Gluckman, Max (1911–1975)

Herman Maximilian (Max) Gluckman received lectures in what he referred to as orthodox jurisprudence, but he did not graduate with a full legal training. His professional expertise was in social anthropology, which he studied first at the University of Witswatersrand (Johannesburg) and later at Oxford, after which he served as a professor of social anthropology at the University of Manchester until he died. Although Gluckman made major contributions in several areas of social anthropology, he considered anthropology of law to be his major interest.

Gluckman developed his ideas on law mainly based on his ethnographic work among the Lozi of Barotseland in Zambia during the 1940s, following research among the Zulu in South Africa. Thoroughly conscious of the subordination of these societies within imperial colonial orders, Gluckman sought to explore the interconnections between imposed legal systems and those systems that were controlled or incorporated. The hallmark of Gluckman's orientation was his effort to give authority to the legal processes of small-scale nonliterate societies (often labeled tribal, traditional, or primitive) where the law was uncodified.

Strongly influenced by the structural functionalism of social anthropology, particularly as developed by A. R. Radcliffe-Brown (1881–1955), Isaac Schapera (1905–2003), and Edward Evans-Pritchard (1902–1973), Gluckman stressed placing legal processes within their larger social and political context. He united a concern with the particular social processes surrounding specific judicial court cases and the more abstract juridico-moral codes or values of customary practice (ordinary expectations of action, in relation to which Gluckman invoked the concept of “the reasonable man”). Gluckman maintained that the larger systemic frames of the law came into focus through particular applications. Further, he held that the inherent ambiguities in legal codes were crucial to the flexibility of legal systems (as the system became manifest through the particular case) and to the durability of legal and moral principles over time.

Gluckman criticized certain theorists of the law, such as Benjamin Cardozo (1870–1938), whom he claimed misconceived the importance of contradictions and uncertainties embedded in the law, which Gluckman considered were vital to the legal process. Gluckman stressed the functional importance of apparent inconsistencies and uncertainties in the law. He demonstrated his arguments through a comprehensive discussion of Lozi court (kuta) cases against the background of an extensive knowledge of Lozi society.

The work of Sir Henry Maine (1822–1888) strongly influenced Gluckman, who adopted his distinction between legal systems based in status and those centered in contract, but Gluckman eschewed Maine's evolutionism. Small-scale, largely nonliterate societies such as the Lozi had what Gluckman called “multiplex social relations,” where persons are at the center of a density of close-knit overlapping rights and responsibilities that are often in conflict. He distinguished this from larger-scale societies, such as those in industrial Europe and America, where there is a greater differentiation and separating out of such rights and responsibilities.

Such distinctions related to key differences in legal systems. For example, Gluckman claimed that in smallscale societies such as the Barotse, of relatively undifferentiated and overlapping multiplexity, there was likely to be a confounding of the law of persons with the law of property. He approached comparative issues in law through his own ethnography in the context of a wide reading of other ethnographic, historical, and legal materials. He insisted that one should understand differences and similarities in legal processes with a close attention to sociopolitical orders and practices.

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