This is a preview of subscription content, log in via an institution to check access.
References
Lon Fuller, “Consideration and Form”,Columbia Law Review 45 (1945), 799, 800.
T. Arnold,Symbols of Government (New Haven: Yale University Press, 1935), 22. “When they do recognize a taboo, they condemn it, instead of realizing that such is the stuff which binds society together and makes it orderly and comfortable in its spirit.”
B. Malinowski,Crime and Custom in Savage Society (Totowa, N.J.: Littlefield, Adams & Co., 1926, 1982 ed.); M. Gluckman,Politics, Law and Ritual in Tribal Society (Chicago: Aldine, 1965), andThe Judicial Process Among the Barotse of Northern Rhodesia (Manchester: Manchester University Press, 1955, rev. ed. 1967).
See, e.g., R. Pound,Introduction to the Philosophy of Law (New Haven: Yale University Press, 1922, 1954 ed.). Also see E. Durkheim, “The Nature and Evolution of Contract”, inDurkheim and the Law, ed. S. Lukes and A. Scull (New York: St. Martins Press, 1983), 199–200.
B. Nicholas,An Introduction to Roman Law (Oxford: Clarendon Press, 1965), 61.
See, e.g., Mary Douglas,Purity and Danger: an Analysis of the Concepts of Pollution and Taboo (London: Routledge & Kegan Paul, 1966, 1984 ed.), 61. Also see generally E. W. Said,Orientalism (New York: Vintage, 1979).
E. A. Hoebel,The Law of Primitive Man (New York: Atheneum, 1974); Victor Turner,The Ritual Process (Chicago: Aldine, 1969), 8: “... certain regularities that emerged from the analysis of numerical data, such as village genealogies and censuses and records of succession to office and inheritance of property, became fully intelligible only in the light of values embodied and expressed in symbols at ritual performances.” Also see Sally F. Moore, “Legal Liability and Evolutionary Interpretation”, inLaw as Process (London: Routledge & Kegan Paul, 1978), 83–134; L. Rosen, “Equity and Discretion in a Modern Islamic Legal System”,Law and Society Review 15 (1980–1981), 217–45.
But see Moore, “Introduction”,Law as Process, supra n.7, at 1–31. Also see C. Geertz, “Fact and Law in Comparative Perspective”, inLocal Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983), 167–234.
J.M. Cullen, “Some Principles of Animal Communication”, inNon-Verbal Communication, ed. R.A. Hinde (Cambridge: Cambridge University Press, 1972), 116.
M.D. Mather, “The Treatment of an Obsessive-Compulsive Patient by Discrimination Learning and Reinforcement of Decision-Making”,Behaviour Research and Therapy 8 (1970), 315–18.
See e.g., V. Turner,The Forest of Symbols: Aspects of Ndembu Ritual (Ithaca, N.Y.: Cornell University Press, 1967), 19; D. I. Kertzer,Ritual Politics and Power (New Haven: Yale University Press, 1988), 8; R. Firth,Elements of Social Organization (London: Watts, 1951), 222; E. M. Ahern,Chinese Ritual and Politics (Cambridge: Cambridge University Press, 1981), 1.
Turner,supra n.11, at 10; Firth,supra n.11, at 222.
“Introduction”, inSecular Ritual, eds. S. F. Moore and B. G. Myerhoff (Assen, The Netherlands: Van Gorcum, 1977), 3.
Ibid. “Introduction”, in
Douglas,supra n.6, at 58.
W. Robertson Smith,Lectures on the Religion of the Semites (London: S.A. Cook, 1927), 3rd ed., esp. lectures vi–xi.
R. Benedict, “Ritual”,Encyclopedia of the Social Sciences 13 (1937), 396–397. “The rite is similarly more stable and more fundamental than the rationalizations that universally accompany it. As soon as it receives traditional form the ritual itself becomes a standard of reference; ‘from it proceed the random whys, and to it return the indeterminate therefores.’”
C. Geertz, “Religion As a Cultural System”, inThe Interpretation of Cultures (New York: Basic Books, 1973), 112; T. Jennings, “On Ritual Knowledge”,Journal of Religion 62 (1982), 116: “Ritual Knowledge is gained not by detached observation or contemplation but through action ...”
