Professional Documents
Culture Documents
Legal Anthropology
T ranslated by
Philippe G. Planel
T h e A thlone Press
London
First published in Great Britain 1994 by
The Athlone Press Contents
1 Park Drive, London NW11 7SG
First published in France 1988 by
Presses Universitaires de France, Paris
as Anthropologie juridique Foreword Simon Roberts vii
Introduction 1
© Presses Universitaires de France, 1988
English translation © 1994 The Athlone Press
PART ONE
Foreword © 1994 Simon Roberts Understanding Otherness: The Western Perspective 17
Publisher’s Note 1 The Development of Legal Anthropology 19
2 The Fields of Legal Anthropology 103
The publishers wish to record their thanks to the French Ministry of 3 Methodology 136
Culture for a grant towards the cost of translation.
British Library Cataloguing in Publication Data PART TWO
A catalogue recordfor this book is availablefrom the British Library Examining Diversity: The Legal Anthropology of
Traditional Societies 151
ISBN 0 485 11403 8
1 Traditional Legal Systems 153
2 Law in Traditional Societies 181
All rights reserved. No part of this publication may be reproduced, 3 The Settlement of Disputes 255
stored in a retrieval system, or transmitted in any form or by any means, 4 Legal Acculturation 291
electronic, mechanical, photocopying or otherwise, without prior permis
sion in writing from the publisher.
Conclusion: Legal Anthropology and Metaphysics 330
Typeset by Saxon Graphics Ltd, Derby Index 336
Printed by WBC Book Manufacturers Limited, Bridgend
[f
2 Legal Anthropology Introduction 3
Whether one detects unity or plurality behind variability, social Nazi and Stalinist justice have come and gone, and they were cer
anthropology has a mission of totalization, even if the task is at tainly both founded on ‘just’ principles as far as their authors
present far from complete: fundamentally, no society is excluded, were concerned, yet they had little in common with the justice of
present or past, industrialized or ‘exotic’. Nevertheless, for histor democracies. Furthermore, these definitions generally lead to an
ical reasons, principally colonialization and the great parting of attitude which typifies the ethnocentricism of Western law: the
ways between sociology and ethnology - for which Auguste identification of law with the state.
Comte was responsible - anthropology took as its point of depar Thus conceived, the science of law could advance only through
ture the study of societies that differed from the Western model. leaving by the wayside all those societies which were then classi
The ethnographic research and theory built on these foundations fied as ‘primitive’, if not ‘barbarian’ or ‘savage’. For, if it has been
have largely focused upon ‘traditional’ societies.2 Only recently difficult for legal theorists to define their own societies, one can
have Western societies themselves become the subject of anthro readily understand why they have not tried to tackle - save by
pological study. For this reason the major part of the present excluding them - societies which differ from their own. The exis
study will concern the legal ethnography of traditional societies. tence of the state fortunately furnished them with a strong alibi,
transforming their ignorance into prejudice: law could thrive only
2 Origins and development under the influence of the state before, according to the bolder of
Legal anthropology has its origins in social anthropology, but has these theorists, it eventually withered away - a projection of the
none the less to be distinguished from its progenitor. In common golden age to come, where there were no laws or constraints.3
with social anthropology, the discipline sets itself the objective of The syllogistic identification of the law with the state thus relegat
understanding the rules of social behaviour, but emphasizes the ed non-state societies to the shadowy status of primitiveness, or
legal domain, all the while recognizing that law can never be con pre-state formation. Apart from the fact that, as we shall see, law
sidered in isolation; law is only one element in the cultural and can exist without the state, the notion of the state is itself too ill-
social whole of each society, and is variously interpreted and used defined to establish such an important epistemological distinc
by each subgroup. In the second half of the nineteenth century, tion: recent political anthropology clearly demonstrates that,
the era in which the groundwork was laid for modern anthropolo instead of distinguishing between state and non-state societies,
gy, law and anthropology seemed to be in step with each other: there is more to be gained in examining the immensely wide spec
the great anthropologists were nearly all legal scholars, or had trum extending from segmented societies, regulated by a more or
studied law. But this partnership was short-lived. Legal anthro less stable equilibrium between their constituent groups, to mod
pology, especially in France, had only a shadowy existence. The ern societies possessing a specialized and centralized governmen
responsibility for this state of affairs lies with lawyers and their tal apparatus. It would be difficult, finally, to pass over another
habits. We can begin by drawing attention to the difficulty they oft-lamented element, the conservatism of lawyers. No doubt
have encountered in defining their own discipline. Kant had there are sociological and historical reasons for this conservatism,
already stated that ‘jurists spend their time defining their concept but it also resides in cultural factors: the reverence accorded to
of law’. This preoccupation is still with us. Classic definitions - the state, the value attached to order and security as opposed to
where would students be without them? - give pride of place to conflict, the latter considered as pathological; these factors have
state sanctions, generally combined, on the moral plane, with a led many jurists to a dual idealism. To begin with, there are
search for justice. These definitions are not incorrect but they are norms: any society which does not have a clearly defined corpus
hardly sufficient. To define law by its sanction is like defining of these, cannot have a system of law. However, thanks to the
good health by illness. As for the notion of justice, this is afflicted analysis of such authors as M. Alliot and E. Le Roy, we now
with a baffling malleability as one moves from society to society: know that many traditional societies follow not so much explicit
norms as modes of behaviour, which are not necessarily met with
V ill
4 Legal Anthropology Introduction 5
sanctions. Yet these societies are anything but anarchic. The sec mind, from the outset, that this study can only imperfectly fulfil
ond idealism is the splendid isolation of law, which has reduced these objectives. There are inevitably limitations.
law to a technique: for a long period law was taught as a body of The first limitation is of a material nature. A textbook is not a
rules with a self-contained rationale and history. The perspective treatise. Many specialists will find that their appetite has only
supplied by anthropology might have had the effect of instilling a been whetted; we have had to limit ourselves to waymarking
measure of humilityj if only in drawing attention to the need to paths, and supplying bibliographies which will broaden these
carry out fieldwork. Since Malinowski (1884-1942), anthropolo avenues of inquiry.
gy is no longer studied solely in the reassuring silence of libraries: The second has to do with pedagogy. This study is in the first
anthropologists must, for a period of time, directly immerse instance addressed to law students, few of whom, it may be
themselves in the society they are studying. This does not seem to assumed, have studied anthropology: thus we have had to simpli
apply to the jurist: the mutual incomprehension of theorists and fy, without, we hope, doing an injustice to the material. This
practitioners in France is a well-known fact. Yet, considered in study is the work of a French writer in the ‘Romano-civilian’ legal
isolation, neither practice nor theory is sufficient to make sense of and academic tradition.
the reality. If jurists had studied their own societies more closely, Lastly there are objective limitations: the geographically deter
no doubt they would have understood it better, realizing that legal mined parameters of the societies most commonly referred to; all
phenomena are infinitely richer than the condition to which they, the questions which will remain unanswered once this book has
too often, reduce them. been closed.
However, times change, as the publication of the current study The term ‘traditional’, which will be more closely defined in
testifies. For students of law, certitudes are gradually giving way due course, is a word which encompasses many societies, in both
to questioning, and attention is turned to legal disciplines which time and space. We have chosen the societies of sub-Saharan
used to be classed as ‘auxiliary’ (a term which, in practice, often Africa, and the Inuit (formerly known as Eskimos). Many other
meant ‘of little use’) and hardly known. Legal anthropology societies —notably those from North America, Indonesia and Asia
belongs to this latter category. In France the movement is of too - had equally valid claims on our attention, and have also been
recent an origin (it is only ten years old) for its future to be studied by legal anthropologists. However, for historical reasons,
mapped out. Its origins are, however, clearer: a crisis in state- sub-Saharan Africa has produced a considerable body of litera
based ideologies, an uncertainty felt by jurists in the face of the ture and constitutes, in France, the main area of research. As for
the Inuit, a hunter-gatherer society, they have been the object of
multiplicity and mutation of new norms, a waning of the role of
the author’s research for the last ten years, and can thus be
the written word in our systems of communication. Perhaps the
described with the most authority.
trajectories of anthropology and law will converge in the twenty-
This study is limited by the choice of its subject-matter and
first century. However, at present, legal anthropology owes its
also in the number of questions it can hope to answer. Legal
advance more to theoretical developments within social anthro
anthropology asks some questions for which, at present, there can
pology than to jurisprudence. It is, as a consequence, necessary to
be no satisfactory answers. However, no discipline can evolve
devote the first part of this book to these problems.3
without being spurred on by its own lack of certainties. This is
why, far from limiting the scope of legal anthropology to the study
3 The present study of societies which have been eclipsed by history, we believe the
This book will fall into two parts: the recognition of difference or discipline to have a future, a future which this study hopes to
otherness by Western legal anthropology; and the study of the chart.
main legal processes of traditional societies, as described by legal Finally, thanks are due to those who have been willing to read
ethnology. In making such a statement of intent we must bear in drafts of this work and have given us the benefit of their advice,
especially their doyen, J. Carbonnier.
I _L
6 Legal Anthropology Introduction 7
u
8 Legal Anthropology Introduction 9
ing; certain of J. Poirier’s themes (in particular concerning sanc the most recent survey, L ’Etat des sciences sociales en France, ed.
tions and the prehistory of law) in ‘Introduction à l’ethnologie de M. Guillaume (Paris, La Découverte, 1986, 586 pp.); and, in
l’appareil juridique (1091-1110)’, have caused controversy ever particular, outstanding in its clarity and the relevance of the ques
since publication; H. Lévy Bruhl’s ‘Ethnology juridique tions raised: ‘L’Anthropologie, état des lieux’, a special issue of
(1110-1179)’, is now outdated on many points. Also edited by J. L ’Homme, 97-8 (1986): 27-343.
Poirier are Ethnologie régionale, Vol. 1 (Paris, Gallimard, 1972),
concerning Africa and Oceania, and Vol. 2 (Paris, Gallimard,
6 Literary works and films
1978), concerning Asia, the Americas and the Mascarene islands; In association with these specialist works, the student may find it
three other volumes were to appear, among them Histoire des
useful to turn to various literary works whose approach is equally
moeurs (Paris, Gallimard, 1990-1).
valid. On the relationship between literature and anthropology,
The following works are general essays, but are relevant: M.
see Laplantine, Clefs pour l’anthropologie, op. cit., pp. 173-80; the
Abélès, Anthropologie et Marxisme (Paris, Complexe, 1976, 240
‘Terre Humaine’ series, ed. J. Malaurie (Paris, Plon), regularly
pp.); M. Augé, Symbole, Fonction, Histoire: les interrogations de
publishes fascinating accounts, among which we may cite C.
l’anthropologie (Paris, Hachette, 1979, 216 pp.), translated into
Lévi-Strauss, Tristes Tropiques, trans. J. Weightman and D.
English as The Anthropological Circle: Symbol, Function, History
Weightman (London, Cape, 1973) on the Indians of Central
(Cambridge, Cambridge University Press, 1982); and, in particu
Brazil; and J. Malaurie, Les derniers rois de Thulé (1975, 578 pp.),
lar, M. Godelier, The Mental and the Material, trans. Martin
originally published as The Last Kings of Thule: a year among the
Thom (London, Verso, 1986), which is an outstanding contribu
Polar Eskimos of Greenland (London, Allen & Unwin, 1956), on
tion to the debate concerning the respective influences of thought
the Polar Inuit of North-West Greenland. There is also the more
and environmental constraints on social organization, citing
difficult work by M. Griaule, Dieu d’eau (Paris, Fayard, 1966,
examples from sources as diverse as classical antiquity and the
222 pp.) which demonstrates that African mythology stands up
anthropological literature in support of his arguments; this range,
well in comparison with Greek mythology. Works of fiction
in itself, is an example of the scope of anthropology.
should not be excluded. There is much of value in V. Segalen’s
Less recent sources are still valuable, such as: E. Evans-
Les Immémoriaux (Paris, Plon, 1982, 340 pp.), which narrates in
Pritchard, Social Anthropology (London, 1956); R. Lowie, Histoire
very effective style the colonization of Tahiti through the downfall
de l’ethnologie classique (Paris, Payot, 1937), translated into
of Terii, ‘chef au Grand-Parler’; P. Laburthe-Tolra has recently
English as The History of Ethnological Theory (London, Harrap,
contributed a very fine anthropological novel on the Bendzo of
1938), a survey which concludes on the eve of the Second World
the Cameroons, Le Tombeau du Soleil (Paris, O. Jakob and Le
War; M. Mauss, Manuel d’ethnographie (Paris, PUF, 1947), which
Seuil, 1986, 382 pp.); Ahmadou Kourouma casts a critical eye
devotes a chapter to an inquiry into law, and is still useful. Finally
over decolonization and the threats hanging over traditional cus
see G. P. Murdoch’s ethnographic atlas, Ethnology, 1-3 (1962-4)
toms, telling the tale of Fama, Malinké prince of the Ivory Coast,
which contains data on 628 societies, which can usefully be
and his fall from power, in Les Soleils des Indépendances (Paris, Le
compared.
Seuil, 1970, 208 pp.), translated into English as The Suns of
Independence (London, Heinemann, 1981); historical novels on
5 Anthropology in France ancient Rome and the barbarian period, include N. Rouland, Les
A number of works cover the current position: L ’Anthropologie en Lauriers de cendre (Arles, Actes Sud, 1984, 446 pp.) and Soleils
France: situation actuelle et avenir (Paris, Ed. du CNRS, 1979, 568 barbares (Arles, Actes Sud, 1987, 470 pp.).
pp.); Les Sciences de l’homme et de la société en France, ed. M. Films, too, should not be overlooked. See: J. Rouch, ‘Le Film
Godelier (Paris, La Documentation française, 1982, 560 pp.); for ethnographique’, in Ethnologie générale, ed. Poirier, op. cit.; as
_ii
10 Legal Anthropology Introduction 11
well as the list of films given in the Actes du Vie Congrès interna Anthropologist, 6, 2 (1967): 26—32; L. Nader and B. Yngvesson,
tional des sciences anthropologiques et ethnologiques, Paris, 30 juillet-6 ‘On studying the ethnography of law and its consequences’, in
août 1960, Vol. 2 (Paris, Musée de l’Homme, 1964), pp. 655-7. Handbook of Social and Cultural Anthropology, ed. J. J. Honigmann
The founder of the ethnographie film is Robert J. Flaherty, with (Chicago, Rand McNally, 1973), pp. 916-21; L. Pospisil,
his film on the Canadian Inuit, Nanook of the North (1921). Again Anthropology of Law (New York, Harper & Row, 1971), pp.
featuring the Inuit, there is K. Rasmussen’s fine film, Les Noces de 349-68 (1789-1969); N. Rouland, ‘Horizons pour l’anthropolo-
Palu, also shot earlier this century. J. Rouch’s film, Moi un Noir gie juridique’, RRJ, 2 (1984): 367-76. Other bibliographies are
(1958) has also become a classic. We must also include devoted to specific topics. First, kinship: Cresswell, ‘La Parenté’,
Souleymane Cissé’s fine film, Yeelen (1987). in Eléments d’ethnologie, Vol. 2, op. cit., above, no. 4; Robin Fox,
Biosocial Anthropology (London, Malaby, 1975); and Histoire de la
famille, ed. A. Burguière et al., 2 vols (Paris, A. Colin, 1986),
7 Legal anthropology, problems in the literature
which includes up-to-date and well-organized bibliographies. We
Once the main avenues of social anthropology have been
will now turn to the settling of disputes: P. H. Gulliver, Disputes
explored, the student may turn to legal anthropology, only to be
and Negotiations: A Cross-Cultural Perspective (New York, 1979),
confronted at the outset with a number of problems in the litera
contains an excellent bibliography; S. Roberts, Order and Dispute:
ture. The latter is not, for the most part, in French: English is the
A n Introduction to Legal Anthropology (Harmondsworth, Penguin,
main medium, and Italian and German are also useful.
1979), pp. 207-11; J. Griffiths, ‘The general theory of litigation: a
Furthermore, this literature is scattered among a number of jour
first step’, Zeitschrift fur Rechtssoziologie, 4, 1 (1983): 198—201. On
nals, from many different countries, which are not easy to con
legal pluralism, which is one of the major preoccupations of cur
sult. The same is also unfortunately true of monographs. In
rent legal anthropology: P. L. Van den Berghe, ‘Pluralism’, in
addition legal anthropology is effectively terra incognita as regards
Handbook of Social and Cultural Anthropology, ed. Honigmann, op.
the databases of information technology. Last, but not least in its
cit., above, pp. 971-7,
seriousness, no recent textbook exists at the time this is written,
Finally, some bibliographies cover legal anthropological studies
which comprehensively reviews all aspects of the discipline.
in particular parts of the world. Africa is covered by M. Lafond,
However, a number of useful aids to study do exist. We will cite
Recueil de thèses africanistes (Droit et Science politique), 1967—1984
the main ones, leaving more specific sources to the ‘further read
(Paris, Centre d’Etudes juridiques comparatives, Université de
ing sections’ at the end of each chapter.
Paris II, 1985). The work of the Dutch school in the specialist
study of traditional Indonesian law (the Adat Law School) can be
8 Legal anthropology bibliography consulted in a complete and up-to-date listing in J. Griffiths,
A number of bibliographies exist. J. Glissen, Bibliographie d’his ‘Anthropology of law in the Netherlands in the 1970s’, Niewsbrief
toire du droit et d’ethnologie juridique, has a wide geographical cov voor nederlandstalige rechtssoziologen, rechtsantropologen en rechtspsy-
erage, and has the advantage of being periodically updated, chologen [hereafter NNRJ, 4 (1983). There are also recent bibli
whereas most of the following bibliographies date from the end of ographies on some Asian countries (all the more precious since
the 1960s; they are, none the less, indispensable: Ethnologie studies of traditional law in Asia are for the present few in num
générale, ed. Poirier, op. cit. above, no. 4, pp. 1236-46 (ends in ber): see M. Chiba, Asian Indigenous Law (London and New
1965); L. Nader, K. F. Koch and B. Cox, ‘The ethnography of York, Routledge & Kegan Paul, 1986, 416 pp.). Finally there is
law: a bibliographical survey’, Current Anthropology, 7, 3 (1966): our own summary of the main legal studies of the Inuit: N.
267-94 (very complete); S. Falk Moore, ‘Law and anthropology’, Rouland, ‘L’Ethnologie juridique des Inuit: approche bibli
Biennial Review of Anthropology (1969): 295-300 (ends in 1967); ographique critique’, Etudes Inuit, 2, 1 (1978): 120-31. As we
L. Nader, ‘The anthropological study of law’, American have seen, these various bibliographies are not recent. The pre-
u
12 Legal Anthropology Introduction 13
sent author has provided regularly (since 1985) ‘Chroniques Archiv fur Rechts und sozialphilosophie, 22 (1985) (200 pp.). The
d’anthropologie juridique’ in Droits, revue française de théorie following is also of interest: R. Schott, ‘Die Funktionen des
juridique. Rechts in primitiven Gesellschàften’, in Jahrbuch fur
Rechtssoziologie und Rechtstheorie, ed. R. Lautmann, W. Maihofer
9 Overviews o f legal anthropology and H. Schelsky, Vol. I (Bertelsman Universitâtsverlag, 1970),
Amongst overviews we may cite the following. R. Thumwald, pp. 108-74. See also R. Vulcanescu, Ethnologie Juridica
Werden, Wandel und Gestaltung des Rechtes im Lichte der (Bucharest, 1970), on legal anthropology in Romania; it is in
Volkerforshung (Berlin and Leipsig, De Gruyter, 1934), now out Romanian, which makes access difficult. Finally, we should men
dated, but a considerable achievement for its day. A. S. Diamond, tion the valuable Recueils de la société Jean Bodin pour l’Histoire
The Evolution of Law and Order (London, Watts, 1951), suffers comparative des Institutions, which regularly publishes thematic
considerably from its evolutionist bias; this work was subsequent studies (La Paix, La Preuve, La Femme, La Coutume, etc.), invari
ly republished under the title Primitive Law, Past and Present ably including chapters devoted to anthropological aspects of sub
(London, Methuen, 1971); the author left the text essentially jects treated.
unchanged from the first edition of 1935 - with barely a mention
of the work of the American neo-evolutionist school; see B. S. 10 Legal anthropological periodicals
Jackson’s summary in The Law Quarterly Review, 88 (1972): There are several periodicals which are indispensable for all stu
267-70. More topical works include: E. Adamson-Hoebel, The dents of the subject. Droit et Cultures is the main French legal
Law of Primitive Man (Cambridge, MA, Harvard University anthropology periodical, published at the Université de Paris X-
Press, 1967, 358 pp.); M. Gluckman, Politics, Law and Ritual in Nanterre and edited by R. Verdier. This review first appeared in
Tribal Society (Oxford, Blackwell, 1971, 340 pp.); L. J. Pospisil, 1981 and treats themes of interest to both legal historians and
Anthropology of Law: A Comparative Theory of Law (New York, ethnologists. See also Le Bulletin de liaison de l’Association
Harper & Row, 1971, 386 pp.); The Ethnology of Law (New ‘Anthropologie et Juristique’ (founded by the Laboratoire
Haven, CT, Human Relations Area Files, 1985, 136 pp.), an d’Anthropologie juridique de Paris); the present author con
abridged and updated version of the original; F. Remotti, Temi di tributes regular summaries and chronicles of legal anthropology to
antropologia giuridica (Turin, Giappichelli, 1982, 204 pp.), and Droits. There are also several international periodicals: see Journal
also G. Mondarini Morelli, Norme e controUo sociale. Introduzione of Legal Pluralism; for the newsletters of the Commission on Folk-
anthropologica alio studio delle norme (Sassari, Iniziative culturali, Law and Legal Pluralism, an international body created in 1978 to
1980, 170 pp.), are two good introductions for students; R. which most legal anthropologists belong, see Newsletter of the
David, Les grands systèmes de droit contemporains (Paris, Dalloz, Commission on Folk-Law (Catholic University, Thomas Von
1974, 658 pp.), which unfortunately devotes very few pages to Aquinostraat 6, Postbus 9049, 6500KK, Nijmegen, the
traditional societies; A.-J. Arnaud, L ’Homme-Droit, Eléments pour Netherlands); and see the periodical Law and Anthropology, which
une anthropologie juridique (forthcoming). We should also include devoted its early issues (1986-8) to the legal status of ethnic
a recent work which demonstrates the dynamism of the Dutch minorities. Other periodicals also from time to time publish arti
school: Anthropology of Law in the Netherlands, ed. K. Von Benda- cles on legal anthropology: Droit et Société (cf. in particular no. 5
Beckman and F. Strijbosch (Dordrecht, Foris Publications, (1985), a special issue on legal anthropology); Law and Society
1986). German studies tend to be philosophical in inclination; see Review; American Anthropologist; Zeitschrift für verglichende
E. J. Lampe, Rechtsanthropologie. Eine Strukturanalyse des Rechtswissenschaft.
Menschen im Recht (Berlin, Duncker & Humbolt, 1970, 384 pp.);
also by E. J. Lampe (ed.) is ‘Beitràge zur Rechtsanthropologie’,
14 Legal Anthropology Introduction 15
11 French centres teaching legal anthropology same line: law cannot exist in Inuit society because the Inuit, in
Teaching and research, leading to doctorates in legal anthropolo common with animal societies, only display spontaneous regula
gy, in France are for the most part based in Paris: the Laboratoire tory mechanisms (cf. P. Amselec, ‘Perspectives critiques d’une
d’Anthropologie juridique de Paris, directed by M. Alliot and E. réflexion épistémologique sur la théorie du droit’ (thèse droit,
Le Roy (Université de Paris I, Sorbonne, 14, rue Cujas, 75 Paris Paris, 1964), p. 174 and n. 172).
Cedex 05); and the Centre Droit et Cultures, directed by R. Quite apart from the fact that ethnographic research contradicts
Verdier (Université de Paris X-Nanterre, 200, avenue de la the above assertions, and whilst we cannot exclude all compar
République, 92001 Nanterre Cedex). In the provinces there are isons between human and animal societies, even hunter-gatherers,
only one or two centres: the teaching of legal ethnology is offered who are furthest removed from our modem societies, belong to a
in the faculties of law of Nice and Toulouse (on the initiative of past so recent .that the gap between them and all animal societies is
J.-N. Lambert and J. Poumarède); the present author is professor much greater than any gap that separates them from us. See, on
in the faculty of law of Aix-en-Provence, where a chair in legal this point, C. Lévi-Strauss, ‘The concept of primitiveness’, in Man
anthropology was created in 1988, with a postgraduate school. A the Hunter, ed. Richard B. Lee and Irven De Vore (Chicago,
second chair in legal anthropology was created at the Université Aldine, 1975), pp. 349-50. Other authors, such as G. Burdeau,
de Paris I in 1989. argue for the infirmity of the ‘primitive’ intellect, incapable of
abstraction: ‘it would be an aberration to pretend to discover in
him [the individual] the elements, even in rudimentary form, of an
12 The slow development o f legal science intelligent act on behalf of the community . . . he cannot be sub
On the conservatism of jurists see A.-J. Amaud’s critical analysis, ject to law because the opinio necessitatis, which is one of the
Les Juristes face à la société (du XIXe siècle à nos jours) (Paris, PUF, necessary conditions of the authority of law, can only reside in an
1975, 228 pp.); and M. Miaille, Une Introduction critique au droit individual capable of understanding that he must obey a rule or
(Paris, Maspéro, 1976, 388 pp.). More recently the excellent submit himself to constraint’ (G. Burdeau, Traité de science poli
work Le Droit en procès, ed. J. Chevallier and D. Loschak (Paris, tique, vol. 1, Le Pouvoir politique (Paris, 1966), p. 51 and n. 1).
PUF, 1983, 230 pp.), convincingly exposes the illusions and Such propositions are based on erroneous premises: first, the
dead-ends which classic approaches to law produce. In the same ‘primitive’ is as capable of abstract thought as we are, but does not
vein is J. Lenoble and F. Ost, Le Droit occidental et ses présupposés necessarily use it in the same areas, just as our own societies have
épistémologiques (Brussels, Association internationale des juristes their areas of ‘savage thought’; second, an old cliché notwithstand
démocrates, Unesco, 1977). Certain recent works demonstrate ing, the individual in traditional societies is not the obtuse thrall of
new theoretical departures in law: C. Atias, Epistémologie juridique unchanging custom.
(Paris, PUF, ‘Droit fondemental’ series, 1985, 222 pp.); also by
C. Atias, Théorie contre arbitraire (Paris, PUF, 1987, 224 pp.); G.
Timsit, Thèmes et systèmes de droit (Paris, PUF, 1986, 206 pp.). 13 The idea o f the state in anthropology
The association of law with the state has sometimes led jurists - The debate concerning the link between the state and law will be
irrespective of stature - into patent error when referring to tradi one of the main areas we will consider. The student should first
tional societies. For some authors these are more ‘animal’ than clarify his or her ideas on the concept of the state by reading a few
human. Thus R. Maspétiol notes that amongst the Inuit, as with studies which establish that it is harder to define than the classic
Pygmies, Lembas and Lakas, ‘such [elementary political] struc criteria described in law textbooks would have us believe: G.
tures do not appear to be more developed than the most Balandier, Anthropologie politique (Paris, PUF, 1978, 240 pp.),
advanced and homogenous animal societies’ (R. Maspétiol, La translated into English as Political Anthropology (Harmondsworth,
Société politique et le droit (Paris, 1957), p. 3). P. Amselec takes the Penguin, 1972); also by G. Balandier, Anthropo-logiques (Paris,
16 Legal Anthropology
J
1
natural justice is not an uninterrupted strand in the history of legal 15 The foundations o f legal anthropology: Bachofen,
thought. In opposition to these sophists who believed that law McLennan, Morgan, M aine
flows from the supremacy of those who govern (the Marxist theory In the nineteenth century the birth of legal anthropology was pre
of law shares this perspective), Plato and Aristotle argued that law saged by an effervescence of new terminology: first comparative
is dictated by reason, a common attribute of all men, and should jurisprudence, then legal paleontology, finally legal archaeology, the
be qualified as ‘natural law’, to be subsequently interpreted by the term legal ethnology only appeared in 1890 in a work by Post,
law of the state. For Aristotle, and later St Thomas, to whom M. Grundriss der ethnologischen Jurisprudenz. Nomenclature aside,
Villey today adds his voice, the content of natural law is variable. 1861 was a key year in our discipline. Two works of paramount
The justice it strives to express consists of a search for equality, importance appeared in Stuttgart and London: Das Mutterrecht by
which must itself vary from society to society and over time; but in J. J. Bachofen ushered in the ethnology of kinship, a first step
all cases, whatever the degree of variation, a just act accords with rapidly followed by J. F. McLennan (Primitive Marriage, 1865)
the order of things, with nature. In contrast, the modem expo and Lewis H. Morgan (Systems of Consanguinity and Affinity of the
nents of natural law, writers of the seventeenth and eighteenth Human Family, 1871); however, it was the work of Sir Henry
centuries, gave natural law a precise and fixed content. This was James Sumner Maine, Ancient Law (1861), followed by The Early
composed of a number of guiding principles of a general nature History of Institutions (1875) and On Early Law and Custom (1883)
and codified in an enumeration of the rights of man. Many legal which really announced the birth of legal anthropology. France
anthropologists, those who stress cultural variability, find this sec remained silent during these decisive twenty years, as the lan
ond approach hard to accept, and even cast doubts on the applica guage in which the above titles are written indicates.
bility of the modern idea of a universal declaration of the rights of Maine (1822-88) united several important qualities. First as a
man. Montesquieu (1689-1755), anticipating this view, had the teacher: he was professor of civil law at Cambridge; professor of
merit of being the only thinker of his period to reject a fixed atti Roman law in London; from 1869, first professor of historical
tude towards law, and to consider societies which differed from his and comparative jurisprudence at Oxford; and, finally, professor
own. For Montesquieu law was one of the components of a of international law. He also held important administrative posts.
sociopolitical system and closely involved in its functioning. Thus He was Vice-Chancellor of the University of Calcutta, a much
law was of necessity a changeable entity, varying according to soci respected adviser to the Governor-General of India, and one of
ety, time and place. In common with some legal anthropologists those responsible for the codification of Indian law. These
today, he believed that the close relationship between law and responsibilities explain why, in his research, devoted in the main
society militated against the transfer of law from one society to to the family and property, India should have pride of place. Yet
another, unless the societies were themselves similar. We are far Maine did not limit himself to far-off societies: European law -
removed from an idealist natural law, much closer, in fact, to the and especially Irish law - are well represented. His work is shot
twentieth-century anthropologists. Montesquieu shunned the evo through with two overriding ideas. First, a three-stage theory of
lutionary stance which some twentieth-century writers have fallen the development of law: initially man believed that law was God-
foul of. For him, developments in legal systems are not marked by given and channelled through earthly rulers (Moses and the deca
historical milestones, indicating the march of progress, but depend logue); then law became identified with custom; finally, law
on much more prosaic agencies, such as the climatic conditions, acquired a separate identity. In the course of this long evolution
topography, demography, etc., of a particular society. In his recog law passed from status to contract: in the distant past, the rights
nition of the variability of law, Montesquieu is the first legal and obligations of the individual were rooted in that individual’s
anthropologist of the modem period. He was followed, a century status in the society of which he or she was a member; in modem
later, by other writers. societies, which have witnessed the increasing mobility of groups,
the freedom of the individual is expressed in the appearance of
22 Legal Anthropology The Development o f Legal Anthropology 23
legal contracts. Secondly, through his work on the worship of Bachofen, one of the first to study kinship, and some of his
ancestors, Maine attempted to demonstrate the antecedence of insights are still relevant in the anthropology of kinship. He
patrilinear descent and patriarchal society. Maine subscribed to invented the terms ‘endogamy’ and ‘exogamy’; he studied the
Darwinian evolution. For him, far-off societies are stationary and levirate, which he linked to polyandry; and in particular he drew
infantile, Europe alone having revealed itself as a dynamic force attention to methods of classifying kinship, expanded by Morgan
in the development of legal processes. in a magisterial way several years later. (See below, no. 108.)
Johann Jakob Bachofen was professor of Roman law and a Lewis H. Morgan (1818-81) is the main exponent of evolution
magistrate at Basel criminal court; he too can be identified with ist thought of the period. His principles, unveiled in Ancient Society
the evolutionist current of thought, specializing in the study of (1877), are simple and are based on criteria of technical classifica
kinship. However, unlike Maine, he believed in the anteriority of tion. Humanity passes through three stages (each itself subdivided
matriarchy - which he linked with the advent of agriculture - over into three phases): savagery (hunting and gathering; primitive
patriarchy. From antiquity onwards, many sources indicate communism); barbarism (domestication of animals, agriculture,
matrilinear filiation. Bachofen interpreted these references as metallurgy; tribal or clan ownership, patriarchal family); civiliza
‘remnants’ of a matriarchal age, itself preceded by an age charac tion (invention of writing, paper, steam, electricity; monogamous
terized by a lack of differentiation, or a stage of promiscuous family, private property, the state). In the future, according to
primitivism. These ideas found many echoes at the time, but Morgan, evolution should lead to the disappearance of private
nothing now remains of them, save in certain tenets of feminist property. This became a seminal work. However, it has not aged
thought. Ethnographic observation has never found evidence of well: it too readily established comparisons; attaching an inordi
primitive promiscuity, and few authorities even believe in the nate value to the idea of progress, Morgan made a premature
existence of matriarchy (on the other hand there are societies, attempt at synthesis. Morgan’s other main work, more technical
such as the Tuareg, where the woman enjoys a status approaching and less well known at the time, Systems of Consanguinity and
that of the man, but they are very rare). Nevertheless, Bachofen’s Affinity in the Human Family (1871), makes considerable advances
contribution to methodology is considerable. Few traditional soci in the anthropology of kinship, which had been only touched on
eties have left written sources of the kind that historians use. by his predecessors. This work is based on patient inquiry:
Shunning linguistics, Bachofen chose instead to study art and, in Morgan collected data directly from Indians, and had correspon
particular, myth. His major insight in this area was to understand dents in many parts of the world. However, yet again, these
that in most respects the narrative was a fiction, yet vehiculed an insights were an integral part of an evolutionist framework.
interior meaning designed to shed light on ‘objective reality’. Traditional societies, characterized by the rudimentary nature of
Thus legal anthropology was able to assert itself as a science capa their knowledge, are placed at the bottom of the ladder of
ble of deciphering images and symbols unconnected with the progress, whereas Western societies are placed at the top, civiliza
written word, thus shrugging off a reliance on textual interpreta tion going hand in hand with the monogamous family unit.
tion which Romanists - Mommsen in particular - had carried to a Despite this mistaken perspective Morgan is rightly ranked
degree of near perfection, but which could not avoid succumbing amongst the founders of legal anthropology.
to the dangers of abstraction. As J. Costa has written: ‘the princi
pal merit of Bachofen was to transcend the limits of the written II THE THEORETICAL CONSTRUCTS OF LEGAL ANTHROPOLOGY
word and demonstrate a simultaneity of customs with connec
tions, not only over a long time-span, but within the spatial 16 A symphony
distribution of legal systems.’ Legal anthropology is closely related to social anthropology and
John Ferguson McLennan was a contemporary of the above initially subscribed to the evolutionist current which dominated
two authors, but appears less significant. Yet he was, with
24 Legal Anthropology The Development o f Legal Anthropology 25
the social sciences throughout the second half of the nineteenth social divisions, and integration is organic and reflects such divi
century. However, evolutionism fell rapidly out of favour from the sions, the state being an institutional manifestation of social
beginning of the twentieth century onwards: Franz Boas and division. Finally, law, in establishing its independence from other
Robert Lowie were strong in their criticism, but it was Bronislaw forms of social regulation, has laid the foundations for its own
Malinowski, founder of functionalism, who made the most telling growth (a frequently cited reason for the spread of the Roman law
criticisms. A worker in the field as much as a theoretician, a is its early secularization). Once admitted, this principle remains
physicist and mathematician by training, Malinowski devoted part to be applied. This cannot be done without a clearly calibrated
of his research to legal phenomena and began a debate on the scale with well-defined criteria allowing cross-cultural compar
nature and methods of observation of legal processes in tradition isons. In the nineteenth century, evolutionist writers possessed
al societies, which ran out of steam only in the 1970s. Whilst the fairly rudimentary conceptual tools for this task. In the domain of
first attempts at theory were made at the beginning of the century, law, the most frequendy applied criteria were the transitions from
modem legal anthropology has, since the 1970s, been dominated one kind of family organization to another (as demonstrated by
by the theme of legal pluralism. As we can see, these different Maine, Bachofen, Morgan and Engels), or the classification of
theories cut across each other rather than succeed each other, societies as state or non-state. But, in this scheme, all evolution
lending a ‘symphonic’ as much as a ‘concert-like’ character to ary development should be accompanied by increasing complexi
legal anthropology. However, in the interests of clarity, it is as ty. Thus certain adaptive mutations could not be classed as
‘solos’ that we will consider these theories. evolution. A concrete example helps us understand this distinc
tion. In the nineteenth century the Amahuaca Indians (Pern)
A: The changeable nature of the legal process: evolutionism suffered raids from neighbouring tribes, to such an extent that
their very existence was menaced. As a defence against these
17 Evolution and complexity incursions, they adopted a more nomadic mode of existence in
Evolutionism may be briefly described as a theory in which all their territory, and divided into smaller encampments; their social
human societies pass through identical stages in their economic, and ceremonial organization became simpler. In this case there
social and legal development. This very general proposition has been an adaptive change, which has allowed this society to
immediately suggests a number of corollaries. better resist its neighbours, but it does not constitute evolution,
To begin with, if evolution is synonymous with change, change, since it involves a transition from the complex to the simple.
even adaptive change, does not necessarily lead to evolution, The association of evolution with increasing complexity might
because in evolutionist theory evolution is characterized by an appear to be confirmed by physical science. Our universe came
increase in complexity in the relevant institution. R.-L. Cameiro into being fifteen billion years ago. From the outset matter con
takes up, albeit in slightly modified form, H. Spencer’s definition tained within it the information necessary for its ongoing
(1862): ‘Evolution is the passage from a relatively undefined and organization, which is characterized by growing complexity - the
non-coherent homogenous state to a relatively well-defined and bonding of simpler elements, forming increasingly complex enti
coherent heterogenous state, through successive stages of differ ties, yet without any noticeable correlative increase in disorder.
entiation and integration.’ His model is a classic presentation of The universe evolves with a more or less constant rate of entropy.
the distinction between traditional and modem societies. The Since this evolution is not yet completed, there is no reason to
former are characterized by a high degree of integration of the suppose that, in the long term, humankind should not be
individual within the group and between groups, through a con replaced by a more sophisticated species. Darwin stated that it
vergence of political, religious and legal organization, and by was natural selection which determined the development and dis
mechanical integration; whereas in the latter there are marked appearance of living species. However, to establish parallels with
humankind would seem a hazardous enterprise. On the one hand
26 Legal Anthropology The Development o f Legal Anthropology 27
the time-scale is different. The universe may have existed for bil sion from the social group based on custom to the state based on
lions of years, but humankind appeared only between two and law. Law emerges as a specialized instrument with the power of
four million years ago, and we are well informed about only a tiny sanction (the appearance and development of the judiciary), from
fraction of this period. If there is evolution, then we are only at more ‘primitive’ forms where disputes are settled by those
the beginning. Furthermore, there is an important fact which involved (vengeance), to civilized societies where disputes are set
could upset the idea of humankind as an evolutionary ‘project’: tled, to an ever-increasing degree, by a third party (mediator,
setting to one side, until we have more information, the idea arbitrator, judge), whose powers increase with that party’s status
advanced by certain quantum physicists that matter can itself in the society at large. Some textbooks on the history of law echo
have some kind of existence, it remains true that, in compari this transition: the perils of private vengeance carried out by
son with the animal world, humankind stands apart in having a ‘gentes’ or feudal warriors are followed by internal peace achieved
self-knowledge and a knowledge of the universe of an altogether by the gradual substitution of the right to wage private wars with
different nature, giving it to some extent charge of its own evolu the control exercised by the city-state or the monarchic state. If
tion. Finally, it must be pointed out that there are valid grounds evolutionism is frequently encountered in the history of law, it has
for criticizing evolutionism for its notion of increasing complexity. had less influence in social anthropology, beginning its decline
There ethnocentrism lies. It is an easy step to argue from the around 1900, and all but disappearing by 1940.
transition of the simple to the complex, to the transition of the Legal evolutionist and social evolutionist theories are none the
rudimentary to the sophisticated, and finally of the primitive to less erected on the same historical base, first appearing in the
the civilized. In other words evolutionism carries a value judge eighteenth century with the breach of cyclical concepts of time.
ment of a discriminatory nature, for the notion of a diachronic Vico (1688-1774) first called this notion into question by distin
development can easily engender its counterpart, an ontological guishing, in his treatise on The New Science (1725), three stages in
hierarchy. the development of civilization (poetic; heroic; intelligent and
These arguments demonstrate how hazardous and imprecise humane). Voltaire subscribed to this current of thought, as did
notions of evolution and increasing complexity are when we try to Adam Ferguson, who in his History of Civil Society (1767) over
apply them to human societies. However, there is another level on hauled Vico’s law in identifying three stages (savagery, barbarism,
which evolutionism requires more detailed examination. Should civilization), which were to be adopted by Lewis Morgan in the
evolution be seen as rigid and unilinear, or can we assume that nineteenth century. In 1760 in La Langue des calculs, Condillac
evolution varies from society to society? summed up evolutionist thought well, as it was perceived at that
time: ‘we, who believe ourselves knowledgeable, need go amongst
18 The unilinear theory o f evolution the most ignorant peoples to find out how we began to make
Unilinear theories of evolution view human societies as a coherent progress: for it is our beginnings that we need to discern; we
and unified whole, subject to global and universal laws, through know little about them because so much time has elapsed since
which all societies must pass in phases, identical in type and in we were disciples of nature.’ More recently, the earliest theories
order of succession, dovetailing exactly with each other. ‘Savage’ of Lucien Lévy-Bruhl (to which he was to return at the end of his
societies, henceforth referred to as ‘primitive’, represent an initial life, under the influence, notably, of Bergson) bear witness to the
stage of development through which our own societies have last stand of evolutionist thought: from the ‘prelogical’ modes of
passed; thus the ‘simplest’ of these primitive societies - fish-catch thought of savage societies, with no facility for abstraction (many
ing, hunter-gathering - are an accurate reflection of prehistoric traditional societies do not indeed have an explicit legal code,
societies. Concerning political systems, evolution extends from hence the resort to a processual analysis of behaviour to describe
systems with no centre to centralized and state-based systems. their legal system: cf. below, no. 27), we arrive at civilized
Law is found in association with morality and religion; a progres thought, characterized by superior performance. Claude Lévi-
28 Legal Anthropology The Development o f Legal Anthropology 29
Strauss was able to expose the above distinction as a fallacy, occasioned surprise amongst Italian writers on law, for whom
demonstrating that both modern and traditional societies have legal ethnology was closely identified with Roman law.
recourse to abstract and rational thought, but use it in different Furthermore, a considerable body of data was collected, which
ways. In a similar vein, it was as late as 1935 that the first edition encouraged writers to prefer facts to pure speculation.
appeared of A. S. Diamond’s The Evolution of Law and Order, The first major attempt at synthesis in evolutionist theories of
which resurrected, and applied to law, Morgan’s old ternary clas law is to be found in the work of H. E. Post (although it was the
sification. However, it was the nineteenth century that witnessed Zeitschrift group which founded German legal ethnology), notably
the greatest flourishing of evolutionist thought, notably in legal in his Ethnologische Jurisprudenz,‘ published in 1893, where he
theory. stated in the opening pages: ‘When we fully understand legal eth
nology, we will have uncovered a universal system of law, an
19 Evolutionist theories of law in the nineteenth century expression of the will and power of man.’ In the two volumes of
The nineteenth century was the century of ‘cathedral-building’, to this study, Post reviews the legal systems of many societies, repre
borrow Negri’s phrase. Armed with evolutionist precepts, attempts sented thematically (marriage, succession, penal law, commercial
were made to write the comparative history of all known societies, law, etc.), and gives emphasis (though not unduly) to institutions
exotic as well as Western, linked by the constants of the same with public, rather than private, jurisdictions. Post’s work is
diachronic mechanisms. But these writers were not fieldworkers. characterized by its notion of universality: the study of all legal
They studied anthropology as if it were history, working in their institutions in all societies. This encyclopaedic vision is based on
studies from a very wide range of sources, which only accentuated a conviction: law is a universal phenomenon, therefore a unitary
their propensity to make hasty judgements, which were later to be theory is possible, for, in Post’s own words, the guiding principles
found wanting by ethnographic observation. European writers on of human law are ‘simple, grandiose and clear, like the laws gov
law were to become part of this trend. erning the stars’. He presented a system of thought which bears
In 1878 the first number of Zeitschrift fur vergleichende the mark of the Ecole Historique du Droit, the Pandects, and the
Rechtswissenschaft appeared, directed by F. Bemhoeft, G. Cohn theories of Savigny and Iehring. This consisted in the elaboration
and J. Kohler. This periodical marked the beginning of the school of a number of general principles collected together in an ideal
of comparative jurisprudence. This school set itself the task of code which lists all the possible historical manifestations of a par
widening its frame of reference in order to elaborate a general the ticular legal institution. Post enjoyed considerable prestige in his
ory of the evolution of law: the traditional study of Roman and own period, greater, in fact, in Italy than in Germany. P.
Germanic law was to be complemented by more exotic legal sys Bonfante, the great Romanist, was particularly influenced by him,
tems. The first issues were more descriptive than comparative, attempting to improve the understanding of the Roman law by
but, progressively, methodological and theoretical contributions using the information furnished by the ethnographers of tradition
became more frequent. Oriental societies were much studied; al societies.
interest in African societies developed only later. At the same Italian writers were also influenced by evolutionist thought.
time, it may be noted that contributors to the Zeitschrift showed From 1890, G. d’Aguanno set himself the task of studying the
more interest in laws than in customs and in norms than in origins of law, beginning with prehistoric societies, again using
behaviour. This bias is of course evidence that these writers found ethnographic data. In the first years of the twentieth century sev
it difficult to free themselves from the Western legal tradition. eral articles appeared in the Rivista Italiana di Sociologica which
Thus the innovative element of the contributors to the Zeitschrift reveal the same preoccupation. However, G. Mazzarella stands
was to encourage writers on law to examine systems of law that out amongst the Italian evolutionist theorists of the beginning of
were foreign to them; this, however, did not result in any devel the century. His methodology, according to A. Negri, consists of
opments in theory. The attempt was a courageous one and ‘a pathetic example of lucubration devoid of all rationality and
30 Legal Anthropology The Development o f Legal Anthropology 31
common sense, with pretensions to logical rigour and precise con 20 A critique of evolutionist legal theory
struction based on the calculation of probabilities and mathematical From the end of the nineteenth century, social anthropology
systems’. begins to leave its evolutionist proponents by the wayside. Franz
So far we have cited only German and Italian writers. What Boas (1858-1942), an American anthropologist of German ori
about France? We must concede that France continues to be gin, a specialist in Inuit and North American Indian societies,
conspicuous in its absence from the principal debates in legal denounced ‘armchair anthropologists’ and the omissions con
anthropology. Not that France lacks authorities, such as Mauss tained in their grandiose historical reconstructions, favouring
and others (see below, no. 46). But they did not produce major more modest but rigorous studies, on the basis of actual observa
theoretical syntheses. Some of Durkheim’s work is nevertheless tion of societies. He is the founder of cultural relativism: for him
worthy of mention. Remembered principally as a sociologist, he
societies are in essence diverse, because humanity inherits only its
also showed interest in traditional societies. He attempted to
marry functionalism and evolutionism. In his study De la division genetic make-up, further development depends on specific physi
du travail, he tries to understand how societies pass from a primi cal and social environments. In practice, there is little point in
tive state to modernity. The mechanical integration of primitive looking for large unitary schemes; variety rather than similarity
societies is allied with a repressive system of law. Such societies prevails.
have no division of labour, but at the very most a statutory hierarchy Albeit from a different point of departure, the diflusionist
(leaders and priests, adults, non-adults, etc.) and are characterized school also formulated, contemporaneously, a critique of unilin
by an all-embracing collective conscience. Law and morality are ear evolutionism. From 1911, Fritz Graebner elaborated the main
intertwined, and law is essentially penal law, since any threat to concepts. There are cultural complexes, a body of cultural ele
the statutory authority is perceived as a threat to the society as a ments held together by organic links. Identical cultural complexes
whole. In contrast, the organic integration of modern societies is exist in different parts of the world which may be assumed to
allied to restitutive law: since society is divided, its members ben stem from a common origin, a single cultural area (‘Kulturkreis’)
efit from their membership of a group in their dealings with the from which diffusion stemmed. The diffusionists stress the role of
wider society. The violation of legal norms is no longer regarded cultural contact in facilitating diffusion: whereas Kulturkreis repre
as a violation of the whole social order; law loses its penal character, sents the original form, the cultural complexes diffused around
it becomes divided into several parts (civil, and notably commer the world are versions mediated by borrowings from other cul
cial); penal law continues to exist, but does not develop as rapidly tures during the process of diffusion. Without rejecting the role of
as other areas of law. Law becomes, in essence, ‘restitutive’, history, dififusionism condemns the rigidity and uniformity of uni
because society is predominantly concerned with regaining the linear evolution.
equilibrium which has been disturbed by infringement of laws. As usual, legal writers took some time to react.
