Earlier legal anthropological research focused more narrowly on conflict management, crime, sanctions, or formal regulation.
[2] The English lawyer Sir Henry Maine is often credited with founding the study of Legal Anthropology through his book Ancient Law (1861).
An ethno-centric evolutionary perspective was pre-eminent in early Anthropological discourse on law, evident through terms applied such as ‘pre-law’ or ‘proto-law’ in describing indigenous cultures.
Moreover, the 1926 publication of Crime and Custom in Savage Society by Malinowski based upon his time with the Trobriand Islanders, further helped establish the discipline of legal anthropology.
Through emphasizing the order present in acephelous societies, Malinowski proposed the cross-cultural examining of law through its established functions as opposed to a discrete entity.
Maine argued that human societies passing through three basic stages of legal development, from a group presided over by a senior agnate, through stages of territorial development and culminating in an elite forming normative laws of society, stating that "what the juristical oligarchy now claims is to monopolize the knowledge of the laws, to have the exclusive possession of the principles by which quarrels are decided."
This evolutionary approach, as has been stated, was subsequently replaced within the anthropological discourse by the need to examine the manifestations of law's societal function.
For example, within Rasmussen’s work of Across Arctic America (1927) he recounts Eskimo nith[check spelling]-songs being used as a public reprimand by expressing the wrongdoing of someone guilty.
The scale and shade of this behaviour depends on the values and beliefs held by a society deriving from implicit understandings of the norm developed through socialization.
This processual understanding of conflict and dispute became apparent and subsequently heavily theorized upon by the anthropological discipline within the latter half of the nineteenth century as a gateway to the law and order of a society.
Disputes have come to be recognised as necessary and constructive over pathological whilst the stated rules of law only explain some aspects of control and compliance.
Within the history of Legal Anthropology there have been various methods of data gathering adopted; ranging from literature review of traveller/missionary accounts, consulting informants and lengthy participant observation.
[12] This method may be safe-guarded against accusations of imposing western ideological structures as it is often an emic sentiment: for example, “The Tiv drove me to the case method…what they were interested in.
Paul Bohannan promotes the use of native terminology presented with ethnographic meaning as opposed to any Universal categories, which act as barriers to understanding the true nature of a culture's legal system.
As disputes and order began to be recognised as categories worthy of study, interest in the inherent aspects of conflicts emerged within legal anthropology.
One example of such an interest is expressed by Philip Gulliver, 1963, Social Control in an African Society in which the intimate relations between disputes are postulated as being important.
Original critiques, most notably by the AAA (American Anthropological Association), argued that cultural ideas of rights and entitlement differ between societies.
This is because such practices are about much more than a culturally established world view, and frequently develop or revive as a result of socio-economic conditions and the balance of power within a community.
More recent contributions to the question of universal human rights include analysis of their use in practice, and how global discourses are translated into local contexts (Merry 2003).
As much as the document is a product of western Enlightenment thinking, communities have the capacity to shape its meaning to suit their own agendas, incorporating its principles in ways that empower them to tackle their own local and national discontents.