M. Mauss,A General Theory of Magic (New York: W.W. Norton & Company, 1902-03, Brain Trans. 1972, 1975 Reprint), 19. “Magic has been linked with a system of jural obligations, since in many places there are words and gestures which are binding sanctions.”
Malinowski,supra n. 19, at 93–94.
Mauss,supra n. 19, at 19. “It is true that legal actions may often acquire a ritual character and that contracts, oaths and trials by ordeal are to a certain extent sacramental. Nevertheless, the fact remains that although they contain ritual elements they are not magical rites in themselves. If they assume a special kind of efficacy or if they do more than merely establish contractual relations between person, they cease to be legal actions and do become magical or religious rites. Ritual acts, on the contrary, are essentially thought to be able to produce much more than a contract: rites are eminently effective; they are creative; theydo things.” (Emphasis in original). In light of the later work of J.L. Austin,see infra, at note 22, it is difficult to understand the distinction Mauss is trying to draw between rites which “do things” and “merely establishing contractual relations between persons” as if this were notdoing something too.
J.L. Austin, “Performative Utterances”,Philosophical Papers, eds. J.O. Urmson and G.J. Warnock (Oxford: Oxford University Press, 1961, 1970 ed.), 233;How To Do Things With Words (New York: Oxford University Press, 1962, 1965 ed.).
S. J. Tambiah, “A Performative Approach to Ritual”, inCulture, Thought and Social Action: An Anthropological Perspective (Cambridge, Massachusetts: Harvard University Press, 1985), 123–166.
See David Hume,A Treatise of Human Nature, bk. III, pt. ii, sec. 5 (Oxford: Clarendon Press, 1739, 1896 ed.), 524, “Nay, even this we must not carry so far as to imagine that one, whom, by our quickness of understanding, we conjecture, from certain signs, to have an intention of deceiving us, is not bound by his expression or verbal promise, if we accept of it.”
Ibid. See “All these contradictions are easily accounted for, if the obligation of promises be merely a human invention for the convenience of society; but will never be explain'd, if it be something real and natural, arising from any action of the mind or body.”
For discussion of characteristics of propositional meaning, see G. Frege, “Thoughts”, inLogical Investigations, ed. P.T. Geach, trans. P.T. Geach and R.H. Stoothoff (Oxford: Basil Blackwell, 1977).
See F. Stahl, “The Meaninglessness of Ritual”,Numen 26 (1979), 2.
Kertzer,supra n.11, at 69: “It is the very ambiguity of the symbols employed in ritual action that makes ritual useful in fostering solidarity without consensus”; J. Fernandez, “Symbolic Consensus in a Fang Reformative Cult”,American Anthropologist 67 (1965), 902.
Turner,The Ritual Process, supra n. 7, at 10–13. See also Arnold,supra n.2, at 44. “Legal institutions must constantly reconcile ideological conflicts, just as individuals reconcile them by shoving inconsistencies back into a sort of institutional subconscious mind.”
Barbara G. Myerhoff, “We don't wrap herring in a printed page: Fusion, fiction and continuity in secular ritual”,Secular Ritual, supra n. 13, at 199–200. “The fiction underlying ritual is twofold: first, that rituals are not made-up productions, and second, that the contradictions embraced by their symbols have been erased.”
D. Kennedy, “Form and Substance in Private Law Adjudication”,Harvard Law Review 89 (1976), 1685, 1693.
P.S. Atiyah, “Form and Substance in Contract Law”, inidem, Essays on Contract (Oxford: Clarendon Press, 1986), 93–94; P.S. Atiyah and R.S. Summers,Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Oxford: Clarendon Press, 1987).
C. G. Hempel,Philosophy of Natural Science (Englewood Cliffs, N.J.: Prentice-Hall, 1966), ch. 5.
The nature of the “normative force” of law is largely irrelevant to the themes of this paper. Legal positivists hold that the “normative force” of law depends on the expectation of sanction or punishment upon its violation. H.L.A. Hart,The Concept of Law (Oxford: Clarendon Press, 1961), 6–7. Alternative theories maintain that laws express certain norms of behaviour which are obeyed not out of fear of the sanction attendant upon their transgression, but because of certain shared beliefs about a proper code of behaviour. Lon Fuller, “Positivism and Fidelity to Law”,Harvard Law Review 71 (1958), 630.
J. R. Searle,Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969), 33–42.
Ibid., at 33.
Ibid., at 34.