This theory clearly belongs to the evolutionist school: it continues An initial contribution was made by M. Schmidt in 1918 in the
to divide humanity into two categories of society, with contrasting Zeitschrift? supporting diffusionist theory. However, a full reaction
systems of law and integration. The theory also remains intensely against evolutionist thought based on the methodology of the
speculative: it exaggerates the overweening character of collective Kulturkreise came only with another article in the Zeitschrift, writ
consciousness in traditional societies, and neglects the fact, subse ten by Trimbom.3 He criticized earlier writers for dwelling on a
quently demonstrated, that all societies have both repressive and formal analysis of legal rules without taking enough note of eco
restitutive laws. nomic and sociological considerations, advocating monographs
Omissions such as these account for the decline of evolutionist which were devoted to a single society in all its aspects rather than
thought, which we will now chart. wide-ranging syntheses. The methodological concerns of
Trimbom are analogous to those of Boas, who also placed mono
graphs before syntheses.
32 Legal Anthropology The Development o f Legal Anthropology 33
It would appear that in Germany, at least, legal ethnology played that were expressed, such as those of Cerulli and Colucci,
a role in increasing the distance between ethnology and the disci opposed the evolutionist theories of Post and Mazzarella. In
pline that engendered it, namely history. This cleavage in the two France, applied anthropology was also practised; writers were
disciplines became more pronounced with the work of Thumwald,4 mainly interested in the African colonies, a trait which even today
founder of modem legal anthropology (‘Rechtsethnologie’). This dominates French legal anthropology. These writers studied cus
work countered the evolutionist theory of Post, arguing that there is tomary law: but though the first studies were carried out in 1897,
little to be gained in trying to bring together the laws of traditional they were, in effect, partial and unsatisfactory.
and modem society in one theory, for such are the differences in One would be forgiven for thinking that, confronted with this
technical knowledge and social organization that the distinctive fea dual movement, both theoretical and practical, evolutionist
ture is diversity; this also applies to the legal systems of these thought would be relegated to the past. However, even if its
societies. shortcomings were too obvious to be denied it was, nevertheless,
Through these writers we can discern a shift in theory, begin a child of its time. A number of writers, conscious of these origi
ning at the turn of the century: a rejection of universal historical nal shortcomings, resurrected these evolutionist theories and
laws as applicable to development in the legal domain; attention honed them anew.
is drawn to the diversity of legal systems rather than their unity;
there is an insistence on the quality of the methodology, well- 22 Unilinear evolutionist theories in historical perspective
researched monographs and the abandon of grandiose syntheses Towards the end of his life, Sir James Frazer made the following
for which, assuming they might one day be relevant, the time is reply to someone who asked him whether he had ever seen any of
not yet ripe. the primitive people to whom he had devoted his studies: ‘God
In line with these theoretical developments, the experimental forbid!’ Evolutionists have been taken to task for not venturing
field, namely the colonies in the case of the main European into the field. However, we must accept that at the time such an
nations, provided a setting for the development of applied idea appeared incongruous; anthropologists believed that consci
anthropology, as a reaction to the excesses of purely theoretical entious observers, whose services they retained throughout the
anthropology. world, could save them a great deal of time. The dimensions of
the task they had set themselves dictated that they could not
themselves produce monographs. Also, it is easy to criticize the
21 Applied legal anthropology obvious drawbacks of unilinear evolutionism, without mentioning
The development of applied legal anthropology is closely associat its merits. We will list a few of the latter.
ed with the availability of colonial territories. Germany found Evolutionists succeeded in tearing themselves away from the
itself in a weak position in this respect, since the Treaty of study of Roman law to contemplate the exuberant diversity of
Versailles had deprived it of colonies. Furthermore, in 1939, other legal systems. To their credit they described them as sys
under the influence of the Nazis (with whom Thumwald had tems where socioeconomic data could play an important role.
compromised himself), the editors of Zeitschrift banned all non- This hardly accorded with the ideas of the majority of legal writ
German authors. Once the war was over, there were nine years of ers at the time. We are perhaps still able to understand the emo
silence, after which German legal ethnology followed a course tion - and even the intellectual intoxication - of Bachofen when
which emphasized philosophical and methodological questions. he wrote: ‘Instead of chaos, we apprehend a system; instead of
In Italy, colonial conquests, especially in Somalia, gave scope for the arbitrary, we recognize necessity.’ In fact, he was the founder
writers to undertake fieldwork, mainly orientated towards the of comparative law, which Maine was to teach twenty years later
acculturation of indigenous societies and the workings of colonial at Oxford. We should also note that, despite its errors, evolution
administration. Theoretical considerations were rare, and those ism is not to be confused with racism, to which it is opposed: cul-
34 Legal Anthropology The Development o f Legal Anthropology 35
tural differences are not congenital or irremedial, they are caused of evolutionary stages (thus the Inuit have in essence passed
by differences in technology and economic factors. directly from hunter-gathering to modernity). Yet the general
direction of evolution is revealed in the increase of legal norms
23 The neo-evolutionists and procedures involving disputed claims, and in the settling of
Attacked from a variety of different theoretical standpoints, evolu conflict. Hoebel does not argue that societies with ‘minimal law’
tionist theory did not reappear until 1943, when it adopted a should be considered as qualitatively ‘inferior’ to others. Thus in
more elaborate guise.5 A few years later, Julian Haynes Steward general terms, the most primitive societies, such as hunter-gather
suggested the concept of multilinear evolution of which Maine ers, have little law, not because they are more anarchic than civi
had been a precursor: the observation of unrelated societies is lized societies, but simply because they have less need for law.
used to identify certain common features in cultural change. Their greater homogeneity and the fact that relations are face to
However, in contrast to unilinear evolutionists, he believed that face mean that conflict is rarer, and recourse to law less frequent.
universal laws could not be deduced from such parallels. In 1963, In fact law begins to develop only with the advent of agriculture.
Cameiro, who contested this restriction, introduced the concept Legal norms are more explicit, more detailed and greater in num
of differential evolution: each society facilitates the evolution of ber; the task of administering the resulting sanctions passes from
the elements which make up its cultural system - including law - kin to society and its representatives, public law emerges.
to varying degrees and following a different measure; again this Finally, the political scientist J. W. Lapierre may be cited in the
had been foreshadowed by Tylor in 1871. Furthermore, dealing context of the above studies. According to Lapierre the state is
with an important omission of nineteenth-century authors, the part of an evolutionary process which does not always have the
neo-evolutionists strove to develop precise indicators of cultural same form, yet is none the less the response to a common deter
change: in 1956 Naroll developed an ‘index of social development’; mining factor. Societies with a specialized political system, differ
in 1963 Cameiro created an ‘index of cultural accumulation’, entiated to the degree which we associate with the state, are
where law is represented alongside other indices, quantifiably tab societies which were confronted with the imperative of change.
ulated and expressed graphically and numerically. We may note This may have been due to a number of factors, internal or exter
that the presentation of these tables clearly portrays and gives nal. These societies were able to adapt to this imperative in
pride of place to one of the key ideas of evolutionist thought, achieving the considerable innovation of state formation: but not
which is as questionable as ever, namely that there are more and all societies succeeded, and those which failed have disappeared.6
less developed societies. In fact the mathematical character of In contrast to Clastres, Lapierre does not believe the state is a
these graphs should leave no one under any illusions: they are scourge, but on the contrary a product of adaptation and change.
underpinned by an ideology which is not only classificatory, but In our view these neo-evolutionist theories show considerable
hierarchical. refinement when compared with those advanced in the nineteenth
The neo-evolutionist writer most closely associated with law is century. It cannot be denied that all societies change, that muta
E. Adamson-Hoebel who in The Law of Primitive Man, published tions are either adopted or rejected; that the form these changes
in 1954, develops his concept of the ‘trend of law’, an overview of take is variable; that they do not necessarily follow each other in a
the evolution of law. For Hoebel, there is no unilinear evolution rigid manner; that this variability does not preclude the search for
of law, but viewed globally there is, as Spencer stated, a transition general laws and comparative methodologies. All this is to the
from the simple to the complex. As regards the mode of produc credit of neo-evolutionist theory. Yet some reservations have to
tion, for example, the chronological sequence between pastoralism be made. On the one hand the very use of terms such as ‘evolu
and horticulture can be reversed (pastoralism need not necessarily tion’ and ‘increases in complexity’ perpetuates the old notion of a
precede horticulture); it will vary with prevailing ecological condi qualitative hierarchy of societies, associated with an unsustainable
tions. Moreover, not all societies have traversed the whole range philosophical position (and students should be aware that behind
36 Legal Anthropology The Development o f Legal Anthropology 37
all theorizing, robust though it may be, there lies a philosophical component parts were interconnected, led him to stress the
stance). Further, the general tenor of Hoebel’s ‘trend of law’ dependence of law on other elements, biological or cultural. He
demands closer examination. Methodologically, as we shall see, did, however, have a tendency to confuse law with what produced
Hoebel rightly stresses that law, in traditional societies, consists of it. Nevertheless, his influence on legal anthropology was seminal.
processes rather than explicit norms. But can one conclude that Processual analysis, founded on an epistemological base very dif
evolution determines not only the forms that legal phenomena ferent from the normative approach, flows naturally from his legal
take (from processes to norms), but also their quantitative growth concepts (the term ‘processual’ in this context involves the study
and qualitative complexity? Or, put another way, is it not the case of the processes involved in the settlement of disputes, whereas
that the processual method identifies legal systems in traditional jurists in the private law tradition ['privatistes’], employ the term
societies which are every bit as complex as those of modern soci in describing procedure).
eties? These questions lead us to the second major theoretical
divide in legal anthropology, a debate which lasted half a century. 25 The two paradigms: rules and processes
Normative analysis is defined as the prevailing idea of law as
B: The identifying of law: processual and normative analysis taught in countries with a civilian tradition: law consists, in
essence, of a number of explicit and written norms contained in
24 A new theory: functionalism texts and in most cases presented in codified form. Amongst
Western jurists, those belonging to the common law tradition
Bronislaw Malinowski was bom in 1884 in Cracow and, after
studying physics and mathematics, decided to devote himself to have a more flexible approach and they favour processual analy
sis; common law systems refer more often to legal precedent than
anthropology after reading the works of Frazer. The First World
War overtook him in Australia where he was studying the kinship codified law. This is no doubt one reason why the processual
systems of the Aborigines. His Austrian nationality meant intern approach, and the ‘case method’ on which it is based, have had a
greater following in the English-speaking world. Moreover, the
ment, but he persuaded the Australian government to transfer
preference expressed for norms is also reflected in the way that
this into a stay with the Aborigines, where he was to remain for a
the violation of these norms and the processes involving disputes
considerable period of time. The result of this experience was The
are- described. These are choices of a philosophical order.
Argonauts of the Western Pacific. In the following years,
Normativists believe that since social life is governed by rules,
Malinowski continued to devote much of his energy to work in
normal behaviour means conformity, and conflict may be
the field (notably in the Trobriand Islands, and Melanesia), mak
described as pathological behaviour. In general these ideas go
ing a break with deskbound anthropology. He was offered a chair
hand in hand with the affirmation that societies, in order to per
in anthropology in London and acquired British citizenship, but
petuate themselves, need centralized institutions to promulgate
made frequent trips to the United States where he decided to live
these rules, and legal instruments to sanction them. On the other
when the Second World War broke out. He died soon afterwards,
hand, those who emphasize process believe humankind co-operates
in New Haven, in 1942.
with its fellows essentially out of self-interest. When this self-inter
Malinowski was the founder of a new theory, functionalism.
est is not gratified by respecting explicit norms, either because
Two aspects of his work are particularly relevant to legal anthro
there are none, or because their observation is not sufficient to
pology. On the one hand his insistence on work in the field
resolve the problem, individuals consider these norms less impor
brought law closer to the real world: law did not reside solely in tant than the actual behaviour of their fellows, with whom they
the abstract principles of legal codes, but also in concrete phe are enmeshed in a tissue of reciprocal relationships. Far from
nomena, which could be understood by direct observation. On being a pathological state, conflict is not only a normal adaptive
the other hand his vision of society as a cultural system, whose process but even, according to P. J. Bohannan, both a necessity
38 Legal Anthropology The Development o f Legal Anthropology 39
and a practical reality: conflict is one of the elements in the evolu pect that, as if by accident, the field is narrowed down to the
tion of the individual and of humankind. It can only be regulated, West (apart from the West there are few societies, like China
not suppressed. Whilst these two paradigms indicate philosophi under the Ch’in dynasty, in 221-206 BC, or the Aztecs, who have
cal stances, they nevertheless have important legal consequences, a normative concept of law). Most traditional societies do not
as we shall see. possess such a corpus of law. We will consider a specific example.
If we asked a Comanche Indian the question ‘What rule would be
26 Normative analysis applied in the case of the abduction of a woman, taken from her
It would be a mistake to associate normative analysis solely with husband by a member of the tribe?’, it is probable that the Indian
positivist Western legal theorists. Anthropologists and sociologists would reply: ‘I don’t know. . . . But I remember that many moons
also employ this analysis. The most well-known definition is that ago, when my mother’s sister was taken from her husband by so-
of Radcliffe-Brown and Roscoe Pound: law is a form of ‘social and-so, we acted in the following manner . . .’
control which is exercised by the systematic use of the power of Finally, normative analysis suffers from a number of serious
which a politically organized society disposes’. For Hoebel, ‘a shortcomings when we attempt to apply it to societies we describe
social norm is juridical if the act of ignoring or breaching it is reg as ‘civilized’, and to those possessing a codified system of law.
ularly met, either by threats or actions, with the application of Throughout most of its history, China was dominated by
physical force by an individual or a group enjoying the acknowl Confucian thought, according to which the abstract rules of ‘Fa’
edged social privilege of behaving in this manner’. A great deal of were not usually used to describe the social order and settle dis
the research in the field carried out in the 1930s and 1940s was putes; moral precepts (‘Li’) and conciliation were considered
guided by these principles and invariably produced lists of norms more appropriate. Law was avoided and, in the main, seen as
reflecting the standpoint of civilian and common law systems. good only for barbarians (foreigners), and individual laws were
They were often used as manuals by colonial administrations, considered useful as models, not as imperatives. Even in Rome,
which sometimes acted as courts of appeal for indigenous courts. throughout the republican period, few laws were enacted. There
Yet it would be unjust thus to reduce the work of the norma- were 800 leges rogatae from the beginning of the republic to the
tivists; this would be no more than caricature. Some studies based principate, only 26 of which concerned private law. This was
on the analysis of norms are, on the contrary, the great classics of mainly regulated by reference to ancestral custom - mos maiorum
legal anthropology. This is the case with The Cheyenne Way, by - whilst most laws (leges imperfectae) applied law without equip
Llewellyn and Hoebel, and The Judicial Process among the Barotse ping it with any sanction. We also have evidence in Rome of the
of Northern Rhodesia, by Gluckman. decisive role of magistrates in the development of law: law could
However, normative analysis has grave drawbacks when it is evolve through decisions taken in a particular case. Even the cele
viewed in the context of an intercultural perspective, a properly brated Law of the XII Tables is not a code in our understanding
anthropological perspective. of the term, but rather the transcription of a number of customs.
On the one hand it excludes many societies, both centralized Furthermore, when rules took an explicit form, they were not
and uncentralized, from the field of law. Here again we are con automatically adhered to: not only did some lapse, but many were
fronted with a philosophical stance which colours our definition kept only in an irregular fashion. Finally we must note that even
of law. Depending on whether the definition is inclusive or exclu in our society where everyone is supposed to be aware of norms
sive, one can, almost at whim, limit it to ‘civilized’ societies or, on (‘Nemo censetur ignorare legem’), in practice this is far from being
the contrary, extend it to other societies. The identification of law the case: the citizen is often ignorant of the law, or is occasionally
with a corpus of abstract and explicit rules, associated with an made aware of it by the media. It follows, from these few exam
instrument of sanction and based on the repressive use of force, ples, that normative analysis cannot encompass all legal phenom
considerably reduces the field of law. It might seem slightly sus ena, and does not include all societies. An examination of the
40 Legal Anthropology The Development o f Legal Anthropology 41
work produced by the advocates of this theory shows that most of 28 Towards a synthesis
these writers (notably Gluckman and Fallers) carried out their Processual analysis offers obvious advantages. To begin with, it is
research in societies which were politically centralized and had a more appropriate, from an anthropological standpoint, for intercul-
clearly identifiable legal apparatus. This method which, it must be tural comparisons than normative analysis, and brings a number of
recognized, chooses to focus on societies which dovetail with the societies back into the realm of law. Philosophically, it is opposed
philosophical bias of writers, has its parallel in that of the advocates to the advocates of the universality of law. Also, processual analy
of processual analysis. Here the focus is on acephelous societies, sis explains change better than normative analysis, and this is
where disputes are mainly settled without recourse to law.7 such an important feature in our own period, where acculturation
is, increasingly, a dominant issue. Finally, in contrast with the
27 Processual analysis theory of ‘living law’, it allows ideal perceptions of law to be inte
In Crime and Custom in Savage Society (1926), Malinowski’s grated with practical experience of law; the judgment made in set-
thinking was a new departure from normative analysis (which had ding a conflict tends to become a model for the settling of similar
been the traditional methodology), refusing to associate law with cases in the future (our own case-law {jurisprudence] is based on
sanctions emanating from a central authority. Law should be this notion). However, whilst processual analysis permits a wider
defined according to its function, and not by its procedures. definition of legal phenomena than the normative approach, the
Malinowski stresses the function of reciprocity: the bond that is case method on which it is based cannot pretend to encapsulate
formed between individuals and groups, governing life in society, the totality of law, for law cannot be reduced to disputes. It is the
is made up of reciprocal obligations; it is the reciprocity of these case that obedience to law is the most common attitude towards
obligations which holds the society together, rather than con law: irrespective of Malinowski’s view, the individual’s concern is
straint exercised by a central authority or state. In other words, not a constant preoccupation with articulating behaviour around
the behaviour of an individual is governed more by social rela the defence of his or her own interests. A rule is obeyed because
tions than by norms and institutions. But how do we define legal experience of life or education has allowed the rule to become
behaviour? For most writers the way law is experienced and internalized, or because the sanction is feared, or because it is
applied by individuals is best understood in observing conflict. considered fair.
Law is thus better explained by process - the way conflicts are To sum up, humankind can experience law beyond conflict. We
settled - than by norms, although the latter may play a part in the agree with J.-L. Comaroff and S. Roberts (Rules and Processes,
settling of disputes. 1981), who studied the Tswana, that we have to replace the nor-
This emphasis on disputes led to the exploration of all their mative/processual dichotomy with an approach embracing both of
aspects: not only the phase in which the dispute is settled, but the the orientations we have described. Such an approach should be
history of the dispute, the nature of the relationship binding the one of synthesis. The study of norms is not without merit, not
parties, the way the dispute is settled (whether by the actors or by only from the standpoint of content, but also in the way parties in
the intervention of a mediator, a referee, or a judge), the way in a dispute perceive them and use them as a basis for negotiation in
which the decision is in practice applied or avoided, etc. the course of the dispute. Rules are more than a framework, they
Processual analysis is based on the analysis of cases, the ‘case are the stakes. We should also study why rules are applied,
method’, scrupulously collected and described. ignored, or violated. There may also be something to be gained in
observing the consequences of a dispute.
In our description of processual analysis we noted that legal
anthropology had concentrated on the concrete analysis of legal
phenomena and behaviour. As a corollary we will discover that
one system of law - usually that of the state - may conceal others.
42 Legal Anthropology The Development o f Legal Anthropology 43
Building theory on this palimpsest and its secrets has been the of evolutionism, based on a self-fulfilling principle: the more uni
aim of those anthropologists who have focused their attention on fied law becomes, the more democratic is society and the more
pluralism. civilized the state. Barret-Kriegel states, and here there is no dis
agreement, that even under absolute monarchy the power of the
state was limited by divine right, by the fundamental laws of the
C: T h e identification of law: legal pluralism
kingdom, by privileges, and, could, ‘in fine’, be challenged in the
There may be disagreement about how to define legal pluralism, name of natural law. Barret-Kriegel also notes that those who
but there is also little doubt that this is the issue presently concen criticize the state fail to make the important distinction between
trating the minds of legal anthropologists. Legal pluralism stresses two types of state: states where the rule of law prevails, where
one of the hidden dimensions of law, a dimension particularly rel politics is subject to the law and where power is subject to the
evant to modern societies: only official law appears to exist, the constitution; and the despotic states, where there is no regulatory
law of the state, a proposition which inspired the well-known system governed by law. It is true that not all states are totalitari
adage ‘Law equals laws’ [droit = loi\. The advocates of legal plu an, but for the advocates of legal pluralism, all states carry within
ralism do not agree with this proposition. them the seeds of totalitarianism. So-called absolute monarchies
Before reviewing the principal theories of legal pluralism, we
were not in reality absolute (except under the reign of Louis XIV)
must describe the tenets which these theories indict as false.
because they found their path blocked by specific historical cir
We discuss first the frame of reference of the state. cumstances, namely the highly organized interest-groups in
French society. Yet they aspired to absolutism and used the
29 The rule o f law [l’état de droit] and the law of the state [droit panoply of the law to legitimate these aspirations. We can chal
de l’état] lenge the argument that a necessary condition of the rule of law is
Currently, in the United States and in France, the state has gone the unification of law. On the contrary, it is when legal pluralism
out of fashion: over the last ten years there has been a crisis in the is attacked by central authority that dictatorship arises. It seems
ideology of the benevolent state, through which the state legiti entirely logical for the state to attempt to monopolize law. In the
mated its dirigiste tendencies. However, the state is not bereft of Western democracies, this has never been achieved, and central
supporters. The majority of French jurists, trained to revere state ization remains a myth, but a very powerful myth to the extent
law since its codification under Napoleon, rise to its defence. that it has penetrated the thinking of most legal theorists in a
When they delineate the features of this panoply of justice which quasi-monistic form: in relation to the law, case-law and doctrine
leads from Merovingian barbarism to the sunlit legal uplands of count for little (some do not even recognize doctrine as a source
the Civil Code, many of them also, just for good measure, take of law).
the opportunity of underlining the merits of the development of All societies, traditional or modem, are plural. However, as M.
the state and its corollary, the increasingly unified nature of law; Alliot has noted, the former affirm this reality, the latter deny it.
this is contrasted with the disorder of custom. According to the In both cases, the security of the individual resides in the pluralist
political scientist B. Barret-Kriegel there has been a gradual evo nature of society, for the various groups are independent of each
lution towards the rule of law since the middle ages, in which the other. But whilst Africans openly recognize this, Europeans deny
state accepts limits to its power in submitting itself to the law. it and, encouraged by the dominant tendency in legal thought,
Also, thanks to the classification and transcription of custom, the affirm on the contrary that the rights of the individual are, or
influence of the Roman law and successive codifications, society should be, protected by the state (hence the increase in the decla
became gradually impregnated with law, until the state itself was ration of rights), and thus encourage the state in extending its
ultimately penetrated. We are confronted here with a new version hold over law. This is why, under the veil of the rule of law, the
law of the state lies concealed, continuously attempting to deny
a
44 Legal Anthropology The Development o f Legal Anthropology 45
the existence of different legal systems which help society function. often simpler than the law bequeathed by the great juriconsults,
We will examine these hidden legal systems in a rapid historical which we erroneously associate with the Roman law. The
sketch, and then examine modern theories of legal pluralism. Romans, then, are to be remembered for their considerable legal
diversity. Mitteis was the first Romanist to draw attention to legal
30 Legal diversity and the unitary myth in the history of pluralism within the empire ([Reichsrecht und Volksrecht in dem
Western law ôstlichen Provinzen des rômischen Kaiserreichs [189If).
Although the principal theories of legal pluralism took shape in Following the breakup of the western Roman Empire, the bar
the course of the twentieth century, some Romanists and histori barian kingdoms that took its place nearly all proclaimed laws
ans of law have drawn attention to the phenomenon of legal which were to form compilations with their own particular char
diversity in the past of Western societies. acteristics: each individual was subject to the law of his people.
Rome did not impose Latin and its gods on conquered peoples, With the gradual merging of peoples, law, in the middle ages,
nor, in like manner, did it impose a uniform and complete accep once more became territorial, yet it remained diverse in character.
tance of its system of law. As opposed to modern colonialists Customs were locally based, whilst legal pluralism was a logical
who, in justifying the prohibition of customs which ran contrary consequence of social ranking: there was feudal law, based on
to their value system, invented the notion of colonial law and military service (the rules governing the succession of fiefs);
order, the Romans promulgated very little legislation against local canon law, based on Christian principles (which prohibited the
customs which were at variance with Roman law: thus the lending of money at interest); and, later, burgess (‘bourgeois’)
Romans could not be described as evolutionists and had no cul law, applied to commercial activities (commercial law); and, final
tural policy. Local jurisdictions continued to apply local law. In ly, royal law, which tended to embrace the remaining categories
situations where Roman law is introduced into the local legal in the name of state formation. These legal systems, whose exis
process, it is often clumsily executed: there is a desire to be tence and validity were well recognized (though less and less as
Roman, which in most cases falls short of the mark (a classic the monarchic state grew in influence), applied different rules to
attempt on the part of subject peoples to emulate those with the the same legal situation: canon law treated marriage as a consen-
dominant role). There are examples of Roman law being influ sualist instrument whereas feudal law emphasized kinship group
enced by local custom, Diocletian was uneasy about this very ten agreement above the status of individuals. Deadlock could be the
dency. Thus the Romans applied no hard and fast rules on the result, but less often than one might suppose, because conflict
issue. In the Greek world, they were happy to adopt the principal could often be avoided thanks to the plurality of jurisdictions.
elements of the laws they found there. Gaius was to attempt to Gradually, the monarchy eroded this legal and judicial pluralism,
meet this diversity by recourse to ‘ius gentium’, reformulating but was never able to eliminate it completely: we are reminded of
some of Aristotle’s ideas: ‘Every people that is governed by Voltaire who, whilst travelling in Lorraine, remarked that customs
statutes and customs observes pardy its own particular law and seemed to change more often than post-horses.
partly the common law of mankind. That law which a people The republic [in France] proclaimed the equality of all citizens
establishes for itself is peculiar to it and is called lus civile (civil before the law, abolishing interest-groups and privileges alike. In
law) . . . whilst the law that natural reason establishes among all 1800 Napoleon ordered that surveys be conducted throughout
mankind is followed by all people alike, and is called lus gentium’ France to determine local particularisms in law, the better to sup
(Gaius, 1, 1, trans. F. de Zulueta [Oxford, Clarendon Press, press them. Four years later, the Civil Code became the symbol
1946]). In addition, a further source of legal diversity in the of a society subject to the same law. The teaching of law for the
empire exists in the form of ‘common law’ [droit vulgaire] - the next centuiry was centred on this monument. After centuries of
terminology is symptomatic of the contempt with which legal development, the myth was finally established: one system of law
writers regard non-official rights: practical applications of law, for all, with the state as guardian.
JJ
46 Legal Anthropology The Development o f Legal Anthropology 47
At present, it requires a measure of intellectual laziness to functionalism also came under attack: it was criticized for treating
believe in the monistic legal myth: not only do ethnic minorities, societies as closed, homogeneous systems. These various com
in practice, in certain areas, apply their own law, but more to the ments, in as much as they underlined heterogeneous phenomena,
point, as J. Carbonnier has remarked, in reality law multiplies the opened the door to sociological and legal pluralism.
options stemming from a single legal situation (marriage settle Mauss and Malinowski advanced the notion that within a sin
ments, multiplicity of grounds for divorce (‘faute’ [one or more gle society, several legal systems could interact, but went no fur
violations of the duties and obligations of marriage: TN], break ther in developing the idea. In fact, they were not the first to
down of married life, mutual consent, ‘double aveu’ [recognition come up with the concept: its origins lay with a undeservedly for
by the second partner of the first partner’s statement regarding an gotten writer of the Adat Law School, Van Vollenhoven, who, as
intolerable state of domestic affairs: TN], etc.). The number of early as 1901, stated that the associated subgroups within a soci
texts published each year (over a thousand laws, and no fewer ety created their own law, an idea which would be taken up and
decrees) also casts some doubt over the disappearance of particu put to the test by Dutch workers in Indonesia. The term ‘plural
larisms. ism’ appeared only in 1939, with the work of Fumivall, author of
The law of classical antiquity and, subsequently, French law, is a study on the Indonesian economy, but it had a restricted mean
thus characterized by a very diversified range of legal situations, ing: it was applied only to the analysis of the internal organization
fully recognized in most historical periods, and denied in recent of multiracial societies created by European expansion in the
centuries by the unitary myth. But is all legal diversity synony tropics. Shortly afterwards two monographs were published,
mous with legal pluralism, in the contemporary use of the term? Redfield’s The Folk-Culture of Yucatan (1941) and Gluckman’s
One of the objectives of contemporary theory will be to clarify this. Analysis of a Social Situation in Modem Zululand (1958); whilst
neither used the term pluralism, their analysis was, in essence,
We turn now to theoretical constructs. based on this concept, since they discussed the interactions
between local communities and the prevailing normative order of
31 A pluralist approach to legal anthropology society. However, it is especially the contemporaneous work of
Traditional legal teaching presents its subject-matter as an Llewellyn and Hoebel, The Cheyenne Way (1941) which once
attribute of a global entity: thus we speak of French law, English more deserves mention. For these authors the form social unity
law, etc., divided by comparativist writers into a handful of main takes has a direct bearing on interaction between groups, their
categories. This view is based on the assumption that a society links with third parties, and the way disputes are settled: this will
has a single legal system, which controls the behaviour of all its vary depending on whether members of the same family are con
members, and on two corollaries, that the subgroups of a society cerned, or individuals belonging to different clans. In the first
(associations and friendly societies, groups based on residence instance, disputes tend to be settled by compromise, in the sec
and kinship) do not have any legally independent status, and that ond by vengeance. It was also apparent that global, official law, if
societies which do not have a centralized political structure do not indeed it existed, could only intercede in conflicts between dis
possess law. From the 1930s onward, these assumptions began to tinct groups (Inuit shamans order wife-exchange between bel
come under attack. On the one hand they did not correspond ligerent groups to avoid a chain reaction of vengeance;
with the evidence furnished by ethnographic observation: certain alternatively a murderer will go and live with the parents of his
workers in acephelous societies found it difficult to accept that victim), whereas the legal systems within the subgroups of society
these societies had no law and, in a more general manner, it exist to hold these subgroups together and ensure their future
became apparent that even in societies with centralized political existence.
power, law did not only emanate from the higher political reaches With no further obstacles blocking the way, more studies
of power. On the other hand, towards the beginning of the 1950s, appeared in the 1950s and 1960s, addressing multi-ethnic soci-
48 Legal Anthropology The Development o f Legal Anthropology 49
eties in particular, where pluralism was more in evidence: codification, thus presenting a unitary fiction, research carried out
Radcliffe-Brown (1940) in South Africa; Bolke (1953) in in our own century has identified legal pluralism. Gurvitch
Indonesia; Little (1955) in Sierra Leone; Van Lier (1950) for the believed there were three forms of law, ranked differently from
segmentary societies of the West Indies. Nash, in 1958, described society to society: state law, whose monopoly over law is a myth;
Guatemala and Mexico as ‘non-nation states’, each containing individual or intergroup law (binding individuals or groups
two types of interacting societies. In the 1960s fieldwork geared through contract, for example), consisting of social relations oper
to the study of pluralism increased, and, in France, G. Balandier ating through bilateral exchange between groups or individuals;
developed dynamic anthropology, which submitted the colonial and social law, derived from social relations through which indi
situation to concepts similar to those used by pluralist theories. viduals combine to form a collective entity (subgroups or
Thus these various researchers based their work, in the main, in Ehrlich’s associations). The development of state law correlates
exotic locations. However, the same phenomenon had also been with the development of interpersonal or intergroup law, because
discerned in modern societies by the sociologists Ehrlich and it is the state that determines the interaction between groups or
Gurvitch. Both refused to identify law with the state. individuals. State law and the restricted forms of integration
resulting from bilateral exchanges are thus related, whereas
32 Sociological theories of pluralism non-state law may be defined as the multiplicity of legal sys
Ehrlich’s pluralism (1936) is described in horizontal terms. For tems generated by social law. Finally, Gurvitch quite rightly dis
him society is not the totality of its individuals, but the totality of tinguishes between the plurality of sources of law and legal
associations contained within it (by associations we understand pluralism itself: there may well be several separate sources of law
subgroups). The individual submits, in the first instance, to the (laws, decrees, case-law), even within the monistic approach to
legal authority of the subgroup. This is above all a co-operative law, but the origin of all these formal sources lies within the state.
system of law, harmonizing the interaction between individuals. In its descriptive wealth, Gurvitch’s analysis has played a fun
However, modern societies also contain state law, which enforces damental role in the history of the description of legal pluralism.
a general system of law imposed on the legal systems of sub It is also related to a current in legal thought which we must now
groups. This latter law is, in essence, based on conflict, since its describe.
purpose is to regulate the opposing interests of the legal systems
of subgroups. Our own view is that there is no such distinction 33 Convergence o f legal anthropology and legal sociology
between subgroup law and state law: each may be based on con If the tradition of Comte tends to stress the separate nature of the
flict or co-operation (there are disciplinary procedures within two disciplines, it is none the less true that in the field of legal
many subgroups, just as there are forms of state law based on pluralism they appear to converge. The theories of Ehrlich and
mediation rather than judgment - the law relating to minors, for Gurvitch have had the merit of contributing precise and well-
example). Nevertheless, Ehrlich’s theory was in advance of its developed ideas to certain general concepts in legal anthropology:
time and, apart from the ideas of the ‘Adat’ Law School, initiated law and the state are not coterminous; law derives its existence
by Van Vollenhoven in 1901, it preceded the theoretical con from social organization; all societies contain subgroups, each of
structs of legal anthropology. which has its own legal system, separate, to some degree, from
Meanwhile, it was Gurvitch in L ’Expérience juridique et la state law; state law takes on the role of conductor in this sympho
philosophie du droit (1935) who introduced the idea of legal plural ny of different legal systems, since it regulates the relationships
ism to France. He studied the history of law to demonstrate that between them; state law, in its monopolizing tendencies, finds a
the unitary principle is not inherent in law’s nature: law in the ready ally in individualism, in so far as individualism weakens
middle ages was pluralist, and even if both the absolute monarchy intermediary groups. All these concepts can be claimed as proper
and the centralization of Napoleon were based on the rationale of to legal anthropology. In the interwar period, such a formative
50 Legal Anthropology The Development of Legal Anthropology 51
one for the concept of legal pluralism, anthropology stole a march colonial period, between private indigenous law and the law of
on sociology in its development of fieldwork: yet with the excep Europeans installed in the colony. For P. L. Van den Berghe
tion of the work of Van Vollenhoven, it was only in the 1970s that (1973), pluralism is ‘a characteristic, or a set of social characteris
legal anthropology built theory comparable with that of Ehrlich tics, of several social and/or cultural groups, coexisting within the
and Gurvitch. It was thus legal sociology which laid the theoreti same organized society. These groups are interdependent since
cal foundations of legal pluralism, whereas anthropology studied they share the same economic system, but maintain a varying
pluralism in the field. We may well ask why there was this near degree of autonomy, possessing a body of distinct institutional
simultaneity of interest and observe that, in our modem societies, structures in other spheres of social life, notably in the area of the
the dirigiste tendency of the state, bom of the imperatives of the family, leisure activities and religion.’ Van den Berghe’s definition
First World War, makes itself felt in this very period, and resorts has the advantage of more satisfactorily linking manifestations of
to unitary concepts of law inherited from the nineteenth century. legal pluralism with social structure. More recently (1986), J.
L. Ingber’s concepts are related to this problem; he argued that Griffiths has put an even greater emphasis on the necessary corre
the oscillations between monistic and pluralist theories of law lation between sociological and legal pluralism. Griffiths develops
depend on the fluctuations in the balance of power between the the concept of the ‘semi-autonomous social field’, elaborated in
state and social groups, as well as developments in the understand 1973 by S. Falk Moore (see below, no. 37), and describes legal
ing of this balance of power. There is consequently a possibility pluralism as the normal, quasi-universal attribute of all societies.
that the simultaneous emergence of pluralism in the two disci Legal pluralism stems from sociological pluralism, and no society
plines is one of society’s reactions to attempts by the state to is completely homogenous: even segmentary societies are in a
extend its field of action. We will give consideration, in due sense divided, whereas modem societies can be seen as extremely
course (below, nos 36-8) to the theories subsequently developed divided. However, and this is where Griffiths’s definition is so
by legal anthropologists. To facilitate our understanding of these, important, and goes so much further than those of his predeces
we will attempt a few definitions. sors, individual social fields are not uniformly governed by a sin
gle system of law. Several kinds of law are normally found to be in
34 Anthropological definitions of legal pluralism operation: the law proper to the social field under consideration,
Definitions of legal pluralism in legal anthropology are . . . plural. the law of one or several other social fields and the law of the
The concepts of Lévy-Brühl are slightly hesitant, and are based state. Legal pluralism thus consists of the multiplicity of forms of
on a distinction between a law (the creation of differentiated law present within any social field. The complexity is even greater
political power which may be vested in the state), and custom (a if we recognize that the society as a whole is itself made up of a
body of rules belonging to a social group). He recognizes that number of social fields subject to the same process. We are con
every group wields a normative influence which can be used to fronted with a veritable galaxy of legal processes, where state law
control internal relationships, but refuses to identify this influence cannot enjoy a dominant role. In these conditions how do we
automatically with a legal system, arguing that a group’s norms explain that the unitary legal myth took root in the societies with
tend to reiterate the prescriptions of a legal system shared by all the most divisions, those containing the greatest number of social
groups. Recent authors adopt a more incisive viewpoint. J. fields, one of the main characteristics of state societies? Our view
Vanderlinden (1972) states that legal pluralism is ‘the existence, is that, precisely because it needs to extend its influence over
within a given society, of different legal mechanisms applied to deeply heterogenous societies, the state needs to deny the exis
identical cases’. Examples of legal pluralism include: patrician tence of these divisions. This is an imperative which does not
and plebian marriages in ancient Rome; commercial contracts exist to the same extent in traditional societies, which are also
where a trader and private citizens sell goods according to differ plural, but to a lesser degree, and where in any case political
ent conditions; diplomatic immunity; the distinction, during the authority is less differentiated than in modem societies and has
it
52 Legal Anthropology The Development o f Legal Anthropology 53
less sweeping political ambitions. Thus we return to the point By examining several definitions of legal pluralism, we have
already elaborated in studying ‘the frame of reference of the state’ attempted to draw attention to its implications on the legal policy
(above, no. 29): not all states are totalitarian, but they all contain of the state (whose existence is not to be denied). We have also
the seeds of totalitarianism, since it is part of the underlying logic drawn attention to the increasing complexity of these definitions.
of the state to try to weaken, or even do away with, any authority The same theme emerges from the most recent theories of legal
that rivals its own (the factors governing the development of the pluralism in legal anthropology: the ‘pyramidal’ theory of L.
French monarchy since the middle ages are an example of this). Pospisil, the theory 'of semi-autonomous social fields of S. Falk
This multiplicity of powers is the consequence of legal and socio Moore, and the latest work of J. Griffiths.
logical pluralisms which are proper, in varying degrees, to all soci
eties. Yet the degree of pluralism may vary, as examples of 36 The ‘levels o f law’ of Leopold Pospisil
de-pluralization reveal. Leopold Pospisil (1956, 1971) argues that every society consists of
a body of hierarchically arranged subgroups, each subgroup pos
35 De-pluralization sessing its own legal system. His contribution is to introduce the
For J. Vanderlinden, a society undergoes de-pluralization through notion of a ‘level of law’. Legal systems form a hierarchy consisting
the operation of a number of different factors. In our view all of subgroups; they may be stratified - divided into levels of law: a
societies, in fact, remain plural, since perfect homogeneity can level of law is defined as the sum total of legal systems belonging
never be achieved, but the degree of pluralism can effectively be to subgroups of the same kind, and possessing a similar degree of
reduced. The phase of maximum reduction is usually only a tran integration (for example, each of the following groups forms a dif
sitory one (the failure of basic rural communal organization in ferent level of law: nuclear families, lineages, village communities,
China during the Maoist period is a case in point). Social groups nations, empires, etc.). There is no qualitative difference between
may, to begin with, lose their identity through the levelling of the law of the state and the legal system of a coterie of criminals
inequalities, a process accentuated if change is gradual. When the such as the Cosa Nostra, only a difference in hierarchy. Of course,
egalitarian tendency is violent and revolutionary, pluralism soon each individual generally belongs to a number of different sub
reappears (see the formation of nomenklaturas in socialist states). groups, and is thus submitted to the often contradictory demands
The process of homogeneity can also stem from psychological of different legal systems: the individual thus chooses a level with
rather than material factors: the adoption of universal suffrage; which, depending on the occasion, he or she prefers to identify (a
the adoption of an exact age of consent, which makes the benefi mafioso could buy stocks and shares in accordance with the law of
ciaries believe that they share a greater degree of equality with the state, and eliminate a rival following the code of the honorable
other members of society belonging to separate groups. Finally, society). Pospisil’s theory can thus be applied as much to modem
the elimination of pluralism can be imposed by central authority: as to traditional societies. However, since Pospisil is an anthropol
where the supreme jurisdiction emphasizes unitary law or, in ogist, he tends to choose his examples from these latter societies,
more general terms, the political will of the state to jointly affirm citing, in particular, the Kapauka of New Guinea, and the
the unity of state and society. The examples of this last scenario Nunamiut Inuit. The Nunamiut contain four legal levels: bands,
abound: absolute monarchies, the Napoleonic Empire, the parts of bands, large families, and smaller nuclear or polygynous
Republican [French] state; emergent African states where cus families. Above the level of the band there is no authority capable
toms, until recently, were considered as no longer relevant, by a of handing down decisions. For Pospisil, interband relationships
state-based legal system largely modelled on the law of the outgo are outside the legal domain, and are based on expediency: they
ing colonial power. In general, this kind of de-pluralization is are decided by war, vengeance, or agreement to co-operate, sealed
ineffective, since it does not take into account the sociological by an exchange of goods or wives. Law thus begins at band level,
structure of society. and the different ways of sanctioning behaviour are directly linked
u .
