EFFECTIVE METHOD AND TECHNIQUE
FOR RESEARCH ABOUT LAW AND CULTURE WITHIN SOCIETY
I Nyoman Nurjaya*
Paper presented at The 5th. Global Legal Skills International Conference conducted by the Facultad Libre (Faculty of Law) de Derecho de Monterrey, Mexico on February 25th. to 27th. 2010 in Monterrey, Mexico.
In the development of study of law and culture it is recognized that anthropologists offered more significant contribution in relation to the development of concept of law as instrument of securing social control and legal order within the dynamic life of society. Most studies with regard to the function of law as system of social control within society have primary been conducted by anthropologist (Black, 1984). In this sense, anthropologist have focused upon micro processes of legal action and interaction; they have made the universal fact of legal pluralism a central element in understanding of the working of law in society; and they have self-consciously adopted a comparative and historical approach and drawn the necessary conceptual and theoretical conclusion from this choice (Griffiths, 1986).
Hence, law has not been studied by anthropologist the only as a product of logic abstract of a group of people that mandated particular authority, but largely as a social and legal behavior of members of community (Llewellyn & Hoebel, 1941; Hoebel, 1954; Black & Mileski, 1973; Moore, 1978; Cotterrel, 1995). Law should be studied as product of social interaction which strongly influenced by other aspects of culture namely politic, economy, ideology, religion etc. In other words, law has been observed as part of culture as a whole integrally with other elements of culture (Pospisil, 1971), and studied as social process of the total system of social control maintained by society (Hoebel, 1954; Moore, 1978).
The form of law has not been the only legislation that shaped and enforced by the Government namely State law in the perspective of legal anthropology. In the life of society it could also be observed the existence of religious law and folk law, indigenous law, or customary law as legal fact within human interaction, included self-regulation or inner-order mechanism which play an urgent role mainly as tool for securing social order and social control within society. Law seeks to achieve both social order and individual protection, freedom and justice (Moore, 1978), as well as the establishment and preservation of order within community for common good, to maintain political order, insure justice and to settle conflict as well as to keep the peace (Feibleman, 1985) .
It is able to be confirmed that law as a product of culture comprises those of folk law, religious law, and State law, included self-regulation or inner-order mechanism as well, incorporate the existing morality which is made concrete and established in society in one of the three ways: through custom, through common law or precedent, and through statutory law. This is the so called legal pluralism situation within the dynamic life of society.
The paper attempts to discuss regarding method and techniques which commonly employed by legal anthropologist to conduct research about law and culture within society. I shall begin to explain part of the paper with briefly outline concerning law as product of culture, legal pluralism and legal culture that directly in line with focus of the paper that is method and techniques which have effectively been worked out for the anthropological study of law.
* Professor of Legal Anthropology Faculty of Law Brawijaya University, Indonesia (firstname.lastname@example.org)