm cognition are evolved adaptations to important selection pressures in human evolutionary history. Culture is understood as information that is transmitted between individuals and groups via behavior, rather than processes like genetic transmission (Ramsey 2013). Beliefs, preferences, norms, skills, techniques, information-containing artifacts, etc., are passed from individual to individual, and thus across populations and between generations, mainly by social learning (Mathew & Perreault 2015). Culture looms increasingly large in evolutionary explanations of human ultrasociality, i.e., our species’ ability to cooperate on a remarkably large scale[1].’ ‘The first dimension concerns a distinction between type 1 and type 2 cognitive processes made by dual processing and dual systems theories. The second dimension concerns the view that the mind is, to some degree, made up of modules. Third dimension, it should be clear how commitments along the first two dimensions could support different views about the extent to which normatively governed expectations and behavior require or are susceptible to voluntary control. The fourth and fifth dimensions are where the traditional nature/nurture debate plays out with respect to norms and normative psychology[2].’

‘If group selection is part of the explanation of the evolutionary success of cooperative individual behaviors, then it is likely that group-level characteristics that enhance group selection pressures coevolved with cooperative behaviors. Alexander (1979), Boehm (1982), and Eibl-Eibesfeldt (1982) first applied this reasoning to human evolution, exploring the role of culturally transmitted practices that reduce phenotypic variation within groups.[3]’ ‘Cooperative behaviors would thus result in advantageous alliances for those signaling in this manner, and the resulting enhanced fitness or material success would then account for the proliferation of the cooperative behaviors constituting the signal with Eric Alden Smith[4].’ There are two themes where we describe the origins of cooperation between people: (a) the importance of groups in human evolution and the power of multilevel choice; (b) the underlying dynamics of gene-culture coevolution. The principle of self-interest, like some leading researchers in evolutionary biology (Dawkins, Richard Alexander).

‘In an Anthropological Examination of Law Edward Burnett Tylor was the first scientist to argue that the subject of anthropology is culture.There is a perceived dichotomy between evolutionary explanations for behavior and social or cultural ones. Two classes of evolutionary explanation for cultural variation, ‘evoked’ and ‘transmitted’ culture should be study together.[5]’

In conclusion, the studies of anthropologists and non-anthropologists show that the anthropological study of law is undoubtedly relevant and intertwined with legal changes in societies. In this context, evolution makes the connection between the concepts we talk about. The researches we have mentioned clearly show the reason for the existence of culture and the benefit of evolution in its development. As culture gathers people together and forms the state and communities because of this gathering, we can say that it is its basis in law.