Ibid.,at 33–34.
But see K. Olivecrona,Law as Fact (London: Stevens & Sons, 2nd ed., 1971), 221–222. Olivecrona rejects the view that performatives have effects independent of intentions.
Searle,supra n. 37.
Ibid., 50–53.
Ibid., 51.
Ibid.
Forms for all of these actions are conveniently provided by manufacturers of legal forms. The sale of such corporate “form kits” as Blumberg's “Black Beauty” first manufactured in the 1870's and still used today, may have played an important role in the growth of the corporate form of business. See generally R. E. Seavoy,The Origins of the American Business Corporation, 1784–1855 (Westport, Conn.: Greenwood Press, 1982); A. D. Chandler, Jr.,The Visible Hand: The Managerial Revolution in American Business (Cambridge, Mass.: Belknap Press, 1977).
See, e.g., E. A. Hoebel,The Law of Primitive Man (New York: Atheneum, 1974), 28; O.W. Holmes, “The Path of the Law”,Harvard Law Review 10 (1897), 457; S. Macaulay,Private Government (Madison: Disputes Processing Research Program of University of Wisconsin Law School, 1986), 1.
See, e.g., O. W. Holmes,The Common Law, ed. DeWolfe (Boston: Little, Brown & Company, 1881, 1963 ed.), 8; Pound,supra n. 4, at 77.
See generally R. von Ihering,Law as a Means to an End, trans. I. Husik (Boston: Boston Book Company, 1913); H.L.A. Hart,supra n.35, esp. chapters 1–3. The link of regulative rules to purposes and policies must include thecaveat that, “neither politicians nor scientists can fully, nor, often, even satisfactorily predict the consequences of legislation.” Moore,Law as Process, supra n.7, at 7. Moore makes a profound critique of the conventional self-image of law in the American legal profession as an intentionally constructed framework of social order.
See, e.g., Macaulay,Private Government,supra n.45.
For discussion of the term category mistake, see G. Ryle,The Concept of Mind (New York: Barnes and Noble, 1949), 1–20.
Lon Fuller, “Consideration and Form”,Columbia Law Review 45 (1945), 799, 801.
S.F.C. Milsom,Historical Foundations of the Common Law (Toronto: Butterworths, 1981, 2nd ed.), 250.
Ibid.
Ibid.
For instance, in Taiwan, the “chop” (or personal seal) is used instead of manual signatures to execute checks, promissory notes and other financial instruments and continues to play much the same role that the seal recently did in the West. Interestingly, business people typically keep their “chops” in safety deposit vaults, and the use of checks is not widespread among consumers. See Jane K. Winn, “Taiwan Ends Criminal Penalties for Bad Checks in Move to Reform its Financial System”,East Asian Executive Reports 8:8 (August 15, 1988), 9.
See e.g.,Danby v.Tucker, 31 W.R. 578 (1883).
This was recognized by Lord Esher inCochrane v.Moore, (1890) 25 Q.B.D. 57: “I have come to the conclusion that in ordinary English language, and in legal effect, there cannot be a ‘gift’ without a giving and a taking. The giving and taking are the two contemporaneous reciprocal acts which constitute a ‘gift.’ They are a necessary part of the proposition that there has been a ‘gift.’ They are not evidence to prove that there has been a gift, but fact to be proved to constitute the proposition that there has been a gift.”
P.S. Atiyah,The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979), 144–145.
The Statute of Frauds, which requires that written documents accompany certain types of transactions, is often given as an example of “the evidentiary function” of legal rituals. This is a mistake. The Statute of Frauds is a regulative rule, not a constitutive one. It provides a defense to action on an oral promise (the legal ritual) which is deemed waived if not affirmatively pleaded by the defendant: Atiyah,ibid., at 205–208.
Robertson Smith,supra n.16, at lectures vi–xi.
D. Hooper and K. Whyld,The Oxford Companion to Chess (Oxford: Oxford University Press, 1984), 267.
Ibid., at 145.
L. M. Friedman,History of American Law (New York: Touchstone, 2nd ed. 1985), 275–279; M. J. Horwitz,The Transformation of American Law, 1780–1860 (Cambridge, Massachusetts: Harvard University Press, 1977), ch.6; Atiyah,supra n.61.
