Introduction: the archaeology of legal culture

In recent decades, archaeological discourse has expanded beyond earlier paradigms concerned primarily with chronology, typology, and function. Archaeologies of gender, the body, the household, childhood, ritual, magic, and sexuality, among others, have merged with more traditional interests in social processes, cultural evolution, adaptation, subsistence change, and migration, among others, to create increasingly nuanced, speculative, controversial, and hopefully more holistic, understandings of the past as it is materialized and understood in the present through the archaeological record. Yet, in a field that appears to have almost as many sub-specialties as it has practitioners, the archaeology of law, legal culture, and legal practice has been almost entirely overlooked. While many books have been written since the nineteenth century on ancient legal texts recovered from archaeological sites, known through classical literature, or documented as practice in early colonial sources (Oppert and Menant, 1877; Bühler 1886; Barton, 1901; Muss-Arnolt, 1901; Kramer, 1956; Coleman-Norton, 1960; Diamond, 1971; Avalos 1994; Tetlow, 2004), it is nearly impossible to find any books that use archaeological data as the material evidence from which to examine the nature of law in past societies, its variability in space and time, or its roles in supporting or subordinating the various agents, actors, factions, and classes that constituted the societies of the past that we study today.

In part, this may be due to a contemporary and culturally bound sense of the law as a largely abstract and almost infinite body of norms enshrined in texts and performed in state-sponsored institutional contexts to support, enforce, or punish actions between actors, and not as a body of practices leaving enduring material correlates. In Leopold Pospisil’s (1958) terms, law is generally conceived of as “rules or modes of conduct made obligatory by some sanction which is imposed and enforced for their violation by a controlling authority”. Archaeology, as a discipline more inclined to study “what was done” than “what ought to have been done” finds shallow purchase on these sheer rocks, where law itself remains an abstraction.

The anthropological study of law, however, demonstrates that laws and legal practices, of various types and with various sanctions, are found in all societies that have been studied ethnographically or ethnohistorically (Malinowski, 1926; Radcliffe-Brown, 1933; Hoebel, 1954; Redfield 1964; Bohannan, 1965; Hunt, 1997, 1998; Hunt and Gilman, 1998) and not only in states with written law codes and formally instituted courts. The definition of society itself is largely a question of law, and to the extent that this is the case for the present and the actively documented recent past, it must also have been so both in distant pasts and in less-documented near-pasts accessed primarily through the archaeological record. Then, as now, changes in what was considered legal and in how the law was prosecuted must have defined, in large part, the playing fields on which past actors and representatives of different factions, classes, and corporate groups contested or promoted the status quo, reinforced their own rights or challenged those that others claimed, and been used to shift the balance of power through legal means or extra-legal approaches – including rebellion or secession. As laws and legal culture are generally legitimated through appeals to both supernatural forces and cultural traditions, the field of law and the archaeology of law must also embrace symbolic structures of religion and memory, as those pertaining not only to individuals, groups, and their actions but also to the construction of the landscapes on which those actors lived and across which the resources that they used, consumed, and exchanged were distributed. An archaeology of law seems likely, therefore, to have great potential for integrating or intersecting many of the sub-fields that we study as archaeologists and may stand at the intersection of processual concerns with long-term structural changes and post- (and post-post-)processual interests in individuals, actors, action, symbolic systems, meaning, hegemony, and resistance.

Fortunately for us, law is not just good to think. It also has to be practised. It requires practitioners, subjects and locales. Legal culture may encode landscapes with physical structures that mark legal jurisdictions or the boundaries of law itself. Where these people, practices and places are archaeologically recoverable, then changes through time and across space in their material manifestations may provide clues to periods and regions of legal stability and instability; to the rise, consolidation and collapse of systems of law and their prosecution; and to the properties of things, places and people that were legally recognized, regulated or restricted in the past. The material correlates of law and legal practice, as so defined, should therefore provide avenues along which aspects of an archaeology of law can be explored and provisionally defined. While recognizing that certain elements of the material and immaterial past may be elusive, as in other fields of past human experience, there are nevertheless significant materials with which to work.