54 Legal Anthropology The Development o f Legal Anthropology 55
with the hierarchy of levels of law. Thus, disputes concerning law, it does nevertheless exercise some degree of constraint over
marriage and the education of children are settled at the level of them (the mafioso who liquidates a rival belonging to another
smaller families, disputes concerning economic offences (theft, ‘family’ must take certain precautions to avoid being arrested by
material damage) are handled at all except the last-mentioned the police): a social field is subject to external constraints.
level; cases concerning hunting, murder and recidivism are han Furthermore, the pressure exerted by other social fields is rarely
dled by the leaders (umialiks) of bands; corporal punishment such that it amounts to total constraint: even in the army and in
(apart from the elimination of a recidivist) takes place only within prison, organizations possessing a high degree of integration,
the smaller family unit; permanent ostracism (which can amount there are areas where the rules and conventional behaviour of the
to a death sentence) is a matter for the band. military and penal authorities do not apply. The term ‘semi-
autonomous’ appears more appropriate in the majority of cases,
37 S. Falk Moore and ‘semi-autonomous social fields’ and places Falk Moore’s theory in a pluralist context. This con
S. Falk Moore’s theory (1973) was immediately well received by cept of ‘semi-autonomy’, which accounts for the interaction
legal anthropologists. It is also applicable to modem as well as between social fields, can be applied to the classic distinction
traditional societies: he cites research carried out amongst groups between law and custom. The state - or its jurisdictions - can
as diverse as the Chagga of Tanzania and the world of women’s transform the rules of a particular social field into state law (thus
fashion in New York. under the monarchy, canon law had to be amended by French
Falk Moore replaces the usual concept of ‘subgroup’ (the sys law to be applied in France), and, vice versa, a social field can
tems and levels of law of Pospisil, the associations of Ehrlich) transform a state-based law into a custom, when it adopts it
with the ‘semi-autonomous social field’ which may, or may not, instead of offering resistance to it (the distinction is akin to that
be equated with a subgroup: described by Pospisil concerning the interchangeability of author
itarian and customary law (below, no. 75). Yet, according to Falk
The semi-autonomous social field is defined, and its limits
Moore, the term ‘semi-autonomous’ does not apply to traditional
identified, not by its type of organization (it may perhaps be an and modern societies in the same degree. In the former societies,
organization, perhaps not) but by a character of a processual where political authority is less differentiated, the autonomy of
type residing in the fact that it gives birth to norms and by con the different social fields is greater than in the latter, without ever
straint or incentive ensures their application. The space within being complete, since it is in the nature of all societies to be divid
which a certain number of corporate groups are in relation one ed into a number of social fields linked by interaction.
to another constitutes a semi-autonomous social field. A large J. Griffiths rightly underlines the importance of Falk Moore’s
number of fields of this type may be connected one to another theory and highlights two of its characteristics. On the one hand,
in such a way that they form complex chains, in the same way in contrast with other pluralist theories (notably that of Pospisil),
as the networks of social relatins which link individuals may be it stresses the horizontal dimension of pluralism, seen as the result
compared to chains which have no end. The interdependent of interaction between social fields which are not classified hierar
connection of a large number of semi-autonomous social fields chically. On the other hand, it can be contrasted with the classic
constitutes one of the fundamental characteristics of complex ‘instrumental’ approach of legal theorists in which law consists of
societies. an order handed down by a legislator to individuals, as if the two
But why are these social fields described as ‘semi-autonomous’? entities were somehow separated by a total void: on the contrary,
Falk Moore recognizes that, in theory, they could be totally Falk Moore ascribes a determining role to social organizations.
autonomous, or not autonomous at all. But in practice, especially The individual not only obeys the law of the state, but also obeys
in modern societies, neither is the case. In state societies, whilst rules - of a legal nature or otherwise - emanating from a variety
the law of the state does not necessarily exclude other systems of of sources, and brought together in semi-autonomous social
56 Legal Anthropology The Development o f Legal Anthropology 57
fields. Falk Moore’s theory, however, does not completely escape Griffiths, medieval law is not pluralist because the geographical
Griffiths’s wide-ranging criticisms of the main theories of plural diversity of custom and the internal law of corporations are areas
ism. of law to which the state was prepared to accommodate itself. We
find that this is taking things too far, because the state did, after
38 J. Griffiths’s hypercritical theory all, set itself the task of limiting the influence of, and even sup
In 1986, in an important article, J. Griffiths embarked on a thor pressing, these institutions; also we would argue that feudal law
oughgoing critique of pluralist theory, and revealed his own think or canon law are in reality legal bodies separate from the state, at
ing. The thrust of his argument was to relativize even further the least they were during the feudal period, until they were gradually
role of the law of the state, in contrast with the prevalent attitude absorbed. Yet Griffiths’s distinction can be retained for other
of legal positivists. cases: for example, the multiplicity of social security regimes does
Griffiths first observed that two kinds of pluralism exist, and not, effectively, constitute pluralism.
only the second is authentic: pluralism tolerated by the state, and Griffiths finds Pospisil’s theory wanting in its hierarchic
pluralism which escapes the control of the state. Pluralism is the description of levels of law, which implies that there is indeed one
sworn enemy of the unitary ambitions of the state and the latter legal system, belonging to the global society, the result of the for
has two weapons with which to do battle with it. Either the state mation of a whole stratigraphy of levels of law. Such unity in the
attempts a total elimination of pluralism (as when at the end of legal system would tend to strengthen the position of the state,
the middle ages customs were transcribed and transformed into itself unitary in nature. Griffiths also criticizes Ehrlich, stating
royal law; or as in the progressive weakening of the competence of that, in spite of appearances, the state and state law remain the
non-state jurisdictions - seigneurial or ecclesiastic - to the benefit culminating point of the legal process for subgroups. Falk Moore
of royal jurisdictions); or, quite frequently, the state recognizes receives more praise, yet Griffiths points out that he is too readily
certain manifestations of pluralism: statutes enacted for ethnic inclined to identify law with norms emanating from the state, and
minorities, churches, colonies, etc. This pluralism is only a concentrates too much on the effect of state law within each semi-
façade, and serves the interests of a unitary and centralizing poli autonomous social field, to the exclusion of the study of interac
cy. On the one hand this is because the state makes up the rules: tion between the non-state fields.
it decides on the jurisdictional limits between itself and the bodies Thus, according to Griffiths, no theory escapes, to some
to which a measure of autonomy has been granted, and it imposes degree, the taint of statism. It should occasion little surprise to
its own criteria. On the other hand this sharing of jurisdictions is, discover that his own definitions establish a clear distinction
in general, managed by the state in such a way that non-state law between law and the state. Law does not, in the nature of things,
plays only a subordinate or residual role. enjoy any particular relationship with the state, and does not need
In our opinion the descriptions provided by the various studies the state to function: ‘law is the self-regulation of a semi-
we have cited are preferable to this caricature of legal pluralism autonomous field’, meaning that state law is only one of the forms
inherent in state societies, but these studies do need to be submit that law may take. This regulation varies to the extent to which it
ted to critical examination. has acquired a differentiated jural character: it ‘may be termed
Griffiths (concurring on this point with J. G. Bellay) expresses legal to a greater or lesser degree, depending on the extent it is
his disagreement with Vanderlinden and Gilissen, whom he differentiated from the rest of the activities associated with this
accuses of mistaking legal diversity for legal pluralism: the exis field, and as a function of the extent to which it is vested in spe
tence of different rules, varying from social group to social group cialized agents’.
or from territory to territory, yet applied to identical situations, All theories of legal pluralism tend to relativize the role of the
does not constitute legal pluralism, if these distinctions are toler state in society, suggesting that systems of law exist outside the
ated or initiated by a single legal body, the state. Thus, for state, brought into being by the various social groups that form
I
58 Legal Anthropology The Development o f Legal Anthropology 59
constituent elements of all societies. Nevertheless, at present according to Carbonnier, legal pluralism exists ‘when, instead of
(1987), it is Griffiths’s theory which has taken the breach with the contrasting rules, we contrast different applications of one particular
state and state law to its logical conclusion, to such an extent that, rule’: thus genuine pluralism would be judicial in circumstances
whilst agreeing with him that it is high time we were disabused of where, given that the unitary principle of law does not always hold,
the state’s monopoly over law, one may wonder whether, in forcing the same case is sanctioned in different ways, depending on the
the state and law further and further apart, we will not be driven up jurisdiction. We find it difficult to agree with Carbonnier’s conclu
a theoretical blind alley. In fact, whether one applauds or sion. To begin with, legal pluralism as strictly defined by Griffiths,
bemoans the fact, states exist and are unlikely to disappear: the effectively excludes from consideration the legal phenomena which
nature and importance of the state will not emerge from an over- the state incorporates within its own system. Also, as regards
critical attitude. It may well be the case that in the future, new autonomous normative behaviour, its description as legal or ‘sub-
theories, more amenable to the state, will appear as a reaction legal’ depends on the way we choose to define law. Carbonnier’s
against those which we have just surveyed. We should also note description, revolving around sanction or the threat of sanction, is
that the idea of legal pluralism and, one of its main corollaries, out of step with the current trend in legal anthropology, which, on
the opposition of official and non-official law have come under the contrary, distances itself from this idea, or takes it into consid
criticism. This we will now examine. eration only along with other defining characteristics of law. In
fact, we may ask ourselves whether the term ‘sublegal’ which he
39 The critiques o f legal pluralism uses is not ethnocentric. Carbonnier’s ‘judicial’ definition of
We must first observe that traditional descriptions of law, such as pluralism tends to confirm the impression that, for him, legal
those contained within the covers of legal textbooks, generally pluralism can exist only within the state law. Quite apart from the
stress law’s official applications, to the exclusion of pluralist phe fact that this thinking is not anthropological, since it is not readily
nomena: the fact is too well established for us to give it further applicable to traditional societies, it reveals a philosophical stance
consideration. Yet there is a second category of critiques, rather which runs counter to all theories of pluralism, which, on the con
more interesting in that they come from non-dogmatic jurists such trary, tend to qualify the role of the state.
as J. Carbonnier, M. Miaille and L.-R. Ménager. Carbonnier A more indirect criticism concerns the belief, held by the advo
attacks what he describes as ‘the great illusion of pluralism. It pur cates of pluralism, which underlies the distinction between official
ports to have filmed the combat between two legal systems; but all and non-official law, itself merging with the distinction between
we see is a legal system at grips with the shadow of an opponent.’8 the law imposed by the state (laws) and the spontaneous and pop
For Carbonnier, pluralist theories commit the error of overempha ular law of custom. For L.-R. Ménager, custom is no more the
sizing certain phenomena which exist on the fringes of law. Either sign of a non-official expression of popular will than law is. It is,
these phenomena are actually part of the prevailing legal system rather, a sign of the will of the elite, whose members have never
and the distinction is illusory (thus workshop regulations, which allowed practices which run counter their interests to take the
appear to emanate from a distinct body of law of the workplace, in institutional form of customary law (or legislation), pleading the
fact bear the stamp of article 1134 of the Civil Code and form part defence of the social order. M. Miaille argues in the same vein
of the law of the state). Or else there are deviations from the norm when he states that despite all the classic definitions of custom, the
(certain immigrant families in France, of Muslim origin, practise latter is ‘never genuinely popular but “guided” by those learned in
the repudiation of their wives following rules which do not figure law’. The force of these criticisms varies according to the society
in the Civil Code), which do not form part of the state law. But under consideration. They may be justified in societies with a high
these forms are sublegal (even if those who practise them believe degree of differentiation and where, effectively, those holding
they form genuine law), because these rules do not possess a jural power, and the jurists in their service, make it their duty to control
character, namely organized constraint or judgement. In fact, the legal process and influence its decisions (in our societies, the
ii
60 Legal Anthropology The Development o f Legal Anthropology 61
programmes of political parties which are based, at least in part, or orientate official or non-official law: natural law, equity, divine
on the interests of the social groups who support them, are always prescription; principles of exogamy, bi-lineality, or seniority in
followed by changes in official law, notably in the field of taxa family law; declarations of the rights of man, etc. These various
tion). Yet these critiques lose much of their relevance in tradition postulates must be fairly consistent with each other to avoid dis
al, less differentiated societies, in which custom can genuinely turbing the normal operation of society.
reflect the wishes and interests of the community. Meanwhile, it is These three levels of law do not necessarily form a hierarchy:
true that when these societies, usually through colonization, wit they vary from society to society and, it would seem, from east to
ness the creation of the state in their midst, subtle links are woven west. The West, as we have seen, is identified with a unitary sys
between official and non-official law, which do not always fit the tem in which law is to a considerable degree responsible for con
state-based law/popular custom divide. The recent theory of M. trolling social interaction; also, official law is pre-eminent if not
Chiba has the merit of drawing attention to these problems. exclusive. The East, however, has never accorded such status to
law, at least not in the centralized form cherished by the West - if
40 Official and non-official law: M . Chiba's theory it has not ignored it altogether. In the East autonomous legal pos
M. Chiba, a Japanese jurist specializing in the study of non- tulates often have an impact on official law and, also, it is a far
Western law, recendy suggested (1986-7) a number of concepts more frequent occurrence for non-official law to modify official
refining classic pluralist analysis. The latter usually consists, in law, and resist its domination.
any given country or society, of contrasting official law (state The second distinction consists of the provenance of law. Law
law) with non-official law (people’s law). Yet this is often a very may be received law, emanating from another country; in the colo
cursory distinction: first, official law cannot necessarily be nial period received law was mainly official law. Or it may be
reduced to state law, or, in the case of colonized countries, to law indigenous law, law residing in the original culture of the popula
handed down by the colonial authorities; second, the interaction tion. Here again, the relationship between these two kinds of law
between official law and non-official law does not always take the varies from country to country, but interaction does not necessari
form of conflict, but may also be complementary. ly favour the received law; it has been known for official law to
Chiba’s theory consists in identifying several levels of law (the undergo modification following the inclusion of indigenous forms
meaning used here is very different from the meaning of the term of law within its own ambit. Thus Danish law acquired, through
encountered in Pospisil’s theory). We will first consider official legislation, aspects of Greenland law pertaining to family matters,
law, the system of law sanctioned by the legitimate authority of a involving a wider conception of the family; in Canada, the legal
country. This includes state law, but can also cover other forms of system has also recognized the validity of adoptions and marriages
law: religious law, the laws of ethnic minorities, non-governmental solemnized according to traditional Inuit law; in India, official law
organizations, etc.; these are sanctioned in the first instance by the is a mixture of indigenous Hindu law and received English law; in
competent authorities of the groups concerned, but they are also modem Japan, official law includes a considerable amount of
co-ordinated by the state, which can enforce its own sanction. indigenous law, whose legal postulates are very influential; in
Secondly there is non-official law, or a system of law which is not France at the end of the middle ages, Roman law, initially tolerat
officially sanctioned by a legal authority, in practice applied by a ed by central authority as a custom peculiar to the Midi, eventual
social group within which there exists a consensus in regard to this ly penetrated state law and influenced it considerably, becoming
law. This consensus may be expressed in formal rulings, or be widespread in all regions.
demonstrated by certain kinds of behaviour. But non-official prac As these few examples demonstrate, the classification of the two
tices based on a consensus do not all constitute non-official law: to series of distinctions leads us to a very important statement: offi
qualify they need to be able to modify official law. Finally, legal cial law and received law do not necessarily coincide, neither do
postulates are value systems or principles which serve to legitimate non-official law and indigenous law. This is because each series of
62 Legal Anthropology The Development o f Legal Anthropology 63
results show that traditional and modem societies are not as far Far from confusing rigour with science, exactitude with truth,
apart as we originally thought. legal anthropology, as M. Alliot has stated, ‘is in fact a more
Fourth and finally, both the student schooled only in official thoroughgoing approach to law’.
law, and the traditional jurist will perhaps find that the develop
ments we have described are of too speculative a nature, and are,
to speak plainly, lacking in legal rigour. We may well reply that NOTES
this ‘legal rigour’ is but a false rigour, an illusion. Traditional 1 It was preceded by a number of trail-blazing works, all bearing
approaches to law are as to the science of law what traditional the hallmark of evolutionism: Einleitung in eine Naturwissenshaft
geometry is to the geometry of space, or what classical mathematics des Redits (1872); Die Geschlechtsgenossenschaft der Urzeit und die
is to quantum mechanics: they would have us believe that reality Entstehung der Ehe. Ein Beitrag zu einer allgemeinen vergleichen-
corresponds to one particular mode of thought, whereas a web of den Stoats - und Rechtswissenschaft (1872); Der Ursprung des
different modes of thought exists. In fact legal ‘rigour’, which was Rechts (1876); Die Anfange des Stoats - und Rechtslebens (1878);
once the driving force behind civil law, often resulted in the viola Bausteine fur eine attgemeine Rechtswissenschaft auf vergleichend-
tion of Karl Popper’s principle of refutability, which is after all the ethnologischer Basis (1880-1); Die Grundlagendes Rechts und die
essential criterion of scientific knowledge. For as J. Chevalier has Grundziige seiner Entwicklungsgeschichte (1884); Einleitung in das
stated, ‘the reference to formal logic is no more than a myth Studium der ethnologischen Jurisprudenz (1886).
which conveniently equips the legal order with unchallengeable 2 M. Schmidt, ‘Die Bedeutungder vergleichenden Rechtswissen
assumptions, whilst avoiding any discussion of the validity of its schaft fur die Ethnologie’, ZVR, 38 (1918): 348-75.
prescriptions’.9 Pierre Bourdieu has successfully highlighted the 3 Trimbom, ‘Grundsaetzliches zur Methode der historischen
mechanisms through which law achieves its regulatory function. Rechtsforshung’, ZVR, 42 (1927): 1-7; followed by ‘Die
Legal parlance uses linguistic devices whose effects are twofold. Methode der ethnologischen Rechtsforschung’, ZVR, 43
First there is the neutralizing effect achieved through the use of (1928): 416-64.
the passive tense and an impersonal turn of phrase, giving legal 4 Principally: Die menschliche Gesellschaft in ihren ethno-soziologis-
rules the appearance of impartiality (the Civil Code is a perfect chen Grundlagen (1931-4); Werden, Wandel und Gestaltung des
example of this). Second there is a universalist effect which mag Rechts. Die menschliche Gesselschaft (1934).
nifies the importance of these rules: the use of the indicative 5 We may regard as terminus a quo L. A. White’s article, ‘Energy
mood in pronouncing norms, the use of the indefinite article (‘nul and the evolution of culture’, AA, 45 (1943): 335-56.
n’est tenu de demeurer dans l’indivision1), the reference to mythic 6 See J.-W. Lapierre, Vivre sans Etat? (Paris, Le Seuil, 1977),
models presupposing a consensus (‘le bon père de famille’), etc. pp. 172-3.
Finally, law draws much of its strength from its supposedly per 7 For example: Barton, Ifugao Law (1919); Lips, Naskapi Law
fect form, underpinning the values it articulates.10 In our own (1947); Holleman, Shona Customary Law (1952); Bemdt, Law
view genuine rigour consists in understanding that reality is of the Kamamo, Usurufa, Jate and Fore Papuans of New Guinea
concealed from view, inciting us to evolve different ways of (1962); Howell, A Manual of Nuer Law (1954); Smith and
apprehending it. This is the course that legal anthropology fol Roberts, Zuni Law (1954); to which we must add the work of
lows. From its evolutionist origins, equipped with a normative L. Pospisil on the Kapauku of New Guinea, from 1956 to
historical view of law and describing its most obvious forms, legal 1971.
anthropology, aided by functionalism and processual analysis, 8 J. Carbonnier, Sociologie Juridique (Paris, A. Collin, 1972),
examined behaviour rather than codified law, and now, with plu p. 150.
ralism, is discovering that state law is surrounded by a wealth of 9 J. Chevalier, ‘L’Ordre juridique’, in Le Droit en procès, ed. J.
legal systems. Chevalier and D. Loschak (Paris, PUF, 1984), p. 13.
66 Legal Anthropology The Development o f Legal Anthropology 67
10 See P. Bourdieu, ‘La Force du Droit. Eléments pour une phénoménologie historique de la contrainte sociale’, Procès, 13
sociologie du champ juridique’, Actes de la recherche en sciences (1983): 9-39. Also concerning L. R. Ménager, ‘qui cherche l’on
sociales, 64 (September 1986): 3—19; ‘Habitus, code, codifica togénie du droit ne saurait donc trouver que le pouvoir’, see N.
tion’, ibid.: 40-4. On the beliefs and rationality of legislators, Rouland, summary in Droits, 4 (1986): 171.
see: F. Ost and M. van de Kerchove, Jalons pour une théorie Besides these main authorities, the great jurist F. K. von
critique du droit (Brussels, Publications des facultés universi Savigny (1779-1861) cannot be overlooked. In common with
taires, Saint-Louis, 1987), pp. 100-6. Montesquieu he rejected the natural law of the classical period
and was the author of the concept of Volksgeist: law is closely
linked to the society which produced it, and may be described as
springing from the national genius of each people, as it evolves
FURTHER READING
historically. This led Von Savigny to reject the Napoleonic Code
as too voluntarist. The themes he covers are, however, anthropo
43 M ain works on the history o f legal anthropological theory
logically limited, since he confines himself to societies which have
Apart from the work on this subject by Pospisil (Anthropology of
become nations.
Law, pp. 127-91, op. cit., above, no. 9), there are only a handful
With reference to natural law and the variations within its dif
of sources. To date, the most valuable is A Negri, II Giurista dett- ferent schools, there is M. Miaille, Une introduction critique au droit
’area romanistica di fronte all’etnologia giurdica (Milan, Giuffrè, (Paris, Maspéro, 1976), pp. 311-15; and M. Villey, ‘Le Droit
1983, 190 pp.); to which R. Motta has added ‘Etnologia giuridica naturel’, Revue de Synthèse, 118-19 (1985): 175-86.
e diritto comparato nello studio di un comparista’, Sociologica del
diritto, 12, 3 (1985): 127-32. He is also the author of an indispens 45 Evolutionism
able work on the same subject: Teorie del diritto primitivo. On the application of Darwin’s theories to human societies, see L.
Un’introduzione aU’antropologia giuridica (Milan, Ed. Unicopli,
Clark’s recent article: ‘Le darwinisme social en France’, La
Materiali Universitari Scienze Politiche 23, 1986, 211 pp.). Those
Rscherche, 196 (1988): 192-200.
with no Italian may wish to refer to another work by A. Negri, in
Those interested in neo-evolutionism will find a good summary
French, but much briefer and centred on the Italian school: A.
by an author of this school in: R. L. Carneiro, ‘The four faces of
Negri, ‘La Méthode du juriste ethnologue, de l’époque de l’eth
evolution’, in Handbook of Social and Cultural Anthropology, ed. J.
nologie juridique de Post à l’époque de la floraison de l’anthro
J. Honigmann (Chicago, Rand McNally, 1973), pp. 89-110. We
pologie culturelle’, Rapports nationaux italiens au Xe Congrès should also note that since evolutionism has been a bulwark of
International de Droit comparé, Budapest, 1978 (Milan, Giuffrè, colonialism, it is hardly surprising that anthropologists from ex
1978), pp. 37-62. colonies take an anti-evolutionist stance. Thus the Senegalese
writer Cheik Anta Diop (also well known for his theories estab
44 The birth o f legal anthropology lishing a link between African and Egyptian peoples) has, in many
Besides the general works treating the development of anthropo
of his works, criticized unilinear evolutionism. His premise is that
logical theory, there are also the following two texts: J. Costa,
Europe and Africa have different kinship structures and he rejects
‘Trois fondateurs de l’ethnologie juridique: Bachofen, Maine, the idea that this difference can be incorporated into a chronolog
Engels’, Nomos, 1 (1974): 15-42; Pospisil, Anthropology of Law, ical framework, as conceived by Morgan and Engels. He states
op. cit., above, no. 9, pp. 127-92, where a good analysis may be that from its beginnings, Africa has benefited from matriarchy
found of the theories of Montesquieu, Marx and Engels. Also on
(emancipation of women, justice, peace) to be contrasted with the
the theme of the link between law, the state and social stratifica calamitous patriarchy of Europe (xenophobia, individualism, vio
tion, there is L. R. Ménager, ‘Prolégomènes - Introduction à une lence and conquest). Of course, these theories are now complete-
68 Legal Anthropology The Development o f Legal Anthropology 69
ly outdated, but they can be read on a different level of meaning: In La Religion et les origines du droit pénal (1896-7), he studied
through evolutionism, the author is in fact criticizing Victorian vengeance as a relationship of reciprocity between groups, an idea
ideology and colonialism. confirmed by recent studies on this theme by R. Verdier (see
Finally, we must note that we cited only a handful of the main below, no. 159). In his celebrated Seasonal Variations of the
evolutionist writers. Attention should also be drawn to Spencer’s Eskimo: A Study in Morphology, trans. J. Fox (1979; first pub
theories and the less well-known, but more interesting, theories of lished 1906) his emphasis on the role of material factors over legal
Tylor. phenomena can be clearly seen: the pronounced changes in the
For H. Spencer (1820-1903), the original conception of law is seasons and the corresponding modifications in Inuit hunting
as the will of the ancestors or gods; then with development and practice are accompanied by movements of fusion (in winter the
growing complexity, law becomes more precise and is secularized, different family groups gather together as a community) and fis
but takes a penal form (Durkheim was to take up this idea; see sion (in summer, on the contrary, the groups disperse). These
above, no. 19); in modem societies where natural selection has movements are reflected, in the legal domain, by summer law and
progressively made a harmonious social existence possible, without winter law (in our own societies, even if to a lesser degree, is not
dirigiste influence, law is gradually replaced, in its social dimension, our own family and social life also influenced by the seasons,
by morality. Spencer’s vision was based on an over-optimistic view since the long vacation, which coincides with the summer, is
of evolution and the effects of natural selection, but it is interesting often the occasion for the regrouping of families, or forms the
that it combines the evolution of social organization with the near basis of very particular experiences of communal life, such as the
disappearance of law in a final phase: Marxism, in its description villages of the Club Méditerranée, where familiarity is insisted on,
of a future communist society, was to echo this prophecy. where money is not used, and where life is dominated by three
E. Burnett Tylor’s evolutionism (1832-1917) is not so clear- mythical symbols representing the return to nature: sea, sex and
cut and foreshadows current American neo-evolutionist thought. sun?). Finally, in his The Gift: Forms and Function of Exchange in
Tylor drew attention to ‘retrovolution’: certain groups can pass Archaic Societies, trans. I. Connison (London, Routledge & Kegan
from a superior to an inferior stage, hence traditional societies Paul, 1970; first published 1923^1), Mauss again insists on the
could be the remains of more brilliant societies. Also, Tylor was link between economic factors and legal obligations.
not unaware of diffusionism (a theory stating that societies evolve Other authors, faithful followers of Durkheim, are full-time
mainly through contact and the mingling of cultures), since he jurists. In general they are published in the Année Sociologique. P.
recognizes the importance of culture contact and the tendency for Huvelin may be cited amongst them (1873-1924), a specialist in
imitation. Besides his work on religion, he also made some impor Roman law and commercial law; E. Levy (1871—1943); L. Gemet
tant ethnological contributions in the field of kinship. (1882-1964), who applied the notion of pre-law to ancient
Greece in his The Anthropology of Ancient Greece (Baltimore, MD
and London, Johns Hopkins University Press, 1981), published
46 The disciples of Durkheim in French legal anthropology
in French as Anthropologie de la Grèce Antique (Paris, Flammarion,
As we have seen, French legal anthropology at this time, unlike
1982, 282 pp.); P. Fauconnet (1874-1938) concentrated on the
German or Italian anthropology, does not distinguish itself by its
theme of responsibility; G. Davy (1885-1976) drew particular
important theoretical syntheses. Most French writers are marked
attention to contractual law; G. Richard (1860-1945) may be
by the influence of Durkheim. compared with Motta (op. cit., above, no. 43, pp. 57-70). In the
Marcel Mauss (1872-1950) is the most important of them, following years, other authors (such as Lucien and Henri Lévy-
although only part of his work concerns the legal domain. He Bruhl, M. Granet, G. Gurvitch) can also be identified with the
concentrates in particular on concrete phenomena and stresses Durkheim tradition, but distance themselves from nineteenth-
modes of exchange and the social interaction between individuals. century concepts. Methodologically speaking, the disciples of
70 Legal Anthropology The Development o f Legal Anthropology 71
Durkheim are the last exponents of armchair anthropology. expression of reciprocal obligations bonding individuals, and is
Henceforth the lessons of Boas and Malinowski will be applied; always respected. A few years later in his introduction to
ethnology will no longer be studied only in libraries, knowledge of Hogbin’s Law and Order in Polynesia (1934), he was to reiterate
work in the field and of local languages will become essential. these concepts. Finally, in his last writings, he was to study the
various forms that laws could take, including their non-judicial
47 Attempts at collecting the customs of Africa manifestations.
As we have pointed out, the first half of the twentieth century wit Malinowski’s thinking on law no longer has currency. Certain
nessed the development of applied anthropology, prompted by mistakes, such as stating that civil law cannot, in primitive soci
the theoretical excesses of the nineteenth century. Some of this eties, be violated, are too self-evident. However, in defining penal
work is of particular interest to the jurist: the transcription of cus law a contrario, he stood against a prejudice which still exists
toms (we will return later to the importance of the transition from today, namely that in traditional societies, law is subject to a consen
oral law to written law as revealed in legal acculturation; see sus, and is accorded much more respect than in modem societies;
below, nos. 173-6). From the end of the nineteenth century ethnographic observation reveals that, on the contrary, an individ
onwards, there was a felt need to acquire a greater understanding ual who feels that there are fewer advantages than disadvantages
of the legal elements of traditional societies. The method chosen in respecting law, will frequently violate it. (For further details, cf.
was research in the field, where questionnaires were used with I. Schapera, ‘Malinowski’s theories of law’, in Man and Culture,
respondents. The use of this method by a number of European ed. R. Firth (London, Routledge & Kegan Paul, 1968), pp.
countries in their colonies led to a great deal of subsequent criti 139-55.)
cism, because their terms of reference reflected the legal categories
of Western rather than indigenous societies: thus the German 49 The study of conflict
Fragebogen embodied the concepts of Greek and Roman law. The The conjunction of processual analysis and case-method has pro
French were to use questionnaires from 1897 in Senegal. The duced a number of monographs, as well as general collections of
idea of a general transcription of customs soon became estab them. Amongst the best are Law and Warfare, ed. P. J. Bohannan
lished. (For further details see Negri, op. cit., above, no. 43, pp. (Austin, TX and London, University of Texas Press, 1967, 441
63-77). pp.) and The Disputing Process: Law in Ten Societies, ed. L. Nadder
and H. F. Todd Jr (New York, Columbia University Press, 1978,
48 Malinowski’s theories 372 pp.), which contain abundant bibliographies and are con
Malinowski’s ideas about law developed contemporaneously with cerned with traditional as well as modern societies (see, for
his work in the field. Before this, his ideas on law offered no par example, in Law and Warfare, the articles by G. Feifer, ‘Justice in
ticular insights; law was perceived as a norm sanctioned by the Moscow: ten days normal fare’ (pp. 93-115), and Spencer
community or its central organs. After his work with the Mailu in MacCallum, ‘Dispute settlement in an American supermarket’
1915, he made the distinction between penal and civil law. But it (pp. 291-9). Regarding the settling of disputes amongst the Inuit,
was as a result of his long stay with the Trobrianders that he from traditional times to the present day, there is N. Rouland,
refined his thinking on law and displayed his originality of ‘Les Modes juridiques de solution de conflits chez les Inuit’,
thought. In Crime and Custom in Savage Society (1926), he wrote Etudes Inuit, 3, special no. (1979) (171 pp.); and N. Rouland,
that law could be clearly distinguished from morality and religion, ‘L’Acculturation judiciaire chez les Inuit du Canada’, in La
and this included traditional societies. This was in advance of its Justice et les peuples autochtones, No. Spécial de Recherches amérindi
time and enriched the distinction between civil and penal law ennes au Québec, 13, 3 and 4 (1983): 179-91 and 307-18.
with the notion of reciprocity. He described penal law by the Before considering these monographs, it may prove advisable to
norms which are likely to be infringed, whereas civil law is the read some of the works of synthesis concerning the relationship
__L l
72 Legal Anthropology The Development o f Legal Anthropology 73
between normative and processual analysis: S. Roberts, Order and In Roman law, the execution of a decision is a matter for the
Dispute: A n Introduction to Legal Anthropology (Harmondsworth, parties concerned; they cannot be constrained by external author
Penguin, 1979), pp. 186-206; the introductory chapter of The ity: under the republic the successful party imposed the decision
Disputing Process, ed. Nadder and Todd (op. cit., above), pp. on the unsuccessful party; even under the empire, the magistrate
1-40; D. Hilse Dwyer, ‘Substance and process: reappraising the alone could not execute a decision. In such circumstances the
premises of the anthropology of law’, Dialectical Anthropology, 4 influence wielded by the respective parties had a determining role
(1979): 309-20; R. L. Abel, ‘A comparative theory of dispute on the settling of the conflict. Parties occupying a lower social
institutions in society’, LSR (1973): 217-347; L. Pospisil, ‘Law’, position had everything to gain from being the clients of influen
Quademi Fiorentini, 14 (1985): 23-75, particularly clear; J. L. tial individuals who might come to their assistance; see N.
Comaroff and S. Roberts, Rules and Processes. The Cultural Logic of Rouland, Pouvoir politique et dependence personelle dans l’Antiquité
Dispute in African Context (Chicago and London, University of romaine. Genèse et rôle des rapports de clientèle (Brussels, Latomus,
Chicago Press, 1981), which purports to move beyond the 1979, 658 pp.).
norm/processes divide (for a summary, see E. Le Roy, JLP, 21 In a recent article, based on the study of disputes in Sumatra
(1983): 155-7); F. Snyder, ‘Three paradigms in the anthropology (‘The social significance of Minnangkabau State Court decisions’,
JLP, 23 (1985): 1-68), K. von Benda-Beckmann argues that in
of law’, Nieuwsbreif voor nederlandslige rechtssociologen, recht-
the literature of legal anthropology not enough attention is paid to
santropologen en rechtspsychologen, 1 (1983): 2—16; F. Snyder,
what occurs after a legal decision has been made; just like norms,
‘Anthropology: dispute processes and law’, British Journal of Law
this may be abstract and ineffective. The omission stems from a
and Society, 8, 2 (1981): 141-80; J. Griffiths, ‘The general theory state-based - and thus ethnocentric - idea of law: since the courts
of litigation: a first step’, Zeitschrift fur Rechtssoziologie, 4, 1 epitomize the application of law, the execution of a decision is
(1983): 145-201. Finally the work of J.-G. Bellay, ‘Conflit social seen as a very minor consideration. Yet execution is hardly auto
et pluralisme juridique en sociologie du droit’ (sociology of law matic (in France a high proportion of maintenance awards are not
doctoral thesis, Paris II, th. unpublished, Paris, 1977, 569 pp.), paid by the ex-husbands against whom the orders are made).
contains important further study of these problems. Ethnographic research reveals that once a decision has been made
On the shortcomings of case-method, there is J. F. Holleman, there are several possible scenarios: there is a clear decision
‘Trouble cases and troubleless cases in the study of customary accepted by all parties; the decision is executed under duress,
law and legal reform’, LSR, 7 (1973): 585-609. Finally for fur whether imposed by a legal body (use of public authority) or by
ther information on the thinking of the two important authorities, the most powerful of the parties; one of the parties contests the
Malinowski and Hoebel, see Schapera, ‘Malinowski’s theories of decision and appeals to another jurisdiction; the decision is not
law’, op. cit., above, no. 48, pp. 139-55; L. Pospisil, ‘E. executed, because the successful party does not have the means to
Adamson, Hoebel and the anthropology of law’, LSR, 7 (1973): constrain the other party. Finally, and this is without doubt the
537-59; and also the very useful issue devoted to Hoebel by DC, most interesting eventuality, the decision is itself the subject of
15-16 (1988): 139-86. negotiation between parties, who will decide what action to take.
In common with norms a legal decision is only a model, not an
50 Legal decisions and the settlement o f disputes absolute imperative.
Within our own legal systems disputes are deemed settled follow
ing the decision of a judge. This decision is subsequently executed 51 Introduction to the bibliography of legal pluralism
by public authority. This encourages the view that settlement of The literature of legal pluralism is copious. The newsletter of the
disputes and the pronouncements of the judiciary are one and the Commission on Folk-Law and Legal Pluralism regularly publish
same thing. Yet this is often not the case. es valuable updates. We will limit ourselves to noting the impor
tant books and articles.
= L4
74 Legal Anthropology The Development o f Legal Anthropology 75
First, some syntheses. In our view the most valuable theoretical terns’, in Cross-Examinations: Essays in Memory of M. Gluckman,
synthesis is Bellay’s doctoral thesis, Conflit social et pluralisme ed. P. M. Gulliver (Leiden, Brill, 1978), pp. 78-95; Pospisil,
juridique en sociologie du droit (op. cit., above, no. 49), which is Anthropology of Law (op. cit., above, no. 9); and L. Pospisil, ‘Law
noteworthy in its description of developments in legal pluralism in and societal structure among the Nunamiut Eskimo’, in
modem France. Then there is Le Pluralisme juridique, ed. J. Exploration in Cultural Anthropology, ed. W. H. Goodenough
Gilissen (Brussels, Editions de l’Université de Bruxelles, 1972), (New York, McGraw Hill, 1964), pp. 395-431, where Pospisil
within which, in particular, J. Vanderlinden, ‘Le Pluralisme applies his theory of ‘levels of law’ in the case of Inuit Nunamiut
juridique. Essai de synthèse’, pp. 19-56. Pluralism in Africa, ed. L. society. See also S. Falk Moore, ‘Law and social change: the
Kuper and M. G. Smith (Berkeley, CA, University of California semi-autonomous social field as an appropriate subject of study’,
Press, 1971), examines pluralism in African societies; there are LSR, 7 (1973): 719-46. See M. Chiba, Asian Indigenous Law
also articles by L. Kuper, ‘Plural societies: perspectives and prob (London and New York, Routledge & Kegan Paul, 1986, 416
lems’, pp. 8-26 and, also by L. Kuper, ‘Ethnic and racial plural pp.), pp. 1-11, 378-95; also by M. Chiba, ‘Three dichotomies of
ism: some aspects of polarization and de-pluralization’, pp. law: an analytical scheme of legal culture’, Tokai Law Review, 1
459-87, which examines cases of a reduction in pluralism; and M. (1987): 279-90. Those wishing to extend their knowledge of the
G. Smith, ‘Pluralism in precolonial African societies’, pp. 136-41, legal aspects of Gurvitch’s theories will find that an issue of Droit
which outlines the social factors influencing the degree of plural et Société (4 (1986): 341-80) is devoted to them. J. Carbonnier,
ism. We may also cite Indigenous Law and the State, ed. B. W. in ‘Gurvitch et les juristes’, Dwibeb Société, 1 (1986): 347-52,
Morse and G. R. Woodman (Dordrecht, Foris Publications, ouüines the reasons why Gurvitch has had little influence on
1988). A good history of theories of pluralism may be found in P. jurists (mainly because he addressed public rather than private
L. Van den Berghe, ‘Pluralism’, in Handbook of Social and Cultural law).
Anthropology (op. cit., above, no. 8), pp. 959-77; Pospisil, There are also articles dealing with more specific problems. On
Anthropology of Law (op. cit., above, no. 9), pp. 99-106; L. Nader the subject of legal pluralism in Roman law, there is G. C. J. J.
and B. Yngvesson, ‘On studying the ethnography of law and its Van den Bergh, ‘Le Pluralisme juridique en droit romain’, in Le
consequences’, in Handbook of Social and Cultural Anthropology Pluralisme juridique, ed. Gilissen (op. cit., above), pp. 89-103; J.
(op. cit., above, no. 8), pp. 883-921; N. Rouland, entry under Gaudenet, ‘Les Transfers de droit’, L ’Année sociologique, 27
‘Pluralism juridique’, in Dictionnaire de sociologie juridique, ed. A. J. (1976): 29-59; R. A. Bauman, ‘Comparative law in ancient
Arnaud (Paris, LGDJ, 1988), pp. 303-4. In a key article, J. times’, paper presented to the Xllth International Congress of
Griffiths systematically reviews all these theories, and criticizes Comparative Law, Sydney, 1986; S. C. Hicks, ‘Comparative law
them for overstating the role of the state: ‘What is legal plural in ancient times: the legal process’, American Journal of
ism?’, JLP, 24 (1986): 1-55. Finally, since it was the Dutch school Contemporary Law, 34 (1986): 81-97. On ‘vulgar law’ there is J.
which laid the foundations of the study of legal anthropology Gaudemet, ‘A propos du droit vulgaire’, in St B. Biondi, Vol. 1
before even the sociological theories of Ehrlich and Gurvitch, there (Milan, Guiffrè, 1965), pp. 271-300. P. Ourliac and J.-L.
is the recent collection Anthropology of Law in the Netherlands. Gazzaniga, Histoire du Droit Privé Français (Paris, Albin Michel,
Essays on Legal Pluralism, ed. K. von Benda-Beckmann and F. 1985), pp. 34-6, insist on the dichotomy between codified law in
Strijsbosch (Dordrecht, Foris Publications, 1986). late antiquity, badly drawn up and open to confusion, and that
After reading these syntheses, there are the main current theo applied by judges; for them, the unity of Roman law, long pro
ries of legal pluralism (those of L. Pospisil, S. Falk Moore and claimed by Romanists, should not conceal the fact that provincial
M. Chiba). See L. Pospisil, ‘The nature of law’, Transactions of law existed, obscured but not suppressed by Roman domination,
the New York Academy of Sciences, series 2, 28, 8 (1956): 746—54; and reappearing with vigour in the sixth century. On the subject
L. Pospisil, ‘The structure of a society and its multiple legal sys- of the past and present policy of colonizing and centralizing pow-
•cap--------
76 Legal Anthropology The Development o f Legal Anthropology 77
ers against the law of the communities they sought to control, reforms and codification of the seventeenth and eighteenth cen
there is N. Rouland, ‘Les Colonisations juridiques’, JLP, 1988, turies, laying the foundations for the unifying theme of the
and by the same author: ‘Les Droits mixtes et les théories du plu French Revolution. Meanwhile, as R. Debbasch argues, there is
ralisme juridique’, communication présentée au Colloque des discontinuity as well as continuity: absolute monarchy may have
Droits mixtes, Aix-en-Provence, 10-11 December 1987 (to be attempted centralization, yet never really succeeded in unifying
published in the conference proceedings). the kingdom, still marked by considerable diversity in legal status
As regards the important question of the unified system of law in 1789. The revolution ushered in a major change in social
of the state, criticized by all theories of pluralism, there is a thought: the unifying symbol was no longer the king but the
defence of the ‘rule of law’ in B. Barret-Kriegel, L ’Etat et les nation, establishing its independent existence from the monarchy
esclaves (Paris, Calmann-Lévy, 1979) and, more recently, L ’Etat before abolishing it (under the ancien régime the identity of the
de Droit, ed. D. Colas (Paris, PUF, 1987, 254 pp.). On the com- king and the nation was complete). Debbasch also makes an
parativists’ prevailing tendency to seek a supranational unified interesting distinction between political unity and legal uniformi
field of law, the comments of R. David are relevant: see R. David, ty: political unity, guaranteed by the sovereignty of the state,
‘La refonte du Code Civil dans les états africains’, Annales ‘can allow diversity through statute or legislation. This does not
Africaines, 1 (1962): 160-70; and R. David, Les Avatars d'un com affect the overall sovereignty of the French nation. The only sig
paratiste (Paris, Economica, 1982), pp. 264-8. On the role played nificant limitation to sovereignty, which could have been granted
by jurists in the building of the state, there is Die Rolle derjuristen to any of the nation’s constituent parts, would have been the
bei der Entstehung des modemen Staats, ed. Roman Schnur (Berlin, recognition of a degree of normative autonomy. Yet, as we know,
Duncker & Humboldt, 1986, 880 pp.). On the history of the uni even overseas territories do not possess this autonomy’ (op. cit.,
tary principle, see the remarkable thesis of R. Debbasch, Le p. 419). This brings us back to the underlying arguments about
Principe Révolutionnaire d'unité et d'invisibilité de la République. legal pluralism: Debbasch’s distinction resembles that made by
Essai d’histoire politique (Paris, Economica, 1988, 481 pp.). pluralist writers between plurality (the diversity of rules allowed
Debbasch shows that the republican claim to this principle, taken by the state) and pluralism (the diversity of legal systems, to
up by the 1958 Constitution, is rooted in a long tradition. For which the state will not admit). Yet the problem remains: is the
most of the philosophers of antiquity, humankind tends towards fact that the state denies the existence of autonomous normative
unity. Plato asks: ‘Can we mention any greater evil to a city than influence sufficient to suppress such norms? We do not think so.
that which rends it asunder and makes it not one city but many?’ Yet, as Debbasch states, unity and political centralization are the
{Republic V, 462). Christianity is also profoundly unitary: St Luke quintessence of the republic. Has unity always been sought? The
warned that ‘Every kingdom divided against itself is brought to history both of philosophy and of the Western states would indi
desolation’ (11.17). The Trinity is itself more unitary than plural cate that this was the case. In our view unity is certainly easier to
ist: Catholicism established, in its struggle against Arianism at the envisage than diversity. There is nothing universal about such a
Council of Nicaea, that the Son was equal to the Father, and was paradigm - as will be revealed when we examine African legal
not created by him; as for the indivisible Holy Spirit, it is given to thought. For M. Alliot, the unitary principle is a lie, obscuring the
all humankind and is the unifying thread in their existence. Great reality of social existence, as much in modem as in traditional
churchmen constantly refer to the theme of unity: St Thomas societies: ‘the error in these textbooks is worse than the simple
pronounced himself in favour of monarchy, stating that it repro error of ethnocentricism denounced by anthropologists: not con
duced divine unity on earth, a comparison taken up by Bossuet in tent with describing Western and non-Westem societies through
describing the theory of divine right. The French monarchy, by the eyes of a professor of law, they assume the legal reality of their
the ordinance of Montils les Tours (1454), ordered the official own countries is confined to the prevailing single official legal sys
transcription of customs. This was followed by the gradual tem, and then extend this model to other societies’ (M. Alliot,
78 Legal Anthropology The Development o f Legal Anthropology 79
‘L’Anthropologie juridique et le droit des manuels’, Archiv fur which contains much indigenous law and received law; non-offi
Rechts- und Sozialphilosophie, 24 (1983): 72). cial law, where indigenous law predominates, and the influence of
the family group and communities are very important; precise or
52 Legal pluralism in the Orient and Africa diffuse legal postulates.
The concepts of M. Chiba may be found in the work edited by If Islamic law has exercised considerable influence on some of
him (Asian Indigenous Law, op. cit., no. 51), a collection of valuable the countries we have mentioned, the same is true of Africa, as J.
studies, each addressed to a particular country. Egypt’s official Froelich has shown. Customary law and Muslim law are ini evi
Pharaoic legal system was later to be subjected to the influence of dence in Etudes de droit Africain et Malgache, ed. J. Poirier (Paris,
Roman law, accompanied by non-official customary law. The Cujas, 1965), pp. 361—89. Since the eleventh century, Islamic law
Islamic conquest led to the incorporation of Islamic law, which has made its appearance in Africa, though unevenly. During the
gradually became official indigenous law, interacting with non- period of Mali dominance, in the thirteenth and fifteenth cen
official indigenous customs. The next stage was the incorporation turies, it was applied in the prince’s court, in the upper echelons
of the Napoleonic Code, which penetrated some areas of law, of administration, as well as amongst cultivated urban elites, but
though incompletely. Today, Egyptian law is a blend of received not amongst the majority of the population. The same is true of
and indigenous law, at official and non-official level. The history the Sonrhaï Empire of the fifteenth and sixteenth centuries. In the
of law in Iran is also affected by the determining role of Islamic Peuls theocratic states it was rigorously applied. Today Islamic
law, in its Shiite form. In 640, the Arabs defeated the Persian law continues to broaden its influence; despite its monotheist
Empire: Islamic law became received and official law, whereas the character, Africans have found that it harmonizes with their tradi
former official Persian law became non-official, or was partially tions better than European law (certain institutions, such as the
incorporated into Islamic law. Since this time, and despite trans tolerance of polygamy, are common to both traditional African
fers of Western law in an attempt to modernize the country in the and Muslim law). Yet, clearly, Islam had to adapt itself to black
years before Ayatollah Khomeiny came to power, Islamic law Africa (see below, no. 169).
retained its hold. In countries further east, the role of non-official
law appears more important. In Sri Lanka, with its considerable S3 J. Vanderlinden’s synthesis (1972)
religious diversity, the inhabitants are not well versed in official The above illustrations, taken from the legal practices of different
law; from 1953 onwards, a legal system inspired by Hindu law, countries, are specific in nature. In a synthetical work, Le
traditional Singhalese law and the ideology of the socialist state Pluralisme juridique, J. Vanderlinden studies the various origins of
was introduced. In India official law is a blend of indigenous legal pluralism, as well as its objectives and operation (op. cit.,
Hindu law and received English law, but since the fit is not per above, no. 51). Legal pluralism has a variety of origins. The unity
fect, non-official law continues to play a part, notably Islamic law of law may be perceived as unjust, on account of the lower status
(formerly received law), and the traditional indigenous law of the of some social groups in relation to others (the status of minors or
mountain people of the northern districts. From the beginning of some categories of adults; the status, until recendy, of married
the Meiji period, in 1868, modem Japanese law was based on women; traditional law in contemporary Africa; the status of
received Western law: first on European models, and subsequent minority groups). There may also be relativity in the notion of
ly, after the Second World War, a common law tradition from the justice: certain groups who do not share the perception of official
USA. At present Japanese law is very pluralist and complex. law develop their own law (the ‘law of the underworld’ opposed
Codified law exists, but is in practice little used: these non to that of the state). The unity of law can also appear inequitable
imperative concepts of law resemble the legal systems of many to some: a dominant group may attempt to strengthen its position
traditional societies in other continents. Further, in practice, in instituting procedures which favour it (patrician law in ancient
Japanese law can be divided into several categories: official law, Rome, the property-holding qualification in nineteenth-century
1
80 Legal Anthropology The Development o f Legal Anthropology 81
democracies); ethnic or social groups of widely varying composi ment of pluralist thinking (‘Social and cultural pluralism in the
tion may establish a pluralist regime in order to coexist (sixth- Caribbean’, ed. V. Rubin, Annals of the New York Academy of
century Romano-barbarian legislation was based on the Sciences, 83 (1960): 763-77). He challenges the ideas of
individual nature of laws); the existence of specific needs of some Furnivall, for whom pluralism was reduced to interracial relation
groups encourages them to evolve particular legal forms (the ships, and states that the existence of a class structure in modern
commercial law of merchants, the feudal law of knights); the need societies is not, in itself, indicative of pluralism. Hierarchical
to give institutions a measure of independence to ensure their stratification is not necessarily pluralist; for pluralism to exist, the
effectiveness plays its part (the granting of privileges or immunity main cultural institutions of different groups (kin, property, reli
to certain people); so does judicial decentralization (the further gion, etc.) must be incompatible. Social cohesion is achieved sole
down the legal hierarchy one goes, the more numerous the juris ly through the monopoly of political power exercised by one
dictions of the same status become, and the more often do similar social group. In three contributions published a few years later in
situations produce different rulings, varying according to the Pluralism in Africa, ed. L. Kuper and M. G. Smith (Berkeley, CA,
jurisdiction), or administrative decentralization (local taxes vary University of California Press 1969) - ‘Institutional and political
from area to area); so do the imperatives of economic develop conditions of pluralism’, ‘Pluralism in precolonial African soci
ment (the granting of privileges to persons or groups contributing eties’ and ‘Some developments in the analytic framework of plu
to the economic development of a society), and the assimilation ralism’ - M. G. Smith goes further in distinguishing three kinds
of certain people to the ranks of those already enjoying a particu of pluralism: cultural pluralism, consisting of institutional differ
lar status (the families of certain workers acquire the same privi ences in the absence of corresponding social distinctions; social
leges). As regards the objectives and operation of pluralism, J. pluralism, where institutional differences are associated with
Vanderlinden describes a number of factors which cannot be marked social distinctions; and structural pluralism, which pre
expanded on here. supposes cultural and social pluralism, in which the component
These propositions constitute a remarkable work of synthesis; groups of a society are unified solely by the political domination
they are not, however, lacking in ambiguity. In fact we are con of one group.
stantly confronted with the problems raised by J. Griffiths and R. Finally, P. L. Van den Berghe in ‘Pluralism’ (op. cit., above,
Debbasch: should we not distinguish more radically between plu no. 51) insists that the degree of pluralism varies according to the
rality and legal pluralism? Unity does not always involve confor nature of relations existing within and between groups. A society
mity. The debate is still open, but the most recent theories (S. will tend towards pluralism when the interaction within groups is
Falk Moore, J. Griffiths) incline us towards the ‘stricter’ version non-segmentary, non-utilitarian, affective and diffuse, and the
of pluralism, in which the role of the state is qualified to a greater interaction between groups is segmentary, utilitarian, non-affec-
extent. tive and functional.
tion’ (on legal pluralism in industrial societies, the sociojuridical Great Britain). The absence or presence of ethnic minorities and
position of women in societies undergoing change, the law of the length of the colonial experience are only secondary considera
social groups at the end of the twentieth century: strategies of aid tions affecting the development of legal anthropology in the indi
to the Fourth World) (Zagreb, Yugoslavia, 1988). vidual countries belonging to these main categories. (For further
These conferences are followed by publication of proceedings; information on the continental-English-speaking divide, see E. Le
People’s Law and State Law: The Bellagio Papers, ed. A. Allot and Roy, ‘Pour une anthropologie du droit’, Revue interdisciplinaire
G. R. Woodman (Dordrecht, Foris Publications, 1988, 472 pp.). d’Etudes juridiques, 1 (1978): 71-100; E. Le Roy, ‘Ethnologie
The commission also publishes newsletters every two or three juridique’, Digesto (Turin, in press); A. N. Allot, ‘The people as
years (for its address see above, no. 10). law-makers: custom, practice, and public opinion as sources of law
in Africa and England’, Journal of African Law, 21, 1 (1977): 2-5.)
