Cultural expertise and law: an historical overview

The social sciences have long avoided engaging in any systematic analysis of the use of anthropological knowledge for dispute resolution, lawmaking, and governance. In order to fill this gap, cultural expertise was defined in 2009 as the special knowledge that enables sociolegal scholars, experts in non-European laws and cultures, or, more generally speaking, cultural mediators—the so-called cultural brokers—to locate and describe relevant facts in light of the particular background of the claimants and litigants and for the use of the court. Although the definition of cultural expertise is new, its existence is not. This article adopts a historical perspective to understand why sociolegal studies have not yet developed a conceptualization that encompasses the variety of the types of engagement of social scientists, and anthropologists in particular, with conflict resolution, lawmaking, and policy making. This article explores the connection between law and culture in the history of anthropology of law since social evolutionism, and focuses in particular on the legal pluralism approach because of its interest in transcending black letter law. This article suggests that the reasons for the late conceptualization of cultural expertise lies on the one hand in the difficulty of defining the dynamics between law and culture, and on the other hand in the specific development of legal pluralism regarding the state. The undertheorization of the engagement of anthropologists with law is better understood in connection with the axiomatic binary opposition between state law and non-state law. This opposition has had a central role in the theoretical elaborations of legal pluralism since its inception. This article concludes that there is an urgent need to conceptualize and investigate cultural expertise as a field of research to comprehensively assess the contribution of sociocultural knowledge to the resolution of conflicts and governance, and proposes a broader definition of cultural expertise.