Six overlapping sub-fields suggest themselves as productive approaches towards a diverse archaeology of law. First, and perhaps most familiar, is the field of texts and torts. Texts preserved into later periods or acquired through archaeological and ethnohistoric investigations can provide means for understanding the normative aspects of past legal systems and the prosecution and practice of specific cases, the legally negotiated bases for agreements and mediated settlements, and the sanctions imposed to maintain agreements. However, the nature of such evidence means that this field is limited to literate states and empires or societies in contact with, and described by, such societies. Further, the immediate resonance of documentary sources with our own concepts of law-as-text may tend to give written records more force (the force of law, in fact) in our conceptions of legal practice in the past and encourage us to conclude – incorrectly, if our cues from cultural anthropology are correct – that law is isomorphic with texts and therefore only with the most complex states and imperial sociopolitical structures. Examples cited herein and in other articles in this issue argue vociferously against the tyranny of texts as the primary evidence for legal culture.

A second domain is that of law and order, including the archaeology of courts, prisons, and other institutions and places within which the law was practised, including national and regional assemblies (e.g. Pantos and Semple, 2004; Semple and Sanmark, 2013; Sanmark et al., 2013), parliaments, council houses, and scenes of political gathering or jural memorialization. The landscape configurations of elements such as these, and the processional/performative aspects they suggest, are considered in this issue by Reynolds in the context of Anglo-Saxon England. Ayala and Fitzjohn’s paper also explores this aspect of the archaeology of law by examining the physical manifestations of legal conflict between the state and the mafia in Palermo, Sicily, during recent times. A massive fortified court building, statues, imposing state-built monuments, numerous ‘spontaneous’ public memorials to assassinations, and stickers on shops pledging to end protection payments create a multi-layered physical landscape of outrage over, solidarity against, and obvious fear of the Mafia’s reach. Of particular interest to archaeologists seeking to generalize from this case is the marked contrast between imposing monuments built by the state and the ephemeral, reversible, and ultimately deniable memorials and attestations of private individuals and businesses, only the latter of which clearly demarcate the conflict in contiguous space. Brookes and Baker’s contribution to this volume uses archaeological and toponymic evidence to discern critically important, but near invisible, locations of political assembly in proximity to urban places in Anglo-Saxon England. These highlight the liminal status of legal practices that were neither solely of the town nor of the countryside, but which negotiated movement and interaction between the two sectors near the gateways that connected rural and urban life.

In prehistoric contexts, such as the transformation of Cherokee and Creek communities from Late Mississippian chiefdoms, Wesson (1998), Rodning (2002) and others have argued that the appearance of formal council houses at the hearts of late Mississippian towns represents a shift from more centralized legal practice under the control of powerful elites to the emergence of more consensual governance, legislation, and adjudication symbolized by the council house and manifest in the authority of those who gathered within it. One might argue that the formalization and standardization of such structures – recognizably different from other buildings in their communities, yet immediately recognizable as council houses to visitors from related communities – provide important archaeological evidence not only for the institutionalization of legal practice in past societies but also for the creative transformation of regional paradigms of legal culture.

The maintenance of law and order may also be approached through physical manifestations in the landscape, such as boundary markers defining the legal limits of property and trails marked by cairns that delimited legal routes of access to, and movement across, others’ land. Seminal work under way on such issues includes research by Winter-Livneh et al. (2012) on secondary burial cemeteries and boundary maintenance in the Chalcolithic Levant, Aldred’s (2008) study of land allotment and boundaries in medieval Iceland, Chadwick’s (2008a, 2008b) examination of landscapes and boundedness in northern Britain and Wickstead’s (2008) investigation of tenure, property, land division and identity in late prehistoric Dartmoor.