56 M ain currents o f legal anthropological thought If functionalism (for English-speakers) and the civilian tradition
In this chapter devoted to the main theoretical problems of legal (for continentals) are the key elements of these two currents of
anthropology, we have opted for a thematic presentation. Yet thought, other theories, in contrast, such as Marxism and struc
there are traditions and national schools which we must also turalism, do not seem to have inspired world-wide schools of
account for. thought in legal anthropology. This statement, though valid,
Two variables must be taken into account when describing the requires qualification. Marxist legal anthropologists do exist -
outlook of each country. On the one hand, its colonial record or there is Max Gluckman; and some American writers, such as R.
the existence of ethnic minorities on its soil: when the discipline L. Abel, see the existence of ‘informal justice’ in the USA as the
exists in European countries, it is often because these countries means whereby dominant groups maintain their grip over the
have had a colonial past and the colonies were used as a field of groups they dominate and create a ‘two-track’ system of justice.
study, as with France in sub-Saharan Africa, or the Netherlands Other authors, such as F. G. Snyder and P. Fitzpatrick, have,
in Indonesia. Germany and Italy were less fortunate, because since 1975, concentrated on economic factors and social inequali
their colonial experience was shorter and was brought to a close ty, and are in particular associated with study of legal accultura
by two world wars. However, the possession of colonies is not the tion, accompanying the development of capitalism. These are
only factor determining the birth and development of legal English-speaking authors, whereas it is essentially French writers
anthropology. Its existence in the USA and Canada has been (M. Godelier, C. Meillassoux, E. Terray) who, since the late
influenced by studies of ethnic minorities (Amerindians). Nations 1960s, have applied themselves to redefining the Marxist concep
such as Portugal or Spain, who founded extensive colonial tual framework, in order to apply Marxism to traditional societies.
empires, have not created any school or tradition of legal In fact the majority of these neo-Marxists have abandoned the
anthropology. classic distinction between infrastructure and superstructure: law
A second factor is present, allied to the first: the dynamics and is seen as an integral part of the mode of production. (For further
direction of particular legal and anthropological schools of analysis, see F. von Benda-Beckmann’s introductory article to the
thought. If France and continental Europe have been much influ contributions of P. Fitzpatrick, E. Le. Roy and F. G. Snyder,
enced by the Roman tradition, English-speaking countries have ‘Neo-Marxist interpretations of folk-law in pluralist legal sys
been influenced by the spirit of common law, and have benefited tems’, in People’s Law and State Law (op. cit., above, no. 55), pp.
from more advanced social sciences in general and anthropology 238-74; F. G. Snyder, ‘Land law and economic change in rural
in particular. This cultural factor seems to have been a more deter Senegal: Diola pledge transactions and disputes’ in Social
mining one than the previous factor, since the important division Anthropology and Law, ed. I. Hamnet (London and New York,
is that between the ‘continental’ tradition (Western European Academic Press, ASA, Vol. 14, 1977), pp. 113-57; F. G. Snyder,
countries) and the English-speaking tradition (USA, Canada, Capitalism and Legal Change: An African Transformation (New
84 Legal Anthropology The Development o f Legal Anthropology 85
York and London, Academie Press, 1981); and also by Snyder, gists to reorientate themselves fundamentally: they now study
‘Anthropology: Dispute Processes and Law’ (op. cit., above, no. both traditional and modem societies. Thus R. L. Abel has carried
49), pp. 157-9; E. Le Roy, ‘L’Anthropologie juridique anglo-sax out a very valuable piece of legal macro-sociology in simultaneous
onne et l’heritage scientifique de Max Gluckman: un point de vue ly considering the settlement of conflict in Kenya and in the USA
français’, African Law Studies, 17 (1979): 53-69; P. Fitzpatrick, (see R. L. Abel, ‘Theories of litigation in society: “modem” dis
‘Is it simple to be a Marxist in legal anthropology?’, Modem Law pute institutions in “tribal” society and “tribal” institutions in
Review, 48 (1985): 472-85.) “modem” society as alternative legal forms’, in Alternative
As regards structuralism, although it may have inspired the work Rechtsformen und Altemativen zum Recht, ed. E. Blankenburg, E.
of A.-J. Amaud in the sociology of law (see in particular A.-J. Klausa and H. Rottleuthner [6 Jahrbuch fur Rechtssoziologie und
Arnaud, Essai d’analyse structurale du Code civil français: la règle du Rechtstheorie, 1979], pp. 165-91; and ‘Western courts in non-
jeu dans la paix bourgeoise [Paris, LGDJ, 1973]), we rarely find it Westem settings: patterns of court use in colonial and neo-colo-
present in legal anthropology, except perhaps in the emphasis of E. nial Africa’, in The Imposition of Law, ed. S. Burman and B.
Le Roy and the Laboratoire d’anthropologie juridique de Paris Harrell-Bond (New York/Toronto, Academic Press, 1979).
(see below, no. 60) and N. Rouland, ‘Persistances et invariances: Studies of this kind have generally focused on the subgroups of
structure, histoire, droit’, RRJ, 3 (1985): 731-71. larger societies, often minority or disadvantaged groups (in partic
We will now consider, in more detail, the various national ular the marginal groups of large American cities) and on the
schools belonging to the two main currents of thought which we non-state (‘informal justice’) procedures of settling disputes.
have cited. Most of these studies also distinguish between conflictual
processes (dispute processes) and the settling of disputes (dispute
57 The English-speaking tradition processings); the former have been of particular interest to social
Most English-speaking studies published between 1938 and the scientists, whereas the latter, more outcome-orientated, have been
mid-1960s (the most important being those of Schapera, Hoebel, the province of traditional jurists and government agencies in
Gluckman, Bohannan, Pospisil and Gulliver) present common social policy. During this period there were developments in the
characteristics: historical change plays a minor role, as does the teaching of legal anthropology in America which, fifteen years
acculturation produced by a colonial regime, yet most of these later, European countries could still not match; in 1973, thirty-
studies are contemporary with colonialism. In keeping with a one American universities and colleges offered this discipline.
functionalist outlook, societies are presented as homogenous and (See also, in particular, Snyder, ‘Anthropology: dispute processes
sealed units: the methodology is essentially that of processual and law’, op. cit., above, no. 49, pp. 141-80; Nader’s article cited
analysis. Until recently these works had little influence on conti above, ‘The anthropological study of law’; L. Nader and B.
nental schools and continued to follow their own paths. From Yngvesson, ‘On studying the ethnography of law and its conse
1965 we may detect a development as continental thought and quences’ in Handbook of Social and Cultural Anthropology [op. cit.,
English-speaking thought begin to converge. In an important arti above, no. 8]). The work of H. W. Baade, ‘Ethnological jurispru
cle in 1965 (‘The anthropological study of law’, American dence and legal anthropology in the United States’ (report sub
Anthropologist, 67, 6, 2 (1965): 3-32), L. Nader insists that legal mitted to the 11th International Congress of Comparative Law,
processes do not have a separate existence isolated from the other Budapest, 1978), remains, as yet, unpublished.
social processes around them and reacts against the ‘mono
graphic’ emphasis of previous research. We will now consider
cross-cultural themes, using the settlement of disputes as a basis
of comparison - there are a finite number of modes of settling dis
putes. The need to generalize has led American legal anthropolo
86 Legal Anthropology The Development o f Legal Anthropology 87
58 The ‘A d a t’ Law School: the leading position o f the Dutch law faculty programmes (particularly at Nijmegen and Leiden);
school in Europe also ‘literary’ anthropologists were never much interested in law.
We begin our survey of the continental schools with the Dutch The Dutch school has also made an important international con
school of Indonesian customary law (Adat law). The dynamism tribution to the development of legal anthropology through the
and capacity for innovation of these Dutch workers should, by creation, in 1978, of the Commission on Folk-Law and Pluralism
rights, have given them pride of place in European legal anthro (see above, nos 41 and 55); and through the Journal of Legal
pology. If this has not been the case it is because much of their Pluralism, the main international organ of legal anthropology,
work has not been translated into English and also because most mainly edited by Dutch writers.
legal anthropologists, English-speaking or no, are unfamiliar with Belgium, however, although similar in size to Holland and also
Indonesia as an area of study (unlike Africa); finally Dutch work an important colonial power, is poles apart in the development of
ers have often undervalued their own national school. legal anthropology, proof enough, a contrario, that if fieldwork is
Van Vollenhoven (1874-1933) was the founder of the Adat Law important to legal anthropology, it is the existence of a tradition
School; he refused to consider sanctions as the legal criterion and, of teaching and research which encourages its development. It
in 1901, developed the concept o f ‘autonomous communities’, able was only in the 1920s, with the beginnings of colonization in the
to evolve their own law (villages, families, clans, etc.). He intro Belgian Congo, that the first studies emerged, mainly the work of
duced the idea of legal pluralism, some time before Ehrlich and jurists and missionaries (H. Rolin, Hulotaert). These studies are
Gurvitch. In 1937 he also anticipated by some twenty years the in general of a descriptive nature and were tailored to the needs of
Gluckman-Bohannan controversy, in insisting that legal anthropol colonial administration. Other later writers (A. Sohier, E. Possoz)
ogy adopt an indigenous view of law, as represented in thought and were to publish research which was wider-ranging but shot
speech. On more than one occasion Van Vollenhoven became the through with ethnocentricism, since the main concepts were
derived from the European legal tradition. An authentic legal
advocate of Indonesians in their dealings with the colonial authori
anthropology could have developed, as the work of such jurists as
ties: he opposed the unification of law in Indonesia (this would
G. Malengreau, J. Pauwels, J. Vanderlinden, or D. Biebuyck (an
have been to the detriment of traditional law) and defended cus
ethnologist) demonstrates. The Belgian school was handicapped
tomary law. More generally, the method of the Adat Law School
by two factors: first, the emergence of the scientific approach of
can be identified with continental thought, with particular reference
these latter writers coincided with the end of colonial rule; sec
to customary norms. From 1900 to 1940, the Netherlands was the ond, the Belgian universities (and the ex-Belgian colonies) did not
most productive country in legal anthropology. express interest in the discipline (legal ethnology was offered at
After the Second World War, English-speaking workers came to the Université libre de Bruxelles, but was recently removed from
the fore, but the Adat Law School continued to produce remark teaching programmes).
able exponents (F. D. Holleman, G. Van den Steenhoven), For further details on the Adat Law School see the indispens
succeeded by the present generation of Dutch legal anthropolo able work of Griffiths, ‘Anthropology of law in the Netherlands in
gists, amongst whom we may cite J. Griffiths, author of an the 1970s’, Niews-brief voor nederlandstalige rechtssociologen, recht-
extremely valuable synthesis of legal anthropology and the general santroplogen en rechtspsychologen (NNR), 4 (1983): 132—240, fol
theory of legal processes; F. von Benda-Beckmann, specialist on lowed by a full bibliography (this important study has been
property law and the settlement of disputes in Sumatra; E. Van published in abridged form in J. Van Houtte (ed.), Sociology of
Rouveroy van Nieuwaal, specialist on the Togo; J. Boissevan, who Law and Legal Anthropology in Dutch-Speaking Countries [Nijhoff-
carried out fieldwork in the village communities of Malta; A. Dordrecht, 1985], pp. 105-62; and see K. von Benda-Beckmann
Kuper in his study of the Kalahari of Botswana; A. Strijbosch; F. and F. Strijbosch, Anthropology of Law in the Netherlands: Essays in
Strijbosch; G. Van den Bergh, etc. The vitality of the Dutch Legal Pluralism [Dordrecht, Foris Publications, 1986]). There is
school partly accounts for the inclusion of legal anthropology in also A. K. and J. M. Strijbosch, ‘Methods and theories of Dutch
ii
88 Legal Anthropology The Development o f Legal Anthropology 89
juridical-ethnological research in the period 1900-1977’, tion to other national schools. The first steps came only with H.
Netherlands Reports to the 10th International Congress of Comparative Lévy-Bruhl (1884-1964), whose students (M. Alliot, J. Poirier)
Law (Kluwer-Deventer, 1978), pp. 1-15; F. von Benda- were able to bring his work to fruition. Lévy-Bruhl, still largely
Beckmann, ‘The development of folk property laws in complex unrecognized in French faculties of law, was a Romanist who
societies: an overview of Dutch scholarship, with special refer refused to conform and who, using Bonfante in Italy as a refer
ences to the property law of the Minangkabau, West Sumatra’, ence point, thought that ethnology could clarify certain problems
Netherlands Reports to the 11th International Congress of Comparative in early Roman law, where there are large gaps in the evidence.
Law, Caracas (Kluwer-Deventer, Law and Tradition Publishers, He also believed that the study of so-called ‘primitive’ societies
1982), pp. 1-18. For a summary of the contribution of the Adat would permit a better understanding of our own societies, in so
Law School, there is B. Ter Haar, Adat Law in Indonesia (New far as they still included institutions whose origins lay in archaic
York, Institute of Pacific Relations, 1948) and, more recently, M. ‘pre-legaP times: this recourse to evolutionism tends, today, to
Koesnoe, Introduction to Indonesian Adat Law (Nijmegen, Catholic date his thinking. But at a time when exegetic studies were the
University, 1971), as well as the works cited in the bibliography of norm, his open outlook was quite exceptional. Aided by ethnolo
Griffiths’s work (see above). Finally, as regards Belgian legal gy and history, he contributed to the study of Roman law by
ethnology, there is J. Vanderlinden, ‘L’Ethnologie juridique en refusing to accept it as a timeless model to be slotted into a his
Belgique de Post à Lévi-Strauss’, Rapports belges au Xe Congrès torical framework, and relating it to other social phenomena. He
international de droit comparé, Budapest, 1978 (Brussels, Bruylant, also drew attention to the original nature of the law of traditional
1978), pp. 1-9. societies and contributed to the recognition of these systems of
law. Although he failed to influence the jurists of his period, he
59 French legal anthropology: a late developer awakened an interest amongst his students, helped develop the
We have already alluded to France’s absence from the scene
teaching of legal anthropology in France, and encouraged a number
between 1860 and 1880, when legal anthropology was bom, of successful initiatives in the field of research. Legal anthropology
Unfortunately this was more than the orchestral silence preceding in France owes its existence as a discipline essentially to his disci
the momentous launch of a symphony. On the contrary, until the ples. The groundwork was laid by Maunier and Labouret in the
1960s, apart from the brilliant exceptions of M. Mauss or H. interwar period. The former, a professor of law, created the ‘Salle
Lévy-Bruhl, France maintained its silence, apparently unaware of d’Ethnologie juridique’ at the Paris Faculty of Law (directed by
developments in English-speaking countries or in the H. Lévy-Bruhl after the war), and was founder of the series
Netherlands. Thus several decades were remarkable only for their ‘Etudes de sociologie et d’ethnologie juridiques’. The latter, a
theoretical poverty. French legal anthropologists continued to French colonial governor, started the first regular course in legal
adhere to evolutionism, an outmoded concept; colonial jurists, ethnology, at the Ecole Coloniale. It was left to Lévy-Bruhl’s stu
imbued with applied anthropology, modified traditional law in dents to continue the work: J. Poirier took over from H. Labouret
the process of codification through the transcription of customs, at the Ecole Nationale de la France d’Outre-Mer and developed
or in sitting in tribal courts. Colonialism brought in its wake a the study of African law: in 1955, Lévy-Bruhl started a course in
period of considerable ethnocentricism in law: the principle of the study of traditional and contemporary law in Africa (a course
assimilation went hand in hand with a lack of understanding of in Arab law already existed), mainly taught by M. Alliot and J.
indigenous legal practices and with the emphasis on Western law Poirier. In 1964, on Alliot’s initiative, and in the same faculty, a
in general, and Napoleonic law in particular. So flagrant was the department of African economy and law was created. A year later
ethnocentricism that non-jurist ethnologists, with the exception of Alliot founded the ‘Laboratoire d’anthropologie juridique’ whose
M. Griaule, avoided the whole question of law. French legal primary objective was to create an ethnic and thematic corpus of
anthropology thus suffered from a considerable handicap in rela African legal terminology, a task entrusted to a team of workers
90 Legal Anthropology The Development o f Legal Anthropology 91
co-ordinated by R. Verdier. We are also indebted to Lévy-Bruhl, internationale des Sciences sociales, 22, 3 (1970): 509-27, there is
Alliot and Poirier for the first overview of the problems of legal complementary information on this period of growth in French
ethnology, published in 1968, in Ethnologie générale (see above, legal anthropology. On the role of H. Lévy-Bruhl, see N. Rouland,
no. 4). ‘H. Lévy-Bruhl and the future of law’, RRJ, 2 (1985): 510-30. For
The two decades following the Second World War proved to be a good summary of the development of French legal anthropology
decisive. First, it is in this period, on the foundations laid by previ see E. Le Roy, ‘L’état de l’anthropologie juridique française’,
ous experience, that teaching and research institutions were created, BLAJP, 14 (1988): 45-54; and also the special issue of the Journal
m a k i n g possible, with some modifications, the development of of Legal Pluralism (1991), devoted to French legal anthropology.
French legal anthropology to this day. Secondly, given the
research interests of the students of H. Lévy-Bruhl, Africa 60 The Laboratoire d ’anthropologie juridique de Paris
became the principal focus of this anthropology (we should, how The guiding principles of the LAJP, a group of about twenty
ever, note that, whether of the jurist or ‘literary’ variety, French workers of different nationalities, make a clean break with the
legal anthropologists have also covered other areas: Muslim law previous period: its members set themselves the task of avoiding
has been studied by Lingat and Lafont, Melanesian chiefdoms by those ethnocentric colonial ideologies concerning law which tended
J. Guiart; since 1976 the author’s own work has been centred on to favour the European legal tradition and a policy of assimilation.
the study of traditional law and the acculturation of law amongst Through a study of acculturation they hoped to expose any resur
Arctic peoples). Finally, since the 1960s French legal anthropology gence of this ideology, often present in the law of development,
has at last broken with the evolutionist and ethnocentric prejudices which was until recently based on methods of codification favour
of the preceding era, and has witnessed considerable develop ing European law at the expense of indigenous law. On a more
ments in theoretical and epistemological research. This new theoretical level, the LAJP has attempted to evolve definitions of
outlook has been made possible not only by the work of those we law and methodologies which will permit the elaboration of cross-
have cited, but also because of decolonization, which redeemed a cultural comparisons, from which modem societies are not
legal anthropology mortgaged to Western law and reflecting a excluded. As regards the definition of law, M. Alliot and E. Le
political supremacy which has since disapeared. (It is worth Roy demonstrate that the definition of traditional jurists, based
repeating in this context that although colonialism provided an on the prescriptions of law and presenting law as a sector of soci
indispensable research terrain for anthropology, it also tainted ety parallel to economics, politics, or religion, has no cross-cultur
anthropology with an ideology which ran counter to the develop al value and is valid only for our own societies. We will describe
ment of a truly objective approach.) the theses of the LAJP in greater detail later (see below, no. 76).
Today, French legal anthropology is represented by two institu The LAJP, in its search for a broader conception of legal
tions: ‘Le Laboratoire d’anthropologie juridique de Paris’ (LAJP), anthropology, and whilst continuing to carry out research in sub-
directed by M. Alliot and E. Le Roy, and the ‘Droit et Cultures’ Saharan Africa, has also brought modern French law into its
centre, directed by R. Verdier. For further details, see E. Le Roy, ambit (for example, the law concerning minors, and the settle
‘La Méthode anthropologique et l’histoire judiciaire’ to appear in ment of disputes by non-contentious means).
Droit et Société. J. N. Lambert, ‘La Méthode du juriste ethnologue’, The work of some LAJP researchers, particularly that of E. Le
Rapports généraux au Xe Congrès international de droit comparé Roy, comes to resemble structuralism in its search for formaliza
(Budapest, 1981), states, on the contrary, that the colonial period tion and an overview (we know that Lévi-Strauss studied law, but
was a golden age for legal ethnology and rejects its later orienta found it extremely dull). There would appear to be some com
tion. In J. Poirier, ‘L’Ethnologie juridique’, Revue de l’enseignement mon ground. For Le Roy, law is more a system of communication
supérieur, 3 (1965): 25-37, and, also by J. Poirier, ‘Situation than a way of settling disputes (Verdier’s analysis of vengeance as
actuelle et programme de travail de l’ethnologie juridique’, Revue a form of exchange between opposing groups contains elements
92 Legal Anthropology The Development o f Legal Anthropology 93
of this idea), and can be compared with a language whose gram control of societies by particular groups or individuals. (A general
mar may be more important than the discourse itself, i.e. the survey of the work of the LAJP is to be found in E. Le Roy,
organizing principles and mode of expression. In this way, with ‘Réflections sur une interprétation anthropologique du droit
the help of a referential framework, a comparative methodology africain: le Laboratoire d’anthropologie juridique’, Revue juridique
may be employed, general enough to take account of the particu et politique, Indépendance et coopération, 26, 3 (1972): 427-48; and,
lar features of each institution observed. The matrix method (see for a summary of the contribution of the LAJP towards a defini
below, no. 145) is also structuralist, to the extent that it results in tion of law and the methodology of legal anthropology, ‘Rapport
the building of a model applicable to systems other than that for d’activité (1977-1981) du LAJP’, doc. unpublished (Paris, LAJP,
which it was originally conceived. Yet Le Roy’s systemic 1981, 89 pp.). On the relationship between Lévi-Strauss’s struc
approach is of a different nature: his work gives greater emphasis turalism and the LAJP, see E. Le Roy, ‘Pour une anthropologie
to diachronic factors than does that of Lévi-Strauss. Le Roy even du droit’, Revue interdisciplinaire d’études juridiques, 1 (1978):
states that the operation of traditional and modem societies can 94-100; N. Rouland, ‘Persistances et invariances: structure, his
not be described by the use of a single model. The industrial rev toire, droit’, RRJ, 3 (1985): 731-71; Negri, Il Giurista dell’area
olution and the modern capitalist state constitute a fault-line in romanistica (op. cit., above, no. 43), pp. 138-40.)
human history (this does not mean, as we have seen, that conver
gent methods of analysis cannot be employed). We may note that 61 The work o f R. Verdier and the *Droit et Cultures ’ Centre
even Lévi-Strauss, in later works and statements, gave greater Raymond Verdier is an Africanist who, after helping create the
emphasis to diachrony and history, and certain commentators LAJP and working on his project of editing the corpus of African
(see particularly B. S. Jackson, ‘Towards a structuralist theory of law, founded, in 1977, the ‘Droit et Cultures’ research centre at
law’, Liverpool Law Review, 2 (1980): 5—30) have even identified the Université de Paris X-Nanterre, where legal historians and
two kinds of structuralism, one rigid, the other more flexible legal anthropologists were to work together. He also launched
(non-universal structures, socially contingent, and vulnerable to France’s only periodical on legal anthropology, Droit et Cultures.
historical change, may exist). We may thus conclude that what Finally, he edited a very valuable work on the setdement of dis
separates the work of Le Roy and the work of Lévi-Strauss is less putes and vengeance, examining this theme from a perspective
important than what unites them. However, the work of the LAJP which includes anthropology, Roman law, the history of law and
team does not reflect all the concerns of Le Roy. Thus M. Alliot, the principal philosophical currents (La Vengeance, ed. R. Verdier
who stresses the diversity of legal systems, is struck by the value [Paris, Cujas, 4 vols, 1981 to 1984]). More recently he edited
systems of traditional societies, which he considers instil greater another work on African property systems (Systèmes fonciers à la
responsibility than those of modern societies. He believes that ville et au village, ed. R. Verdier and A. Rochegude [Paris,
were elaboration of the basic structures of law possible, it would Harmattan, 1986, 296 pp.]; summarized by N. Rouland in DC,
lead only to the construction of progressively weaker models, 14 (1987): 157-9). Currenüy the Droit et Cultures centre (which
reflecting, perhaps, the way the human spirit operates, but pass involves about fifteen researchers, amongst whom we may cite G.
ing wide of the mark, namely the practical consequences of this Courtois, J.-P. Poly, L. Assier-Andrieu and R. Motta) is involved
operation, which must vary from society to society: ‘The laying in a further collective work, ‘Le Serment’ (oaths). R. Verdier has
bare of underlying structures would be no more useful in under thus been involved in a number of important initiatives which
standing particular systems of law than the properties of steel are have had the merit, through a number of publications of high
to an understanding of the workings of cars, watches or machine quality, of widening interest in French legal anthropology.
tools.’ Alliot agrees with other critics of Lévi-Strauss, such as M. Naturally this work is underpinned by a particular conception of
Godelier, that his studies of myth and kinship ties are not closely law.
enough related to social reality, and do not reveal their role in the Until the early 1970s, Verdier’s work could be broadly related
LL
r 94 Legal Anthropology The Development o f Legal Anthropology 95
to the English-speaking tradition. Later, he was influenced by the of R. Verdier, see R. Motta, ‘I percorsi dell’antropoligia giuridica
civilian tradition, becoming aware of the link between anthropo (II): gli studi di Raymond Verdier, negli anni’ 80’, Materiali per
logical research and the law of antiquity, which helps explain the
strongly interdisciplinary nature of the research in which he is '
1
una storia della cultura giuridica, 13, 1 (1983): 283-96; and, also
by Motta, Teorie del diritto primitivo (op. cit., above, no. 43), pp.
involved. However, his ideas concerning law still reflect the 183-7.
English-speaking tradition: law is represented by a body of phe
nomena, rather than in concepts situating law in the social con 62 Other European countries
text of the culture which shapes it (whence, no doubt, a less The best Italian research took place during the period of colonial
pronounced interest in epistemology and pure theory than the expansion (the work by Cerulli, Scarpa and M. Colucci between
LAJP researchers). Verdier also states, in describing a vindicatory 1915 and 1927 on Somalia and Ethiopia). Conversely, Italian
system in his work on La Vengeance, that law is ‘a system of com legal ethnology virtually dried up with the end of Italian colonial
munication and exchange of values establishing symbolic ism. However, the output of young researchers such as A. Negri
relationships between the individuals and groups of the same and R. Motta has already been considerable (see above, no. 43),
political unit, or between different units of a much larger entity’. especially concerning the development of anthropological
Finally, Verdier compares law with myth (they are both the thought. The discipline is taught in the faculties of law and politi
expression of normative statements which are articulated through cal science of Turin and Milan (cf. A. Negri, ‘La Méthode du
a transcendent authority) and custom with ritual (both consisting jurist ethnologue’, Rapports nationaux Italiens au Xe Congrès inter
of events and actions rather than written or oral discourse, legiti national de droit comparé, Budapest, 1978 (Milan, Giuffrè, 1978),
mated by belief in their timelessness and repetitive character); see pp. 37-62).
his article, ‘Premières orientations pour une anthropologie du In Germany, we have alluded (above, no. 19) to the importance
droit', Droit et Cultures, 1 (1981): 8-9. of late nineteenth-century writers in the birth of legal anthropolo
Thus the LAJP and Verdier’s thinking are not antagonistic, nor gy; R. Thumwald (1869-1954) played a particular role. At pre
are their definitions of law mutually exclusive. However, their sent, German legal anthropology is mainly concerned with
respective perceptions can be contrasted: whereas Verdier’s philosophical questions and, generally speaking, the discipline is
approach is multi-disciplinary, that of the LAJP is centred more not valued. This is particularly regrettable when we consider what
on African law and the global comparisons between different a debt the discipline owes to late nineteenth- and early twentieth-
kinds of society dear to M. Alliot, be they traditional or modem. century writers (for more details, see R. Schott, ‘Main trends in
This is essential if legal anthropology is to gain acceptance German ethnological jurispmdence and legal ethnology’, JLP, 20
amongst traditional jurists. Legal anthropology cannot confine (1982): 37-68).
itself to the study of law in ‘exotic’ societies. Also, Verdier’s more Finally, Romanian legal ethnology has suffered since the end of
classic research methods encompass the description of legal phe the Second World War from a socialist regime little concerned
nomena within different societies, whilst members of the LAJP with the collection of customs, and has turned its attention exclu
are more concerned with the honing of methodological tools, sively to the Romanian legal tradition (see R. Vulcanescu,
epistemological questions and the constructions of theoretical Etnologie Juridica [Bucharest, 1970]; V. A. Georgesco, ‘La
models (the level of abstraction of this approach restricts access Méthode du juriste ethnologue en Roumanie’, Revue roumaine des
for the uninitiated). Finally, in contrast to the work of the LAJP, sciences sociales, 22, 1 (1978): 191—207).
which suffers from poor dissemination, Verdier has taken steps to
ensure that a comparatively large scientific audience has access to 63 The current situation in legal anthropology
research results through their regular publication. This is of capi The current situation is gauged by four factors: the number of
tal importance to our discipline. (For further details on the work researchers and their origin; the particular situation in each
T
96 Legal Anthropology
The Development o f Legal Anthropology 97
country; the main currents of thought; the position of legal Europe’s total, whilst much lower, is not negligible, but the
anthropology in relation to current trends in anthropology. researchers are widely dispersed. The vitality of the Dutch school
On the number and origin of researchers, it is impossible to make stands out, benefiting from a long tradition in legal anthropology.
an exact head-count of legal anthropologists world-wide, since Finally, the developing countries (Africa containing most of
theirs is not a sufficiently well-organized community. We can them), achieve a total comparable with the European figure, yet
make an approximation on the basis of the membership of the some qualification is required. First, dispersion is even more a
Commission on Folk-Law and Legal Pluralism, the major inter factor; second, the researchers do not necessarily receive adequate
national body in the discipline. This is of only limited value, since institutional and local support; finally, and this can only be pub
not all researchers are members of the commission. Also, and licly deplored, many newly independent states are reticent about
most importandy, this quantitative assessment takes no account developing the social sciences in general (their critical nature is
of the quality of the work of particular researchers or countries: not always appreciated), and anthropology in particular. The lat
quality does not vary as a function of quantity. Having made this ter is still regarded as a ‘colonial’ science, and a dangerous one
proviso, the 253 members in 1987 were geographically distrib because, with its emphasis on traditional law, it is construed as
uted in the following way: impeding development and unification.
North America Canada 61 USA 44 Total 105 On the position of each country (we will examine the main ones):
Australia 19 Total 19 the United States is the country which has, after Canada, the great
New Zealand 7 Total 7
2
est number of researchers. The teaching of legal anthropology is
Europe Netherlands 26 Austria
Germany 8 Poland 2 i well established and, in 1981, was offered in sixty departments of
UK 8 Finland 1 anthropology and law schools (twice as many as ten years ago).
Belgium 5 Hungary 1 i Although anthropologists and jurists work together more closely,
France 5 Portugal 1 this has been a recent development, jurists tending to view anthro
Denmark 3 Switzerland 1
pology as irrelevant and viewing their own discipline in terms of
Italy 3 Total 66
Africa Tanzania 14 Botswana 1 professional training rather than as a science. L. Nader (Berkeley)
Ghana 3 Ethiopia 1 and R. L. Abel (University of California, Los Angeles) have, in
Malawi 2 Niger 1 particular, attempted to foster the development of legal anthropol
Sudan 2 Nigeria 1 ogy and the application of its methods to modern societies, devel
Senegal 1 oping the concept of ‘informal justice’. There has also been
S. Africa 1
Zambia 1 considerable interest in legal pluralism and arriving at a synthesis
Total 28 in the normative-processual debate. Finally, we must note that in
South and Brazil 3 the United States - and no doubt in Canada as well - the exis
Central Puerto Rico 1 tence of large and well-organized ethnic minorities, whose rights
America Venezuela 1 Total 5 are respected, has both benefited legal anthropology and provided
Near, Middle Indonesia 8 Israel 2
and Far East India 3 Egypt 1 career prospects for para-legal work in assisting lawyers defending
Japan 3 Hong Kong 1 the rights of indigenous peoples. For further information see the
Philippines 3 Malaysia 1 Total 22 special issue of the American Behavioral Scientist, 25, 1 (1981),
New Guinea 1 Total 1 devoted to the current trends in legal anthropology in the United
States; see also Snyder, ‘Anthropology: Dispute Processes and
Several points can be made. The numerical superiority of Law’ (op. cit., above, no. 49), pp. 149-59.
English-speaking nations, notably the United States and Canada, In France we may note that legal anthropology has enjoyed a
no doubt reflects their well-established interest in the discipline. more prominent position in the last ten years - whereas in the
98 Legal Anthropology The Development o f Legal Anthropology 99
mid-1970s it was all but ignored. A number of jurists from other critical legal theory (this can be be seen in the recent growth in
disciplines express an interest in developments, curious to sèe legal philosophy and epistemology, and the work of jurists such as
how legal anthropology can be useful to them. This interest coin C. Atias); further, the ‘crisis’ which we believe we are undergoing
cides with the end of a long decline in the theoretical study of (cultural rather than economic) encourages a questioning atti
law, attributable to a number of factors. First, as C. Atias has tude. Finally, it is becoming increasingly apparent, as E. Morin
stated in Epistémologie juridique (op. cit., above, no. 12), p. 71, notes, that we live in a period of paradigmatic change, prompting
jurists have become increasingly involved in modifications in the us to search for connections in realms of thought hitherto consid
prescriptions of official law, and research has been devoted to ered unrelated (cf. E. Morin, ‘Science avec conscience’, a lecture
practical applications; second, sociologically, jurists were tradi and project, in his Science et conscience de la complexité [Aix en
tionally recruited from the ranks of the upper bourgeoisie and Provence, Librairie de l’Université, 1984, 44 pp.]). In this sense,
since they are now drawn from the middle class, the cultural level legal anthropology, in so far as it encourages the intercultural
has dropped accordingly. We may also add that the teaching of comparison of legal systems, both traditional and modem, can
law has been kept apart from the social sciences. Under the with confidence be situated in the new paradigm. However, even
empire, imperial legislation from the Ecole de l’Exégèse (whose if current developments are favourable, the battle has not been
very existence some seem to doubt: see R. Rémy, ‘Eloge de won. First, the discipline can field only a handful of researchers
l’Exégèse’, Droits, 1 (1985): 115-123) tended to confuse law with (about ten full-time and fifteen ‘occasionals’), whose output is all
official law, and, until the end of the nineteenth century, promi the more remarkable, yet who cannot exert sufficient leverage as a
nent writers such as Duguit, Hauriou and Geny all pleaded that pressure group on other disciplines. Legal anthropology is dra
the analysis of law include socioeconomic questions. Later, the matically underfunded, whereas the international character of the
1954 reform in the teaching of law opposed conservatives (favour discipline, the importance of work in the field and the absolute
ing the teaching of law in isolation) and modernists (associating necessity of publication all demand considerable financial input.
law with the social sciences). Generally speaking, the traditional Moreover, since 1977, research in the social sciences has been
disciplines maintained their position and ‘modernization’ consisted funded by contract, which has correspondingly reduced regular
mainly in adapting teaching to the new technical and professional financing, the latter being indispensable to a young discipline
needs of society. Evidence of this subtle ‘modernized conser which needs to bring to fruition the intellectual investment of the
vatism’ is to be found in the decline of the history of law, in the last twenty years and to disseminate its results. Further, contrary
minor role accorded to comparative law and the philosophy of to North American practice, in France the private and public sec
tor do not communicate with each other; the private sector will
law, and in the almost total ignorance of legal anthropology. The
not employ anthropologists, preferring to subcontract through
1968 law on the independence of universities provided an oppor
semi-public bodies (on these points see E. Le Roy,
tunity to bring law and the social sciences closer together.
‘L’Anthropologie et la demande sociale: dialogue avec une firme
However, in most cases, the bones of the old faculties reappeared
de bonne compagnie’, to appear in Anthropologie et Société,
clothed with the new flesh of the UEF. (On the general develop
Montreal). Finally, and perhaps most significantly, there are few
ment of the teaching of law since the nineteenth century see A.-J.
students of legal anthropology (see above, no. 11), and,
Arnaud, Les Juristes face à la société [Paris, PUF, 1975, 228 pp.];
symptomatically, it is not one of the subjects in the competitive
and, more recently, J. Gatti-Montain, Le Système d’enseignement examination (‘agrégation’) for admission to the legal profession.
du droit en France [Lyon, Presses universitaires de Lyon, 1987, Yet the rule is well known: ‘a discipline which is not well taught
312 pp.].) Today, there have been some changes: jurists have will die of an infantile disorder or in the onset of old age’. Legal
been overtaken by the pace of change in the application of law anthropology will no doubt be judged by its yield - provided it
and have felt the need to stand back and take stock with a more can be harvested.
100 Legal Anthropology The Development o f Legal Anthropology 101
In Holland the discipline has benefited from a long tradition. In beliefs which are held to be essential to their continued existence,
the 1970s, courses expanded and the discipline is currently taught and which are protected by ‘juridicization’ or codification.
in eight universities (mainly by F. Strijbosch, J. Griffith, F. von Thematically we are confronted with two major lines of
Benda-Beckmann, A. Shreiner, E. Baerend, J. M. Otto and E. inquiry: in the first, all research is seen through the perspective of
Van Rouveroy van Nieuvaal). The subject is highly regarded in legal pluralism, and in both traditional and modem societies, the
faculties of law since its exponents are jurists rather than non-spe role of state-based law is qualified; in the second, there is particu
cialists [littéraires]. The discipline has benefited from the conver lar interest in diachronic factors, as a reaction to their negligible
gence of the sociology of law and legal anthropology (Griffith role in functionalism, the role of historical change is stressed, and
even predicts that the two disciplines will merge in the 1990s), legal acculturation has become well established as a theme.
because anthropological research has yielded more results than As regards the range of societies studied, decolonization and
sociological research. Finally, Dutch legal anthropologists contin acculturation have contributed to a shift in the focus of attention
ue to be very active in a number of areas, in Indonesia and Africa, to modem Western societies. If this has resulted in a redefinition
and their publications enjoy a good reputation internationally. Is of difference or ‘otherness’, it is of capital importance for the
the paradise of legal anthropology Dutch? future of the discipline. If results match aspirations this new
In the United Kingdom the situation is clearly less favourable. direction will give credibility to the discipline in the eyes of tradi
Orthodox jurists do not betray any interest in legal anthropology, tional jurists. Further, the new outlook corresponds with the aims
even though they admit that law cannot be reduced to state law. of anthropological research; that is, to establish a science of
Legal anthropologists (principally F. G. Snyder at Warwick, S. humankind through the study of all societies.
Roberts at the London School of Economics and P. Fitzpatrick at Finally, globally, we may envisage two paths of development for
the University of Kent) work in comparative isolation. Their work legal anthropology, which, though not contradictory, prompt par
is generally concerned less with traditional law than with accultur ticular questions.
ation and development, and non-state forms of justice. Either, in keeping with the current trend amongst English-
To sum up, if legal anthropology varies from country to country, speaking workers, the interest will be above all in ‘living law’: in
with the best practice to be found in North America and Holland, such manifestations of law as may or may not be linked to the
it can be characterized by several general traits. framework of the state, to be observed in the maximum number
As regards the geographical distribution of the main currents of of societies and following the principles of legal pluralism.
thought, the classic distinction between continental and English- Or, following the French model (initiated by the ‘juristique’
speaking countries is less accentuated. However, English-speaking project, a new science attempting to distinguish ‘laws from laws’,
authors still favour monographs and study the settlement of dis dear to H. Lévy-Bruhl; see E. Le Roy, ‘Jurististique et anthro
putes, whereas French writers (particularly the LAJP workers) are pologie: un pari sur l’avenir’, BLAJP, 6 (1983): 119-43), legal
more concerned with the search for global explanations and con anthropology takes up, albeit within a different framework, the
sider legal anthropology as a form of ‘meta-science’. Germany work of nineteenth-century writers in attempting to discover the
tends to occupy the middle ground; at the time of Post and laws that govern the operation of societies through systematic
Kohler, workers had also followed systematic themes, to be aban cross-cultural comparisons. Methods derived from a systems
doned on the collapse of evolutionism. approach are employed, and the structuralism of Claude Lévi-
On the definition of law, especially in France, there has been a Strauss is indispensable. The author inclines towards this latter
change in emphasis. The LAJP workers are concerned less with approach; its generalizing stance appears closer to the anthropo
arriving at universal definitions than with asking more appropriate logical ideal. Yet we cannot disguise the fact that, given the com
questions; their point of departure is that the frontiers of law fluc plexity of the questions under study and the methodologies to be
tuate in all societies, as a function of the discourse, practices and used, this approach is the least likely to achieve results. The speci
102 Legal Anthropology
64 Legal ethnography, ethnology and anthropology societies have attempted to define more clearly the norms and
Fortunately the second word in the term ‘legal anthropology’ is behaviour which govern a social body in the throes of increasing
easier to understand, particularly if considered alongside its complexity. For, although it is reasonable to conclude that there
neighbours, ethnography and ethnology. These three terms first has always been a legal domain, law has traversed a number of
made their appearance in about 1800' and formed part of the episodes and locales in the course of human history (were we to
movement in which humankind became the object of scientific restrict the intensification of law to simple diachrony we would
study. At present they represent three stages in the process of fall into the trap of unilinear evolutionism). This development
understanding law. Legal ethnography is concerned with the col can be observed by going back through time, following the thread
lection and description of evidence of a legal character in the of the various theories of the history of law.
three areas of discourse - behaviour, value systems and beliefs -
within a given society.2 Legal ethnology is concerned with the 65 The development o f law in the historical period
interrelations between these three areas, and their combined A first step in dating the intensification of law consists in deci
effect on the general operation of the society in question. Legal phering its origins in the emergence of the Western city-state,
anthropology attempts, in a final act of synthesis, to achieve a gen where the Roman term ius (itself derived from the Indo-European
eral classification of human society in the field of law, by compar yous) is inextricably bound up with the idea of constraint (inhere,
ing the legal systems of all the societies which can be observed. In ‘to order’) exercised within society. As L.-R. Ménager has stated,
practice it is unusual for workers to limit themselves to the first the authority of law, in evidence as much in customs as in laws,
area, but much experience is required to undertake the third; con does not necessarily emerge at the stage when the state appears:
sequently, activity centres on the second area. But here we are both legislative and judiciary authority in democratic Athens
concerned with degrees of generalization and not a definition of effectively resided in popular institutions, and not in a state
law. Our first aim is to place law in a historical context. The sec bureaucracy. However, this is exceptional: in most cases law is
ond, and the most complex, is concerned with its consistency and controlled by a dominant group. The development of law is thus
contours. The third consists of briefly describing the most appro to be associated with increasing complexity and social stratifica
priate legal approaches for a cross-cultural view of law. A section tion. The appearance of the city-state acted as a stimulus to law.
will be devoted to each of these approaches. This can be explained in the cumulative effect of three processes:
the increase in population density which caused a concurrent
development in craft and commercial activities; a marked increase
I THE TEMPORAL DIMENSION OF LAW
in the extent of social stratification due to the widening gap and
Does historical change determine the very existence of law, and is
diversification in economic status; a widespread increase in popu
it capable of radically modifying its nature? These two questions
lation caused by economic development. This finally gave rise to
lead to further ones: whether it is possible to date the emergence
a larger and more differentiated society, requiring a more elabo
of law (assuming this is a useful line of inquiry), and whether the
rate legal system to satisfy the growing needs of governing bodies,
modem period, bom of the industrial revolution, has created a
and the rapid increases in both the causes and levels of conflict
major fault-line in the history of law in human society.
between individuals and groups. L.-R. Ménager emphasizes that
the creation of law must be associated with this process. The term
A: The intensification of law lex evokes the idea of choice (legere), a choice of individuals who
Law emerges with the beginnings of social existence, in processes have the authority to exercise legislative and legal power. This
whose origins will probably always remain hidden. Whilst we may becomes one of the established ways in which complex societies
seek in vain to date precisely the birth or emergence of law, we are controlled. Thus specialization amongst judges and legislators
may, on the other hand, gain glimpses of its intensification, where is an important trait of modem society.
106 Legal Anthropology The Fields o f Legal Anthropology 107
But is the appearance of the city synonymous, chronologically, ings. It is only at this stage that hunter-gatherers first appear in
with the appearance of law? Our understanding of prehistoric the ethnographic record. In other words, the hunter-gatherers of
societies would tend to contradict this statement. prehistory may have undergone processes of increasing complexi
ty and the development of law, which had up to now only been
66 The intensification o f law in prehistoric societies associated with societies of the neolithic ‘revolution*. This, at
The further back we reach into the past, the more unclear it least, is what the results of archaeological research carried out in
becomes, due to a dearth of sources, and the more we must rely the last twenty years in North America, Europe and Australia
on the evidence of archaeology. One fact, however, does emerge: suggest.
when societies enter what we refer to as the historical period, If we continue, as we have done so far, to define social com
most of the institutions which we would describe as legal are plexity as the increase in the number of groups making up a soci
already in place - marriage alliance systems, the management of ety, and the degree of their differentiation and specialization, it
resources and the attribution of rights to certain groups and indi seems certain that these processes were set in motion in many
viduals over the movement and ownership of goods. Thus law has areas at the beginning of the upper palaeolithic (about 40,000
a prehistory, about which we may formulate a number of years before the present). The three cumulative factors which we
hypotheses. have already identified with the birth of the Western city were in
The first, which deals with an early era, concerns the increasing evidence at this time.
complexity of the neolithic period (about 9000 years before the First, there was a reduction in the mobility of the population,
present, but with considerable chronological variation, from area synonymous with the beginnings of sedentarization, caused either
to area). During this period there was an increase in productive by environmental factors, or by the presence of neighbouring
capacity linked to sedentary setdement and agriculture; human groups with whom fusion was undesirable or impossible.
communities became larger and social differentiation increased. Second, there was an increase in population. We do not as yet
In general, social differentiation, as reflected in burial goods, know if this was caused by external factors (climatic change,
underlined the status of military chiefs, whose death could be external influences) or internal factors (a change in social relations
accompanied by human sacrifices (as exemplified by the presence due to increased competition between social groupings, giving rise
of human remains near their tombs), and the appearance of small to a increasing production and demographic expansion).
theocratic kingdoms, the germs of larger states. Africa and Third, there was an increase in the range of resources utilized,
Greece, albeit at a different pace, went through this pattern of mainly as a result of increases in production, which became vital
evolution, in the course of which law developed and became more in any area where there was an increase in population density.
specialized. The influence of these three factors caused a marked increase
Meanwhile, a decade of work carried out on prehistoric hunter- in social and political differentiation: first, a rise in production led
gatherer societies allows the attribution of an earlier date to the to a more pronounced division of labour between social groups;
increasing complexity of social and legal systems.3 second, the examination of grave goods establishes that some
Until recently, these societies were believed to be small-scale individuals were decision-makers and were given greater authori
nomadic human groups. This view stemmed from comparisons ty; third, and most importantly, the increase in complexity itself
made between prehistoric hunter-gatherers and those of the mod caused a rise in the number of disputes, with a corresponding
ern period, for whom we have ethnographic data and who do, in need to settle disputes through an institutional framework. Here
fact, present these characteristics. Present-day hunter-gatherers we can detect the existence of law (whether in the form of norms
are not necessarily exact copies of their prehistoric forebears. In or, more probably, processes). In effect, these societies were both
fertile areas the latter were replaced by agriculturalists and in larger and more mobile than before, resulting in greater tension
harsher environments they adapted themselves to their surround (prior to this, archaeological evidence of battles is virtually non-
108 Legal Anthropology The Fields o f Legal Anthropology 109
existent), because conflict could no longer be resolved by fission number of intermediate forms: some ‘exotic’ societies are no
(geographical dispersion of subgroups), avoidance (interruption strangers to law, and the concentration of power in one person,
of relations between parties involved in disputes), or emigration yet have little in common with Western industrialized societies.
