Vol. 3, No. 4 (April, 1993)

REPRODUCTION AND SUCCESSION: STUDIES IN ANTHROPOLOGY, LAW, AND SOCIETY by Robin Fox. New Brunswick, New Jersey: Transaction Publishers, 1993.

Reviewed by William. Arens (State University of New York at Stony Brook)

The reviewer's injunction to provide readers with a clear indication of an author's primary concerns is problematic in this instance. Robin Fox, University Professor of Social Theory at Rutgers and a prolific author, provides for consideration here, four rather lengthy essays on seemingly widely varied subjects but nonetheless concerned with the complexities attending to biological reproduction and social succession. His own characterization of the book's intent, however, is straightforward: "If this book is about anything then...it is about Maine's great shift from the law of status to the law of contract..."(x). Fox's particular perspective highlights the "intractable biological givens" which surround this issue, but often go ignored.

This interest in the potential biological bases of human behavior has been Fox's consistent and, from the perspective of social anthropology, oft-considered heretical, concern for some time. What has saved him from the academic stake, and then just barely, has been his strategic ability to mute would-be accusers by also regularly providing standard ethnographic fare from different cultural landscapes. Moreover, his KINSHIP AND MARRIAGE, containing only the slightest hint of his suspect concerns, is the Bible for students. This industriousness has allowed Fox to wander afield on occasion, as in this case, while still remaining in the fold.

From a consumer's perspective, the potential problem of this latest effort is the book's topical scope. The first two essays comment on recent U.S. judicial cases focusing on an instance of contemporary Mormon polygyny, i.e. a man with more than one wife, and then the legal implications of new reproductive technologies. These excursions into the arena of plural marriages, or more properly mating arrangements, are joined in part two of the book by an anthropological analysis of ANTIGONE, and finally the biological implications of the equally mythical role (for social anthropologists, at least) of the mother's brother. This overview suggests it would be best to consider the discussions separately.

"The case of the Polygynous Policeman" came to light in Utah in 1982, when one Royston E. Potter was dismissed from his position by the authorities of Murray City for living openly in an illegal liaison: he was cohabitating with three women in violation of state law. Mr. Potter sued for reinstatement on several grounds including, the guarantees of the First Amendment, the denial of due process and privacy, and the unconstitutionality of the law forbidding polygyny. The author's interest in this case derives from his involvement as an expert witness for the plaintiff. In this capacity Fox reviewed past Supreme Court decisions in 1878 (REYNOLDS v. U.S.A.) and 1946 (CLEVELAND v. U.S.A.) which supported the law against multiple marriages as not only characteristic of African and Asiatic societies and thus "odious" to western European nations, but also, for good measure, subversive of "good order."

Fox's anthropological exercise deftly demonstrates that, historically and ethnographically, these pronouncements by the court were untrue. He notes that European society, at least for elite males, was for centuries characterized by publicly recognized multiple mating arrangements, leading eventually to our present form of serial monogamy; and that polygyny itself is or was characteristic of the vast majority of societies in every part of the world. Thus the court's argument that this custom was odious to or subversive of western culture was unfounded. Be that as it may, Mr. Potter lost his appeal on the grounds that he had failed in his sworn duties to uphold the law, even if it is demonstrably ignorant and biased.

The second case in this genre, that of Baby M, is equally bizarre, but more emotionally laden since it touches on the cultural issue of

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motherhood as opposed to marriage -- an arrangement which has fallen on bad times of late. In this well-publicized case, Fox was again an expert witness who was eventually allowed to submit his brief during the appeal process on behalf of the biological mother, Mary Beth Whitehead. At the time, Ms. Whitehead was suing to abrogate her contract to bear a child for adoption by another couple: the semen donor and thus natural father, and his wife, the would-be social mother. In the initial hearing, Ms. Whitehead failed in her attempt to secure the return of her child from the adoptive parents. The New Jersey Court ruled, in the best interests of the child (who was to be placed in an economically secure middle-class household), that a contract was a contract despite the novel nature of the arrangement.

In support of the plaintiff, Fox resorted directly to evolutionary biology. He argues for the recognition of the profound biological, chemical, emotional and social bond of motherhood that exists in every society in contrast to the investment of the biological father which is minimal. In effect, Fox suggests that the complex biological interests of the mother in her offspring should take priority over all others involved, including even the child, who can be adopted, if this is done immediately, with little or no adverse effect on its subsequent development. In this instance Fox was on the winning side as the appeals court declared the contract was invalid although custody remained with the adoptive parents. The irony here is that Fox, who has previously taken his lumps from feminists on other issues, came down firmly on the side of womanhood.

The remaining two essays, on Greek tragedy and an anthropological chestnut, are interesting and informative but hardly recommended fare for legal scholars. Nonetheless, their point about how the western state and its ideals of both loyalty and individual liberty conspire against the interests of the kinship group and thus biological relationships is well taken. In sum, this is an erudite, well-written and often fascinating series of essays by one of the most original thinkers in anthropology today. It demonstrates, as the author hopes it will, that legal anthropology can be much more than the study of courts and law in Third World societies. For this alone he earns our gratitude.