Principles of inclusion and exclusion guiding choices of who could be, and who could not be, buried within cemeteries may also provide information on law and order, particularly insights into legal definitions of personhood, the recognized properties of those individuals and their roles, and the rights, interests, and properties of their heirs as the organizers and facilitators of the rituals themselves. Following arguments made by Saxe (1970), Binford (1971), Chapman (1981), O’Shea (1981, 1984, 1996) and others (e.g. Renfrew and Shennan, 1982; Earle, 1991) the size and composition of populations buried in such cemeteries and the degree to which they were monumentalized or maintained may also provide information on the nature of legally recognized corporate groups whose property was thus marked out. Changes through time in the ubiquity, endurance and standardization of such markers across space may provide useful information about the degree to which the rights of the individuals who buried these dead and/or maintained boundary monuments to their properties were situationally negotiated and ephemeral or were transgenerational, obligatory and therefore potentially held the force of law. Similarly, the formalization and repetition of symbols of status within individual burials or in sub-areas of cemeteries may provide information on the legitimation of power, privilege, or authority to those so marked or bestowed upon those who buried them, legitimizing their power in the process. The spatial extent over which such practices were formalized and standardized may also provide insights into regions over which legally constituted common understandings of people and property held sway.

A third domain in the archaeology of law is crime and punishment – the material record of sites of criminal activity and of sanctioned retribution, where forensic investigations most frequently intersect with the past. A considerable body of work on relatively recent prisons and prisoner-of-war camps has exposed the nature of life within such institutions for convicts and guards, alike (Cotter et al., 1988; Bush, 2000; Starr, 2001; Casella, 2007; Mytum and Carr, 2013; Theune, 2013). However, Winters’ article in this issue on the Western Australian penal colony explores legal contexts for the design and construction of prisons there, including changes through time in the nature of punishment and the ways in which the agents charged with constructing and overseeing these facilities followed, bent, or subverted legal requirements to meet their own goals. A further and increasingly diverse corpus of research on crime and punishment has focused on execution sites and “irregular” or “deviant” burials, such as the decapitated, stoned and prone bodies explored in this issue by Gardeła and Kajkowski – perhaps the victims of crimes or the criminals themselves. Studies such as these suggest a range of opportunities for fruitful investigation, especially in combination with research on other aspects of legal culture contemporary with these burials and sites. Examples of productive holistic studies range from historic and proto-historic cases, in which documentary records as well as the archaeological contexts and contents of the burial assist in the identification of the deceased as criminals or extra-legal individuals (e.g. Carty and Gleeson, 2013), to prehistoric examples such as the individual from Narrabeen, Australia, who was speared and left to die 3,700 years ago in a fashion reminiscent of ritualized Aboriginal executions of law-breakers at the contact period (Knuckey 1991; McDonald et al., 2007). A more recent Ngarrindjeri man, whose skeleton bore evidence of his having been speared in the leg, may have suffered a less lethal form of punishment known for lesser offences (Pardoe, 2004). In a similar vein, many of the well-known bog bodies from the northern European Iron Age (including examples of earlier and later date) show indications – both direct and indirect – of killing by formulaic means and deposition in liminal environments (Brothwell, 1987): all features that can be found in the context of ‘formal’ judicial execution in many historically documented societies, although a range of interpretations is possible, including ritual sacrifice.

A pan-European survey of burial evidence for execution and mutilation, let alone one of wider geographical reach, has yet to be undertaken, despite the significant potential such studies might have for providing an additional and original perspective on the commonalities and contrasts in human behaviour in different regions across the globe.

The archaeological signature of places of judicial killing must include a consideration not only of the victims themselves, but also of evidence for the means of killing – for example, postholes and other structures such as stone pillars that supported gallows. Examples of both are known from many places, including Britain and Central Europe (Reynolds, 2009; Coolen this volume). Equally important aspects concern the relationships between killing places, administrative boundaries, liminal places, routeways, pre-existing monuments and natural places. Viewshed and visibility are also likely to be relevant factors, while toponyms can be crucial in identifying locations of judicial activity and their semiotic positions within regional cultural topologies.