(the most common solution practised by modern hunter-gather Second, geographical distribution is no more a determining factor
ers, who do not experience these increases in complexity). Also, than was time: the empires that existed in Africa, and Western
since they were more divided and less egalitarian, there were feudalism too, all display parallels with societies studied by
more causes for conflict within these societies. This resulted in anthropologists. Finally, we must avoid interpreting the term
the need to find institutional means of settling conflicts; thus a ‘complexity’ in its everyday usage. A society which is less com
further step in the creation of law was taken. plex, that is to say, less differentiated and specialized, is neither
However, even if we return several thousand years to the simpler nor more rudimentary than a society with more devel
neolithic period, we are still concerned with comparatively recent oped sociopolitical stratification; it is simply based on different
times in relation to the span of the human past, which reaches premises. There is thus little purpose in resurrecting the obsolete
back several million years: thus revealing the limited extent of our distinction between primitive (traditional) societies and civilized
knowledge. However, we are on firmer ground when we examine (modern) societies, graded in degrees of complexity.
the other end of the human time-scale: the modem horizon. Once we have taken these precautions, we can list the criteria
of variability that exist in traditional societies, concentrating on
those criteria which possess a legal dimension.
B: T h e m odern horizon
In the economic sphere, traditional societies, like the former
Does the modem horizon represent the cut-off point of legal
peasant societies of the West, are to some extent self-sufficient,
anthropology? In other words, should legal anthropology limit
though certain forms of commerce based on exchange or even
itself, as it has done until recently, to the study of ‘exotic’ and tra
monetary tokens are not unknown. Moreover, some theorists,
ditional societies, leaving modem societies to legal sociology? We
such as Marshall Sahlins and P. Clastres, maintain that the non
shall see that one of the ways of answering this question consists
maximalization of production processes, by which traditional
in examining the differences between modem and traditional
societies are generally characterized, does not stem from an
societies.
inability to increase production but from a cultural choice
designed to avoid the appearance of too marked social and politi
67 Distinguishing between traditional and modern societies
cal divisions.
The diachronic continuum, although not totally inappropriate,
For though all societies are divided, the degree of division is
only provides an approximation, to the extent that unilinear evo
less marked in traditional societies than in modem ones; above
lution is no longer a tenable position. Modem societies are not
all, the perception of this division is different. To begin with, it is
necessarily the most recent societies: Augustinian Rome was
seen as beneficial and, unlike in modem societies, is accepted
urbanized, centralized and state-based, and used currency; in the
rather than decried. Also, interaction between groups is perceived
towns, at least, family structure resembled the nuclear family pat as favouring complementarity rather than competition. Political
tern more than it did the extended family, although this was nine authority is never absent, even in the least differentiated societies;
centuries before the advent of feudal societies, whose characteris thus amongst the Inuit there are leaders (ishumatar, ‘he who
tics are the exact opposite. We ought therefore to concentrate on thinks a lot’) whose qualities are founded on hunting ability, ora-
criteria pertaining to structure, and the attendant values and sys torial powers, generosity, etc.4 But these powers are in general
tems of belief. Before doing so, three points need to be made. limited, non-hereditary, conditional, and founded more on pres
First, we are faced not with a clear division between traditional tige and persuasion than coercion. Political organization does not
and modern societies, but with a broad spectrum, containing a exhibit such minimal forms of differentiation in all traditional
110 Legal Anthropology The Fields o f Legal Anthropology 111
societies: it can take the form of increasing degrees of specializa can still be observed in behaviour and customs (as in traditional
tion. Consequently, we are faced with the problem of the societies), its official incorporation within the state takes the form
appearance of what we term the state, which also exists in ‘exotic’ of explicit written rales, often involving codification. Equally, the
societies. settlement of disputes is handled more and more by recourse to
Clastres believes that the state emerges where there is an imbal judgement.
ance of power, resulting in the existence of the dominant and the Finally, these variations in human experience of law introduced
dominated. This is unknown in traditional societies where the by the state are also reflected in values and beliefs. As their name
power of leaders is always precarious and controlled by society.5 implies, traditional societies put more faith in the past than in the
The state and law, in the Western tradition, are thus based on idea of change. Change is a feature of modem societies. Thus tra
coercion, and are non-universal. J.-W. Lapierre believes that coer ditional societies incline towards custom, based on repetition and
cion is not a determining factor in the creation of the state, ancient usage, whereas modem societies are based on law, the
because, in contrast with Clastres, he believes that political coer instrument of the voluntarism of the state. However, reticence in
cion, with a considerable degree of variation, exists in all societies. the face of change does not mean that change does not occur: tra
He identifies the state with specialized instruments of govern ditional societies do also change, but generally at a slower rate
ment.6 The state begins to appear in those societies where politi than modem societies. This is confirmed, in the legal domain, by
cal power is distributed amongst councils or is held by a hierarchy the fact that customs are not immutable (see the medieval adage
of chiefs. It emerges more fully in societies where the power-bro ‘Customs change’ [Coutume se remue]).
kers are the ruler’s clients (as was the case with the French These various observations lead us to conclude that though tra
monarchy in the closing century of the middle ages, and with cer ditional and modem societies represent contrasting choices and
tain African kingdoms), and also in societies where power is exer attitudes towards the world, these contrasts do not constitute an
cised through a network of subordinated administrative relations unbridgable divide. Each society rearranges the elements that are
(as in the Inca empire of Cuzco, and contemporary industrial common to all societies, favouring some in relation to others (a
societies). Our own view is that there can be no universally recog more extensive or less extensive penetration by law of social exis
nized frontiers to regulatory functions which we may describe as tence; the extended family or the nuclear family; individual or
possessing a legal dimension. From the moment when - and this collective ownership; heightened individual status and egalitarian
varies through time and space - societies choose to extend the tendencies; penalties and vengeance; etc.). The nature of these
domain of law and make it explicit through norms, whether codi distinctions, which are of essence rather than of structure, allows
fied or not, we may note the concomitant appearance of clearly us to conclude that our knowledge need not be compartmental
differentiated forms of political authority, which can be called ized. In other words, even though legal anthropology was first
states. Herein lies, in our view, the real difference between tradi applied to ‘exotic’ societies, it may now be extended to cover
tional and modem societies. This difference consists of a choice modem societies as well. Certain strictures remain.
between several forms of law, and the means by which these
forms are articulated. In other words, though all societies possess 68 The wider perspective o f legal anthropology
political power, which relies, in all probability everywhere, on Whilst the historical factor of decolonization looms large in the
various forms of coercion (psychological pressure, physical con explanation of why anthropologists have focused their attention
straint, etc.), the state is present only in some of them. Moreover, on European societies, there are other underlying reasons which
though law exists in all societies, the emergence of the state, com have a bearing on the very nature of the discipline.
mon in modem societies, is invariably accompanied by both an Auguste Comte, in his work Philosophie positive (1831-42),
extension of the field of law in social control, and changes in its assigned sociology to the study of industrialized societies and
composition and sanctions. Thus whilst, in modem societies, law anthropology to the study of traditional societies; the latter were
112 Legal Anthropology The Fields o f Legal Anthropology 113
considered at the time to be a reflection of our distant past. Thus with the introduction of the Civil Code in countries under the
Comte made a diachronic distinction between these two kinds of Napoleonic Empire), and not the end itself. Finally, invoking
society, whereas the distinction had formerly been geographical. human nature would appear to be a last resort (though we may
Today a third distinction would appear more appropriate than the concede that this can be a philosophical position, akin to that of
preceding two. Comparing societies means coming to terms with structuralism). For all that, this unity should not be mistaken for
their inherent composition and their social and legal organization; uniformity, and we should concentrate our efforts on finding a
it also means paying more attention to systems than the particular pattern of variability which can embrace modem as well as tradi
elements in their make-up. Thus we may readily observe that tional societies.
within the classification of dispute settlement procedures, media As M. Alliot and G. Lenclud have both stated, the originality of
tion is as much a feature of acephelous societies as it is of our anthropological knowledge is not confined to the geographical
own. But this does not warrant the assumption that both kinds of classification of its subject-matter. Furthermore, the well-rehearsed
society possess the same form of dispute settlement, because what criteria of the state and writing do not in our view constitute the
must be analysed is the role of mediation in the global workings frontiers of anthropology (neither social anthropology nor legal
of each society, in particular in relation to other ways of settling anthropology). These are characteristics whose presence or
disputes. absence indicates, depending on the society, different levels of
Furthermore, if the comparative method should avoid stressing complexity and the differentiation and penetration of law.
the similarities of societies to the detriment of dissimilarities, However, neither the state nor writing contains the essence of
there should equally be no chasm between traditional and mod law: law can exist with or without them, and consequently legal
em societies, effectively excluding the latter from the considera anthropology does not retire when they appear. Some workers
tion of anthropology. However, if resemblances undeniably exist have already elaborated theories which tend towards unification.
between these societies, especially in the domain of law, their A case in point is the concept of a ‘reasonable person’ elaborated
basis remains to be described. According to G. Dumézil there can by Max Gluckman: just as our legal systems appeal to the ‘reason
be only four main causes behind these similarities: chance; ableness’ of norms, traditional societies, in the settling of disputes,
human nature; heritage; and borrowing. When J. Carbonnier also seek appropriate behaviour in suggesting what a ‘reasonable
described the reasons for applying legal ethnology to modem man’ should do in a particular case, in his capacity of chief,
societies, his analysis partially echoed that of Dumézil. Either the father, husband, etc. Leopold Pospisil sees a further cross-cultural
likeness is due to cultural survivals from an earlier period, or the concept in the imperative element which is contained, for him, in
resemblance between legal solutions stems from a similarity in the all manifestations of law. He predicates the intervention of legal
circumstances which gave rise to them, the universality of human authority (in the person of a leader or tribal chief as much as a
nature echoing the same concerns. These two kinds of explana modern legislator or judge). Theorists of legal pluralism insist for
tion are complementary, but Carbonnier is correct in emphasizing their part that all societies are plural, irrespective of whether they
that legal pluralism renders their operation more complex: each may be subjectively aware of it.
subgroup, according to its place in society, can produce or apply In fact the legal anthropology of modem societies is still at the
a form of law, which tends towards either modem or traditional stage of baby talk. In our view two problem areas will soon mani
models. In our opinion reliance on the operation of chance would fest themselves in this exploratory work. First, there is a natural
appear to be, in most cases, a sign of mental laziness. However, tendency, understandable in the early stages, but which we will
the existence of the categories of borrowing or heritage is, in have to overcome, to concentrate on legal phenomena which are
contrast, only too evident. But these factors should really be marginal in our own societies (the legal status of minors, non-
understood in terms of their role as components of a system: they contentious settlement of disputes, oath-swearing). Thus we must
are the means to an end in society (or the means imposed on it: as avoid the ‘exotic’ elements of our own legal experience in the
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114 Legal Anthropology The Fields o f Legal Anthropology 115
hope of one day producing an anthropological analysis of law in To take first the search for justice: as a guiding principle of law
employment, insurance, or inheritance. Second, it is by no means this appears to be widespread amongst both modem and tradi
easier to observe one’s own society. Here another danger rears its tional societies.
head, that of considering to be ‘natural’, rules or practices which
appear so only because we are used to them. 69 Law and justice in traditional and modern societies
However, if legal anthropology can clear these obstacles, it has In traditional systems of belief law and justice are frequently
incontestable advantages over other disciplines in the descriptions found in association, in the form of symbols. For the Nkomi
it can make of modem societies. On the one hand, thanks to (Gabon), the concept of justice approaches our own symbol of
experience gained in the ‘exotic’ field, it possesses terms of refer balance embodied in the scales of justice: what is straight is just,
ence which allow it to make broader comparisons. On the other what is leaning is unjust. For the Wolof (Senegal), justice is repre
hand, whilst anthropology, like sociology, examines both dis sented by a straight and well-defined path. Similarly the notions
course and practice, legal anthropology accords more importance of truth and justice are often associated. In Cameroon, what is
to values and systems of belief, an area often neglected by other just must also be true: falsehoods lead to bad decisions which, in
disciplines. their turn, create evil; the realm of truth extends beyond an accu
The diachronic factor may form the dividing line between tra rate description of events to include a spiritual dimension. Truth
ditional and modem societies, but it need not inhibit the is in the custody of the ancestors who must be worshipped if truth
development of legal anthropology. A second line of inquiry now and justice are to be discerned. Amongst the Wolof, studied by E.
seems appropriate: to what extent does legal anthropology allow Le Roy, the lawgiver must examine all the facts and make an
us to acquire cross-cultural perspectives of legal phenomena? appraisal that is just, in line with what he would consider the
‘normal’ behaviour of a man of good birth.
However, these perceptions and beliefs, associating law with a
II THE FIELD OF LAW notion of justice, do not exactly correspond with those of modem
In attempting to define the field of law, we need to proceed societies. To begin with, as C. Atias has underlined, the modem
beyond an analysis of the discourse and practices of law to the jurist may be willing to associate law and justice, but less willing
perceptions and beliefs that underpin them. In any society law to identify law with truth; positivists and legal theorists maintain a
must be considered as representing certain values and fulfilling virtual silence on the subject of truth. Modem law does not
certain functions. In our opinion social scientists are mistaken if regard truth as a value of fundamental importance, since the main
they fail to consider what law represents for all those, and they thrust of law is to protect citizens against actions which threaten
constitute the majority, who submit themselves to law. their rights. Also, as we well know, traditional societies tend to
Nevertheless, law cannot be defined solely in terms of the percep determine what is just by referring to a model of behaviour rather
tions and beliefs that are identified with it: law extends beyond than to a prevailing norm. In addition, modem societies closely
people’s perception of it. Consequently we must turn to intellec associate the principle of justice with coercive sanction, to which
tual constructs, to the realm of theory, to determine the nature of our symbols of sword and scales so eloquently testify. The tradi
law. In keeping with the methodology of anthropology we will tional jurist is concerned more with discovering and instilling
examine those theories which are based on a cross-cultural analy truth and justice than with using sanctions, and such sanctions
sis of legal phenomena. as are in fact exercised assume the form of non-jurisdictional
procedures.
A: Law, its perceptions and beliefs In modem societies, the quest for justice is very often assigned
The principles most frequently cited are the search for justice, the to law and legitimates the use of legal sanctions. Problems arise
preservation of social order and collective security. from the fact that a tension can exist between two different cate-
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116 Legal Anthropology The Fields o f Legal Anthropology 117
gories of justice, a distinction elaborated by Aristotle: justice will the search for justice forms but one of the modalities of law, if,
be either commutative (it will apportion decisions with a mathe that is, we understand law as being the control exercised over acts
matical equality) or distributive (it will, to ensure its best possible and values considered essential by a society. Thus the Inuit of
distribution in accordance With individual capacity, formulate rul Greenland, when settling certain types of dispute, engage in
ings which are, objectively, characterized by inequality). Human singing competitions, where the winner is not necessarily the
societies have, with a considerable degree of variation, opted for injured party, but the singer who has most convincingly ridiculed
the second solution. These various beliefs and perceptions identi his opponent8; in many societies the murderer takes the victim’s
fying law with justice are consistent with the idea of official law. place within the victim’s family, looking after the wife and chil
However, we can, like J. Carbonnier, picture law in darker dren. In this case law is not primarily concerned with determining
colours. Is it not the case that the function of law is not in effect what is is just, or who is right or wrong, but with reconciling
the search for good, truth, or what is just, but a dramatic recogni adversaries, or their respective groups, in the avoidance of ten
tion of evil, of which the history of humanity furnishes us inex sions whose intensity could threaten society. The same could be
orable evidence? The author concurs with Carbonnier when he said for rules which provide for the periodic redistribution of
writes: wealth (the liturgies performed in ancient Greece, the potlatches
of traditional societies, and even, in our own societies, certain
our corrupt world, if allowed to reveal its true nature, would taxes, such as those on income or capital which are strongly redis
break up and roll to the bottom of the abyss, were it not bound tributive in character). The person who must contribute in this
by laws. It is in this context that law can be seen as an evil: not way, or on whose estate there is a levy, has not necessarily injured
because it is itself evil or causes evil, but because it owes its his or her neighbours. Once again these impositions are consid
existence to evil. Law is an indicator of sin and there can be no ered necessary to avoid the kindling of strong social tensions.
doubt that the proliferation of legislation which we are present This is why law is often considered as the guarantor of order and
ly witnessing marks the unleashing of demons.7 security, quite apart from considerations about what is just or
Even if we choose to continue to identify law with good, its true.
relationship with justice is no less problematic. On the one hand
it gives us no guidance as to content: as we have seen, justice 70 Law and the maintenance of order in traditional and modem
takes several forms; moreover, the idea of justice varies from cul societies
ture to culture. This would lead us to suppose that the association For the advocates of processual analysis, such as P. J. Bohannan,
of law with values of a moral order points in essence to the law is in the main resorted to in the context of settling disputes,
changeable nature of law, and that it would be more appropriate or in other words in the re-establishment of order. This may or
to refer to ‘juridicization’ [the process by which something may not take place through procedures whose role is to make a
becomes jural: TN] than to law. To untie this knot, positivists ruling on the joint liability of the parties concerned (as in our own
have opted for a solution which is in reality no more than an legal system) or it may restrict itself to re-establishing social
escape route: law has nothing to do with what ‘ought’ to be, it has peace. An examination of the vocabulary of the Labrador Inuit
to do with legal discourse. This is a very unsatisfactory solution demonstrates that for them the function of law is to restore har
since it confuses a definition of law with a definition of the mony, any excessive or improper behaviour being interpreted by
sources of law. On the other hand, as we will see, this is not the those aggrieved by such behaviour as an offence disturbing the
only way law is perceived: it converges with, and sometimes social order (the terms piujuk and piunngituk, which are today
opposes, another perception in which law is the guardian of order. used to describe what is ‘good’ or ‘bad’, were in the past synony
Finally, and perhaps most important, the study of non-European mous with ‘that which exists’ and ‘that which does not exist’,
societies clearly demonstrates, as M. Alliot has commented, that semantic proof that the Inuit were conscious of how bad behav-
118 Legal Anthropology The Fields o f Legal Anthropology 119
iour could threaten social life). Social equilibrium is more impor legal rule because it has been sanctioned in a certain manner by a
tant than apportioning liability: no judgement is made on the group; a rule is sanctioned in this manner because it is a legal
intrinsic worth of individuals and their actions, whether sanctions rule’.9 In the author’s opinion, what the group determines as legal
be applied to them or not (the word that we translate as ‘offence’, is what it deems essential to the group’s coherence and mainte
or even ‘sin’, as missionaries did, approximates rather to ‘incor nance.
rect’, ‘uncomfortable’). To attempt to define law through the use of sanctions is thus
In our own societies law is also frequently identified with social an abuse of language. At best this attribute is only one of the
order, but it is qualified by whether the writer approves or disap manifestations of law. On the one hand it is true that law
proves of the prevailing order in the society in question. Thus, in enshrines certain rules without accompanying them with sanc
the first instance, law is conceived of as the guarantor of the citi tions. On the other hand, in many traditional societies, sanctions
zen’s security, mediated by a shared respect for the social order, are flexible and can vary greatly depending on the circumstances
yet may quite feasibly exist in opposition to another perception of of the offence and the person of the offender. In addition, of
law based on justice. (The protection of commercial transactions course, the exact form and nature of the sanctions will vary
demands that they are concluded - especially where movables are between modem and traditional societies: in the former, matters
concerned - even if there is a considerable discrepancy between will be more frequently referred to the courts and there may be
the price of an item and its value.) In the second case, law can be physical constraint or financial distraint. Finally, certain very
considered as legitimating the domination of power elites, acting recent developments reveal that law can also be based on the very
as a buttress to a social order which is open to criticism. For M. opposite of a sanction, namely a reward: in 1986 in several
Miaille, the abstract and impersonal tenets of law in our societies French départements, the police handed over to certain motorists
are linked with a capitalist mode of production, in so far as this wearing seatbelts a sum of money which corresponded to the fine
encourages individualism. Irrespective of the way we define the normally imposed for the offence of not wearing seatbelts; in
social order which underlies legal principles, we must stress that 1987, the city of Lille applied this principle to motorists and the
these principles and beliefs do not seem to have the same reper contravention of parking regulations. These examples fit the prin
cussions from society to society. ciples and beliefs of ‘law as a model’, encouraging a certain kind
In traditional societies the maintenance of order as the basis of of behaviour rather than repressing its breach. The criterion of
law does not necessarily result in an emphasis on sanctions: on sanctions, poorly defined though it may be, has nevertheless held
the contrary, as we have seen, law can be directed first and fore considerable sway over legal thinking. Thus, for J. Poirier, ‘if an
most towards social harmony; it can be a model, not necessarily offence is met with a legal sanction, we are dealing with a legal
backed up by sanctions which, when they do exist, are often flexi rule; a legal sanction exists if its enforcement fulfils the following
ble. criteria: automatic procedure, public awareness, appropriate
In our own societies, the confidence vested in law, and particu penalty’.10At the time of writing, the trend amongst legal anthro
larly the control the state exercises over law, has conspired to give pologists is not to deny the role attached to sanctions in the legal
law a mandatory role which is expressed in the overweening influ process, but to qualify that role.11 Yet this begs the question, why
ence of the sanction as a legal instrument: legal rules are those do we obey laws?
social rules which are sanctioned by the recourse to organs of the
judiciary, or at least, as J. Carbonnier has stated, ‘susceptible’ to 71 Why do we obey laws?
be referred to the judiciary. This is because, in the majority of Either we obey laws because, and this lends comfort to the propo
cases, the resort to compulsion is not necessary for law to be nents of the importance of sanctions, we fear the sanctions that
applied. Yet this description is perhaps not sufficient, because as would be applied consequent to their violation; or because, as
has been clearly stated by A. Weill and F. Terré, ‘a rule is not a other writers, and they constitute a majority, say, obedience to
120 Legal Anthropology The Fields o f Legal Anthropology 121
laws stems from a variety of factors related to cultural pressure. R. is nevertheless impossible to exclude the latter, especially in our
B. Seidman has drawn our attention to the relative importance own societies. We can also concur with J. Carbonnier that a single
given to assessing the legal costs arising from an offence, some theory cannot encompass the multitude of reasons why laws are
thing which varies from case to case (it is more likely to be taken obeyed: some theories are more relevant than others, depending
into account for a parking offence than a crime of passion). It is on the circumstances.
also clear that the role of education is a determining one in the In determining why laws are obeyed, we can also turn to the
interiorization of the mandatory nature of the rule of law. We perceptions and beliefs of those to whom the law is applied. An
should link the influence of cultural traditions to this process of opinion poll commissioned in 1987 in France amongst 16- to 19-
interiorization. P. Legendre, adopting an approach to law that can year-olds13 informs us that the stated reasons why these young
be described as both historical and psychoanalytical, attempts to people obeyed laws were:
demonstrate that in the Western tradition, the purpose of law is
to invest certain personages, symbolically represented by God, or Because we were taught to do so: 30%
the emperor, or the supreme pontiff, and, in our own times, the To avoid punishment: 40%
legislator, with ‘the sanctity of power’. In exchange for submis We must respect the law because it is just: 27%
sion to the law, the citizen will be gratified by the protection and No reply: 3%
care of this personification of the law, and will in return have due
regard for the law. As a consequence of this mechanism law This poll, based on a single age-group, can provide only an
becomes sacred: key legal texts become the Text, whose authority incomplete picture. However, it is worth noting that if it is the
is vested in the Lawgiver and whose rationality is enhanced by belief in law as sanction which is most commonly invoked, beliefs
jurists. It is clear that in this interpretation obedience to law is which relate to justice and the influence of education are also fre
founded on adherence rather than the threat of sanctions. Yet quently cited. In traditional societies, it would appear that obedi
obedience can be derived from other factors. In addressing him ence to law is maintained by reference to a tradition (we behave
self to the mandatory nature of custom, J. Carbonnier has pro this way because this is how our ancestors behaved) and a respect
duced several hypotheses.12 On the one hand the mandatory for the wishes of ancestors, coupled with supernatural forces
nature of custom may have extra-somatic causes: the individual which can be invoked by a number of procedures.
obeys the law because of family upbringing or because of a These are the various ways in which those who are subject to
marked tendency towards imitation in social behaviour (see ‘the laws account for their obedience. However, belief and perceptions
laws of imitation’ of Tarde); or there again the individual may be give us only an incomplete set of answers. For this reason we
strongly influenced by the cultural mythology of a given society. need once more to resort to legal theory if we are to shed light on
On the other hand there may be internal, somatic causes: psycho the question within a cross-cultural framework.
analysis has demonstrated a psychological tendency towards repe
tition, sometimes pathological in character, which appears to be B: Cross-cultural theories of law
part of our psychic make-up; further, on a more conscious level, It should be stated at the outset that no cross-cultural theory of
custom may be generated by convention: rules are determined law exists to which writers unanimously adhere. If any one of these
and then obeyed because there is reciprocal advantage in obeying theories is preferred, at the end of the day this is a philosophical
rules and later benefiting from their protection (in this area preference, itself a variable entity. Yet, legal anthropological theo
Carbonnier’s ideas resemble those of Malinowski). We can state, ries do at least have the merit of addressing the question of the
however, that if obedience to laws is better explained by theories search for meaning in law through the examination of a wide range
that highlight cultural mechanisms than by legal sanction (as the of societies; in this sense, even if clothed in uncertainty, at least
example of traditional societies would encourage us to believe), it these theories are, in the breadth of their scope, more objective.
122 Legal Anthropology The Fields o f Legal Anthropology 123
groups) of the same polity or different polities, themselves belong tain exchange mechanisms, covers the fundamental ties which
ing to a wider political grouping’. The author brings his theory to structure relationships between individuals and groups. On the
bear on two areas: status and contract, vengeance and punish other hand, Verdier’s analysis indicts as false the evolutionism
ment. often present in the classic theories of law, and confirms that if
Status and contract are both concerned with exchange, but in modern and traditional societies differ, it is not so much in the
different contexts. Contract creates bonds between individuals or make-up of the individual elements of their social and legal sys
groups where the credit on the side of one party corresponds with tems as in the way these elements combine with each other.
the debt on the side of the other. Status is characterized by the
situation of the individual in whose sole person the group to 75 PospisiVs theory of universal principles o f law
which that individual belongs has vested a body of reciprocal Leopold Pospisil is an advocate of theories of legal pluralism and
duties and obligations. Contrary to the position adopted by the author of a theory which defines law as a universal phenome
Maine, contract does not necessarily follow status in the history of non.15 He identifies several criteria, common to all societies:
human societies. Both kinds of relationship coexist but each soci authority; the intention of universal application; ‘obligatio’; sanc
ety gives prominence to one or the other, depending on whether tions.
the individual is considered as a separate entity exercising inde Authority, a legal ruling should be invested with the authority
pendent authority (predominance of contractual relations) or as necessary for its application. Either the parties concerned agree to
the member of several groups (predominance of status relation execute decisions themselves, or it may prove necessary to con
ships, which also exist in our societies: the status of civil servants, strain them, physically or psychologically. The individual or
for example). group which invokes this constraint constitutes legal authority.
If status and contract are peaceful modes of exchange, The intention of universal application: to ensure legality, a deci
vengeance and punishment are characterized more by hostility, and sion must, whichever authority implements it, become applicable
yet a correlation can be found between these two kinds of thereafter to all cases similar or identical in nature (a characteris
exchange. Vengeance is related to status: it consists of the con tic which excludes political decisions). Two further points must
certed reaction on the part of a social group to the injury that has be made. First, it is sufficient for this characteristic to reside in an
been caused to one of its members by the member of another intention on the part of the legal authority, without prejudicing
group, and corresponds to an obligation of ‘restitution’ of the the degree to which it will be subsequently applied: in pracdce,
offence. Punishment corresponds with contract to the extent that disputes are not always settled in conformity with previous rul
the punishment is meted out to the individual rather than to the ings. Second, legal rulings differ from custom in that they are not
group to which that individual belongs, and testifies to the desire necessarily based on precedent. This is one of the main principles
of the whole of that society in distancing itself from the person of law in our own societies; in traditional societies many examples
punished. Retribution and punishment are not chronologically demonstrate that innovation also occurs and custom need not
successive methods of settling disputes. Here again all societies always be invoked.
can have recourse to either punishment or vengeance, but choose Obligatio: a legal ruling must create ties between parties in a
one or the other depending on the prevailing beliefs regarding the dispute: it must simultaneously define the rights of one party and
individual. the obligations of the second party which is recognized as being
Verdier’s approach is very helpful. On the one hand it enables the cause of the injury.
us to understand more fully why sanctions have always been a cri Sanctions: classic theories of law give a privileged status to sanc
terion of law; in fact the question of what sanction is applied to is tions, and generally link them to the potential use of physical
more important than the sanction itself, and we can state that force (cf. our own expression ‘physical restraint’) or material force
according to this theory, the purview of law, identified with cer (in our societies, this sanction usually involves distraint of the
126 Legal Anthropology
The Fields of Legal Anthropology 127
material wealth of the party who has caused the injury). Sanctions
Pospisil is missing. It must then follow that either a society can be
of a psychological nature also exist and can be used to compel
devoid of law - which Pospisil challenges - or that the theory is
respect for a legal ruling (reprimand, blame, derision, ostracism,
not universally applicable, which he also contests. M. Alliot’s the
singing competitions, etc.). Sanctions, or the threat of sanctions,
ory offers a more flexible approach and follows a different line of
even if they assume very different forms, are essential if forms of
inquiry.
social control are to acquire the status of law. Further, a sanction
will be all the more effective if it is final, predictable and immedi 76 The juridicization ‘ theory o f M . Alliot and the Laboratoire
ate.
d ’anthropologie juridique de Paris
Attention should be drawn to one last point in Pospisil’s theo According to M. Alliot and the LAJP team, law is a universal phe
ry. For Pospisil there are two forms of law in all societies: authori nomenon. Determining what gives it special status in relation to
tarian; and customary. other methods of social control is a legitimate inquiry. But atten
Authoritarian law is not interiorized by the majority of the tion should be focused less on law than on the process of ‘juridi
members of the group, but is applied by a minority that occupies cization’. Law is not so much a distinct set of social relations as
a position of dominance. In this case, the majority of people obey the particular status that each different society chooses to give to
mainly through fear of punishment (as in the decrees of dictatori certain social relations, and this accounts for variability in the
al political regimes). legal domain. Even if each society manipulates the processes of
Customary law: custom is not necessarily law; it must be vested ‘juridicization’ to its own ends, these processes are none the less
with legal authority before it can become law. When this process founded on a common imperative: to regulate those elements of
takes place, obedience to customary law is interiorized and stems society which are considered necessary to its maintenance.
less from external pressures (sanctions emanating from the state)
We will expand on these points.
than internal convictions, often of a psychological nature. First, law cannot be reduced to the descriptions attached to it
Although vital in the confirmation of legal status, the intervention emanating by Western society; law is not, by its nature, bound
of authority should only confirm the opinion of the majority of either to the existence of the state, or to a recognition of its ‘ratio
the group (thus in Pospisil’s terminology, the law legalizing abor nality’. According to Alliot, certain societies find their coherence
tion is customary law). principally in the very organizing principles of their social struc
These two categories of law are not hermetically sealed. ture, in which each part is essential to the coherence of the whole.
Changes in a legal system can in the main be explained by the This is the case in many traditional societies. Other societies pre
transfer of a norm or mode of behaviour from one category to the fer to resort to an outside authority, which will impose its own
other. A system of law which is in origin authoritarian can be coherence: the state, but also sometimes a god, in general a single
gradually accepted by a growing proportion of the population, god (the Hebrew, Christian, or Islamic God). The state is thus
and become customary law16; if it is repealed by legal authority it only one form of authoritarian social control. In this first model of
can only continue to exist as custom. Conversely, a custom may society, an individual is primarily defined in relation to the various
become customary law and in time no longer conform with the social groups to which that individual belongs, and competition
practice and will of the population. If it remains in force it between these groups is limited; the field of law - often secret - is
becomes authoritarian law (as, for decades, was the law against restricted, and is expressed more by a case-by-case search for
abortion, until it was repealed). equity than by the prescription of general and permanent norms.
Pospisil’s theory has the merit of providing a precise framework Second, law consists not of a specific body of rules, but of an
which can be applied to all societies. Some writers, however, ‘intemormative’ process. There would appear to be a consensus
doubt that this is indeed the case: ethnographic observation regarding this point amongst several writers representing contrast
reveals that sometimes one of the four criteria elaborated by ing traditions. Carbonnier17 maintains that the variability of the
128 Legal Anthropology The Fields o f Legal Anthropology 129
respective fields of morality, religion and law can be explained tional societies in general).
through normative criteria: legal rules appropriated rules outside We are stating that the variability of law stems from different
the legal domain and, in the same way, morality and religion can organizing principles. Non-Western societies attach more impor
appropriate legal rules (if a civic morality exists, then so can a tance to groups, which are considered as permanent, than to
civic religion); and, conversely, law can withdraw from certain individuals, whose existence is ephemeral. The appearance of the
areas, abandoning them to religion or morality. In general wher city or the state, however, generally results in a transfer of author
ever the state extends its influence so will law: the ‘juridicization’ ity to the individual away from groups based on kinship or resi
of a rule will in like manner increase its mandatory nature.18 dence, in these new conditions of centralized political power.
If the economy, which concerns people-to-matter relationships, This transformation is often reflected in a phenomenon which
politics, which concerns people-to-people relationships, and reli classic theories of law term a ‘secularization of law’. The expres
gion, which concerns people-to-god relationships, all form com sion would appear unsatisfactory in so far as it invokes an evolu
plementary categories, each featuring an essential relationship, tionary principle postulating a progressive differentiation of law,
law does not constitute an additional category but is to be found morality and religion. In reality, when a society confronts change
in each of them. However, law differs from the other categories (technical, political, or metaphysical), it redefines the acts and
because even if legal facts are all social facts, not all social facts norms which it considers as essential to its survival, and extends
are legal facts: a legal fact is the object of a specific mode of social or restricts the field of law in ‘juridicizing’ or ‘de-juridicizing’
control of an institutional nature. This formal criterion is not, entire sections of social life.
however, a satisfactory definition of law. It is equally unsatisfacto There are, then, contrasting points of departure: there is the
ry to attempt a definition of law through its content, since the all-embracing ethos of acephalous societies militating against
content is eminently variable. Thus we must concentrate on the social stratification; the pluralist ethos of ‘complementarist’ soci
beliefs and principles that a given society brings to law: law per eties which tolerate and recognize a certain degree of social
tains to those institutions which are concerned with social repro stratification; the tendency towards a totalitarian ethos on the
duction, those which a society considers vital to its cohesion and part of unitary societies, founded on considerable but officially
survival. Thus, depending on the circumstances, a fact may, or denied social divisions, and also based on the state - a state made
may not, be a legal fact (the virginity of a bride is necessary to val necessary by antagonistic social divisions. Nevertheless, the LAJP
idate a marriage in certain systems and not in others). team believes that these contrasting elements all go hand in hand
The field of law is therefore characterized by considerable vari with a rational identity: no society is more ‘reasonable’
ability depending on the society to which one refers. According to [:raisonnable] than others. Yet each society turns to reason as a
M. Alliot this variability can stem from technological change: thus function of the view which it has of itself and of the world. In this
the increase in the number of vehicles on the roads has led to a sense - and this is epistemologically important - the way law is
highway code [code de la route] whereas the movement of pedestri interpreted is a determining factor in legal change: if we under
ans has, in general, yet to be ‘juridicized’; similarly we are cur stand law differently we will apply it in a different manner. This
rently witnessing the beginnings of environmental law. It is holds true both for the customs of traditional societies and the
generally the case that when a society makes the culturally deter system of jurisprudence in societies based on law.
mined decision to emphasize people-to-matter relationships (lay Taken together, these concepts, centred on the normative and
ing particular stress on economic factors), human relationships variable elements of the field of law, and also on the beliefs and
are reified, and law, as strictly defined, extends its influence. principles that underpin them, predicate certain methodological
Conversely, references to equity and good faith occur more fre decisions.
quently in societies which put more value on relationships Legal phenomena can be observed on three levels: discourse,
between people than between things (chiefdom societies, tradi practices, beliefs and value systems.
130 Legal Anthropology The Fields o f Legal Anthropology 131
Discourse or explicit enunciations, in written or oral form - anthropology, and help to distinguish it from other legal disci
laws, codes, customs, allocutions, adages, etc.: in general Western plines.
jurists confine themselves to discourse, favouring its written
forms.
Practices, or acts carried out by individuals and groups: this NOTES
level is essential to the understanding of law in traditional soci 1 For ethnology, 1787 (De Chavannes); for anthropology, 1795
eties where law is, in the main, characterized by its practical (Blumenbach); for ethnography, 1810 (Nieburh). The expres
nature. In traditional societies law, for the individual, stems less sion ‘science of man’ dates from 1739 (Hume).
from explicit rules than from activities which are often reflected in 2 For an explanation of these three levels, see below, no. 76.
their nomenclature (thus the person clearing land does not pos 3 Essential reading on this subject is Prehistoric Hunter-Gatherers:
sess rights of use or ownership over that land, but a right of axe; The Emergence of Cultural Complexity, ed. T. D. Price and J. A.
just as under feudalism there existed un fief de haubert [knight’s Brown (New York and London, Academic Press, 1985, 450
fee; haubert, ‘coat of mail’: TN] underlining the fact that the pp.). We may note that the transition to the neolithic took
recipient’s duties were limited to knight’s service). Thus ‘juridi- place in France between 6300 and 3700 BC. The population
cization’ operates in the opposite direction to modem law: instead increased from 100,000 (4000 BC) to a million (3000 BC), and
of passing from the rule to the activity it enshrines, we move from to four or five million around 1800 BC (see J.-N. Biraben and
the activity to the rule that describes it, leaving until later the J. Dupâquier, ‘Les premiers Français: combien sont-ils?’,
elaboration of common rules applied to the legal aspects of activi L ’Histoire 111 (1988): 93-5). We may venture to suggest that
ties of a similar nature. this enormous increase in population was accompanied by an
Beliefs and value systems, or perceptions and symbolic con intensification of law.
structs: these bring an understanding to the practices and the dis 4 See Rouland, Les Modes juridiques de solution des conflits chez les
course, on the part of those who carry them out or articulate Inuit (op. cit., above, no. 49), pp. 29-37.
them, and those who invoke or criticize them. These beliefs are 5 See P. Clastres, Recherches d’anthropologie politique (Paris, Le
usually plural, since the mastery of law can be the stake for which Seuil, 1980, 248 pp.), pp. 114-15.
certain social groups compete. This helps explain why, within the 6 See Lapierre (op. cit., above, no. 13), pp. 75-6, 112-53.
same society, law, in a particular area (property, for example), 7 J. Carbonnier, Essais sur les lois (Répertoire du Notariat
may be perceived as just or unjust depending on the individual’s Defresnois, 1979), p. 296.
social grouping. 8 See Rouland, Les Modes juridiques de solution des conflits chez les
What conclusions can we draw? The work of the LAJP team Inuit (op. cit., above, no. 49), pp. 80-101; this mode of set
seems to give due consideration to the causes of variability in law tling disputes, an economical way of dealing with social ten
and the nature of the process of ‘juridicization’. On the other sion, seems to predominate in the Arctic regions where the
hand, we should not overlook the fact that their ‘culturist’ environment creates difficult conditions and societies carry
approach leads them to emphasize the diversity of societies rather small populations. These characteristics make these societies
than their unity. The rejoinder may, with reason, be that compar far more vulnerable to social conflicts; thus they are vigilant in
ing societies does not necessarily bring their identities into relief. their avoidance of them.
However, in the author’s view, all these theories have a distinct 9 A. Weill and F. Terré, Droit civil: Introduction générale (Paris,
advantage over classical theories of law: the advantage of being Dalloz, 1979), p. 16.
more objective, based as they are on a wide range of societies, 10 J. Poirier, ‘Le Problème de la rédaction des droits coutumiers
which includes, but does not overvalue, our own societies. It is in d’Afrique Noire’, Rapports français au Ve Congrès international
this respect that these theories are genuine contributions to legal de droit comparé, Bruxelles, 1958 (Paris, Cujas, 1963), p. 117.
132 Legal Anthropology The Fields o f Legal Anthropology 133
11 For a critique of the criterion of the sanction, see J. de la Semaine internationale de droit musulman, 2-7 juillet 1951
Carbonnier, Sociologie juridique (Paris, A. Colin, 1972), pp. (Paris, Sirey, 1953), pp. 17-33; L.-J. Dorais, ‘Humiliation et har
129-36; Rouland, Les Modes juridiques de règlement des conflits monie: l’expression du droit coutumier chez les Inuit du
chez les Inuit (op. cit., above, no. 49), pp. 10^7. Labrador’, Recherches amérindiennes au Québec, 14, 4 (1984): 3-8.
12 J. Carbonnier, Flexible Droit (Paris, LGDJ, 1971), pp. 73-90. On law, justice and truth, see: C. Atias, ‘Le faux et le droit’, Le
13 See R. Bosch, ‘Jeunes: ce qu’ils croient,’ Le Point, 769 (15 juin Temps de la réflexion (1984): 225-45; J. Parain-Vial, ‘Esprit de jus
1987): 90-1. tice et fondement du droit’, Archiv fur Rechts und Sozial
14 See above, no. 25. Philosophie, 24 (1985): 32-7; M. Villey, Philosophie du Droit, Vol.
15 See above, no. 36. 1, Définitions et fins du droit (Paris, Dalloz, 1986), pp. 49-88. On
16 A terrible and extreme example of the interiorization of a very reasons for submitting to law, see: R. B. Seidman, The State, Law
authoritarian law by those to whom it is applied is furnished and Development (London, Croom Helm, 1978), pp. 100-3; S.
by Bettelheim’s descriptions of the inmates of Buchenwald: M. A. Lloyd-Bostock, ‘Explaining compliance with imposed law’,
some of these inmates, due to the pressures under which they in The Imposition of Law, ed. S. B. Burman, B. E. Burman and B.
existed in the universe of the concentration camp, began to E. Harrel-Bond (New York, Academic Press, 1979), pp. 9-25; J.
imitate the behaviour of the SS, even evincing admiration for Carbonnier, ‘La genèse de l’obligatoire dans l’apparition de la
their tormentors (the Stockholm syndrome offers parallels to coutume’, in his Flexible Droit (Paris, LGDJ, 1971), pp. 73-90.
this phenomenon, where victims of hostage-taking come to On P.-J. Bohannan’s ideas on law and the settlement of conflicts,
the defence of terrorists). see P.-J. Bohannan, ‘Anthropology and the law’, in Horizons of
17 See Carbonnier, Essais sur les lois (op. cit., above), pp. 257-64. Anthropology, ed. Sol Tax (Chicago, 1964), pp. 191-9. The psy
18 But the contrary may hold true. Carbonnier (ibid., p. 263) choanalytical theory of P. Legendre is clearly summed-up in J.
makes the fine distinction that ‘Moral responsibility made us Lenoble and F. Ost, Droit, Mythe et Raison: Essai sur la dérive
feel remorse. Civic responsibility instils forgetfulness: it is a mythologique de la rationalité juridique (Brussels, 1980), pp.
great liberator. Law sometimes has the function of freeing us 222-30. The various strands of legal positivism are clearly
from mores and morality.’ described in M. Troper, ‘Le Positivisme juridique’, Revue de syn
thèse, 118-19 (1985): 187-204. For more recent overviews on
definitions of law see F. Ost and M. Van de Kerchove, Jalons pour
FURTHER READING
une théorie critique du droit (Brussels, Publications des facultés uni
versitaires Saint-Louis, 1987), pp. 135-82; Ost and Van de
77 Suggested, bibliography for definitions o f law
Kerchove identify law with its practice (p. 177) whereas for F.
General definitions exist in Von Benda-Beckmann, ‘Anthropology
Terré law is associated with doctrines; see his ‘Définir le droit?’,
and comparative law’, in Anthropology of Law in the Netherlands
RRJ, 7, 16 (1983): 374-82, and ‘Définir le droit’, Droits, 10
(op. cit., above, no. 58), pp. 91-9; Motta, Teorie del diritto primiti
(October 1989).
ve (op. cit., above, no. 43), pp. 20, 30-6, 155, 164, 185; R.
Motta, ‘Saggi sull’antropologia giuridica’ (Faculta di Milano,
78 Specialized bibliography
Seminario 1984-1985, unpublished), pp. 12-16; T. Olawale
P.-J. Bohannan outlines his theory of double institutionalization
Elias, La Nature du droit coutumier africain (Paris, Présence
in Law and Warfare (London and Austin, TX, University of
Africaine, 1961), translated into English as The Nature of African
Texas Press, 1967), pp. 45-9; see also his ‘The different realms of
Customary Law (Manchester, Manchester University Press,
law’, AA, 67, 6, 2 (1965): 33-42, and, particularly, his ‘Law and
1956), now rather dated. On perceptions of law in non-Westem
legal institutions’, International Encyclopaedia of Social Sciences,
societies, see: L. Milliot, ‘L’Idée de la loi dans l’Islam,’ Travaux
9-10 (New York, 1972), pp. 73-8. The theory is criticized by J.-
134 Legal Anthropology The Fields o f Legal Anthropology 135
G. Bellay in Conflit social et pluralisme juridique en sociologie du droit son used in comparative law, see Traité de droit comparé, Vol. 2,
(op. cit., above, no. 49), p. 17. La Méthode comparative (Paris, LGDJ, 1974), pp. 92, 135-252,
A summary of the ideas of R. Verdier may be found in his 261-5; and Traité de droit comparé, Vol. 3, La Science des droits
‘Premières Orientations pour une anthropologie du droit’, DC, 1 comparés (Paris, Economica, 1983), pp. 121-4, 153-62.
(1981): 5-22. As regards the general relationship between ethnology and soci
L. J. Pospisil has described his four criteria for a definition of ology there is a good historical study in L. V. Thomas, ‘Sociologie
law in his ‘The nature of law’, Transactions of the New York et Ethnologie, ou réflexions sur un faux problème’, Bulletin de
Academy of Sciences, 18, 8 (1956): 746-55; his ‘Law’, Quademi l’IFAN, 35, series B, 4 (1973): 854-80. More specifically, on the
Fiorenti, 14 (1985): 23-75; his The Ethnology of Law (op. cit., treatment of law in the two disciplines, see A. Febbrajo,
above, no. 9), pp. 30-51. A summary in French exists in L. J. ‘Sociologia e antropologia del diritto’, Quademi Fiorentini, 14
Pospisil, ‘Le Droit comme concept opérationnel fondé empirique (1985): 7-19, who marshals the arguments in favour of diver
ment’, DC, 13 (1987): 5-23. gence or convergence. Griffiths, Anthropology of Law in the
M. Alliot outlines his theories on variability in the field of law Netherlands in the 1970s (op. cit., above, no. 58), underlines the
in several works. ‘Genèse et permanence des traditions traditional divergence of the disciplines yet states that he is con
juridiques’, in ‘Communication au premier colloque organisé à vinced that they will both eventually fuse, since they are not based
Münich par l’Institut fur historische Anthropologie’ (Paris, LAJP, on different principles; R. Motta, ‘I percorsi dell’Antropologia
1976, unpublished) is essential reading. There is also giuridica’, Materiali per una storia della cultura giuridica, 12, 2
‘L’Anthropologie juridique et le droit des manuels’, Revue (1982): 477-96, describes the convergence of the two disciplines
juridique et politique, Indépendance et coopération (1983): 537-45; in the United States. A.-J. Arnaud, ‘L’Anthropologie au service
‘Un Droit nouveau est-il en train de naître en Afrique?’, in de la connaissance juridique’, Archiv fur Rechts und Sozial
Dynamiques et finalités des droits africains, ed. G. Conac (Paris, Philosophie, 24 (1985): 82-93, quite righdy emphasizes that legal
Harmattan, 1980), pp. 467-95. The importance of an internor anthropology is now capable of providing alternative models for
mative perspective is underlined in J. Carbonnier, Essai sur les lois our own societies, a new departure in the history of the discipline.