Confucian Analects, Bk. II, Ch. 3, transl. Legge (Taipei: Southern Materials Center, Inc., 1983 ed.). “If the People be led by laws, and uniformity sought to be given them by punishments, they will try to avoid the punishment, but have no sense of shame. If they be led by ritual, they will have the sense of shame, and moreover will become good.” See also H. Fingarette,Confucius — The Secular as Sacred (New York: Harper & Row, 1972), 28.
J.G.A. Pocock, “Ritual, Language, Power: An essay on the apparent meanings of ancient Chinese philosophy”,Political Science 16 (1964), 6.
B. I. Schwartz,The World of Thought in Ancient China (Cambridge, Mass.: Belknap Press, 1985), 67–75. See also Douglas,supra n.6, at 62 (“As a social animal, man is a ritual animal. If ritual is suppressed in one form it crops up in others, more strongly the more intense the social interaction. Without the letters of condolence, telegrams of congratulations and even occasional postcards, the friendship of a separated friend is not a social reality. It has no existence without the rites of friendship. Social rituals create a reality which would be nothing without them.”)
Schwartz,supra n. 69, at 67.
Confucian Analects, Bk. II, Ch. 3,supra n. 67.
Pocock,supra n.68, at 6.
See Arnold,supra n.2, at 10–17.
M. Bloch, “Introduction”, inPolitical Language and Oratory in Traditional Society, ed. Maurice Bloch (London: Academic Press, 1975), 22.
Geertz,supra n.18, at 112.
See works citedsupra n.30.
Malinowski,supra n.20, at 13.
D. Hay, “Property, Authority and the Criminal Law”, inAlbion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon Books, 1975), 32–33. One problem with Hay's analysis is that it confuses the constitutive rules of criminal procedure with the enactment of regulatory rules by Parliament.
See e.g. M. Bloch, “Symbols, Song, Dance and Features of Articulation: Is Religion an Extreme Form of Traditional Authority?”,European Journal of Sociology 15 (1974), 55–81; Bloch,supra n. 75, at 1–28.
See B. Bettleheim,The Informed Heart (Glencoe: Free Press, 1960), 290–291 (Analysis of the Nazi ritual salute and its powerful political and psychological effectiveness in undermining dissent). Also see R. Bartlett,Trial by Fire and Water: The Mediaeval Judicial Ordeal (Oxford: Clarendon Press, 1986). (Analysis of the use of the ritual of the ordeal to consolidate the power of Charlemagne.)
Kertzer, (Many examples of use of ritual by opposition political groups); Eva Hunt, “Ceremonies of Confrontation and Submission: The Symbolic Dimension of Indian-Mexican Political Interaction”, inSecular Ritual, supra n. 13, at 124–47 (use of ritual by peasants to develop points of view opposed to ruling class).
T. Jennings, “On Ritual Knowledge”,Journal of Religion 62 (1982), 116.
Miranda v.Arizona, 384 U.S. 436 (1966).
Ibid., at 444, 478–479.
See G. M. Caplan, “Questioning Miranda”,Vanderbilt Law Review 38 (1985).
W. Gangi, “Confessions: Historical Perspective and a Proposal”,Houston Law Review 10 (1973), 1087, 1103 “...[I]n an effort to eliminate swearing contests and protect the accused from police misconduct, Miranda constructed ‘prophylactic and deterrent rules that result in the release of the factually guilty even in cases in which blotting out the illegality would still leave an adjudicative factfinder convinced of the accused's guilt.’”
Janine Roberts, “Definition, Functions, and Typology of Rituals”, inRituals in Families and Family Therapy, ed. Imber-Black, Roberts and Whiting (New York: W.W. Norton & Company, 1988), 26–33.
For a brief, though provocative, essay arguing for a reappraisal of the Warren Court, see M. J. Horwitz, “The Warren Court”,University of Chicago Law Review 55 (1988), 450, 456.
Additional information
Special Assistant Attorney General, Texas. The opinions expressed herein are those of the author and not necessarily those of the Texas Attorney General. Special thanks to Todd D. Rakoff, David Kertzer, David Park and Jane Kaufman Winn for their comments on earlier drafts of this article.
Rights and permissions
About this article
Cite this article
Winn, P.A. Legal ritual. Law Critique 2, 207–232 (1991). https://doi.org/10.1007/BF01128678
Issue Date:
DOI: https://doi.org/10.1007/BF01128678