In addition to places of execution and retribution, an archaeology of crime and punishment must also consider places of sanctuary, such as the contact period and late prehistoric pu’uhonua of the Hawaiian kingdom, where lawbreakers could receive absolution and be reintegrated into society (Ladd and Somers, 1985, 1986a, 1986b, 1987). Together, these rich areas for research offer opportunities for exploring the biographic records of criminals and their crimes, changing definitions of justice and locales of legal performance in relation to social complexity.

A fourth field is represented by the material record of outlaws and other individuals or groups separated by their own volition, or by legal sanctions imposed on them, from the legally constituted societies upon which they preyed and upon which they were frequently dependent. What might we hope to learn from investigating sites occupied by outlaws, bandits, pirates and rebels? Recent work on the archaeological record of pirates and piracy (Skowronek and Ewen, 2007) and on Icelandic cave sites associated in folklore with outlaws (Ólafsson, 2000, 2005; Ólafsson, McGovern, and Smith, 2006; Ólafsson, Smith, and McGovern, 2010) suggest both the promise and the difficulties of extracting information about life beyond the pale from the archaeological record. As with the case of bog bodies or one early interpretation of Ötzi, the Chalcolithic Tyrolean alpine mummy, as an outlaw (Spindler et al., 1995), they also raise important questions about equifinality and how to differentiate the record of often ephemeral, extra-legal occupations from other possible uses of marginal and hidden sites for ritual, assignations and trysts, short-term off-site activities and the concealment of stolen or protected objects (Dowd, 2007).

In addition to the archaeology of legal outcasts, rebels and bandits, Hartnett and Dawdy’s recent (2013) review of the archaeology of illegal and illicit economies draws attention to the material record of counterfeiting, smuggling, drug trafficking, black markets (see also Hauser, 2008) and prostitution (see also Seifert, 1991; Seifert, O’Brien, and Balicki, 2000; Gilfoyle, 2005; Meyer, Gibson, and Costello, 2005). The archaeology of prostitution again draws attention to blurred distinctions between legal and illicit activity given regionally and temporally shifting emphases on whether this trade was extralegal or legally regulated. Hartnett and Dawdy (2013, 46) note that archaeological signatures of standardization in the spatial organization of brothels and in the tight spatial clustering of cribs and brothels appear to correlate with attempts to regulate and zone prostitution rather than criminalize it. This points once again to the potentially powerful role of standardization as a materialized hallmark of activities integrated into, and regulated by, legal culture.

The study of outlawry and legal exclusion, therefore, provides opportunities not only to examine the nature of life beyond the margins of legal practice but also extra-legal activity existing within lawful societies – whether greasing the wheels of established institutions through tacitly accepted but unregulated practices (e.g. black markets and prostitution) or supporting shadow economies and alternative governments growing beneath the surfaces of dominant societies. Yet, examining the archaeological record of outlaws, maroons, bandits and rebels may also provide opportunities to examine the practical and symbolic aspects of oppression and resistance and to assess whether individuals or groups beyond the legal pale invert or maintain the symbolic and institutional structures of the dominant society in building their own. It may also be possible to monitor the conditions under which these locales provided contexts for the emergence of transformative opposition to the societies from which they were excluded – or simply represent places in which lives were ended in dreadful isolation or violent retribution.

A fifth subfield is the domain of regulations and standards through which the archaeology of law intersects with that of the economy and allows us to explore the interpenetration of political economies within household economics. The establishment of legal standards of value and exchange and the prosecution of violations as fraud facilitate the circulation of goods and services by creating predictable contexts for exchange, reciprocity and accumulation. Whether in the episodic context of delayed exchange among hunting-gathering or early agricultural communities, in the development of interlocking systems of commodity currencies (Skre, 2011), or in the establishment of standardized systems of weights, measures and coinage, regulation plays a critical role in the legal frameworks of exchange. As Michèle Hayeur Smith shows in her contribution to this issue, and as Unn Pedersen (2008) demonstrates in her analysis of Viking Age weight systems at Kaupang, Norway, the imposition of legal standards on commodities and systems of measurement can be assessed archaeologically through signatures of standardization spread widely and ubiquitously across the zones where regulated measures carried the force of law – even beyond the boundaries of individually, legally constituted polities. Conversely, counterfeits and altered weights call attention to illegal or political attempts to subvert systems of legal regulation (Asingh and Engberg, 2002; Gullbekk, 2011), while differences in standards of production (e.g. between contemporary medieval Icelandic and Greenlandic cloth) suggest differentiation and boundaries between interacting communities engaged in legal exchange (Hayeur Smith, in press).