(Répertoire du Notariat Defrénois, 1979), pp. 257-64; E. Le For a summary of current problems in the sociology of law and its
Roy, ‘Pour une Anthropologie du droit’, Revue interdisciplinaire development in various countries, we may consult: A.-J. Arnaud,
d’études juridiques, 1 (1978): 71-100; J. Griffiths, ‘The division of Critique de la raison juridique, Vol. 1 (Paris, LGDJ, 1981), pp.
labor in social control’, in Toward a General Theory of Social 145—90; A.-J. Arnaud, ‘Sociologie du droit’, Revue de synthèse,
Control, ed. Donald Black, Vol. 1 (Orlando, FA, Academic Press, 118-19 (1985): 285-99; J. Commaille and J.-F. Perrin, ‘Le
1984), pp. 37-69. Modèle de Janus dans la sociologie du droit’, Droit et Société, 1
On the links between legal anthropology and neighbouring dis (1985): 95-110.
ciplines see: J. Pourmarède, ‘Pavane pour une histoire du droit
défunte’, Procès, 6 (1980): 91-102; also by J. Pourmarède,
‘Rechtshistorie in Frankreich’, Zeitschrift fur neuere Rechtsgeschichte
(1981): 50-63; N. Rouland, ‘L’Histoire des institutions: du
hasard à la nécessité’, RRD, 1 (1983): 19-40, where the present
crisis in the history of law is described. On legal anthropology and
comparative law see: Negri (op. cit., above, no. 43), pp. 105-27;
J. J. Constantinesco, Traité de droit comparé, Vol. 1, Introduction au
droit comparé (Paris, LGDJ, 1972), pp. 115-26; J. J.
Constantinesco, on the shortcomings of the methods of compari
Methodology 137
A journey can simultaneously take us through space, time 79 The need for catharsis in the field of ethnological inquiry
Ethnology is by no means the only discipline where researchers
and social hierarchy. (Claude Lévi-Strauss, Tristes
must rid themselves of ethnocentric preconceptions: the same
Tropiques)
strictures apply to the study of history. However, the imperative is
even stronger in ethnology. In fact, ethnological research can be
Man does not own the land; man is owned by the land.
divided into three stages: prior to departure the ethnologist, like
(Agni proverb, from the Ivory Coast)
the historian, must gather together as much information as possi
ble on the society in question and the problems which require
Ethnological research was originally carried out in ‘exotic’ soci
elucidation; there follows work in the field, with the collection in
eties and those involved, who generally came from Western soci
situ of material which frequently modifies the perspectives gained
eties, needed to adjust to a new physical and mental landscape;
through written sources; finally, on return, the ethnologist must
sometimes they lost their bearings and ran the risk of succumbing
interpret the ethnographic material and contrast it with published
to ethnocentricism, as a ready means of regaining a sense of
material, the result being a monograph where the conclusions of
direction. A methodology began to emerge which avoided this
the research are drawn. However, legal ethnology is a young disci
danger and which consisted of collecting and interpreting material
pline: the phase of collection of information in the field is a deter
in the most scientific way possible: this methodology resulted in
mining one, to such an extent that the researcher will proceed by
the discipline of legal ethnology.
induction rather than deduction. The loss of geographical and cli
However, the investigation of individual societies could only be
matic bearings can exert an influence on a researcher’s thinking;
a starting-point. Anthropological inquiry is by definition cross-
in this discipline, unlike others, the researcher is not only con
cultural. If we are to compare the legal systems of several soci
strained by the working of his or her intellect, but is also subject
eties, then we must develop further techniques, those which have
ed to a physical and affective response to the subject-matter.
been adopted as the methodology of legal anthropology.
‘Exotic’ locations may have their obvious attractions but they also
We will consider the methodology of these two disciplines in
prompt a certain amount of soul-searching: ethnologists are no
turn.I
longer the same people when they return home; they see their
society through different eyes and many institutions which were
I THE METHODOLOGY OF LEGAL ETHNOLOGY taken for granted no longer seem ‘normal’. This process of strip
The observer is not impartial and the object of the observer’s gaze ping assumptions bare is both necessary and rewarding. However,
can be modified by his or her own vision: there is more than a lit like all cathartic processes, it is not without difficulty, and one of
tle truth in the saying that it is the ethnologist who is the first to the ways of avoiding the issue is to yield to ethnocentricism, an
undergo observation. In accepting the impossibility of achieving attitude against which, more than any other, the ethnologist must
complete ‘objectivity’, the ethnologist can at least avoid the most be armed. Avoiding a projection of one’s own view of the world is
blatant misconceptions by taking stock of how he or she is per not achieved by sustaining the illusion that it will be a matter of
ceived by the society in question. Even with the benefit of this only a few months before the researcher can become at one with
138 Legal Anthropology Methodology 139
those whom he or she studies. Not only is such a transubstantia- question, as expressed in the indigenous language. Familiarity
tion impossible, it would actually be harmful. In fact the ethnolo with language is thus indipensable, even if recourse must be made
gist needs to retain a certain distance, both in regard to his or her to interpreters with the attendant risk of the deformation of
own society and to the society under study. This is because our ethno-linguistic data.
social conditioning lies deep within us, rooted in our uncon Second, there is the limiting factor of time: the time needed to
scious: this bias can best be apprehended when we are neither wait and make important contacts, gain access to confidential
totally detached nor totally under its sway. information, and identify the questions which we should refrain
Instead of demanding of the observer an illusory suppression of from asking if we are to receive correct answers - or any answer at
his or her preconceptions, it is rather more constructive to take all. In addition, ethnographic observation is concerned not only
part in a form of self-analysis in which hopes, aspirations and sci with discourse but with practices: here also, considerable time is
entific, religious and other human assumptions are all taken into required to identify those which are significant. As a general rule,
account. No doubt this is difficult to achieve, but since, as the a year in the field is felt to be the minimum time required to make
author believes, ethnological inquiry stems at heart from dissatis valid statements. However, as a rule, we cannot deny that finan
faction and the quest for new horizons, it is as well as to be aware cial and career imperatives intervene. Finance for long periods in
of what the ethnologist wishes to leave behind, at home, and the the field is more and more difficult to obtain, especially for young
reasons for leaving. Ethnologists become adults several times in researchers.
their lives. Thirdly, the researcher must also pay close attention to the
Certain methodologies seem less well adapted than others in choice of informants. A researcher is not seen as ‘neutral’ within
protecting the researcher from ethnocentricism. Thus the the society under study, and the same is true of members of that
English-speaking tradition, the dynamic school of anthropology, society, who all have allegiances to particular subgroups: a Dogon
favours ethnographic descriptions. Even if we assume that a informant is no more objective than any historical source. The
‘pure’ description is possible, which we doubt (because to classify researcher will tend to choose the leading members of the society
is also to conceptualize), it is an absurd solution: are we to avoid as informants - this is always the easiest approach - rather than
ethnocentricism in interpretation by reducing our interpretation? marginal elements or rebels. The results thereby obtained will, as
At the other end of the spectrum, historical materialism concen a consequence, tend to underpin the current social and legal
trates on redefining basic premises and ‘proving’ the universalist order. The researcher will also find it easier to make contact with
explanations drawn from Marxist theory; the comparative frame members of his or her own sex, effectively limiting access to infor
work is overemphasized and interpretation is geared to the gener mation that resides in members of the opposite sex. Finally
alizing of data rather than its validation and analysis. The researchers must show due respect for the societies which extend
structuralist approach, in contrast, would appear to be more bal a welcome to them: examples are known of ethnologists who, to
anced, since it gives equal emphasis to the rigorous collection of facilitate their study of disputes, have actively provoked a dispute,
data and its subsequent comparative treatment. The researcher despite the attendant risks to the whole society.
will use the methodology which conforms best with his or her
philosophical outlook and personal preference, stressing some
features to the exclusion of others and presenting results in differ B: T h e attributes o f the society observed
ent ways.1There are also certain inbuilt parameters.
First, language: the difference between conceptual categories is 80 The pre-eminence o f the spoken word
generally reflected in terminology. Hence the necessity of collect Our own legal culture has assumed a predominantly written form
ing a corpus or glossary of terms relating to law which most faith for several centuries. Most traditional societies, however, commu
fully represents the concepts articulated by the society in nicate through the spoken word.2 Thus one of the main difficul-
140 Legal Anthropology Methodology 141
ties in legal anthropology is that the researcher must become narrative (particularly in relation to matrimonial problems).4 Also
acquainted with non-written law. of interest are the songs accompanying dance, mourning, mar
Claude Lévi-Strauss considered language to be one of the three riage and even the language of drumming.
main systems of communication which, combined, constitute Personification: in contrast to justification, its purpose is not the
social existence. The communication of messages through a set of glorification of an individual, but the integration of a person into
linguistic rules facilitates the operation of the other two systems: a group. Genealogies, with lists of male, female, or bilineal ances
the communication of women between groups through the rules tors, are important ways of identifying relationships between indi
of kinship and marriage, and the communication of goods and viduals; they are recited when people meet. People have several
services through economic rules.3 Whilst the written word facili names. Filiation is recognized at birth by the conferring of the
tates the dissemination and storage of information (archives), the clan name, to which may be added secondary names (nicknames,
oral mode is the province of face-to-face societies. Oral communi war names, or dance names), linked to particular status or role.
cation implies physical proximity and the personalization of con These oral records are stored in various ways. As a general rule
tacts between individuals (except in our own societies where, with they are taught progressively (from childhood through to old age),
electronic media, oral discourse, distance and anonymous contact they are personalized (according to the status and wisdom of the
all coexist). In this respect, speech plays a role beyond that of car receiver) and they feature in rites of passage (birth, circumcision,
rying messages; it can carry a much more important mystical or marriage, giving birth, bereavement, death). However, whilst the
affective charge (for the Dogon, speech is a fragment of divine oral record concerning socialization is articulated around festivals
presence). In the legal domain, norms and models are inculcated or holidays, legitimation and justification form the object of spe
by recitation and disputes are settled through the spoken word. cial treatment. The latter categories are more directly concerned
with social cohesion and the prestige of leaders. Sometimes they
81 The typology o f oral statements are recited ad nauseam in public, sometimes they are confided to
The information sought by the researcher is thus presented in oral guarantors of the tradition. In the latter case either a social group
form; this can be divided into several categories of oral record. enjoying caste-like status is given prominence, such as griots
Legitimation: myth and legend: no dates can be attributed to (endogamy, hereditary transmission of status); or the perpetua
myths, they are normally encountered in segmentary societies tion of collective memory is vested in a lineage (the royal lineage
dominated by kinship. Legends, on the other hand, can some in the case of the Bantu kingdoms). In either case, this commit
times be dated and often have a political dimension associated ting of information to memory is independent of all other activity,
with a power base distinct from kinship. political or physical.
Justification: tales and epics: these focus on an individual, whose
actions have been rewarded by the conferring of special status, 82 Approaches to legal phenomena
temporary or permanent. In Africa, griots are responsible for the Two approaches to legal phenomena exist: the analysis of institu
creation and transmission of epics which are sung at festivals and tions, and the observation of behaviour.
ceremonies. The analysis of institutions relates to the explicit and visible
Socialization', this category concerns the integration of the indi aspects of social and legal relations. An example is the processual
vidual into the group through the transmission of a common cul approach of English-speaking workers, centred on the settlement
tural heritage. Proverbs are the concise expression of principles or of disputes, in which law and sanction are closely associated. This
rules which directly relate to social or legal existence. Stories are also happens to be the method of analysis invariably used by
fictional accounts, allegorical or anthropomorphic, in which the Western jurists, since it is suited to state societies and written
origin of a rule may be discerned, or situations of conflict, involv forms of law, past or present, Western or non-Westem. However,
ing humans or animals, may be illustrated by adventures in the in the case of the oral system of law prevalent in the majority of
TT
142 Legal Anthropology Methodology 143
traditional societies this is a poor choice and gives an incomplete as a point of departure, the observer must define the circum
picture. A second approach must also be used. stances in which social reproduction is challenged. These circum
The observation of behaviour relates to the fact that institutional stances are variable, since each society possesses its own
information is often difficult to retrieve from the oral record: momentum, the product of a number of factors: history, environ
either points of reference have disappeared, creating unbridgable ment, beliefs, etc. For example, in societies possessing few tools,
gaps in knowledge,' or the information is skewed or truncated thus setting limits to production, the sensitive areas for the main
(political alliances are often expressed in terms of kinship and tenance of a group will be biological reproduction (established by
some groups manipulate genealogies to give themselves more regulating marriages and thus the movement of women) and the
political weight); these features may have been reinterpreted fol reproduction of ideology (the values legitimizing the authority of
lowing changes in society, something that applies in particular to elders, the rules controlling the provision of goods to elders by
the category of justification. In addition, in confining itself to younger members, and the redistribution operated by elders to
institutions, institutional analysis passes over whole areas of law, younger members).
namely legal behaviour and associated values and beliefs. The The means by which law is applied: the application of law resides
observation of behaviour, or legal ethnology, springing directly in particular individuals, and takes particular forms, which the
from ethnographic inquiry, helps overcome this problem; it is observer must attempt to describe.
based on the premise that all societies, each in its own way, A wide range of hierarchies exists in human societies. It
acknowledge social situations as just or unjust through the depends on a number of factors including, in particular, the way a
process of ‘juridicization’. This is explicit in discourse or state society views itself and the extent to which this vision is shared by
ments and implicit in behaviour. Three parameters come into its constituent groups. The status of individuals associated with
play. law and its application should be considered in the context of the
First, the perception of just and unjust will vary according to social hierarchy. It will be noted that groups accord high status to
the status of groups and individuals in the social hierarchy: hierar individuals who are responsible for regulating social existence
chies, values and authority must thus be clearly identified, with (legislators, judges, leaders, elders).
out neglecting minority interests. As regards the methods of legal regulation, M. Alliot and E. Le
Second, law is concerned only with those social facts which the Roy have distinguished two main variants. The first ensures con
various social groups consider as essential to social reproduction: tinuity in social reproduction (laws, privileges, ancestry) and the
biologically, ecologically and ideologically. Moreover, the observ avoidance of conflict; the second concerns the restoration of
er must concentrate attention on legal behaviour and place it in social order and the settling of disputes through a variety of
the context of discourse, and values and beliefs, identifying the means, such as the economic, religious, or political control of
ways in which they interact. Thus the description of behaviour society, or the legal sanction applied to behaviour considered as
will permit a clearer interpretation of institutions. unjust or threatening social order. Here again, the observer must
However, these are no more than alternative ways of approach identify each of these processes and place them in their context.
ing law - institutional or ethnological. The choice between one The elaboration of macro-comparisons - the proper role of
and the other - or their combined use - depends in fact on broad anthropology - can be made only at a later stage.
er considerations, the main traits of legal ethnological fieldwork.
II THE METHODOLOGY OF LEGAL ANTHROPOLOGY
83 The m ain features o f legal ethnological fieldwork The West has long used comparisons in examining societies
Fieldwork in legal ethnology explores two areas: the extent of the which differ from itself. In the sixteenth century comparisons
legal domain, and the means by which law is applied. used the Bible as a reference point. Subsequently, geophysical cri-
The extent of the legal domain: with the criteria identified above
TT
144 Legal Anthropology
Methodology 145
teria were employed to classify races and cultures (climatic theo versy between two legal anthropologists. Bohannan believes that
ry, for example). Today we favour criteria which focus on social the use of Western vocabulary and terms of reference in the
structure and beliefs and value systems. We cannot gloss over the analysis of traditional legal systems should be abandoned, and
fact that macro-comparisons, which consider ever more extensive that on the contrary we should employ the terminology of the
systems of law, are particularly complex, leading some observers society in question. For Gluckman, influenced by Marxism and
even to doubt their validity. Yet we believe it is possible to make consequently inclined towards macro-comparisons, such an
some fundamental comparisons. approach would, if taken to its logical conclusion, render compar
isons impossible. In his work on the Barotse of Rhodesia,
A: Are m acro-com parisons possible? Gluckman had focused on analogies between the Barotse king
Some writers, such as the comparitivist J. L. Constantinesco, do dom and England in the middle ages, and had considered it rele
not believe macro-comparisons are possible. Others, such as the vant to apply the concepts and vocabulary of English legal
legal anthropologists P. J. Bohannan and M. Gluckman, disagree historians to Barotse property law. Pursuing this line of thought,
on the linguistic and conceptual categories which should be used. Gluckman considered he had uncovered a universal legal criterion
in the notion of a ‘reasonable man’: all societies, in assessing the
behaviour of an individual, refer to a behavioural model, that of
84 Constantinesco and his radical distinction between traditional
the behaviour of a ‘reasonable man’ under similar circumstances.
and modern societiesf
Both these positions contain advantages and disadvantages:
J. L. Constantinesco believes that universal legal criteria can be
Bohannan makes macro-comparison very difficult, if not impossi
made,7 but that comparing legal systems becomes a sterile exer ble; Gluckman’s view, tinged as it is with evolutionism, runs the
cise serving little purpose when differences become too extreme, danger of admitting the wolf of ethnocentricity amongst the flock.
the comparison of traditional and modem law being a case in Ours is a more qualified view, and we find ourselves more in
point. Modern societies possess self-awareness and are aware that sympathy with the ideas of Poirier.8 Universal categories of
they constitute only part of the human experience; law is differen thought do exist (allowed/prohibited, attractive/ugly, just/unjust)
tiated from morality and religion, and takes the form of a distinct as do universal legal concepts (marriage, divorce, parental author
edifice; traditional societies on the other hand are pluralist, com ity). On the other hand, some legal categories which we have
munal organization is weak, control over the environment is rudi inherited from Roman law (law pertaining to things/persons, pub-
mentary. In traditional societies, adherence to law is ‘passive, lic/private, economic interests/non-economic interests, mov-
global, tacit, imprecise and poorly articulated’; the individual is ables/non-movables), cannot be readily transposed. Whether,
an anonymous member of the community. These remarks will methodologically speaking, one is a priori in favour of the concept
suffice to show that, even today, a great comparitivist can be of universality or of specificity, it is equally important to proceed
blinded by century-old ethnocentric prejudices and demonstrate with the painstaking collection of indigenous legal terms and
little knowledge of research published by legal anthropologists. If expressions. Only when this task has been performed can we pro
the differences between traditional and modern societies were ceed to an evaluation of whether equivalent terms exist in our
such as Constantinesco depicts them, then there would indeed be own legal systems.
little point in comparing them. However, this is not the case.
B: Basic comparative principles
85 The universality of legal criteria and the controversy between The objections raised against macro-comparisons do not in our
Bohannan and Gluckman view appear decisive. We must now outline the methodological
The universality of legal criteria are more worthy of our attention.
principles which will determine their application. These include
These can be examined in the context of the well-known contro
the framework, the subject and the nature of the comparison.
146 Legal Anthropology Methodology 147
4 See I. Quiquerez, ‘Le langage du droit dans le conte africain’ , Apart from the few pages devoted to the subject in the above
BLAJP, 2 (1986): 39-68 (summary by the author in Droits, 6 works, there are very few studies specifically devoted to the
(1987): 170), which finds aspects of African ideas on law methodology of legal anthroplogy. The most important of "these
reflected in tales, a view of law that issues encouragement are unpublished and can be consulted only at the LAJP: see E. Le
rather than imperatives, underlining that the tale can be Roy, ‘Méthodologie de l’anthropologie juridique’ (extract from
employed by a judge of customary law as a legal instrument. ‘Cours d’Histoire des Institutions d’Afrique noire’, 1975-6, in the
series Orientations et techniques de la recherche collective, document
In Western societies tales can also have this role of legal
no. 1, ‘L’Enquête de terrain’ (February 1977, 24 pp.; October
socialization. 1977, 62 pp.); document no. 2, ‘La Rédaction des corpus
5 In the words of the great Malian writer Hompaté Ba: ‘An old juridiques’ (December 1776, 10 pp.); document no. 3,
man who dies represents a whole library burning.’ Sometimes ‘Méthodes de traitement et d’exploitation des données’ (1978, 94
disaster is averted: a year before the death of Ogotommêli, the pp.). See also: F. Benda-Beckman, ‘Ethnologie und
old blind Dogon hunter, Marcel Griaule {Dieu d'Eau [Paris, Rechtsvergleichung’, Archiv für Rechts und Sozialphüosophie, 68, 3
Fayard, 1966, 222 pp.]) was able to retrieve the extremely rich (1981): 310-29; W. E. Moore and J. Sterling, ‘The comparison
Dogon mythological corpus from him. of legal systems: a critique’, Quademi Fiorenti, 14 (1985): 77-117.
6 See J. L. Constantinesco, La Méthode comparative (Paris, S. Falk Moore, ‘Comparative studies’, in his Law as Process
Economica, 1983), pp. 102-4, 222, n. 3; also Constantinesco, (London, Routledge & Kegan Paul, 1978), pp. 135-48, contains
La Science des droits compares (Paris, Economica, 1983), pp. interesting developments, and an excellent summary of the
37, 177, 267-85, 317. Bohannan-Gluckman controversy. S. Falk Moore regards certain
7 ibid., pp. 261-7: law consists of ‘a compulsory rule in an orga legal terms as neutral (transaction, obligation, interest, transfer),
nized society, whose violation should meet with sanction and and thus applicable in cross-cultural comparisons. (For a more
detailed and critical study of the thought of Max Gluckman, see
the conflict which resulted, be settled’.
E. Le Roy, ‘L’Anthropologie juridique anglo-saxonne et l’heritage
8 See J. Poirier, ‘Les Catégories de la pensée juridique et l’in scientifique de M. Gluckman: un point de vue français’, African
terprétation des droits coutumiers africains’, VI Congrès inter Law Studies, I l (1979): 53-70.)
national des sciences anthropologiques et ethnologiques, Paris 30 Also relevant are older works: Notes and Queries of Anthropology
July—6 August I960, Vol. 2 (Paris, Musée de l’Homme, (London, the Royal Anthropological Institute of Great Britain
1964), pp. 349-54. and Ireland, 1951), chap. 5, ‘Law and justice’; J. Poirier,
Questionnaire d’ethnologie juridique appliqué à l’enquête de Droit cou
tumier (Brussels, 1963); M. Back and D. Metzger, ‘Ethnographic
FURTHER READING
description and the study of law’, AA, 2 (1965): 141-65.
On the cross-cultural study of the rights of man, there is R.
89 Recommended bibliography Panikkar, ‘La Notion des droits de l’homme, est-elle un concept
General information is contained in: M. Mauss, Manuel d’ethno occidental?’, Diogène, 120 (1982): 87-115, an excellent method
graphie (Paris, Payot, 1967); J.-P. Lebeuf, ‘L’Enquête orale et ological example of comparative analysis. On the differing mean
ethnographie’, in Ethnologie générale, ed. Poirier (op. cit., above, ing of customs see M. Alliot, ‘Coutume et mythe’, L ’Année
no. 4), pp. 180-99); J. Guiart, ‘L’Enquête d’ethnologie de la par sociologique (1953-4): 369-83.
enté’, also in Ethnologie générale (op. cit., above, no. 4), pp.
200-13; R. Cresswell and M. Godelier, Outils d’enquête et
d’analyse anthropologiques (Paris, Maspéro, 1976); J. Servier,
Méthode de l’ethnologie (Paris, PUF, ‘Que sais-je?’ series, 1986,
128 pp.).
" m
150 Legal Anthropology
emerged from matter, his powers were then established in com compensation is designed to symbolize the union between two
plementary pairs, rescuing first the visible world from chaos, then, families, but is also intended to provide material compensation
after a number of attempts, man himself. Man furthers the for the group which has ‘lost’ a woman.
process of creation in inventing society, still in the context of dif Finally, the same state of mind, hostile to divisions, is dis
ferentiation (some individuals will be peasants, some smiths or cernible in attitudes towards time. Time is seen not so much as
griots; there will be territorial chiefs, political leaders, etc.). This measuring the distance between past, present and future as, on
differentiation is no more than the extension of a unity which will the contrary, linking them all together in eternity. Continuity
not accept uniformity. Social, political and legal divisions are overrides succession. Thus on some occasions Dogon smiths
viewed as complementary, and integrated in a web of relation work together in groups of three. A child, an old man and an
ships which we will term the communal model1- neither collec adult belonging to the same caste each strike the anvil in mm. By
tivist nor individualist. Furthermore, the visible world (the these strokes they link together the present, the past and the
community of the living) is not separated from the invisible world future represented in each of them. This repetitive rhythm is that
(the original God, divinities and ancestors). The divine powers of the myth, through which society exercises threefold control.
need humankind as much as humankind needs them. Someone
who dies does not depart, either for paradise or hell, but remains
on earth, now part of the invisible world. African thought is thus 92 Control over time, people and space
neither idealist nor materialist, but realist, to the extent that visi Time, people and space: these are the three areas which African
ble and invisible, subject and object, nature and culture, all par societies attempt to control through myth.
Control over time is control over death. In constantly referring
ticipate in the real order of things. This gives African law its
particular form. ‘Talking law’ is not a question of referring to a to origins, myth ideally effaces the vicissitudes of historical
change. Myth emphasizes the primordial ordering of society,
general and absolute pre-existing body of norms, it is rather, in
allotting a place to the individual in each of the groups in which
practice, a question of interpreting behaviour case by case and
he or she is involved, enabling these groups to perpetuate them
making choices between the aspirations of individuals and the
selves beyond marriages and generations. Only the individual is
needs of life in society. Also, since unity and complementarity
ephemeral, society lives on.
must triumph over division and opposition, the interdependence
The control of individuals through myth also furthers social
of people and things is often evident, expressed in the joint ten
reproduction: traditional social divisions should not, in principle,
dency for things to be personified and people reified. Things are
be challenged by individuals.
personified in that they do not all have the same status; they can
The control over space is generally achieved by control over
be distinguished by the mode of ownership. Some are owned by
individuals and can be freely exchanged; others are intimately individuals: the group to which the individual belongs will also
bound to the person of their owner, whose status they reinforce, determine access to land and land-use. These three types of con
and are inalienable. Things may also be distinguished according trol are arranged in pairs to achieve two important objectives: the
to their ascription: whilst some may circulate freely, others may continuity and equilibrium of society.
not leave the group which holds them, except in clearly laid down Control over time and control over people combine to ensure
social continuity. The individual is above all defined by his or her
circumstances and situations (in principle property is kinship-
role in the group, because only the group can be assured a contin
based and should not leave the kinship group: this is prohibition
ued existence. Membership of a group can be established only
against extra-lineal transmission). Conversely, people may be rei
fied. This occurs when individuals are transferred from their own through genealogical or residential ties, or, better still, both. The
group to another group, in the course of which they lose their per Basa (Cameroon) possess a status hierarchy: at the peak are the
sonality: prisoners of war; dotal marriages where matrimonial ngwéles, the ‘pure’, who claim ties through both blood and resi-
156 Legal Anthropology Traditional Legal Systems 157
dence; followed by those who can claim only blood ties; and final B: T h e sources of African law
ly the bet long, the ‘strangers’, who claim only residential ties In traditional sub-Saharan Africa we find sources of law analo
(immigrants, strangers on temporary visits, clients, slaves). Rights gous to those of our own societies: law, custom, doctrinal and
are attached to status, also arranged in descending order. case-law. But the particular view of the world and society which is
Education is geared to the insertion of the individual into the such a feature of African thought produces distinctive interpreta
groups to which he or she will eventually belong; initiation and tions.
rites of passage reinforce this process. The most valued activities
and crafts - often smiths - are particularly favoured in myth. In
all these cases, the idea of a regulation of time is present. Periods 93 M yth and law
of time have no role, the importance of chronological time is Myth is narrative in which the fundamental explanations regard
negated. Thus the deceased has not disappeared: becoming an ing the creation of the universe, the origins of life in society and
ancestor, the deceased continues to play a part in the land of the the main rules by which society is governed, all reside. Generally
living and features in ceremonies. But the periodicity of time can speaking, myths unite those areas which are disjointed in modem
also be overcome by control exercised over its flow. This is exem thought: the same myth may contain both the reason why the
plified in the importance generally accorded to genealogies. These moon is at a particular distance from the earth and the reason
legitimate, if necessary through manipulation, the ties of ascen why a man should take a wife from one group rather than anoth
dance and descendance, relativizing the place of the present gen er. Myths are usually set in far-off times, when men and animals
eration in the continuum and creating a strong link with past and could speak to each other. From myths flow the rales which make
future generations. life in society possible: moral, religious, legal. A careful reading of
As well as social continuity, social equilibrium must also be myth provides an understanding of beliefs and values, and the
assured. This is, ideally, achieved through control over space and legal norms and practices of a particular society.
individuals. In general, myths of the origins of the universe and society
Control over space does not necessarily involve control over describe primeval disorder, which both gods and humankind
territory, as it does in our societies. A more important considera attempt to come to grips with.
tion seems to be the articulation of space as a function of the Thus, in the case of the Dogon, the world began as an egg
needs of the group, helping to preserve the equilibrium of institu within which there were two pairs of twins, one of which was des
tions. The way space is controlled depends to a large extent on tined to be the guardian of order, and the other the provoker of
social values and institutions. Thus amongst the Tiv (Nigeria), disorder. The first pair of twins solemnized, in mythical terms,
spatial distribution is determined by genealogy, each lineage the ideal marriage by marrying each other and bringing another
installing itself and moving about according to its position in soci set of twins into the world. But in the second pair, the male twin
ety and its relationships with other lineages. It follows that if the left the egg prematurely and, abandoning the twin he should have
organization of space depends to a considerable extent on social married, introduced disorder into the mythical world. On leaving
hierarchy, it is ultimately based on the rules organizing control the egg of the world, this disorderly twin had concealed a few
over individuals. This bonding makes social control very effective: seeds and a fragment of placenta. Subsequently, from this frag
an individual who is excluded from the group is also excluded ment of placenta, he created the earth, and, in the absence of his
from use of space, which makes survival difficult, if not impossi twin, sought union with the earth. This union was both contrary
ble. to the order of things (he should have married his sister) and
In combination, these factors produce a particular conception impure (the twin was in union with his progenitor, since the earth
of the sources of law. was an incarnation of the placenta from which he had emerged).
The theft of seed and the impurity of the union brought about the
158 Legal Anthropology Traditional Legal Systems 159
necessary intervention, on earth, of the twins who were the whether it emanates from God, the King, and now the People,
guardians of order. the mythical characteristics of traditional societies: the legislative
This mythical world, by virtue of the ‘realist’ dimension of process, whether couched in imperative or conditional terms,
African thought, directly influences the visible world: some legal contains a body of normative proposals in its narrative, as do
rules are clearly reproductions of the mythical narrative. This can myths. In our modern societies, which believe in change, human
be seen in matrilineal descent and the tendency for hostility to power over the law, exercised by the manipulation of legislative
appear in the relationship between nephew and uncle on the power, is considered to facilitate social change. However, is it not
mother’s side.2 Amongst the Dogon, the uncle on the mother’s the case that law can become too malleable an entity, resulting in
side is identified with the male twin who left the female twin with an opposite tendency, in which law progressively escapes from
out marrying her: in taking a wife from outside the lineage, he our control? The inflation of legislation and regulations with
abandons his sister. The son of this sister, his nephew, punishes which our jurists are confronted, would tend to support this view.
him, by insulting behaviour or ritualized theft. We can thus estab Control of myth over humankind might afford better protection
lish a direct relationship between myth and law. Myth can assume than human control over law.3
the form of law in traditional societies. Through prescriptions and Finally, myth, in its use of analogy and metaphor, introduces a
prohibitions which attempt to re-establish the order which has classificatory system through which communication is established
been perturbed by the forces of disorder, human society is created between visible and invisible beings, ensuring that disorder does
and a hierarchy is established through complementary groups. not triumph over order. The ideal legal order thus created
Amongst the Bambara, the keeper of the word, Faro, classifies all emphasizes continuity and equilibrium, affirming the will of tradi
human beings, determining caste status, establishing the food tional society to control time, humankind and things. The main
stuffs which should not be eaten by each social category and plac distinction between mythic and modem law is that it does not
ing spirits everywhere to establish universal order. If disorder - or reside in an individual or in an organ but in the whole society,
the threat of disorder - can never be completely eliminated, the through the diversity of its constituent groups.
prescriptions and prohibitions of myth are intended to arm soci
ety against it. Some mythical prohibitions can protect those who
make legal pronouncements from the forces of disorder. This is 94 Custom
particularly the case for religious leaders whose mistakes could Traditional law also differs from modem law in the hierarchy
imperil the whole community. Thus the Hogon Dogon, responsi which it creates in the sources of law: custom plays a fundamental
ble for the integrity of the universe, must not be impure, should role. Generally speaking, Western jurists define custom as pro
longed and mandatory usage, emphasizing its lack of rigidity and
have contact with no one except his wife, and should do no work.
the ease with which it adapts to changing mores. Thus an ideal
The legislative power of myth accounts for the fact that in
order is combined with day-to-day experience. We will see below
many societies, no human being is given equivalent authority.
that custom is not immutable and evolves with the needs of the
Hebrew law is contained in the Torah, charter of the alliance with
social group which has brought it into being.4 However, ideally,
Yahweh, and the king is bereft of legislative power. In traditional
Muslim law, the source of law is the Koran, and the sovereign is those who apply custom recognize the repetition of past practice it
involves even if, when the case arises, it has to be adapted to new
equally deprived of authority: he is the servant of law, not its mas
circumstances. Ideally, the main characteristic of custom is repeti
ter. In many African societies, human beings can do no more
tion. It consists of a number of associated actions which constitute
than give expression to laws, only myths can create them. Our
a model of social behaviour, generally legitimated in conjunction
own societies seem to depart from this model since, on the con
with a myth. In this way, two problems are solved: that of origins
trary, they affirm human power over the law, and legislators are
(attributed to myth), and that of the legitimacy of custom (the
dominant figures. In truth, we do no more than transfer to law,
160 Legal Anthropology Traditional Legal Systems 161
myth must be interminably repeated for fear of alienating the pow through curses which will achieve the same results. Hence the
erful spirits which protect the community). Ancestors often bridge crucial role, in some societies, of the power of calling down curses
the divide between the living and myth. Ethnologists asking about and imprecatory oaths, evinced in formulas and ritualized
the rationale of a particular custom have often received the reply: actions6: evil, like good, must return to its source, a transition
‘We do this because our parents have always done it.’ The reply facilitated by the spirits, or initiated by them if they feel aggrieved
given at the beginning of the century by an Iglulik Inuit to K. by the violation of rules which the living should obey.
Rasmussen demonstrates the conflict between the two approaches; However, the description of conflict involves the study of every
that of the observer, based on rationality, and that of the respon day life.
dent, based on experience: ‘Thinking too much only leads to dis
order. . . . We Inuit, we don’t pretend to provide solutions for all
enigmas. We repeat the old stories we have told you, with the II THE PRACTICAL APPLICATION OF LAW
words we remember. . . . You always want these supernatural All societies possess an ideal legal order which cannot remain
things to have some meaning, but we don’t fret about that. We are unaltered when applied to practical situations. A belief in harmo
happy not to understand.’5 This suppression of the origin of the ny and equilibrium assumes real meaning only when confronted
custom in the mythical past demonstrates its second characteristic, with the tensions and conflict of the real world: traditional soci
its spontaneity. The appearance of the custom is not generally eties are not spared disputes, even though they try to avoid them
dated chronologically by those who apply it: a custom is recog or regulate them in a manner which will minimize social disorder.
nized once it has emerged rather than there being any conscious Also, whilst the complementarity of social groups is emphasized,
awareness of its inception. Finally, custom is mandatory, not only these groups also possess specific values, which may be in con
because its very nature depends on repetition, but the more so flict. In general one value system will achieve dominance, but the
because to infringe it would be to invoke sanctions from supernat others will survive, adhered to only by certain groups, or existing
ural powers, to which those of the living could be added. only in veiled form. The aim of social control enforced by law in
everyday life is to setde disputes, either in restoring the existing
order or in creating a new order, whilst all the while respecting, as
95 The interpretdtion o f law and the settlement o f disputes far as possible, the principles of the ideal order. This control is
The legal rules which emanate from myth and custom may need exercised through the framework of three fundamental relation
to be interpreted to ensure better application. This role normally ships in which all those subjected to law participate, and from
resides in important figures and elders who should, in particular which a number of legal consequences flow.
when disputes are settled, enunciate the basic rules or infer them
from the observable behaviour. The application of the ideal order
to the everyday situation, and control over the disorder of social A: C om bining three forms o f control with the three funda
reality, proceeds through the institution in which legal authority is m ental relationships
vested according to a technique known as the ‘accumulation of
sources’. No existing source can be replaced by a new source; it is 96 The three fundam ental relationships: humanity, things, God
added to earlier sources without destroying them. In traditional African societies, all those subject to law are
However, ideally, human beings are not the only ones who may enmeshed in three series of relationships, which combine with the
concretize law in the form of a sanction: the influence of the spir three kinds of control defined earlier in the chapter.
its is added to theirs. The ancestral spirits are the guardians of The first relationship is person-to-person. This will be deter
myth and custom and can directly make their presence felt, caus mined by the place people occupy in society and the level at
ing illness or death. Humankind can also invoke the spirits which their activities take place. Relationships may be group-to-
162 Legal Anthropology Traditional Legal Systems 163
group, group-to-individuals, or individual-to-group. The person- Table I I .1.1 Relationships, forms of control, goals and characteristics
to-person relationship is crucial in the prevention and settling of
disputes. Relationship Control Goal Concrete characteristics
The second relationship is person-to-God, which attempts to
control time, and, through time, humankind. It concerns the person-to-person control over social tension and conflict
domain of kinship, in which communities are articulated around relationships individuals continuity
the cult of ancestors and their tombs; it may also involve the
political domain where power frequently contains a sacred dimen person-to-things control over continuity and realism of law
sion; it may even extend to the domain of property, where certain relationships space social control
rights may be legitimated or protected.
The third relationship is person-to-things. This involves control person-to-God control over social stratification of law
over space and also control over time. It operates in the domain relationships time equilibrium
of property, where it is used to define control over space and
land-use, but it also has a part to play in other areas: kinship ties
earth but the earth that possesses human beings’. In these adages
(involving residence), marriage (dowries and compensation), poli
we may see the operation of a mechanism: a dialectic between the
tics (the confiscation of goods, which is both an affirmation of shared religious beliefs of person-to-person and person-to-thing
power and a means through which power is exercised). relationships, defining a legal act, through the person-to-God rela
These three relationships combine with the triple control over tionship.
time, people and space previously referred to.7 In the sphere of political organization, person-to-person rela
tionships define the limits of competence of authority, and per
97 The ideal and the day-to-day in conjunction son-to-thing relationships represent the instruments and uses of
This combination is achieved through the conjunction of the power, whereas the person-to-God relationship legitimizes power
three fundamental relationships with the three types of control. in giving it a sacred quality.
Each pairing of a relationship with a form of control corresponds We may concur with E. Le Roy that the complexity of these
with a goal belonging to the ideal legal order and a concrete char mechanisms is one of the consequences of orally based law. In
acteristic resulting from its application to everyday life. The traditional law, the absence of written evidence could make legal
resulting picture is expressed in Table H. 1.1.8 decisions very fragile. Decisions are thus reinforced by a number
Each socio-juridical field employs a specific formulation of these of associated relationships. In the case of land law, it would be an
three pairings of relationships/forms of control: each pairing is extremely hazardous enterprise for parties to call into question
employed but with varying intensity. In property law, the two most legal decisions, because of the sanctions which would be invoked
apparent relationships are the person-to-thing relationship, which through the implied violation of the person-to-God relationship.
determines how land is used, and the person-to-person relation These sanctions would be added to the secular sanctions. In
ship, which reflects the spatial dimension of social hierarchy. The short, orally based law cannot be qualified as ‘less reliable’ than
person-to-God relationship, for its part, usually has the role of written law; it reinforces legal decisions in a different manner.
legitimizing the legal agreement of the other two relationships, and From these three fundamental relationships we may now turn
supports it with a system of beliefs and values, making the earth
to a consideration of the characteristics of law as practically
sacred and ritualizing its use. Thus the Dogon say that ‘shedding
applied in traditional societies.
tears for the deceased is to sow grain’, implying that the bond
between humankind and the earth is the same as the bond with
the ancestors. For the Agni, ‘it is not humanity that possesses the
164 Legal Anthropology Traditional Legal Systems 165
B: T h e characteristics of law in its practical applications manifestations, is not inferior (or superior) to Western law, it is
We may discern three main characteristics in the practical appli simply different. This is demonstrated by the fact that in some
cation of law in traditional societies: realism, stratification and African societies where political power and kinship can be differ
conflict. The three relationships, person-to-thing, person-to-God entiated, African thought does indeed reveal its capacity of shift
and person-to-person can be identified with these characteristics. ing legal thinking towards abstraction, where it comes to resemble
our own legal thinking. At this point a specific legal language and
specialization appear in the legal system; distinct procedures
98 The person-to-thing relationship and realism in law
emerge (arbitration, appeal, final appeal to the sovereign); the
The person-to-thing relationship is present in the legal domain,
various categories of evidence are presented in a more formal
giving it a concrete dimension. The language used in the legal
manner. These developments are confirmation that the more
process is often that used in everyday life. Thus the Wolof
complex the social structure becomes, the more intensive the
describe a union without procreation as ‘a marriage of sand’: it
legal process. This leads us, in turn, to an examination of the role
will be fragile, and could dissolve in the same way as sand runs
played by sociopolitical structures in the stratification of law.
through one’s fingers. This disdain for abstraction explains why
certain concepts of Western law are foreign to traditional law.
Traditional legal concepts are not necessarily less ‘advanced’; they 99 The stratification o f law
display a different pattern. Thus, abstract legal entities are The person-to-God relationship often appears in sociopolitical
unknown, as are universal properties of ‘things’ or ‘actions’. In a organization in a legitimizing role, whether this organization is
contract, the responsibility of the individual will be of less impor associated with kinship structure or a form of political power with
tance than the actual transfer of goods. In delinquent behaviour a separate existence. The role of law varies according to the struc
sanctions will not be applied to the ‘offence’ but rather to the tures in question, which we may divide into four main types.
absence of reciprocity and equilibrium in behaviour, with due Elementary social structure: political organization relies exclusive
consideration given to the rights and obligations of each person ly on kinship ties. The various social groupings are kinship-based:
and the welfare of the community as a whole. Disputes are setded social interaction is articulated through kinship. This form of
less by an impersonal appeal to explicit and pre-existing norms social structure enhances the internal relationships of groups,
than by very practical procedures, involving not only a judge, but which remain relatively self-contained. The legal instruments
the community as a whole and possibly the pardes themselves. In associated with this level of organization are based on myth,
these meetings, adages, maxims and charades all feature, and ora- geared to beliefs rather than rules, and emphasizing continuity
torial skill will prove crucial. Step by step, a basis on which the rather than change.
dispute can be setded will emerge. The final example concerns Semi-elementary social structure: here kinship and political struc
legal ficdons: in most cases these are based on the accomplish tures are distinct but interdependent. Groups have external as
ment of real actions.9 Thus amongst the Fang the aggrieved per well as internal ties; these can often be seen as an extension of the
son, instead of asking for direct reparation from the person at internal ties of each group. Groups will become allied in cement
fault, will go to another village (it cannot be the village where the ing, for instance, marriage alliances (in feudal society vassal status
person at fault lives) and will kill the first goat he sees (or even a is determined by kinship bonds between vassal and lord). These
woman in extreme cases). The perpetrator of the original dam relationships are known as ‘internal-external’. The corresponding
ages is now at fault twice over: in regard both to the damages legal instruments have a dual stratification: on the levels of both
caused to the aggrieved person, and the act committed by this myth and customary law. Jurisdictions are coterminous with fami
person in killing an ‘innocent’ animal or woman. ly organization (the head of the family settles disputes through
This legal thinking, baffling though we may find some of its conciliation) and inter-family organization (arbitration is most
166 Legal Anthropology Traditional Legal Systems 167
commonly used, in the absence of a superior external legal and custom) play a minimal role; the third (laws) is reinforced,
authority). and merges with the fourth (the legal apparatus of the state); the
Semi-complex social structure: political power and kinship struc state normally exercising a monopoly over law.
ture are clearly differentiated. Political power tends to be central
ized, on the basis of age, caste, or territorial organization. We may
100 The settlement o f conflicts: traditionaljustice
add a further tie to the internal and internal-external links. Social
Person-to-person relationships are associated with control over
groups are arranged according to better defined criteria than
individuals and enable society to perpetuate itself and regulate
those of semi-elementary societies, and their relationships tend to
conflicts and tension, either in restoring the original state of equi
be regulated by external links of a quite specific nature, often tak
librium, or in determining a new one.
ing the form of conventions. In some cases the conventions gov
Globally, traditional justice is concerned less with applying
ern the groups, in which case they are traditional laws. In other
existing norms than with achieving social equilibrium following
cases they are concluded between groups, at their level, in which
disorder. This general principle, which we may call the traditional
case they take the form of pacts: political, matrimonial, economic,
paradigm of justice, is applied by judicial institutions which vary
etc.
in accordance with the four types of structure elaborated above.
The corresponding legal instruments contain a threefold strati
Elementary social structure: in these societies interaction is con
fication: a legal level may be added to the levels of myth and cus
trolled by law within the group and by force outside the group.
tom, which, functioning in accordance with the principle of
Justice thus operates only within the group. Here there are no
accumulation of sources,10 does not break with myth and custom,
specialized judges, areas of competence, or appeal procedures.
but concentrates on the formulation of precise legal norms, and is
Arbitration and tribunals are absent. The conciliator will attempt
associated with specific institutions: specialized orders in the judi
to persuade the protagonists to return to peaceful relations: one
ciary, judgement of disputed claims, administrative organization.
party will offer reasonable compensation, which the other will
The law of contract makes its appearance, to be distinguished
accept.
from donations and conferrals. In the area of property law a sys
Semi-elementary social structure: these societies are familiar with
tem of landholding emerges which determines inter-group rela
two sources of law: myth and custom. The organization of justice
tions and establishes tenure to land.11
is also dualist in nature. Either it is based on law through myth, in
Complex social structure: some traditional societies conform to
which case the jurisdiction covers the family and conciliation is
this model; political institutions tend to be spatially concentrated
involved; or it is based on custom and the jurisdiction extends to
in an urban context. However, this model is not common in tra
inter-family relationships and arbitration is employed. Thus
ditional societies, whereas complex structures have been charac
amongst the Kikuyu (Kenya) two forms of jurisdiction coexist:
teristic of most Western societies since the formation of city-states
the family jurisdiction at the level of the mtvaki, presided over by
in antiquity. Within this structure, kinship influence withers and
the family leader of the extended family, who acts as conciliator;
is confined to family organization, whereas power in the wider
and the clan jurisdiction (kiama), where inter-family litigation is
society is vested in a plurality of organizations dominated by
forms of organization specialized in the exercise of political handled by arbitration.
power, resulting in the appearance of the state. This leads to the Semi-complex social structure: these societies are familiar with
atomization of groups or the official denial of their existence. three sources of law (myth, custom, laws), whence a threefold
Consequently, social ties are redefined by law in a public/private judicial organization: family justice, community justice (or inter
dichotomy: ties can exist only between individuals and the state family justice), justice meted out by the holders of political power.
or between individuals. Complex social structure is characterized This threefold influence is exemplified by the Dogon (Mali), with
by a fourfold stratification of sources of law: the first two (myth a limited form of government; the Nkomi (Gabon), with a decen-
1*1
168 Legal Anthropology 169
through tribunal:
between families
through arbitrati
the first two levels of jurisdiction present the characteristics ■aa Q. f r j S *
group + justice
political justice
justice through
3 § g-s a
jurisdictions)
Organization
defined above.12 If the parties are not satisfied with community uO Q
SO
•wsaa E S'2«Æ
justice, they can appeal to political justice. The actual form politi A ^ 2+ ^
of justice
.H’OJ •2'g 3C
cal justice takes will depend on political organization. This can be £ g s trt fi O'
officially expressed in hierarchic administrative institutions. .2, 8 ^ .5. 8 feb.S
co
reliance on written
But political organization can also be expressed unofficially, CO
.2c« g „ W3
marginalization
U Ç-.S o
oldest sources,
Conception of
legal system
across the former institutions. This is the case with the justice of •g g °-, °-, 3G
the Dogon brotherhoods: the masked society, consisting entirely B g J? g ■S
■
G G o
2 Ǥ '0.i ss
0-3
forms
3o u*«T3fi fOc 6 o.•”
' (U js
of males, believed to represent the deceased, is the competent rt O rt Oi O
uo "T !
law/convention;
The system of justice in these political jurisdictions operates C CO
Sources
source)
«bfi 2W_fl _
°
of law
In addition to the reparations and compensation which the ^ C> h "> G
O >
S« '
Mw*® ox
offender must pay, or risk an injunction which would further 3 3 3 u O ca o 3 3O8
aggravate his position, there are punishments which can take a
Form of legal
number of forms, determined according to the degree of guilt:
(J
instrument
«6
legalistic-
moral punishment (public disapprobation), corporal punishment CO
o
JJs>
statist
(mutilation), restriction of movement, exile, capital punishment. t
s u3
CO
external, through
internal-external/
Justice is the official monopoly of the state (‘Nobody can mete
intemal/intemal-
external through
public, national
or international
CO
out their own justice’), whether directly applied by state-con- c i! L
° T^_3
communities
Relationship
o.g S§°
agreements
s a G -°
treaties or
trolled jurisdictions or by other jurisdictions whose competence is
private or
alliances
between
internal/
*3 a.
recognized under certain conditions. Whilst conciliation, media u. <U> S
f-S-3
II
tion and arbitration may still exist, the most common form of jus .sa §8 2 H
tice involves judges and courts.
