Autonomy, interdependence, and responsibility.

• Author: Reisman, W. Michael
• Position: Response to article by Walter Otto Weyrauch and Maureen Anne Bell in this issue, p. 323

No man is an Iland, intire of it selfe; every man is a peece of the

Continent, a part of the maine . . . .(1)

If there isa cycle in jurisprudential fashions, then, after an era of Positivism, with intermittent bursts of Natural Law, it had to be time for Historicism. Historicists view law not as the product of conscious choice by a society's members, but as the outcome of a process of growth largely shaped and constrained by historical forces. As each group as its own language or dialect, each has its own unique law. Ubi societas, ibi jus. The law of each group should be allowed to grow, at its own pace and according to its own preordained genetic program, until it reaches the final stage of whatever it is supposed to be.(2) As for jurists, legislators, and erstwhile social do-gooders, Historicism has curt advice: look but don't touch.

Like other theories, Historicism has authentic insights that are indispensable to understanding law and society. In particular, by emphasizing the distinctiveness of a particular group's legal system, Historicism can reveal differences in perspective and behavior that other approaches might neglect. Weyrauch and Bell, in this fascinating and important study, have used Historicist jurisprudence to its best advantage. In examining the legal system of what they call an "autonomous group," they expose a dimension of law that Positivism handles awkwardly at best. The type of subject matter Weyrauch and Bell have selected is important and relevant. Studies of this type, far from being marginal or exotic "boutique" exercises, are central to understanding the phenomenon of law and to addressing certain urgent policy problems. I admire much of the design and execution of this article and, in particular, the moral argument for a tolerant, pluralisti democracy that animates it.

Like so many other theories, however, Historicism can overreach its insights by attempting to explain too much. Ultimately, I believe, Weyrauch and Bell collide with the inherent intellectual boundaries of the Historicist approach to law.

To those who cling to a belief in a unitary integrating society, the phenomenon of an apparently autonomous legal and political system--such as that of the Roma, the Amish, or Hasidic sects--seems like an exotic survival, or, to those prone to paranoia, like a quiescent virus within the body plitic. In fact, the phenomenon is not at all rare. Legal anthropologists, preeminently Leopold Pospisil of Yale, have demonstrated the prevalence, within the apparently unitary "nation-state," of groups with effective political and legal organizations that are independent of and substantively different from those of the state.(3) Pospisil has shown that these groups need not be proto-states nor aspire to a territorial control-sphere. Moreover, as is the case with gangs, they may work "against" the host society, even be parasitic on it.(4) While the totalitarian state seeks to delegitimize and supprerss all lesser groups, the liberal democratic state, with its commitment to maintaining a private sphere, permits ongoing consociation. Consociation, in turn, leads to the development of smaller, exclusive groups within the political boundaries of the state.

Weyrauch and Bell examine the enduring legal system of the Roma, popularly known as Gypsies. Specifically, they focus upon the Vlax Roma, the largest identifiable group of Gypsies in the United States and the subject of most of the literature on the Roma. The Romani system operates relatively invisibly to most members of the host society, but effectively shapes, holds, and polices the exclusive loyalties of the Roma, while ensuring both the group's collective survival and the transmission of its values from generation to generation.(5) Weyrauch and Bell synthesize the available body of social scientific data and supplement in with the more recent observations of Romani scholars in order to derive a picture of what they call "autonomous lawmaking" among the Roma. That picture, in turn, highlights the extent to which sholarly and public views of the Roma are based on misperceptions.

The authors are primarily interested in drawing general jurisprudential insights from their inquiry. In a number of significant ways, they succeed in developing some original and important ideas. Their scholarly contribution also has timely policy implications for an acute problem that contemporary democracies are only beginning to address systematically: how a society should relate to smaller autonomous communities within its borders. I believe, however, that there are also some problems with what they have done, how they have done it, and what they claim their exercise can teach us.