A sixth and final domain of legal archaeology offered here involves property and its protection. The materiality of the archaeological record and its manifestations across landscapes, and upon the remains of people and the places (sites) they once occupied, may initially suggest that property law should provide one relatively straightforward entry point for building a theory of law through physical correlates. A fundamental question, though, is what we mean by property. Jeremy Bentham (1748–1832) argued that:

there is no such thing as natural property; it is entirely the creature of law.…The conception of property consists in a fixed and settled expectation; in the persuasion of my capacity to derive from the object, hereafter, certain advantages of a character dependent upon the nature of the case.…Property and law are born together, and would die together.… Before the laws property did not exist; take away the laws and property will be no more.

(Atkinson, 1914, 145–7)

Bentham’s definition implies that ‘property’ is not a tangible entity, but rather a conceptual expectation, reinforced by legal practices, to rights over many kinds of things - both material and immaterial.

In both western and non-western contexts, anthropologists of legal culture have documented that property, so defined, may include expectations of rights over people (e.g. rights in personem); possessions, land or chattels (rights in rem); aspects of others’ productivity (e.g. rights in uxorem or in genetricem transferred on marriage between families); and intangible cultural elements such as rights to perform specific rituals, to be honoured in specific associations, to hold specific names or titles, to perform and hold rights to specific songs, poems or incantations and so on. It may also extend to the definition of corporate groups or the legal persons with whom these rights and expectations are held and for whom, or through whom, they are defended, defined or denoted. Law thus defines the properties of things of shared interest to groups of people, while property and laws together define the shared interests and boundaries of socially defined or incorporated groups (Smith, 1975). Legal rights to properties may be enshrined in and communicated through written, oral or material forms, such as the totem poles, marked boundary trees and petroglyphs of the Gitxsan people of Canada’s north-west coast discussed by McRanor (1997).

A legal definition of property, following Bentham’s lead and that of current legal theory, thus considerably extends the use of the term beyond that found in Earle’s excellent review of archaeological concepts of ‘property’, which focuses primarily on rights to land and moveable things (Earle, 2000, 40) – property as used in common speech rather than the broader legal definition discussed above. Earle explored the use of cemeteries and other landscape features, such as field boundaries, cairns and reaves (Fleming 1988) as markers of corporate property delimiting areas of defended or legally demarcated territory. Oosthuizen, in this volume, extends Earle’s arguments about the control of land, ‘real property’, and its resources to explore whether it may be possible to identify evidence of common property and collective governance in the archaeological record of prehistoric and Roman Britain.

Prolegomena to an archaeology of law?

The examples considered above, combined with the articles offered in this issue, illuminate the promise of an archaeology of legal culture. Perhaps the greatest impediment, however, to constructing a robust archaeological study of law and legal culture is the current lack of archaeological theory regarding law and its correlates. Such a body of theory must engage with societies across regions, periods and particularly contexts outside western legal theory to establish archaeological manifestations of law in its many forms. Given the myriad aspects, definitions and theories of law that have competed for dominance within the field of legal scholarship over a span of centuries, and in the knowledge that these bedevilled anthropologists of law sufficiently in the mid-1960s that most gave up any hope of defining law itself (Nader, 1965, 6), it should come as no surprise that it is no simple matter to choose one – or even a few – definitions that would work best to guide archaeological studies or that could form a core definition usable within an archaeological theory of law and legal practice. We would argue, in fact, that a resilient and holistic perspective on the archaeological study of law will eventually have to engage with and integrate more than one theoretical perspective and more than one definition of law in order to generate new theoretical frameworks that will become relevant as our abilities to examine the domains of law and legal practice archaeologically expand beyond the temporal and spatial borders of contemporary legal systems and the contingent historical and cultural frameworks through which they were developed.