The web of relations existing between social structure, levels of
>>IS
w-2 'uy '
powers outside
x J313‘G
So9-'o§ DE,ü° ”2§ o-o
INDIVIDUALISM (plurality of
legal stratification and judicial organization can be summarized in
■ES.&S
ô ’S j-a
Ha n 8 2.0.g
structure
J?£ C■§
complex
COLLECTIVISM kinship)
Table H. 1 .2 “ §12 caa .S-s*!
Social
1 3 gif 9S*oa
In addition to the relationships we are now familar with, Table WOc M
u>
o °
B.g a ss i â oU O Bc O
II. 1.2 contains a new element; it concerns the form of social rela
tionships favoured by traditional societies - the communal model.
This model is associated with oral forms of law. We will now turn
organization
WRITING,
to its consideration.
Social
OR
TT
170 Legal Anthropology Traditional Legal Systems 171
III O r a l f o r m s o f l a w a n d t h e c o m m u n a l m o d e l There would thus appear to be grounds for doubting that writ
Oral forms of law are a means of communication which favour ten forms of law are ‘superior’ to oral forms: far from liberating
particular social relations. These are neither individualist nor col humankind, has writing not been an invention which has enslaved
lectivist but communal. it?15 It would appear that the characteristics of oral communica
tion are suited to the communal model of social relations, where
the individual is not left isolated in the face of a single source of
A: Oral form s o f law
authority, or enslaved by the groups into which that individual is
integrated.
101 The classic approach to oralforms o f law
Classic legal theory has a pejorative view of orally based law,
102 Oral forms o f law and the communal model
which is defined negatively in relation to written law. In our view
If written forms of law emphasize the messages they carry and are
this approach bears all the hallmarks of evolutionism, and should
associated with anonymous social relationships, oral forms stress
not be spared criticism. Whilst the passage from oral to written
the individualization of social interaction. The content of the oral
forms consists of a huge transformation, the question of whether
message is important, but so also are the qualities and position in
this transformation represents progress, relegating oral forms to a
society of the messenger. This individualization of the message
‘primitive’ stage of human thought, is more debatable.
goes hand in hand with the material constraints imposed by the
A reading of history reveals that the advent of writing is often
oral medium. Even with the aid of certain techniques, such as
accompanied by a unitary form of power, religious or secular, the
drummed messages or messages carried by runners or horsemen,
state substituting itself for God, as in our Western societies.14
the spoken word cannot be effective beyond a relatively restricted
Whether this transition represents greater security for the individ
distance. The groups in question cannot be distributed over too
ual remains to be established.
large an area. The oral medium thus implies a double proximity:
As Jack Goody has demonstrated, writing tends to produce
geographical and social (interpersonal relationships also have to
abstraction and diminish the individual’s involvement in the legal
be close for the spoken message to be received). However, the
process, coinciding with the emergence of a specialist group -
oral medium is not confined to interpersonal relationships. The
jurists - in the interpretation of law. The interpretation of a writ
constituent groups of a society play a determining role in the stor
ten text is more difficult than that of an oral source and can easily
ing of the oral message. They, and not a written text, commit the
be manipulated. In oral communication it is always possible to
message to memory. The specialization of this role varies as a
question the speaker whereas the written text cannot speak for
function of social stratification and the political need to store
itself. Furthermore, written forms tend to express norms, wide-
words. Thus the choice for a society between an oral or a written
ranging and general in character, which the same specialized
medium will influence, as well as express, the balance of relation
body, judges or legal experts, must apply to individual cases.
ships between individuals and groups. Writing has in some cases
Further, legal decisions increase in complexity, since their storage
enhanced the role of the individual (the Roman experience and,
or committal to memory is easier than in oral forms of law. All
by extension, Western law, are examples), in other cases it has
these factors combine to legally dispossess the ordinary person.
enhanced the role of the group (Sumerian law, several Eastern
This trend is often encountered in our societies; as was the case in
systems of law, and Soviet law). Written forms of law allow a
past societies that adopted a written script (the well-known
more direct control over time. They facilitate the articulation of
Roman adage does not suggest that each person is familiar with
power, through their anonymity, and are well adapted to strongly
the law but that they are assumed to be familiar with it). The
ranked complex societies centred on the individual or the group.
depersonalization of law goes hand in hand with abstraction, and
The oral medium would appear, a priori, to be more rudimenta-
sanctions lose their flexibility, unlike in traditional societies.
172 Legal Anthropology Traditional Legal Systems 173
ry: the oral message is physically restricted in range and is more the lord of rain, who would themselves have no role without the
difficult to store. Yet this apparent fragility supports and rein peasant; in the application of the law of exogamy each lineage
forces a more balanced social model - the communal model - depends on another, etc. Politically, the communal model is pol-
where groups and individuals, because of their interdependence, yarchic. In each group there is no single overriding authority, but
collaborate with each other rather than oppose each other. a number of authorities which are competent in different areas
(air, earth, sea and fire amongst the Duala of the Cameroon;
B: T h e com m unal model earth, waters and the bush amongst the Toucouleur). These
The communal model emphasizes pluralism in the exercise of forms of authority are interdependent, avoiding, except in times
complementary relationships between communities, groups and of crisis, the dominance of any one authority.
individuals. Sharing in decision-making’, each community also defines itself
through sharing the same body of rules which it alone is responsi
ble for formulating. These rules are in essence customary, since
103 The communal model and communities they emerge from within the community, whereas a law, in the
Unlike the individualist and collectivist models, the communal modern sense of the term, is rather the instrument of domination
model seeks to establish balanced relationships between the indi of one part of a group over other parts, or of an authority exterior
vidual and the group: the group is organized in such a way as to to the group over the group.
allow individuals to express themselves within it. Social groups in The various communities participate in the complementarist
which this is possible are ‘communities’. and polyarchic structure, which prevails in the communal model.
For M. Alliot, the community is defined by three shared ele In fact, each person, in the course of life, belongs to a number
ments. of communities, in various guises, against a constantly moving
A shared life: this is observed in a very wide range of domains: backdrop. Hence, through marriage, a man creates a new com
sharing of a common language, ancestors and divinities, the same munity, the conjugal couple, which will become the procreative
space, the same friends and enemies. family. He takes on new responsibilities in the lineage communi
A sharing of the sum of specific characteristics’, communities value ties, of which he may one day become chief. But marriage also
particularisms over similitudes, hierarchy above equality. results in his leaving, amongst the subsidiary communities, the
However, even these particularisms are shared, since they do not age-class of young men, to become a smith or a fisherman, thus
constitute focuses of tension or opposition between the groups in introducing him into another subsidiary community. Marriage
which they exist. On the contrary these groups see themselves as may also terminate his obligations as a client towards a patron,
complementary. This conviction is articulated on a number of and qualify him for membership of the village council.
levels. In religion, God (in sub-Saharan Africa and for the ancient These multiple and shifting appearances of the individual in a
Greeks) takes the form of different forces, seven or nine of them, number of diverse but complementary communities effectively
ranked and interdependent. In the case of myth, most of the prevent one of these communities from achieving absolute domi
foundation myths of communities demonstrate that people can nance. Moreover, the insertion of the individual into various
not found political society if they are not first differentiated groups, whose existence is generally recognized and valued,
(whereas many of the classic Western thinkers, Hobbes and the places that individual at the heart of a specialized and personal
theorists of the social contract, believed societies could be found ized social network. Whilst writing may not exist, this is not due
ed only on similitudes). Socially, each category is dependent on to some mental incapacity, but because its corollaries —the gener
its neighbour: the peasant, who cannot work metal, needs the alization and diffusion of the written word, its anonymity - go
smith, who, unable to work the soil, needs the food the peasant against the grain of the communal social system. Finally, the plu
provides; the same peasant depends on the lord of the earth and ralism of these communities ensures that groups cannot subjugate
174 Legal Anthropology Traditional Legal Systems 175
individuals: the communal model operates with individuals, and This belief system has two corollaries.
not against them. The first is the functional attribution of status: an individual
cannot become or remain the representative of one of the groups
104 The communal model and the individual to which that individual belongs unless able fully to accomplish
We should first underline the ambiguity of the term ‘individual’. this role. An a priori assessment of competence can be made
In our own tradition, the individual is to society as the atom for a through forms of selection, rites of passage, resulting in a gradual
long time was to physics: unsplittable. Roman law, followed later initiation. A posteriori, the lapse in status is confirmed by the
by Christianity, defined the individual in unitary terms, using the withdrawal of the function the individual fulfilled.
notion of person. Originally this designated a tragic or ritual The second is the reciprocity of rights and obligations. The
mask, the persona, which became synonymous with the real more important the rights which the representative of a group
nature of the individual, the holder of individual rights and privi enjoys, the heavier the obligations.
leges. Traditional African societies prefer a multi-polar descrip These are the principal mechanisms which control the legal
tion of personality to this unified conception of the individual: a existence of traditional societies in sub-Saharan Africa. In the
man is a collection of outwardly exploding and interdependent following chapters, we will examine their operation more close
elements, temporarily united during an individual life-span, but ly-
constantly liable to dissociation, either self-determined or inspired
by a third party. Thus the Wolof (Senegal) distinguish three fun
NOTES
damental principles: the human being (nit) is made up of the
body (garant) and breath (ruu); the spirit (rab)j vital forces (fit). 1 See below, no. 103.
At death, each principle returns to its source: the body is returned 2 See Histoire de la famille, ed. Burgière et al., Vol. 1 (op. cit.,
to the earth and the ruu to God, the rab joins the invisible world below, no. 144), pp. 29-32, for Radcliffe-Brown’s theory on
of the ancestors, the fit may remain attached to the lineage, avuncular relations, and C. Lévi-Strauss’s criticisms.
through which an ancestor may eventually be reincarnated. 3 ‘If we view dreams as nocturnal flickering which allows
The conjunction between pluralism and complementarity is thought to remain embedded in the obscurity of slumber, then
thus affirmed by the individual, through the community, to the the substructure of myths is the shadow the spirit casts over
society as a whole. It is this conjunction which controls the rela itself to endure the light of day, without being blinded’
tionships between individuals and groups and constitutes what we (Smith, ‘La nature des mythes’, op. cit., below, no. 105, p.
may term the African realm of belief. 729).
The principle is a simple one: only individuals representing 4 See below, no. 106.
groups can play a part in legal life, as a function of the recognized 5 Cited by K. Rasmussen, ‘Intellectual culture of the Iglulik
attributes of the group to which the individual belongs. The Eskimos’, Reports of the Fifth Thule Expedition, 8, 1-2
group will have its own sphere of influence, depending on its (Copenhagen, 1931): 502.
position in the social hierarchy, and only its representative can 6 We still, in our modem societies, swear on the head of a loved
play a part in legal life: the king at the level of the kingdom, for one, and we do not make light of cursing someone we resent.
matters affecting the state; the head of the lineage in the realm of Also oaths are still used in our legal systems.
kinship; the village headman in the realm of local administration, 7 See above, no. 92.
etc. Each representative can enter into contact with a neighbour 8 After Le Roy, ‘Méthodologie de l’anthropologie juridique’
ing group only through the representative of that group. A king (op. cit., above, no. 89), p. 70.
may treat only with a king. 9 Concerning legal fictions in traditional African law see for an
overview T. Olawale Elias, La Nature du droit coutumier
176 Legal Anthropology Traditional Legal Systems 177
africain (Paris, Présence africaine, 1961), pp. 195-204; trans Tropiques, trans. J. Weightman and D. Weightman (London,
lated into English as The Nature of African Customary Law Picador classics, 1989), pp. 391-3)
(Manchester, Manchester University Press, 1956). Also: ‘Writing appeared in the history of humanity between
10 See above, no. 95. the third and fourth millennia before our era, at a time when
11 See below, no. 128. humanity had already made its most essential and fundamen
12 For further details on the organization of these jurisdictions tal discoveries: not before but after what is called the “neolith
see E. Le Roy, ‘Justice africaine et oralité juridique’, Bulletin ic revolution”.’ (G. Charbonier, Entretiens avec C. Lévi-Strauss
de l’Institut français d’Afrique noire, 36, series B, 3 (1974): (Paris, Plon-Julliard, 1961), pp. 30-1); translated into English
583-7. as Conversations with Claude Lévi-Strauss, trans. J. Weightman
13 After ibid., p. 574. and D. Weightman (London, Cape, 1969).
14 ‘And perhaps in more complicated ways, relating to obsoles
cence and record-keeping, to theodicity and the problem of FURTHER READING
evil, is the increasing pre-eminence of a high God’: The Logic
of Writing and the Origin of Society (Cambridge, Cambridge 105 General bibliography
University Press, 1986), p. 44. For general discussions of traditional laws in black Africa see the
15 This would appear to be the view of Lévi-Strauss: ‘After elimi following. T. Olawa Elias, La Nature du droit coutumier africain
nating all other criteria which have been put forward to distin (Paris, Présence Africaine, 1961), translated into English as The
guish between barbarism and civilization, it is tempting to Nature of African Customary Law (Manchester, Manchester
retain this one at least; there are peoples with, or without, writ University Press, 1956), is useful in the many examples it furnish
ing; the former are able to store up their past achievements and es; however, the theoretical framework is now dated. More recent
to move with ever-increasing rapidity towards the goal they are: M. Alliot, ‘Institutions privées africaines et malgaches’, 2 vols
have set themselves, whereas the latter, being incapable of (unpublished, Paris, LAJP, 1970-1), pp. 3-21; E. Le Roy, ‘Cours
remembering the past beyond the narrow margin of individual d’histoire des institutions d’Afrique noire’, document péda
memory, seem bound to remain imprisoned in a fluemating gogique n o .l, Méthodologie de l’anthropologie juridique (unpub
history which will always lack both a beginning and any lasting lished, Paris, LAJP, 1976), pp. 39-77. The theories of E. Le Roy
awareness of an aim. Yet nothing we know about writing and can be more easily consulted in E. Le Roy, ‘L’expérience
the part it has played in man’s evolution justifies this view. . . . juridique autochtone de l’Afrique noire contemporaine et le trans
During the neolithic age, mankind made gigantic strides with fert des connaissances juridiques occidentales’, dans Domination
out the help of writing; with writing, the historic civilizations of ou partage? Développement endogène et transfert de connaissances
the West stagnated for a long time. . . . The only phenomenon (Unesco, 1980), pp. 93-118. See also other more readable works
with which writing has always been concomitant is the creation which serve as a good introduction: R. Verdier, ‘Civilisations
of cities and empires, that is, the integration of large numbers agraires et droits fonciers négro-afticains’, Présence Africaine
of individuals into castes or classes. Such, at any rate, is the (1960): 24-33; R. Verdier, ‘Une esquisse anthropologique des
typical pattern of development to be observed from Egypt to droits de tradition orale d’Afrique noire’, Revue et synthèse,
China, at the time when writing first emerged: it seems to have 118-19 (1985): 301-11; P.-L. Agondjo-Okawe, ‘Les domaines
favoured the exploitation of human beings rather than their d’application des droits traditionnels’, in Encyclopédie juridique de
enlightenment. . . . My hypothesis, if correct, would oblige us l’Afrique, Vol. I, L ’Etat et le droit (Dakar, Nouvelles Editions
to recognize the fact that the primary function of written com Africaines, 1982), pp. 393-421. Concerning the sacred and its
munication is to facilitate slavery.’ (C. Lévi-Strauss, Tristes relationship with law there is: Sacralité, pouvoir et droit en Afrique
178 Legal Anthropology Traditional Legal Systems 179
(Paris, Editions du CNRS, 1979, 228 pp.); Prince Dika Akwanya Begriffsgeschichte, 12 (1968): 166-205; E. Le Roy, ‘Legal para
Bonambela, ‘La Sphère du sacré en Afrique noire’ (thèse de 3e digm and legal discourse: the case of the law of French-speaking
cycle en Anthropologie religieuse, Université de Paris VII, 1971, black Africa’, International Journal of Sociology of Law, 12 (1984):
357 pp. unpublished). 1-22; R. Verdier, ‘Statique et dynamique des droits des civilisa
On the sources of traditional law, a very clear synthesis exists in tions de l’oralité’, Archives de philosophie du droit, 39 (1984);
E. Le Roy and M. Wane, ‘La formation des droits “non éta 251-9.
tiques’”, in Encyclopédie juridique de l’Afrique, Vol. I, L ’Etat et le On the communal model: M. Alliot, ‘Modèles sociétaux: les
droit (Dakar, Nouvelles Editions Africaines, 1982), pp. 353-91. communautés’ (unpublished, Paris, LAJP, 1980, 7 pp.); E. Le
For an overview of myth: P. Smith, ‘La nature des mythes’, in Roy, ‘Communautés d’Afrique noire et protection des droits de
L ’Unité de l’homme, ed. E. Morin and M. Piatelli-Palmarini l’individu face au pouvoir’, in L ’individu face au pouvoir, forth
(Paris, Le Seuil, 1974), pp. 714-29. As regards custom see in coming (1988) in Recueils de la société Bodin (Brussels, Dessain &
particular: J. Poirier, ‘L’originalité des droits coutumiers de Tolra).
l’Afrique noire’, in Droits de l’Antiquité et sociologie juridique.
Mélange H. Lévy-Bruhl (Paris, Sirey, 1959), pp. 485-95; E. Le
106 The evolution of traditional law
Roy, ‘L’esprit de la coutume et l’idéologie de la loi’, symposium,
Contrary to an entrenched prejudice, traditional law is not
La Connaissance du Droit en Afrique (Brussels, 2-3 December
immutable: no society can avoid change, whether it rejects or
1983), Académie royale des sciences d’outre-mer (1985), pp. 210—40;
accepts it. Even myth is reviewed and reinterpreted over time in
L. Assier-Andrieu, ‘Le juridique des anthropologues’, Droit et
the succession of stories, proverbs and rituals in which it is
Société, 5 (1987): 90-4; K. Adjamagbo, ‘Les Successions au
expressed. Change often stems from pressure outside the society.
Togo’ (thèse de 3e cycle Droit, Paris I, unpublished, 1986), pp.
This is the case when an indigenous population and a newly
130-70.
arrived people have to coexist on the same soil. Either the new
On political structures, see the following selection. E. Le Roy,
arrivals respect the laws of the existing occupants, an alliance is
‘Cours d’Histoire des institutions africaines: les institutions poli
formed between the two groups and coexistence occurs over land-
tiques’ (unpublished, Paris-Brazzaville, LAJP, 1971-2) is a good
holding and political influence; or, more rarely, the new arrivals
survey of African political systems and their relationship with
may behave as conquerors, annexation occurs, the indigenous
legal systems. Also: G. Balandier, ‘Stratifications sociales “primi
people lose control over their land, are subjugated, pay rent, or
tives” et pouvoir politique’, in Perspectives de la sociologie contempo
owe labour services. In the latter course of events an autonomous
raine. Hommage à G. Gurvitch (Paris, PUF, 1968), pp. 3—20; R.
polity is brought into being, whereas originally territory, kinship
Motta, ‘Aspetti tecnico-giuridici del potere nelle società di inter
and power were all associated. This autonomy can be intensified
esse etnologico’, in Seminario di Scienze antropologiche, Istituto di
and lead to the creation of kingdoms and states, usually conse
Antropologia di Firenze, Vol. 6 (1984), pp. 39—46; J. Poirier, ‘Les
quent on immigration. In this case the state does not remove all
formes monarchiques du pouvoir dans l’Afrique pré-coloniale’,
political or legal influence from kinship communities, but consid
Recueils de la société Jean Bodin, Vol. 20, La Monocratie (Brussels,
erably reduces their influence.
1970), pp. 177-205.
The introduction of the state and state law into a traditional
Oral forms of law: the main source is E. Le Roy, ‘Justice
society is thus not always due to Western colonization. Sub-
africaine et oralité juridique. Une reinterpretation de l’organisa
Saharan Africa contained autonomous states. On the other hand,
tion judiciaire “traditionelle” à la lumière d’une théorie générale
this was not the case amongst Inuit societies. A great deal
du droit oral d’Afrique noire’, Bulletin de l’Institut français
depends on the particular historical conditions of each society and
d’Afrique noire, 36, series B, 3 (1974): 559-91. See also: R.
each large geographical area. Meanwhile, the changes introduced
Schott, ‘Das Geschichtbewusstein schriftloser Vôlker’, Archiv fur
180 Legal Anthropology
by the state in its Western guise were more abrupt and less easily 2
reversed than those of the indigenous states. This is because the
Western state introduced a different economy, centred on the
production of material goods, reifying social and property rela L aw in Traditional Societies
tionships and stripping them of their sacred content.
I KINSHIP TIES
In Genesis, when the Shechemites wished to unite with the
descendants of Abraham, their leader Hamor tells them: ‘And
make ye marriages with us, and give your daughter unto us, and
take our daughters unto you. And ye shall dwell with us: and the
land shall be before you’.1 Many traditions repeat the experience:
marriage exchange underpins society. But this exchange is also a
renunciation. Furthermore, in the perfection of paradise which fol
lows our own world, it will no longer be necessary. Jesus replied to
some Sadducees who doubted in the resurrection: ‘The children of
this world marry, and are given in marriage: But they which shall
be accounted worthy to obtain that world, and the resurrection
from the dead, neither marry, nor are given in marriage: Neither
can they die any more: for they are equal unto the angels.’2 On the
other side of the world, this is echoed by the Andaman myth3:
‘Future life will be a repetition of life on earth, except that the
world will stay young, illness and death will be unknown, and no
one will marry or give themselves away in marriage.’
Thus society and family are indissolubly linked in mythical rep
resentations, from their birth to their extinction. What happens in
real societies?
There is no kinship structure common to all societies: we know of
eight hundred forms, which fall into several main categories.
However, similar kinship terms do not always indicate similar
182 Legal Anthropology Law in Traditional Societies 183
ties, they vary from case to case. For this reason we must first 108 Kinship terminology
explore several general concepts regarding kinship terminology. Lewis Morgan isolated the main area of difficulty in penetrating
We will then be able to describe the two axes along which all fam the diversity of kinship terminology. He noticed that the same
ilies centre themselves: filiation and alliance. Finally, we will situ term could apply to different genealogical ties, and conversely a
ate the conjugal couple within these kinship structures. single tie could be expressed through several terms. The former
case we call a classificatory terminology: the same term can be
used to describe the father and the father’s brothers, clearly dis
A: Term inology and terminological systems in kinship tinguishing them from the mother’s brothers, whereas another
All societies use particular terms to designate people related term could describe the mother and her sisters, clearly distin
through kinship ties and often give them different meanings. guishing them from the father’s sisters. Thus kin in direct line of
Several main terminological systems can be inferred from the use descent and collaterals can be conflated. The latter case we call a
of these terms and the kinship ties they describe. descriptive terminology: the same genealogical tie can, from a
concern for greater precision, be described through the use of sev
107 Graphic conventions used in the representation of kinship ties eral terms. Thus the children of ego are sons or daughters; their
Before describing kinship terms and the systems into which they parents are distinguished as husband and wife; the children will
have been organized, we will note the basic graphic conventions be brother and sister. Kinship ties which are one degree further
I used in representing kinship ties.4 Anthropology has made very removed are expressed by compound versions of basic terms: in
precise descriptions in this area; sometimes they take a quasi- our own societies, the suffix ‘grand’ (grandfather or grandmother)
I mathematical form (Figure II.2.1). adequately describes a second degree of removal in the ancestry
of ego. Thus collateral and lineal kinship can be distinguished. In
practice the two kinds of terminology are used concurrently. Thus
Sex male sex Q female sex □ unspecified sex
in our societies, based on the nuclear family, the terms
‘father’/'mother’, ‘son’/'daughter’, ‘husband’/‘wife’ are descrip
tive: they describe the same genealogical position. Since we attach
Marriage L. where = represents an alliance less importance to collaterals, the terms describing them are, in
4 9 married couple contrast, classificatory. The term ‘nephew’ can be applied equally
I to the son of ego’s brother or sister, to the son of the brother or
Siblings example brother and sister the sister of ego’s spouse, or to the son of ego’s cousin. Similarly,
the term ‘cousin’ applies both to close cousins (first cousins) and
I
Filiation example 4 ^ _ 9 children of a couple to distant cousins.
o 2 s Generally speaking, the use of kinship terminology is more
complex in traditional societies than in modem societies. This
In all representations of kinship, the individual
K complexity does not stem from a particular taste for complication.
V
ego is the point of departure - ego - from which ties
are derived.
It relates essentially to the fact that in traditional societies the
family plays a much more important role than in modem soci
Death is represented by a diagonal line through a symbol, eties. The former societies thus require a more extensive vocabu
thus: A 0 171 ^ lary and a more flexible grammar than the latter. When a woman
calls a particular kind of cousin ‘brother’ she indicates that mar
Figure II.2.1 Basic graphic conventions in representing riage, with all the economic and political consequences which
kinship ties flow from it, is not possible. Conversely, the same woman may
i
I
184 Legal Anthropology Law in Traditional Societies 185
call another kind of cousin ‘husband’, because marriage is possi describes the mother and her sisters. On the other hand, in distin
ble. In other words, biological links account for only one aspect of guishing between the following two groups, the father’s sisters
kinship ties. and the mother’s brothers, each of them will be designated by a
Kinship terminology can also indicate hierarchies. A kinship tie different term, even though the genealogical tie is, biologically,
can be expressed in different ways depending on the context and exactly the same in both cases.
the position of the person using the term. There are different
modes of address: parents are addressed in a certain way. Thus in
our societies, in most cases, a child will address its parents by
using diminutives (Mum, Dad). For their part, parents will call father’s father’s father mother mother’s
brother sister brother
A
their children by their first names, and not address them as son or
daughter. There are also terms of referral: certain terms will be A "A - A ~ t-(J
X*loL &l o X #
used to designate parents when we talk about them. In our soci
eties, children refer to their parents as their father and mother (or
their mum and dad), and parents refer to their son or daughter.
This example demonstrates how distinctions between terms of
children children brother
a
ego sister children children
address and referral can be significant in particular aspects of kin of of of of
ship ties: from the children’s standpoint, the terms do not vary, father’s father’s mother’s mother’s
but in the case of the parents, they vary according to the context, brother sister brother sister
and the use of the personal name (first name) in address indicates
the position of superiority which the parents wish to maintain. In
contrast, in our own age, when parents wish to attenuate or abol parallel cousins of ego ^ J1 cross-cousins of ego A
(J) J1
ish this notion of dominance, they encourage their children to
address them by their first names. F igure II.2.2 Ties in traditional societies
Such variations in the use of kinship terminology might suggest
an uncontainable diversity in terminological systems. This is not This distinction will produce a further one in the next generation:
the case, since several main categories emerge. that of parallel cousins, the offspring of the father’s brothers
(patrilateral cousins) or the mother’s sisters (matrilateral cousins),
109 "typology o f terminological systems and cross-cousins, offspring of the mother’s brothers or the
The most satisfactory system yet devised was introduced in 1949 father’s sisters. Once again, although biologically there is no dif
by George Peter Murdock. On the basis of a comparative study ference in these types of cousin, the kinship ties established on
carried out in 250 societies distributed throughout the world, this genealogical basis will be interpreted in very different ways.
Murdock identified the main categories of terminological systems, Parallel cousins are considered as consanguine and will be called
taking, as a point of departure, the terms used by ego to designate ‘brother’ or ‘sister’, ruling out marriage, since it would be consid
siblings, parallel cousins and cross-cousins.5 The last two cate ered incestuous. Cross-cousins are considered as allied, and their
gories are unknown in our societies, whereas they are of consider marriage is not only possible - it is not incestuous —but actually
able importance in traditional societies. We will thus describe recommended. Thus in most societies parallel kinship is consid
these before studying Murdock’s typology. ered an obstacle to marriage whereas cross-kinship encourages
Figure II.2.2 expresses the following ties.6 The father and his marriage. Since the two kinds of relationship are biologically
brothers are designated by the same term; similarly a single term identical, the basis of their distinction can only be cultural.
Claude Lévi-Strauss believes that they follow the law of
186 Legal Anthropology Law in Traditional Societies 187
exchange7: a society cannot exist and perpetuate itself unless its
constituent groups exchange members of their respective families Eskimo G * [P = X] Key G siblings
in marriage. The success of a marriage depends on one of the
►a
P parallel cousins
X
Hawaian
ii
ii
0
partners having forgone their original wish to marry a brother or X cross-cousins
Iroquois [G = P] * X
sister, giving them to another group, and receiving, in turn, a hus Xm matrilateral cousins
band or a wife. Cross-cousins stem from this form of marriage: in /rX m (children of the
the case of a patrilateral cousin, ego’s father has relinquished one Omaha [G = P]* mother’s brother)
of his sisters to a third party, and the child of this union will be ^ X p Xp patrilateral cousins
ego’s cousin; in the case of a matrilateral cousin, ego’s mother >rXp (children of the
will relinquish one of her brothers to a woman belonging to Crow [G = P]* < T father’s sister)
another group. Since these cross-cousins are born of marriages ^ •X m
where the rule of exchange operates, cross-cousins can, in turn, Sudanese G * P * Xp * Xm
marry each other. The very same reasoning explains the prohibi
tion of marriage between parallel cousins: in the case of a patrilat
(The name given to each main category applies to the society
eral cousin, ego’s father has not relinquished a possible partner,
where it was first described, but it may apply elsewhere to very
since his brother is of the same sex; in the case of a matrilateral
different societies.)
cousin, ego’s mother has not relinquished a possible partner,
since her sister is of the same sex. Figure II.2.3 Patrilineal and matrilineal kinship ties
The same information can be expressed in a slightly different
both called mother, and the father’s brother and the mother’s
and more concise form in the observation that the distinction
brother are called father). Iroquois nomenclature identifies paral
between cross-cousins and parallel cousins is a consequence of
lel cousins, whether patrilateral or matrilateral, and brothers and
unilineal filiation. In this form of filiation, both the uncles on the
sisters, contrasting them with cross-cousins in the same manner
father’s side and the father are considered to hold the same
as we have described above. Sudanese terminology distinguishes
genealogical position in regard to ego (patrilineal descent); the
between patrilateral and matrilateral cousins in assigning a partic
aunts on the mother’s side hold the same position as ego’s mother
(matrilineal descent). We can well understand that the offspring ular term to each cousin (normally descriptive), a different term
of marriages between these uncles on the father’s side and aunts from that used for brothers and sisters. Crow and Omaha systems
are identical in that they treat parallel cousins in the same way as
on the mother’s side are considered as brothers and sisters, and as
brothers or sisters. However, the Crow system is matrilineal, and
a consequence cannot marry.
the Omaha patrilineal: in the former, ego will make clear distinc
However, not all societies attach the same importance to these
tions amongst the matrilateral kin, whereas patrilateral kin, with
two forms of kinship, as Figure H.2.3 demonstrates.8
whom ego has less contact, will be combined in the same catego
The Eskimo category is the same as that prevailing in France
ry. We should note that a further system of terminology is theo
today: brothers and sisters are distinguished from cousins, but
retically possible, where first cousins and cross-cousins are treated
there is no distinction between parallel and cross-cousins, no
together, and distinguished from parallel cousins ([G = X] * P).
more than between patrilaterals and matrilaterals. This system
In our present state of knowledge, it would seem that no society
enhances the role of the nuclear family, the heart of a vast body of
has adopted this solution.
cognatic relations. In contrast the Hawaian system enhances the
These then are the categories of kinship terminology. However,
role of the extended family: the paternal and maternal side are
kinship originates in the family, created from lines of filiation
united, all the members of each generation are designated by the
cemented by marriages.
same term (for example, the father’s sister and mother’s sister are
188 Legal Anthropology Law in Traditional Societies 189
B: Systems o f filiation The individual is thus at the centre of a circle of kin, co n fla tin g
Theoretically, the vertical axes of the family reach to infinity, both collaterals, ascendants and descendants, and arranged in degrees
stretching far into the past, and projecting into the future. In of increasing remoteness (the circle of first degree kin consists of
practice this is not the case. All human societies adopt a cut-off ego’s children and ego’s father and mother; in the second degree,
point in their description of close kinship, at the level of ego’s that of ego’s brothers and sisters, grandchildren and grandpar
great-grandparents, beyond which reside ancestors or gods. We ents; in the third degree, that of ego’s nephews and nieces, uncles
may conclude that in both oral and literate societies close kin are and aunts, great-grandchildren, great-grandparents, etc.) Thus an
limited to those whom ego has known personally (in our societies individual may possess among his or her kin of the same degree
the horizon of memory hovers between grandparents and, more individuals who are not themselves related by kinship ties (a
rarely, great-grandparents). However, ancestors, as we have seen, great-grandmother on the father’s side has no kinship tie with an
are ever present amongst the living. Even if the memory of their uncle on the father’s side). Furthermore the calculation of degree
life on earth passes after a few generations, the resulting genealo includes as kin those who, genealogically remote, do not belong
gies are undiminished in their importance. to the same living community (ego’s uncles and aunts have kin
There are several ways of defining kinship. In common with M. ship ties with ego’s great-children). These situations are not aber
Alliot we will distinguish between unities and groups of kin, rations: they have their own logic, the logic of kinship entities in
before studying the way in which kin inherit possessions. which cohesion is feeble and ephemeral. Thus these kin groups
are very often a feature of modem societies, marked by individu
110 Kinship entities: kin groups ['parentèles’] alism and the influence of the state, whose ends are suited by the
Kinship entities are to all intents and purposes made up of paren existence of family groups with little coherence. However, paren
tèles [parentèles, parentales, ‘kin groups’: TN]. The parentèle com tèles can borrow certain characteristics from lineage systems: when
prises all those persons an individual recognizes as kin. Those we draw up genealogies in a search for our roots we reconstitute
included will vary: the parentèle may include those with specific and identify with a kinship group descended from a common
degrees of consanguinity, and exclude those linked by marriage; it ancestor. Similarly, the transmission of a name is patrilineal, even
may include both categories; it may include some kin by mar if this principle is now weakened (matri-centring of a family fol
riage, and reject others. The members of a parentèle are thus lowing, in practice, a divorce). The 1986 law [in France] allows
always related to ego, but depending on the kin group they are children to bear the mother’s and the father’s name side by side.
not always interrelated. Furthermore, the parentèle includes fewer However, lineage structure, a characteristic of kinship groups,
kin than other kinship systems, such as lineages. Finally, this generally plays a much more important role in traditional societies.
assemblage has only an ephemeral existence. It is centred on the
individual and the parentèle disappears with the individual, it is I l l Kinship groups: clans, ‘lignées%lineages
not transmitted to his or her descendants. The restricted charac In contrast to kinship assemblages, all the individuals belonging
ter of the parentèle is accentuated by the way proximity of kinship, to a kinship group are interrelated because they are all descended
normally by degree, is calculated. from a common ancestor, though distant or even mythical.
The number of degrees separating two relations is equal in Depending on the position of this common ancestor, will also be
direct line to the number of generations separating the ascendant determined the extent of the vertical line of descent, from the clan
from the descendant, and, as regards collaterals, to the sum of to the ‘lignée’ [lignée: living members of ego’s lineage] by way of
degrees which, in direct line, separates each of them from a com the lineage, as Figure II.2.4 demonstrates."
mon progenitor (father and son are first degree kin; grandfather Whichever dimension we employ in these systems, the term ‘fil
and grandson, second degree; uncle and nephew, third degree). iation’ is not synonymous with descendance. In a unilinear sys-
190 Legal Anthropology
Law in Traditional Societies 191
real ancestor,
living
clan (North Africa is dominated by patrilineal descent; in sub-
Saharan Africa and Madagascar, societies are sometimes patrilin
eal, sometimes matrilineal, rarely bilineal.)
lineage The role of lineages is fundamental in societies where political
lignée
authority and kinship authority are undifferentiated.
(family)
Î
Figure II.2.4 Lignée, lineage, clan
Consequently, in these societies, kinship is limited to the
genealogical community defined by descendance and marriage
alliance (in the absence of political authority, this forms an ade
quate framework for society). Kinship groups are also differentiat
ed by the sex of the ancestor and the nature of the tie involved.
tem, the child is the descendant of both parents, but is filiated to Either all the descendants of both men and women are consid
only one of them: the father in a patrilineal system, the mother in
a matrilineal system (whereas in parentèles, filiation is replaced by
descendance: both paternal and maternal kin are included). Ô , ^ father’s Ài father’s father
father’s father’s
The ‘lignée’ is comprised of the descendants of a living ancestor. father’s sister brother
The clan is the vertical axis at its longest. It brings together the
descendants of a real ancestor, alive or deceased, with a mythical rfather’s
ô À rô i L
father’s father
i
father’s
ancestor who is often animal or vegetable rather than human. parallel cousins sister brother
The clan is thus based on mystical kinship, whereas the family on father’s side
and the lineage are based on biological kinship ties. Clans often er Ô i Ô i k AL i k. Ô
have names with animal or vegetable associations, through which O-So 0 sister ego brother ego’s paternal
l1sa*s
a5 *« cousins on
they identify themselves and can be distinguished from other clan S S3
6 i Li
-i $3 father’s side
groups, in conjunction with totemic beliefs. uë ,d koÆ Ô i L Ô iL Ô 8j
Lineages bring together the descendants of a real deceased CO *04
« CO
1 - ego’s brother’s I?
•a-s
OS
6 L 6 JL
ancestor, and occupy an intermediary position between families « a children children
and clans. Their genealogical extent varies from society to soci J î •§
L a *2 Lô
e g o 's son’S
k A
brother’s
ô
T3 "3
6*2
ety: it can run to anything from three to ten generations. Lineages children son’s
are not only based on time and filiation, they also have a spatial children
dimension: in the same way as an ancestor is identified with each ~i brother and sister
men O women
lineage, so each lineage is based on a lineage territory, on which,
F i g u r e I I .2 .S P a trilin ea l filia tio n
192 Legal Anthropology Law in Traditional Societies 193
\ A '-.O Ù A O /
patrilineal \ /'m atrilineal
filiation
AA N
'\ V
✓ tN
/ O ✓ /
//
filiation
\ Ày \Çg'o
bilineal filiation
dominate in societies where political authority is differentiated In principle, the matrilineal system should act in favour of
from kinship authority and masculine political authority does not matrilocal and uxorilocal residence, and the patrilineal system in
readily coexist with matrilineal kinship organization. In essence, favour of patrilocal and virilocal residence. However, the two
patrilineal filiation obeys the same rules as matrilineal filiation, arrangements are not exactly symmetrical. In the latter, husbands
with an inversion of the sexes. There are differences, however. maintain authority in their families, whereas the opposite applies
The lack of equilibrium between the two systems stems from the in the former, where authority resides with the wife’s brothers and
fact that men attempt to assert their dominance in all cases. This rivalry can spring up between the husband and the wife’s broth
is easier in the patrilineal case since they are all grouped together, ers. This rivalry can be accentuated by the form of residence.
whereas the matrilineal system brings together consanguine men Such rivalry cannot exist in the patrilineal, patrilocal, virilocal res
and women. In the patrilineage, men exercise a dominant role idence models, nor in a third case where there is a combination of
over their wives, because they reproduce the lineage. In the matri- a matrilineal system and patrilocal or virilocal residence. In this
lineage, men strive to retain their sisters because they produce the case the husband no longer lives with his wife’s brothers, even if
children of the lineage. In the patrilineal system, the bride-price they are his social superiors.
(paid by the parents of the husband-to-be to the parents of the This explains two factors. First, matrilineal filiation and
wife-to-be) is often greater than in matrilineal systems where, matrilocal residence are rarely encountered together. Second,
because the wife can more easily obtain divorce, it is not in the matrilineal filiation, even when it initially involves matrilocal resi
husband’s interest for the bride-price to be too high. Finally, and dence, very often changes to patrilocal residence12: even if her
most crucially, the choice of residence after marriage has different husband is in her eyes a stranger, a wife will leave her home to
repercussions depending on the kind of filiation. There are a live with him. In both matrilineal and patrilineal systems, the wife
number of possible options: is no more than a representative of the male line, a position which
is emphasized in the inferior position of the woman in most
patrilocal residence: the couple lives with the patrilineal kin of the human societies. Lévi-Strauss has clearly summarized these
husband; observations: ‘matrilineal filiation is the hand of the father, or the
virilocal residence: the couple resides where the husband lived wife’s brother, which reaches as far as the brother-in-law’s village.
before the marriage; . . . Behind the oscillations in the mode of filiation, the extent of
matrilocal residence: the couple lives with the wife’s matrilineal patrilocal residence demonstrates the basic asymmetry between
kin; the sexes, which characterizes human society.’13
uxorilocal residence: the husband lives where the wife lived prior Finally, we should draw attention to the fact that lineages can
to marriage; be redeployed. Favouring one line of filiation accentuates the
avunculocal residence: the couple lives with the wife’s brothers; effects of demographic fluctuations between the sexes. Polygamy
‘natolocal’: the husband is only a sexual partner, who does not
reside with his wife (as amongst the Nagyar); the wife, her
brothers, her sisters and their children stay in the village where
they were bom;
bilocal residence: the couple is free to install itself either with the
husband’s parents or with the wife’s parents, the choice often
hinging on economic factors;
alternate residence: the residence is virilocal and uxorilocal, or 1 the creation of equal segments 2 derivation
patrilocal and matrilocal. 14
F i g u r e I I .2 .9 T h e p r o c e s s o f s e g m e n ta tio n
196 Legal Anthropology Law in Traditional Societies 197
and adoption can remedy the situation, particularly when the sions cannot be freely disposed of: inheritance has a social role,
favoured family is threatened with extinction (dearth of male involving the family. Also we will show that traditional societies
descendants in a patrilineal lineage). However, the opposite can do not ignore the individual, but involve the individual in com
apply; lineages can become too large. Segmentation occurs, which munal organization.17The differences are of degree rather than of
can operate in two ways: either the lineage divides into two social an underlying nature.
ly equal halves, or a segment becomes detached and is considered First principle: inheritance patterns reflect the integration of
as inferior. Segmentation can occur relatively easily in patrilineal individuals into the group. This integration does not consist of
societies: each son or brother has only to find a wife to found a opposing the rights of the individual to those of the group, still
family. In a matrilineal system, the brothers who leave with their less of abolishing these rights, but rather of situating them in rela
sisters must also find husbands. Clans can develop closer relation tion to the individual’s position in the group.
ships between each other, either on the basis of kinship, or in a First, possessions should not be dispersed through the whole
common cause (war, ceremonial, etc.). The merging of several range of social groups. Only those individuals who can establish a
clans is called a phratry. genealogical relationship with a common ancestor can hold and
Bilineal filiation was discovered in 1924 by Radcliffe-Brown: pass down possessions. In line with this principle, the position of
each lineage has one or more specific attributes. The Yako the deceased in the kinship group is first taken into consideration.
(Nigeria) are a good example of this mechanism. Property is The higher the position in the kinship hierarchy, the easier it is to
transmitted via patrilineages, whilst movable goods are transmit identify the inheritors. The relationship between respective group
ted through matrilineages (that is, through mothers’ brothers). members and the deceased is established. Proximity is the deter
Undifferentiated or cognatic filiation is a solution which contrasts mining factor and is determined by filiation: the son inherits from
with the former: membership of a kinship group is not deter his father (patrilineal organization), or the nephew from the uncle
mined by sex. The kinship group includes all the descendants of (matrilineal organization). If the legitimate heir is predeceased,
an individual who may inherit from any ascendants. Ego is no the possessions are attributed to those occupying a parallel posi
longer a member of one or two lineages, but of as many circles of tion (thus the son of the father’s younger brother will be chosen,
kinship as may be recognized. The parentèle, studied above, a or the son of the mother’s younger sister). Another solution is to
characteristic of our own societies, again makes an appearance.15 skip a generation and transmit possessions to the father’s grand
We have described the way individuals may be identified and children, or to sons of the niece. These genealogical imperatives
the way the groups of which they form part maintain themselves are imposed on individuals and their testamentary freedom is
and evolve through time, punctuated by deaths and births. What extremely limited. Finally, the deceased is due a portion of his
is the position regarding possessions? own inheritance: his heirs should reserve part of the inheritance
for meals and funerary sacrifices which will be offered from time
112 The inheritance o f possessions to time.
Domat states: ‘The notion of inheritance is based on the necessity Secondly, not only goods are transferred. Roles are also inherit
of continuing and transmitting the social body to succeeding gen ed: wives and children are considered in the same way as material
erations.’16 Consequently the way the inheritance of possessions possessions. If inheritance takes place through death, it is vital to
is organized reflects the structure of the society. It would be establish who will take the place of the deceased in the important
simplistic to contrast modern societies, where inheritance is relations he had with others.
purely individualist, with traditional societies, where the group Finally, whilst within our own legal systems inheritance does
outweighs the individual. However, even in our own societies, the not necessarily coincide with death (settlement of portion by
individual’s wishes are circumscribed by regulations, and posses anticipation, donations, partitions, etc.), this is a much more fre
quent occurrence in traditional societies: the timing of inheritance
198 Legal Anthropology Law in Traditional Societies 199
obeys different rules. In the case of the transfer of possessions, existence of collateral inheritance (from brother to brother)
inheritance takes place on the majority of the successor, rather before transfer to the next generation. When inheritance takes
than the death of the predecessor (Verdier is right in speaking of place in vertical line it follows the principles of patrilineal, matri-
‘inheritance due to life’). In other words, and with due considera lineal, or bilineal organization. Inheritance through filiation is
tion for the rules of filiation, children receive marriage compensa often complicated by distinctions stemming not so much from the
tion, and the material wherewithal enabling them to establish genealogical origins of possessions as from their nature: certain
themselves on their majority, from their fathers or uterine possessions (usually land) are transferred only to men (in both
uncles.18 P. Bonte has described this process amongst the patrilineages and matrilineages); others (ornaments, jewellery)
Tourareg Kel Gress (Niger): on the marriage, or the birth of a can be transferred only from mother to daughter. (Our own insti
first son, an individual will receive some of his father’s livestock. tution of preferential transfer - of a farm, or of a business - also
On the other hand, inheritance of public functions will take place involves this same concept of transfer differentiated according to
only on the death of the incumbent (witch-doctor, healer, territo its nature.)
rial chief, head of lineage): the oldest person is considered to be Second, some possessions are considered to be vital to the
the best fitted to lead, the person closest to the ancestors. Thus functioning of the group: the whole group is thus concerned with
we may observe that traditional and modem societies differ as to their transfer and individuals cannot by force of will modify the
the timing of inheritance: in the former, inheritance of roles takes rules which control it. Other, more accessory possessions consti
place on death whereas inheritance of possessions may take place tute the property of individuals; those who hold them have more
before this event; in the latter, accession to public duties or non say in their transfer.
family private duties takes place during the life of the previous Despite the brevity of these descriptions, we have been able to
incumbent, whereas possessions are mainly transferred at death. establish the fact that traditional law tends to make fewer distinc
Second principle: inheritance patterns take into account the
tions between possessions and people. Is this ‘an infantile disor
‘socio-kinship’ function of possessions. Modem legal practice
der’? In fact it is due to the existence of a different way of
tends to equate the transfer of goods with the transfer of the
thinking. In modem society, the state tends to play down the
deceased’s right of ownership to the estate of the heir. Traditional
law attempts, on the contrary, to transfer possessions in order to importance of groups in favour of the individual. In traditional
maintain the cohesion of groups, and to facilitate the succession societies one of the main legal attributes of possessions is their
of generations rather than individuals. association with kinship. It is quite logical that the state should
First, the value of goods is based less on their economic worth reverse this tendency, separating possessions and people, protect
than their relationship with the group which lays claim to them ing individual property in the process: the French republican
(thus the Serere distinguish, economic worth being equal, state, in its belief in the freedom of the individual, has always
between a cow inherited from a uterine uncle and one inherited prided itself in having delivered individuals from the stranglehold
from the father). Thus a unified concept of inheritance does not of groups. Today we have good reasons for supposing that the
exist, since economic value is not a determining factor, and can individual has done no more than acquire a new master, and that
not be used as a means of comparison between different kinds of the freedom of the individual amounts, in reality, to the power of
possessions. Neither is there a unified succession in the three the state.
areas of possessions, functions and people. Possessions are tied to However, there is another question inevitably raised by the
kinship: each person forms a link in a chain with the ascendants diversity of the structures governing kinship ties: how do we
and ultimately the founding ancestor; possessions are also associ account for this variation?
ated with the person who originally created, received, or acquired
them, and who need not be their present custodian; hence the
200 Legal Anthropology Law in Traditional Societies 201
113 Suggested causes o f differentiation between kinship systems and kinship throughout the Indian societies of North America.