A commentary is ancillary to the principal work it addresses, and this one must be brief. Within these limits, I would like to focus on three areas of the Weyrauch and Bell analysis that, I believe, have been limited by the Historicist approach that the authors have chosen. Part I of this Comment analyzes certain methodological problems of the study. It examines the observational standpoint that Weyrauch and Bell adopt, and suggests that at times the authors fail to compensate for the special research problems that the Roma present. In addition, because Weyrauch and Bell adopt a Historicistic formula--viewing change in Romani law as organic and inexorable--they do not probe more deeply for alternative factors within Romani society that might shape the system they observe. Part II explores the key jurisprudential insights that Weyrauch and Bell draw from their study. In particular, it assesses Weyrauch and Bell's contentions that autonomous law often trumps state law and that societies accept autonomous law more readily than state law. Both observations derive from a Historicistic view of law as a felt experience rather than a conscious choice. Neither appears to have the general validity that the authors ascribe to it. Part III focuses on a policy problem that the Weyrauch and Bell study raises: how should a "host" society relate to autonomous lawmaking by smaller groups within its borders? Weyrauch and Bell do not fully address this question. In part, their analysis is constrained by the Historicist approach they choose, which limits their ability to critique the manner in which the Roma treat members of their own society.

1. Challenges of Cross-Cutural Observation

   Cross-cultural observation is difficult, not because other groups--cultures, classes, castes, tribes, language and dialect communities, religious communities, gender communities, whatever--are more complex than we are, but because each of us is profoundly shaped, at levels of consciousness so deep that we are unaware of it, by our own culture's categories. We observe others in our terms. In those terms, others can seem incomprehensible or stubbornly and maddeningly irrational. The locus classicus is surely the lament of Shaw's Professor Higgins: "Why can't a woman be like a man?"

   Legal scholars try to mitigate, if not solve, this problem by borrowing a number of tools from the social and natural sciences. One of them, the notion of "observational standpoint," may be indispensable for so much as addressing legal phenomena.

   Both the reference and content of the term "law" will vary, depending

   on whether the standpoint is that of a member of the elite or the rank-and-file,

   whether the observer is a member of the system observed

   and has internalized its folklore, myth and miranda, is an outsider or

   is on the margin. Perception of the same phenomenon may vary

   depending on the culture, class, gender, age, or crisis-experience of

   the observer. Even within the legal establishment, reference and

   content will vary depending on whether the observer is a legislator,

   a judge, a prosecutor, a juryman, a defense attorney, an accused or a

   victim. No particular standpoint is more authentic than another, but

   the scholar must be sensitive to the variations in perception which

   attend each perspective, try to disengage himself and then carefully

   determine and consistently maintain his own.(6)

   To apply these insights, would-be observers must 1) maintain a consistent observational standpoint; 2) understand themselves and the forces that operate on them; and 3) suspend, insofar as possible, their own culturally supplied categories. None of this is easy. Observers who fail to acknowledge differences in perspective cannot help but paint a distorted picture of others, if not a complete caricature.

   In all of his writings, Weyrauch has been acutely sensitive to these preliminary problems of social observation.(7) He and Bell take care to identify their standpoint. Because they appreciate how difficult it is for outsiders to grasp the views shared among members of the observed group, they rely heavily on in-group informants, some themselves social scientists. Given the extent of Romani distrust of outsiders, the Roma present unusually difficult research problems in this regard. Weyrauch and Bell resist using the word "primitive" to describe the group under observation, appreciating the intellectually distorting and corrupting superordination lurking in it. Indeed, they are quite willing to refer to certain aspects of their own native systems of law--our law--as tribal.(8)

   Though one understands what impels them here, it is difficult to escape the impression that, in trying to deal with the problem of standpoint, the authors may have "overcorrected." In identifying with the Roma, the authors only select affirmatively disposed internal observers. Curiously, no data are supplied by defectors--those who elected to leave the group, for whatever reason, and who, if sought out, could provide critical information. At times, the authors seem to go too far in their efforts to be fair. For example, the authors criticize widespread host-group perceptions of Gypsy behavior as "lawless" by suggesting that the host society draws an arbitrary line between...