This relativistic perspective on the definition of law within an archaeological context mirrors classic debates of mid-twentieth-century cultural anthropology about whether law and legal practice could realistically be defined and delineated in non-western cultural contexts through the etic application of western definitions of law and their associated legal domains (e.g. property law, property itself, legal personhood, etc.) or whether the study of law in non-western contexts required case studies of legal practice as it was conducted within those societies in order to define legal frameworks emically and meaningfully within their own contexts and lexicons (Nader, 1965).

The authors whose work appears in this issue have largely chosen the latter approach – using the principles of historical or contemporary archaeology and the written records of the societies in question as case studies to outline the parameters of legal practice. From that, they explore the archaeological record for evidence of the materialization of those constructs on the bodies of persons, in material culture, in landscapes and in forms of memorialization. Throughout, and perhaps for the reasons outlined above, no unifying theorization of law itself or of legal practice emerges from these studies, leaving that agenda yet to be determined.

One theme, however, runs through these papers and others cited here. Whether considering punishment and retribution, regulated production, memorialization or spaces reserved for legal practice, the most robust signals of legal culture in the archaeological record are manifest through evidence of standardization in practice, ubiquity across social space and endurance through time. If each of these three axes can be seen as a continuum along which a range of measurable states are expressed and can be measured, then it may be possible to monitor changes through time in the degree to which established codes of conduct conformed more to ‘custom’ or to legally defended mandates and proscriptions. Seen in this way, the archaeological study of legal culture and legal practice may hold the potential to break through the false dichotomy of ‘custom’ and ‘law’ that has bedevilled anthropologists of law and legal scholars for generations by asking not ‘what is custom or law’, but in what contexts custom and law might coexist, how they intergraded or differentiated across social and legal borders, and under what conditions custom could become law or vice versa.

We would argue that looking at the archaeological records of historic, proto-historic and ethnographically described societies represents a first step towards building an understanding of the archaeological correlates of law and legal practice. We suggest that gaining an appreciation of variability and similarities in legal practice and concerns across time and space is crucial and that such an understanding will provide a unique, yet largely untapped, perspective on human behaviour. We would further argue that, if we are to build a resilient and meaningful archaeology of law with the potential to challenge or expand our understanding of law and legal practice, we must investigate realms beyond the written record to examine undocumented societies on the global scale. In doing so, we may learn not only ‘what it’s like to be the bad man’, but also how the creation, recreation and practice of law affected and reflected individual actions, social processes of change and stasis, and myriad symbolic understandings of the world through which law and order, resistance and rebellion have been created, legitimated and contested.

Finally, the study of law is an arena that encompasses the entire social reach of a given society. In many cases, law sits at the interface between locally determined custom and top-town imposition and, in this regard, understanding how relationships between different scales of power interacted may have much to reveal about transitions in social complexity, which in themselves exploit, develop, extend and ultimately rely upon controlled conditions.

Andrew Reynolds

University College London

[email protected]

Kevin P. Smith

Haffenreffer Museum of Anthropology, Brown University

[email protected]

Additional information

Notes on contributors

Kevin P. Smith

Kevin P. Smith is an archaeologist interested in complex societies, state formation, the archaeologies of law, ritual and fear and the archaeological signatures of integration between domestic/household and political economies. Much of his research has focused on the North Atlantic where he is interested in the dynamic processes that led from Iceland’s ninth-century colonization to the creation of a short-lived, independent Icelandic state in the mid-thirteenth century. He is Deputy Director and Chief Curator at Brown University’s Haffenreffer Museum of Anthropology and Chair of the Society for American Archaeology’s Committee on Museums, Collections, and Curation.

Andrew Reynolds

Andrew Reynolds is Professor of Medieval Archaeology at the Institute of Archaeology, University College London. His research focuses on the archaeology and landscape history of social complexity, with a particular interest in the interdisciplinary study of governance and administration in medieval societies.