We have already established that the parentèle structure is associ The societies in which female labour dominates subsistence activi
ated with societies where the state has established its dominance ties tend towards matrilocal residence, matrilineal descent and kin
over kinship groups19 and that, according to Lévi-Strauss,20 the ship terminology of the Crow variety. Societies in which male and
differentiation of political power leads to patrilineal organization. female economic activities are evenly shared tend towards bilocal
However, beyond these few remarks, which emphasize a political residence, bilateral descent and kinship terminology of the
dimension, we can advance only hypotheses. Hawaian type. Societies where male labour dominates subsistence
Cross-cultural comparisons have hitherto emphasized econom activities tend towards patrilocal residence, patrilineal descent and
ic factors. D. F. Aberle has stated that these factors tend towards Omaha kinship terminology. However, whilst these correlations
or reinforce patrilineal organization to the detriment of matrilin- suggest economic influence - it would be difficult to argue that
eal organization21: growth in the productivity and size of groups; this was not the case - this is not a determining factor; in fact it is
very important to note that these correlations are characterized by
increase in the extent of male-dominated work and male-owned
an index of low intensity. We may conclude, in company with M.
property; increase in male control of the means of production;
Godelier, that other causes (political, social, religious, etc.) also
development of political organization where kinship influence is
have an influence.
absent. In contrast, matrilineal systems are encountered more fre In conclusion, we should note two important points.
quently in tropical or subtropical zones, where the wild plants First, material conditions play their part in the organization of
gathered by women are more abundant than the game hunted by kinship structures, but they are not all-important in determining
men. Furthermore, the observations of A. Haudricourt and R. their form. The degree of political differentiation also plays an
Cresswell provide evidence that relationships can be established important role. Second, the predominance of masculine activities
between the plants that societies cultivate and the animals that seems to favour patrilineal organization: all nomadic pastoral
they domesticate, and the kinship ties that characterize them.22 societies are patrilineal (except the Touareg). Men play an essen
Cereal cultivation involves the use of a sexed plant, which pro tial role, because the domestication of animals falls to them. Yet
duces a multiple and varied seed. Climate and soil favour certain this is only part of the picture, because in societies with different
varieties above others; the farmer must carefully select his seed. economies (hunting, fishing, gathering, agriculture, craft activity),
On the other hand, the cultivation of tubers follows different prin we may observe the existence of unilineal, bilineal and undifferen
ciples: each year the same ones are replanted, forming a number tiated kinship ties, irrespective of the period and mode of produc
of clones or a body of tubers emanating from successive replantings. tion. As Godelier has written, we must unfortunately reach the
Cereal farmers often practise an intensive domestication of ani conclusion that ‘at present, the social sciences have not yet been
mals. Socially they tend to be xenophobic and endogamous. able to discover the correlation between the means of production
Politically, as in the Western experience, they tend to submit the and the social means of reproduction*.23 This statement does not
individual to the domination of the state and emphasize the role mean that the mechanisms which determine kinship structures
of law. In contrast, in the countries of South-East Asia, where the are random: the mists through which we perceive their oudine are
a function of the rudimentary way we attempt to illuminate them.
culture of yams is prevalent, and where there is minimal handling
Fortunately we can shine a sharper light on marriage.
of the plants (unlike cereals which are threshed and selected), the
use of animals is less intensive and both the state and the law
appear to make their presence felt to a lesser degree in daily life C: M arriage systems
(this is particularly true of Confucian thought in China). In our modern societies, groups tend to hide behind individuals.
Continuing the theme of the influence of economic factors on Traditional societies are organized according to an opposite ten
kinship structures, we may note the results obtained by Driver and dency24: marriage is essentially a means of cementing an alliance
Massey (1966), who established correlations between economy between groups.
tl
202 Legal Anthropology Law in Traditional Societies 203
The importance attached to groups contains one of the expla 115 Interpreting the prohibition o f incest
nations of the prohibition of incest. Meanwhile, if this prohibition The main theories oscillate between two poles: either they associ
is universal, it operates through several systems of exchange, ate the prohibition of incest with practical considerations or, after
which we will attempt to classify. Lévi-Strauss, the prohibition stems from social imperatives tied to
The prohibition of incest: incestous relationships are prohibited in the necessity of exchange. More recently, Godelier has suggested
all societies, a fact whose interpretation has led to several theories. that the prohibition rests simultaneously on both explanations.
R. Fox27 believes that the prohibition of incest should be inter
114 The impulse o f incest preted in the context of natural selection; inbreeding is harmful.
Many entrenched taboos have been abolished in modem societies In the avoidance of incest, animal species close to humankind
in the course of the last ten years. It would appear that we still resort to promiscuity or competition between generations with the
respect the taboo on incest,25 bringing to bear ‘natural’ and bio resulting expulsion of young individuals. However, when the first
logical laws: relations between close relatives are said to be unnat human societies formed relatively stable family groups, these
ural, and the offspring of such unions would produce an increase practices posed a threat, given that groups needed to cohere. The
in genetic defects. Yet there are indications that incestuous union prohibition of incest thus had to be invented, preventing consan-
is a natural impulse. An Azande proverb affirms that ‘the desire guinous unions and regulating competition between individuals.
for women begins with the sister’. Then there is the frequently Human societies which did not adopt this solution were eliminat
quoted statement made to Margaret Mead by a member of the ed through natural selection.
Arapesh community (South Sea Islanders): ‘You would consider Lévi-Strauss’s theory, which currently enjoys favour, highlights
marrying your sister? What has come over you? Don’t you want different factors. Lévi-Strauss does not believe that inbreeding is
any brothers-in-law? Don’t you see that if you marry another biologically harmful, at least in the long term.28 He draws atten
man’s sister and another man marries your sister, you will have at tion to the fact that, on a number of occasions since the end of
least two brothers-in-law, whereas if you marry your sister you the paleolithic period, man successfully used endogamous repro
won’t have any at all? Who will you go hunting with? Who will duction in the cultivation of plants and domestication of ani
you work the soil with? Who will you visit?’ The moral is clear: mals.29 Why, in the purely biological sphere, should he draw
there are good social and economic reasons for not marrying different conclusions where his own reproduction was concerned?
one’s sister. In describing marriage in Roman society, Plutarch Furthermore, Lévi-Strauss states that a biological argument for
was already aware of this, although only in a hesitant fashion, and the prohibition of incest became generalized only from the six
suggesting other reasons: ‘Why don’t they marry women who are teenth century onwards; this explanation can thus hardly account
closely akin to them? Do they wish to enlarge their relationships for why early societies should prohibit incest. Whilst it is true that
by marriage and acquire many additional kinsmen by bestowing inbreeding does in the short term increase the danger of the
wives upon others and receiving wives from others?’26
appearance of recessive defects, this is only a temporary phase.
Psychoanalysis, through the concept of the Oedipus complex,
Within a few generations they are eliminated. Moreover, in soci
appears to confirm that it is the impulse of incest which is natural,
eties with small populations, the prohibition of marriages between
rather than its prohibition. Stating that incest is unnatural does
close kin has a very limited effect in regard to genetic defects. In a
not establish it as noxious. To face the world and society, a child
must seek emancipation from its parents, as the scriptures pro population of 80 people, the prohibition of marriage between
claim: ‘You will forsake your father and mother.’ Is such an close kin, first cousins included, only diminishes the carriers of
explanation applicable to social groups? Lévi-Strauss suggests that rare characteristics by 10 or 15 per cent. Lévi-Strauss also attacks
this is indeed the case. explanations of incest prohibitions based on sexual motives.
According to these, living in close proximity lowers the threshold
of sexual excitement. This may be true, but there is none the less
204 Legal Anthropology Law in Traditional Societies 205
some confusion between the familiarity which exists between sex versality, has been taken from nature. However, in another
ual partners (husband and wife) and that which might exist sense, it is already culture, exercising and imposing its rule on
between kin. This familiarity can hardly be expected to exist in phenomena which initially are not subject to it.31
the latter category, since it is these very sexual relationships which M. Godelier’s position is halfway between the last-mentioned
are prohibited. Some societies, such as the Tchouktche (Siberia), writers: he is not dismissive of Lévi-Strauss’s analysis but recog
practise forms of marriage where the children are married when nizes biological factors.32 He states that humankind has no
very young, then brought up together, which does not preclude monopoly over either the family or society: some animal species
sexual union and procreation as adults. Finally, Lévi-Strauss also develop these institutions (chimpanzees living in bands com
remarks that if the ‘horror of incest’ is based on deep underlying prised of a number of families). On the other hand, humankind
physiological and psychological causes in human nature, it is diffi can lay claim to having invented kinship ties, a much more com
cult to explain why all known human societies have, in varying plex form of relationship between kin, because human kinship is
degrees, found it necessary to prohibit it: we only protect our as much social as biological (we can have kinship ties with people
selves against events we feel are likely to occur. Lévi-Strauss with whom we have no biological ties), and extends far into both
explains the prohibition of incest largely through social factors. time and space. It is possible that these ties began with the dis
We renounce the idea of marrying close kin and accept the idea of covery of paternity, more difficult to establish than maternal filia
giving them away in marriage30 to other family groups, from tion (some human societies do not associate sexual intercourse
whom we will, in return, receive spouses. A price is paid by the with procreation, believing that women are impregnated by the
individual in this form of marriage exchange: each person must spirits). The prohibition of incest has certainly contributed to
accept the ‘loss’ of kin who were potential marriage partners. But this. However, for Godelier the underlying causes are biological.
there is a collective advantage: in the absence of these exchanges To begin with, the human female is sexually attractive on a quasi
social groups would be inward-looking, the negation of life in permanent basis (unlike the females of other species).
society. In addition this retrenchment would serve only to accen Furthermore, humans attain maturity much more slowly. In the
tuate hostility between groups; when a group ran out of women, same family there will be sexually active individuals from more
war would be the only recourse in obtaining women from a than one generation. Taken in conjunction, these two factors pre
neighbouring group. The a contrario proof of this factor is that sent a potential threat for a society, increasing competition
marriage exchange is often used as a means of ending a conflict, between its members: the prohibition of incest was invented to
or is a recognition that hostilities have ended. The Melanesians protect society.
say: ‘We only take wives from those against whom we make war.’ Henceforth, filiation and marriage rules appeared and intensi
Our European monarchs have often followed this precept. fied; the prohibition on choosing a closely related spouse
Consequently Lévi-Strauss believes that the prohibition of incest inevitably led to the existence of marriage and filiation rules, pro
is one of the clearest manifestations of the transformation of hibiting the similar and authorizing the different. The prohibition
nature wrought by culture:
of incest is seen as a response to a biological modification, a
The prohibition of incest is in origin neither purely cultural nor response which institutes exchange as a means of sociofamilial
purely natural, nor is it a composite mixture of elements from regulation. Finally, Godelier quite rightly draws attention to the
both nature and culture. It is the fundamental step because of fact that even if men dominate women in most human societies,
which, by which, but above all in which, the transition from this is not an inherent feature of human kinship, whose role is to
nature to culture is accomplished. In one sense it belongs to formulate the structure wherein exchange takes place. The basis
nature, for it is a general condition of culture. Consequently, of male domination lies elsewhere, in economic, political and cog
we should not be surprised that its formal characteristic, uni- nitive domains, which only make an impression, in the photo-
206 Legal Anthropology Law in Traditional Societies 207
graphie sense of the term, on kinship ties. eties, which divide their members into two unilineal exogamous
We will now examine the various forms of marriage exchange halves. This system favours, in the generation following the
through which the prohibition of incest is articulated. exchange, marriages between cross-cousins because they are the
Systems of marriage exchange-, there are three such systems. They children of men who have exchanged their sisters. It proscribes
are: elementary systems, from which certain kin are excluded, and marriages between parallel cousins, children of marriages where
which prescribe preferred marriage partners; semi-complex systems, the partners have not given up kin of the opposite sex.35
which exclude entire classes of kin through marriage prohibitions,
rather than genealogically identified individuals; and complex sys 117 Elementary systems featuring generalized exchange
tems, which prohibit marriages within a close circle of kin, but Unlike direct restricted exchange, generalized exchange need not
without expressly prescribing the choice of partner. Our own soci involve immediate reciprocity in the transfer of spouses, and, the
eties are characterized by complex systems, where law on marriage oretically, can include an unlimited number of partners, as the
prohibits unions which it defines as incestuous, without imposing following diagrams show.36
a positive preference, leaving what appears on the surface to be In this system, the lignée of wife-givers is never the same as that
complete freedom of choice. We must avoid the pitfalls of evolu of wife-takers; each individual is both a giver and a taker of wives.
tionist interpretations. Our societies transfer the prohibitions and The donor group never receives directly from the reception
prescriptions of elementary systems to the socioeconomic sphere, group, but from the group at the furthest extremity of the chain of
seemingly giving the individual freedom of choice, but in fact exchanges (Figure II.2.11).
replacing genealogical constraints with sociological imperatives.33 This system is less predictable than restricted exchange, but
Conversely, traditional societies also use complex systems each much more open and permits social, political and economic dif
time they prescribe a marriage outside the clan without specifying a ferentiation, as the example of the Kachin (Burma) demonstrates
partner. However, elementary systems are often encountered in tra (Figure II.2.12).37
ditional societies, and we will concentrate on these.34 Two kinds
of exchange are practised: restricted and generalized.
&
A
6 K
B
ô Ôa aÀ = Ôb bÀ = Ôc cÀ
Direction of gift of wives
The marriage itself is always accompanied by rites. Generally 120 The dissolution o f a marriage
these symbolize separation: the wife is separated from her family Marriages for set periods do not exist, but marriage may be con
by an initiation rite, followed by a ceremony uniting the two part ditional: sterility is a more frequent cause of annulment than
ners. In our own societies, it is the other way round. The secret divorce. Death does not always terminate a marriage, as we have
departure of the newlyweds on their honeymoon follows the fami seen in the case of ghost marriages.40 Marriage may also perpetu
ly celebrations, a sign of the freedom acquired through marriage ate itself despite the death of one of the two partners, in the form
over family groups. In traditional societies, however, the aim of of levirate: the widow remains married to her deceased husband,
marriage tends to be the union of groups: this is demonstrated by but cohabits with his younger brother, and the children of this
the fact that in some societies the partners do not live together union will still be considered to be her husband’s (thus the Gusii,
immediately after the marriage ceremony (amongst the Ashanti of Nuer, Swazi, Tswana, Zulu, etc.).41 A widow may also take a
Ghana, married couples live apart for several years; in the case of partner, who will have the legal status of a husband, from the
the Nyaro of the Sudan, the couple live together only once the brothers or sons of her husband (patrilineal societies), or from the
wife is pregnant; the Twana wait for the birth of the first child, sons of her sisters (matrilineal societies). Finally, the sororate is
whilst the Dogon wait until several children have been bom). the symmetrical opposite of the levirate: on the decease of the
The obligations between couples can vary considerably wife, her parents will supply one of her sisters to the widower. All
I depending on the society and type of filiation. Adultery may be these arrangements testify to the desire of groups to perpetuate an
i deemed a minor fault (the Tonga of Zambia), or can be very seri alliance interrupted by death.
ous (Swasi, Nyakyusa). Often, the wife is more heavily sanctioned However, marriage may also end in divorce. In general this is
than the husband. Similarly a man may lend his wife to a third more common at the beginning of a union and in matrilineal soci
party for a variety of reasons (hospitality, establishing kinship ties, eties, where the woman maintains closer ties with her own family.
creating obligations of protection between the lender and the bor Divorce, no more than death, does not automatically signify the
rower), but lending in the opposite direction is not encountered. end of the alliance between groups. To begin with, one of the
These observations raise the question of the role of women in partners may remarry amongst the ex-spouse’s group. Also, the
relation to men. repayment of the dowry may have a variety of implications: if the
In some societies, women and men are equal (Pigmy, payment was a condition of the marriage and divorce follows its
Andaman, Garo and Khasi (Assam), Touareg). Generally, how restitution, the union is terminated; in the opposite case it continues.
ever, women’s position is inferior. Nevertheless there are degrees We may wonder why family groups attempt, in many cases, to
in the inferiority of women, often dependent on economic factors. perpetuate a marriage alliance. Doubtless one of the reasons is
Women’s position is weakest in pastoral societies, where they are that these groups wish to ensure they have descendants.
excluded from all noble activities (they may only rarely look after
livestock). Amongst hunters, the women’s status improves. In 121 The status o f children
crop-raising societies, where the fertility of women is more directly The Bambara say: ‘There is no remedy to death, except children.’
associated with the fertility of the soil than amongst pastoralists, In talking about an adult who leaves children, the Bambara say
and where women play an important role in the farming calendar, that he has disappeared, whereas a single person who dies is ‘fin
their position is midway between that found with pastoralists and ished’. Amongst the Peul of West Africa, women who cannot con
with hunters. In societies which practise forms of agriculture ceive adopt imitation babies made from ears of maize, to which
which do not rely on crops, the status of women is lower. These husbands will sometimes give a name, the grains of maize symbol
are generalizations, and exceptions would not be difficult to find. izing abundance and proliferation. An obsession with procreation
is not the monopoly of far-off societies. In Germanic Europe trees
214 Legal Anthropology Law in Traditional Societies 215
were often planted at the birth of a child, celebrating mutual To conclude, we concur with Claude Lévi-Strauss43 that there
growth in a totemic kinship. Today, debates over new modes of are two possible models of society and the family. The first is
conception reflect a crisis in procreation which seems to inhabit vertical and favours the nuclear family, the sum of whose units
our societies. No doubt such anxieties stem from our inability to constitute society; filiation is the vital element here, accentuating
give significance to death.42 The Bambara testify to the fact that the parent-child role; the family is rooted above all in time, over
this is a problem in all societies. However, traditional societies successive generations. The second model is horizontal and sug
seem better equipped to deal with it, to the extent that they believe gests a fluid social body in which families, adhering to prohibitions
in an invisible world, inextricably linked to the visible world. on incest, coalesce and dissolve, constantly choosing new partners;
These societies are not as well equipped medically as our own, the alliance is the dominant factor; the restricted family has only
but this shortcoming is compensated by invoking non-biological an ephemeral existence, and the passing of time restructures
forms of kinship when the problem of sterility arises (or even rather than confirms family groupings. We agree with Lévi-Strauss
when one of the two partners disappears) and adoption is more that the vertical conception must be corrected by a horizontal
prevalent. Here again, these arrangements do not presuppose interpretation. Procreation, and consequently the thrust of the
some sort of primitiveness: the conception of a woman through vertical axis of descent, can take place only if a man and woman
the deposition in her womb of an unknown donor’s sperm, the form a union. The couple could be close kin, but the prohibition
extraction from within her of an ovule which will be fertilized in a of incest rules this out, otherwise the society would not be able to
test-tube, are these any less ‘savage’ than the ghost marriages of perpetuate itself. Thus two families must be able to exchange kin
the Nuer? Nothing entitles us to suggest that this is the case. on a horizontal level, and the resulting union will allow the lineages
The child is no less the object of attention in traditional soci to reproduce themselves:
eties than in our own. The status of the child varies considerably,
and the relationship with his or her parents depends very much If each small biological unit wishes to avoid leading a precari
on the type of filiation practised by the child’s family group. As a ous existence, haunted by fear, a butt of the hatred and jeal
general rule, paternity is a social as much as a biological tie, and ousy of its neighbours, it must abandon all idea of being
the legitimacy of a child depends rather on the extent of integra inward-looking; it must sacrifice its identity and continuity,
tion into a family group, than on the identity of the progenitor. opening itself to the interplay of marriage alliances. In oppos
As regards the link between social and biological factors, we ing the separatist tendencies of consanguine alliances, the pro
should note that, depending on the form of marriage, the father is hibition of incest succeeds in creating a network of affinity
either both the husband of the mother and the procreator of the which provides a social framework, without which all societies
child, or only the procreator or only the husband of the mother. would fail.44
The status of a child of an unknown father and an unmarried In our societies, the vertical model of the family still predomi
mother also varies from society to society. In many African and nates (although emphasis on couples and the increasing rights of
Polynesian societies, the mother is aborted or the child is killed at the surviving partner adversely affect the rights of descendance).
birth. Amongst the Baoule, the woman identifies the father and How do we explain this apparent contradiction? In our view it
he is obliged to marry her until such time as the child can walk; exists because a vertical model harmonizes with our contempo
he can escape this obligation only by flight. In other societies the rary view of the family. In fact, descent accentuates natural rather
child is adopted by the family group of the mother, whose brother than social factors, since it is based on procreation; it also under
takes on the role of father; this occurs not only in matrilineal soci pins the affective ties which bring together ascendants and
eties (Ashanti), but also in patrilineal societies (amongst the descendants in chains whose links are open towards the friture.
Lowiili, a father can ask a third party to make his daughter conceive Alliances, and the upheaval they involve, are blurred. This is the
in order to maintain his heritage). model we favour; we prefer kinship ties through blood rather than
216 Legal Anthropology Law in Traditional Societies 217
social kinship ties (adoption is often a last resort when medical the chief is accompanied by drought in the land and sterility in
science has failed). Finally, in our nuclear families collaterals have women.
a shadowy role (they have been pushed constantly further back The land is not only made sacred but also humanized and
from the centre stage of inheritance during the course of the socialized. Its fertility is often associated with women. The Dogon
twentieth century). These collaterals forge alliances, breaking up say: ‘A man who gives away a field is the same as a man who gives
to reunite in a different manner. We prefer the succession of away a woman’, underlining the similarity between the granting
generations to this kind of upheaval; it absorbs our anxiety of a field by the father and the granting of a wife by the maternal
about death. uncle. Likewise the occupation of new land means forming an
alliance with the land. The arrival of a fresh group of immigrants
on this land, previously occupied by the descendants of those who
II PROPERTY
made the original alliance, is accompanied by the gift of a woman:
In our systems of law, land is something tangible and non-mov the chief gives his daughter in marriage to the new arrivals, a mat
able in character and can be publicly or privately owned. rimonial alliance responding to an alliance offered to the land. In
Traditional societies have a different conception of land. more general terms, possessions only form a legal category in
modem societies sui generis. Elsewhere they are linked to the legal
A: Contrast between modern and traditional legal thinking status of the groups which produce, exchange, or consume them,
thus obeying different rules.
The existence of links between the invisible and visible world
122 African attitudes to land and, in the visible world, between humankind and social groups,
The Dogon believe that the sole god Amma fashioned the earth in militates against the emergence of the droit réel concept in law
the form of a woman’s body, with an anthill as the sexual organ [droit réel: direct link between a person and a possession: TN],
and a termites’ nest as the clitoris. Amma wished to have union with which we are familiar, stemming from the distinction
with his own creation, but had to destroy the anthill, a male obsta between ius in re and ius ad personam: rights cannot be directly
cle, in the process, excising the earth. This incident had dire con claimed over things, any more than the earth can be reduced to
sequences: instead of producing twins, a token of good fortune, the status of thing (consequently it is easier to talk about property
the earth produced a single being, a jackal, symbolizing the god’s relations than property rights). This thinking explains a near total
original blunder. Subsequently the jackal committed incest with its absence of the notion of ownership. Only the peaceful occupation
mother. The earth is thus the source of life, directly linked with of land over a given period can give rights over land. Landholding
creation and its imperfection. This sacred status means that land and the enjoyment of its fruits are organically linked to the hierar
cannot be appropriated as if it were movable goods. To use the chy of social groups and their status. Individuals can only apply
land, an alliance must first be made with its invisible guardians. for land rights in line with their own status and competence, and
Ancestors, bom of the earth, return to the earth; cultivation articu on condition that the period of use of the preceding incumbent
lates their presence in the land. They transformed the bush, no has terminated.
more than physical space, into a humanized and socialized envi Although in our own peasant societies land is often considered
ronment. The founding ancestor of a village community is apart from other possessions and may even be considered sacred,
believed to have concluded this alliance with the powers guarding Western jurists are ill-equipped to appreciate the essence of
the earth; he passes down this custodianship, through heredity, to African thinking. This is why landholding in these societies has
‘land chiefs’, in whom powers are vested in accordance with their invariably been viewed as a double negative of the Western
authority over the land. The relationship between the earth, order model, with the invention of a ready-made pre-colonial frame
and fertility is often demonstrated in the belief that the death of work.
218 Legal Anthropology
Law in Traditional Societies 219
123 The pre-colonial property framework from the earliest period we have considered onwards, there was
The pre-colonial framework, as described by Western jurists, can coexistence between rights.46
be summed up by in the following paradigm, after E. Le Roy: To this extent there is no such thing as ‘collective’ ownership in
Whereas in civilian law rights of ownership are individual, cannot be traditional law. In Africa, land is possessed and controlled by
forfeited or annulled and are absolute, exclusive and perpetual, in cus groups (lineages, villages, etc.), represented by elders or councils.
tomary property law, land is non-movable property over which there However, individuals have access to the land and make use of it,
are collective rights of ownership rendering it inalienable. Rights of through a variety of different procedures (reminiscent of medieval
ownership are temporary rights, limited and relative. Le Roy and seisin), depending on their status within the group or, in some
Verdier’s research clearly demonstrates how erroneous these cases, on the nature of their allegiance towards political authority.
propositions are. The term ‘communal’ is preferable to ‘collective’, for the former
Collective ownership: generally speaking, this concept goes hand does not exclude the existence of personal rights; personal rights
in hand with an evolutionist perspective which attempts to explain exist, but are qualified by the individual’s position within refer
how, progressively, humanity passed from savagery to civilization ence groups.
in increasing the extent of private property. Eminent jurists in the Inalienable ownership: the sacred nature of the land and the
civilian tradition, such as the Mazeauds, do not hesitate to identify importance of transferring it intact from the dead to the living, as
with this outmoded idea: well as to future generations, has often been invoked to justify the
idea of the land as inalienable, which would, again, confirm its
It would appear that amongst all societies, ownership was orig
‘communal’ dimension. Once more there are serious reservations
inally collective: all goods belonged to the clan or the tribe.
attached to this concept of inalienability. These have been clearly
Ownership in the form of personal possessions, must have first
formulated by Verdier. We must determine whether the transfer
appeared in relation to movables: clothes, followed by tools
or pledging of land occurs internally or externally to the group.
and equipment. Buildings connected with residence were
Externally (‘exo-alienation’), the prohibition against extra-lineal
appropriated relatively early, initially by the family. But land
transmission [exo-intransmissibilite\ is applied: land may be lent or
remained clan property for a long period. It was originally cul
rented to strangers of the lineage, but not permanendy relin
tivated communally. Subsequently, cultivation and its fruits
quished, unless the lineage authorities make specific provisions to
were temporarily divided between families; each being allotted the contrary. However, in this latter eventuality, the transfer gen
a parcel of land which was worked by subsistence farming.
erally includes a reconveyance clause. Internally (‘endo-alien-
Since ownership remained communal, allocation would vary ation’), land can be freely transferred.
from year to year until gradually the custom spread of leaving The restrictive characteristics of property rights: the collective char
the allotment unmodified for a certain period of time. . . . acter of land ownership would entail a restrictive definition of
Finally possession became permanent. Thus ownership of land rights to land, in which they are treated as temporary, limited and
lay with families and subsequently with individuals. Family relative. These characteristics do indeed exist but they reflect a
ownership was in any case sometimes individual ownership different reality, since collective ownership of the land does not
since the head of the family had sole rights over the possessions itself exist. Rights to land were recognized only in connection
of the group. Collective clan ownership, family ownership, with land use and were applicable only as long as this continued.
individual ownership. These were the stages.45 Consequently, if the right to use land is not exercised over a set
Not only is this ‘historical’ reconstruction completely arbitrary, it period of time, it lapses. Furthermore, these rights are relative
interprets chronologically what were in fact synchronic legal fea since the plural structure of the community to which the land
tures: group rights were not replaced by individual rights; instead, belongs dictates that land is charged with an assortment of rights
held by different people.
220 Legal Anthropology Law in Traditional Societies 221
Land as a non-movable asset', it would seem logical to class land whilst the civilian system proclaims it, the former takes account of
as non-movable. However, material criteria (movable/non-mov- the sociopolitical status of those to whom rights apply whereas the
able) are not the only relevant criteria in this typology. In the his latter denies it. (More to the point, we may observe that in tradi
tory of our own legal systems the opposition of movables and tional societies, property law plays down the economic value and
non-movables goes hand in hand with the emergence of private emphasizes the sociopolitical status of those who have rights of
rights of ownership: multiple rights over the same land diminish ownership, where arrangements within the group are concerned,
in importance and the civilian character of ownership appears, whereas the opposite applies in the case of arrangements between
with its exclusive nature. Under feudalism, land was charged with communities.) In our own societies, law attempts to differentiate
a palimpsest of rights, whose characteristics depended on the between social actors by the use of unifying categories such as
sociopolitical status of its holders (in this respect there is some legal entities and private owners of property. However, as
resemblance to land law in traditional societies). In the 1789 Carbonnier has rightly pointed out:
Déclaration des Droits de l’Homme et du Citoyen, ownership
becomes a human attribute, independent of status. Property own What further distances [contemporary thinking] from reality, is
ership is particularly well protected: rescission for injury; posses the kind of Pharisaism whereby we ask no more than ‘What is
sion does not establish tide, except in establishing ownership over ownership?’ without the corollary ‘But who is the owner?’
a very long period. The description of land as non-movable prop Blinded by article 544 [of the French Civil Code], we have
erty is consequently associated, in our own tradition, with a clear been satisfied that the attributes of property were alone worthy
preference for the individual rather than the group. This is clearly of our attention, and we have neglected the means of appropri
not the case with the communal model. This is why describing ation, which flounders in technicalities in another part of the
land as non-movable property in traditional societies is nonsensi Civil Code (article 711 et seq.), without realizing the terrible
cal: land is neither movable nor non-movable, it plays an alto social reality they depict. . . . Yet for whomever wishes to
gether different role.47 understand the institution in all its aspects, the distribution of
Land as a possession48: land enjoys the particular protection of property is as important as its organization.49
article 518 of the Civil Code (France) in which it is described as In other words, we cannot study ownership without studying
‘non-movable by nature’. Land is given a significance beyond its those who have rights of ownership.
material existence; it is a possession and as such has a pecuniary
value and can be bought or sold. This venal aspect of property
ties in with the individual and exclusive nature of the right of 124 Property and social status in traditional and modern societies
ownership in the civilian tradition. The differences between these As E. Le Roy has stated, we are concerned less with property law,
ideas and traditional land law are clear. The traditional system as classically defined by Western jurists, than with land as the
takes the economic value of land into account, but this value does context in which, and the stage on which, social interaction is
not play the determining role that it has in civilian law, wedded as played out. This is why landholding seems a more appropriate
is the latter to the mode of production of mercantile capitalism, in term. Lévi-Strauss commented that ownership could not auto
which the value of land is monetarized and becomes an element matically be described as a hard and fast relationship existing
in a generalized market dominated by the individualist organiza between a subject and an object: the object acquires and loses its
tion of exchange. On the contrary, the traditional system, in value —and is thus submitted to legal procedures through which it
affirming the prohibition against extra-lineal transmission of land, is variously qualified, used, or transferred - essentially as a func
stresses the non-commercial character of land: rights over land tion of the relationships that exist between individuals. In other
can circulate only between members of the same group. If the tra words, ownership is to a great extent influenced by social interaction
ditional system tends to obscure the economic value of land and social structure.50This applies to all societies.
I
222 Legal Anthropology Law in Traditional Societies 223
Traditional African law is based on the twin principles of the and modem attitudes towards property, the former merging with
status of individuals in the group, and the use of the environment. the latter as a result of historical change. So far, however, we have
Productive labour is dominated by such social values as group remained at the level of generalizations. We will now make a
continuity, reciprocity of rights and obligations, the complementary more detailed study of the way the landholding systems of some
nature of social categories, etc. These concepts are not exclusive to sub-Saharan African societies operate.
exotic societies: we encounter them in the peasant societies of our
European past which took large steps towards modernization in
B: Landholding in operation in sub-Saharan Africa: the
the late eighteenth century. At this time people’s status became work of E. Le Rov and the I ATP team
more uniform, to facilitate their movement, and labour - now
given a monetary value and responding to a market - was separat
ed from non-monetary functions. The status of the actor in the 126 Social complexity and the multiplicity o f landholding systems
environment and the environment itself were uncoupled. The research carried out since 1969 by E. Le Roy and members
Ownership is now mainly unrelated to land use: in the 1804 civil of the LAJP team has led to the identification of three superim
code (France), the only restrictions as to use are easements and posed levels of landholding, distributed as a function of the com
expropriation in the public interest. Today, as we will see, accul plexity of the society under consideration: the greater the
turation produces similar effects in many Third World countries. complexity, the more numerous the levels on which landholding
Transitional phases do exist between the traditional and modem is organized. This is shown in Table II.2.1.52
systems. The distinction between de jure and de facto appropriation This typology highlights a correlation between complexity in
provides an opportunity for studying this phase. social structure and the progressive influence of specialized political
authority; the appearance of the state, dominated by an individual
ist mode of thought, characterizing complex societies. Once again
125 De jure and de facto appropriation we are presented with the principle of an accumulation of levels,
Godelier states that productive relations are represented, in the their number varying from society to society (this does not imply
legal domain, by forms of ownership and possession which deter a chronological order of the unilinear evolutionist variety). The
mine the reciprocal rights and obligations of individuals and sources of law also vary in the degree of pluralism they exhibit. The
groups in the production and distribution of resources. However, same principle applies to the land. All societies have a system of
the existence of de facto appropriation can be at variance with the land use, but they do not necessarily all have systems of allotment
legal position, and can modify social interaction and social equi or distribution. We will define these three types of landholding
librium. In these cases traditional law tends to be a fiction which more closely.
conceals the true nature of productive forces. Examples of this
process can be found in a wide variety of societies. In Africa, clan
chiefs, under the pretext of exercising their traditional control 127 Systems o f land use
over lineage land, appropriate the land for their own personal use. The system of land use is the body of rules which governs rela
Thus in Ghana at the beginning of the century some Ashanti tions with the environment and the use of land within the land-
chiefs took full advantage of the cocoa export drive. They appro holding group. From this definition several inferences flow.
priated communal land that was lying fallow and used it to grow Land use is affected by the means by which land is worked and
cocoa, making use of the labour of dependants or those people this is in turn determined by the personal status of the user. If the
with obligations to them. A similar process affected the traditional user is of very low status, labour is assigned; if land use is by
Celtic communities of Ireland.51 dependent kin or in company with others who enjoy the same sta
Such are the dominant characteristics differentiating traditional tus, it is co-operative labour; an individual may also work as a
224 Legal Anthropology Law in Traditional Societies 225
representative of a previous incumbent, or may be allotted land heavy (usually linked to a contractual framework laying down
when a group leader directly makes land over to him. obligations, and sanctions in case of breach of contract);
Land use is determined by the control over production. We production through co-operation, where the work is freely
may discern several different types: engaged in and there are no strong sanctions (often local resi
production by contribution, if the work is compulsory and dence groups; co-operation within a village, for example).
sanctions are heavy (by political authority);
production through joint responsibility, where the work is Productive activity is protected by fertility pacts, involving
compulsory and sanctions are weak (family mode of produc man-God relations. The pact can be long-standing: there is a
tion or residential segment); belief that the founding ancestor entered into a pact with the
production through agreement, where the work is freely powerful spirits of the locality. It can also be repeated by regular
engaged in, but where sanctions for failure to execute tasks are sacrifices. In this system, rights to land are freely exchanged, since
they do not leave the group.
I Some groups, such as hunter-gatherers, articulate all their rela
0 tionships internally, and have only one form of land-use.
o
1
C/5
t
E
9 g
!! §E o§ ü» -as
However, there are many other societies where groups have more
complex relations: including the distribution of produce, to which
we may add the allotment of land.
s?
128 Systems o f distribution o f produce and allotment o f land
3 The system of distribution of produce determines the communication
'S
I .£
which takes place between groups and individuals in the course of
such distribution. It involves the means whereby produce from
co the land, henceforth treated as part of the group’s wealth, is dis
tributed within the group or externally to the group. The criteria
co a 3 c0 through which distribution takes place are dependent on the
■g •g
(J ‘E
co •§
bû respective hierarchical positions of the groups, the level of integra
a •§ *od 32 1
is
p
H c<0 •g & tion of the individual in the group or groups, the role the individ
o (X
ual plays in the economy and the creation of wealth.
G The system of allotment of land concerns the external relations of
es
groups where these exist, which is usually the case with sedentary
O societies possessing specialized political and legal instruments (in
I ,? ,
S) « « « 2 ”2CO —
o the form of a chiefdom or a kingdom). In essence it consists of
o s e e bi» 4e» g 4g)
<
o se .ss sS •6 various forms of inter-group land allotment and leads to the cre
.s .s" SOS t> & •§
o,
ation of a hierarchy, or the attribution of specific responsibilities
over land. In this system, in contrast to the system of land-use,
2o
land is inalienable: once allotted, it will no longer leave the land-
g I holding group. However, land may circulate within the group:
oo
either as a result of death, or between the living, following the
■8
H £ needs and status of individuals.
226 Legal Anthropology Law in Traditional Societies 227
A number of different authorities are involved in the allotment 130 The lineage chief
of land and distribution of produce. Amongst these, the land chief All lineages have rights over a sociolegal entity which we will term
and the lineage chiefs play vital roles. ‘lineage land’. This area is not coterminous with a territory; the
extent of lineage land is not always clearly defined, it is normally a
heterogeneous entity, not even static, to the extent that if one of
C: Land and authority its segments or one of the lineage members moves in search of
new land, the lineage boundaries change. The lineage chief
129 Land chiefs should attempt a division of land to ensure the subsistence of all
The role of a land chief has been described by Verdier.53 A land lineage members. He is, in particular, the guarantor of the conti
chief is the representative of the oldest lineage, inheriting the rights nuity of the lineage. Consequently the lineage chief should main
and responsibilities enshrined in the pact which the founding tain the patrimony of the lineage (the prohibition against the
ancestor made with the earth. His role is not political in nature: a extra-lineal transmission of land outside the lineage, and exclu
land chief has authority over men because he has authority over sion of women from inheritance of land (although barred from
land, a political chief has authority over land because he has inheriting land they may, in a matrilineal system, transmit rights
authority over men; the land chief derives his power directly from held by their brothers to their own descendants). The lineage
the land, the political chief derives his power from men and it is chief also ensures, in the event of the segmentation of the lineage,
vested in him by heredity or election. The power of a land chief is that the land is maintained as an integral whole: either, if the area
generally more closely associated with the sacred than that of a of land remains static whilst the population of the lineage grows,
political chief (a Luunda proverb says: ‘The cilool [political chief] the lineage chief reorganizes land rights and redistributes land; or,
is the ashes the wind carries away; the mwaantaangaand [land if lineage members clear fresh land, he applies rules which will, in
chief] is the charcoal that remains.’ This differentiation of roles is some cases, incorporate this land into the lineage patrimony
sometimes followed by a differentiation in identity: either the same (mainly when those who have cleared the land have not disposed
person is both land and political chief; or there are two chiefs, one of this land during their lives, or have transferred it to another
representing each role; or there is only a land chief. The existence member of the lineage).
of two chiefs is generally the result of immigration, or the merging Thus it emerges that control over land is determined in accor
of two ethnic groups. In general the new arrivals, rather than con dance with the pluralist nature of power dear to sub-Saharan
fiscating the rights of the original occupants, which could bring African societies: political chief, land priest, land chief (and, with
down the wrath of the spirits of the earth, attempt to form an in the lineage, individuals ranked according to status), all play
alliance with them. Thus a political chief, drawn from the immi complementary roles in the administration of land, their specific
grants, becomes a deputy to the land chief, ensuring the protection powers guaranteed by the legitimation processes associated with
of the new community. In contrast to a political role, the role of each of these authorities: the land chief has a sacred link with the
land chief is above all ritualistic, to which authority over land may land; the lineage chief has a tie with the land through filiation; the
accrue. When the individual holding this role carries out ritual political chief plays a protective role.
functions, he is called ‘priest of the land’: he controls the celebra
tory calendar in the unfolding of the farming year and must deter
or offer remedies for any action which threatens the life of the Ill CONTRACTUAL OBLIGATIONS
community. All land chiefs have a ritualistic function: in this sense The study of contractual obligations in traditional societies has
the land chief is always priest of the land. However, the land priest long been encumbered by the misconceptions of late nineteenth-
is not necessarily chief of the land, since he has only limited influ century evolutionists. In their view, the obligations of an individ
ence in the domain of landholding. ual depended, overwhelmingly, on his status, and not on his will.
I
228 Legal Anthropology Law in Traditional Societies 229
Recent developments in theory have confirmed the existence of that this data could be directly extrapolated to traditional societies
contract in these societies, and Le Roy’s research has demonstrat which could still be observed. In 1964 Hoebel pursued this analy
ed how contractual obligations are made and sanctioned, and sis. In common with Durkheim, he believed that status and con
their execution secured by guarantees. tract were not mutually exclusive, but existed in different degrees.
In 1981 Leopold Pospisil went further in arguing, principally,
that the classic evolutionist model should be stood on its head:
A: Status and contract: developments in theory
contract could precede status. Pospisil used the Kapauku (New
Maine’s theories emphasizing status rather than contract enjoyed Guinea) as an example. In the pre-colonial era Kapauku society
a broad consensus of agreement until the mid-twentieth century. was characterized by the high degree of initiative and personal lib
Subsequent criticism has led to a reconsideration of the role erty accorded to its members. Colonization witnessed the trans
played by contractual obligations in traditional societies. formation of this society towards the status model; a central
power was put in place, which restricted individual liberty.
131 M aine and the prim acy o f status What, in conclusion, do we make of Maine’s ideas and the sub
According to Henry Sumner Maine, contractual obligationships sequent criticism of them? In our view, three points emerge. On
are characteristic of modem societies. In traditional societies it is the one hand, historical and ethnographic observation demon
the status of the individual within society and the groups which strates that it is impossible to find societies which conform exclu
make up society which determine obligations, privileges and sively to either the status or contract model: Durkheim and Hoebel
responsibilities —not the will of individuals. In its time this evolu were right in stressing that the two modes coexisted in all societies.
tionist thinking was an innovative approach: it countered the However, it is also the case that in general each society is charac
ideas of Locke, Rousseau and Hobbes, for whom society was terized by the dominance of one model over the other. This domi
formed through an agreement between its members (see all the nance, evolutionist thinking to the contrary, is not chronologically
‘social contract’ theories). Durkheim further refined the theory. determined. As Pospisil has stated, status can follow contract. Our
He made three distinctions: status and contract; mechanical inte century offers many examples of such developments: on a number
gration (status) and organic integration (contract); repressive of occasions totalitarian or authoritarian regimes have succeeded
legal systems (status societies and mechanical integration) and democratic systems, determining the rights and duties of individu
retributive legal systems (contractual societies and organic inte als principally on the basis of class. Social organization rather than
gration). However, the interesting aspect of his approach is that it historical inevitability determines the primacy of contract or status.
relativizes these contrasting notions in expressing them as tenden The former is emphasized in politically conservative modem soci
cies: all societies contain both status and contract, traditional eties [sociétés libérales], where groups tend to be accorded less
prominence than individuals. The latter enjoys a dominant posi
societies laying more emphasis on the former, and modern soci
tion in two types of society: first, communal societies - this applies
eties on the latter. Marcel Mauss and P. Huvelin developed
to traditional societies, particularly sub-Saharan African societies;
Durkheim’s ideas. In the twentieth century, Maine’s theories
second, collectivist societies - many modern dictatorships.
were confronted with ethnographic data and this ushered in more
None the less, even in traditional societies, contractual obliga
deep-seated challenges.
tions always exist in some form. We will now examine these
obligations.
132 Criticism o f M aine’s theory
Criticism of Maine’s theory began in 1950 when it was called into
B: C ontractual obligations in traditional societies
question by the anthropologist Robert Redfield. Redfield took
We are here indebted to the research of E. Le Roy,Mcentred prin
Maine to task for his reliance on Greek, Roman and Indian
sources, and for having believed, following evolutionist thinking, cipally on the societies of sub-Saharan Africa. After making some
230 Legal Anthropology Law in Traditional Societies 231
general statements, we will examine, in turn, the procedures payment falls due will all be stipulated). However, dations are not
through which contracts are drawn up, the character of contractu always the object of legal sanctions, there being no competent
al obligations, the application of contracts. authority to enforce them: if one party feels aggrieved, conciliation
will be employed to resolve the conflict.
First come general statements. In semi-complex societies, political authority is clearly differen
tiated and interaction between groups is regulated not only
through alliances and dations, but in submitting to legal rules
133 The appearance o f contractual obligations external to the groups and sanctioned by judicial instruments
According to Le Roy, contractual obligations appear only at a capable of imposing a settlement - where conflict between groups
certain degree of complexity in social structure (Table II.2.2). follows the failure of conciliation. For Le Roy, the minimum con
In elementary societies where no sociolegal control mechanism ditions in which contractual obligations can obtain now exist: as
exists within the group, the individual who wishes to establish a in the case of gifts and dations, there are subjects (the parties)
tie with another individual has no other option but to offer a gift and an object (the service or possession), but a legal sanction also
or a service, without any a-priori guarantee that these initiatives exists, which is the distinctive feature of the contract.
will be reciprocated. If there is no reciprocation, the tie will be In complex societies (and our societies in particular), while gifts
1 broken and conflict may even ensue, unless exterior pressure in and generosity have always played their part in social life, legal
the form of conciliation or arbitration is applied. agreements between individuals are mainly subject to contract.
In semi-elementary societies, other relationships exist, over and There is clearly some similarity between Le Roy’s theory and
above the bonds arising from gift-giving within the group. These Maine’s, since it only identifies contractual obligations with a par
are based on inter-group communication and are guaranteed by ticular level of complexity in sociopolitical structures. Yet it is not
alliances based on dations. Dations are more binding for the par an evolutionist theory, because the degrees of increasing complexity
ties involved than gifts: they are clearly specified and their reci are not associated with historical development.
procity well defined (for example, when a transfer of wealth For a number of writers (A. N. Allott, A. Epstein, M.
accompanies a marriage, the sum, the place and the dates when Gluckman, M. D. Sahlins), contractual obligations can exist only
between individuals who are not affected by any other ties.
Table II.2.2 Social structure and contractual obligations However, Le Roy notes that individuals can be linked by a num
ber of ties (blood, alliance, etc.) and still resort to contract in the
Structure Interaction Society Agreement sanctioning of certain activities. This is the case in our own legal
systems: marriage contracts [in France] lay down both the recip
elementary internal communal gift rocal rights and duties of husband and wife, and also arrange
ments concerning their estates. We may note that contracts
semi-elementary internal, internal- communal gift, dation between couples have always been viewed with a certain amount
external of suspicion: the ruling against sales between husband and wife is
as recent as 1985. The ethnographic observation of traditional
semi-complex internal, internal- communal gift, dation, societies furnishes us with similar evidence. Thus amongst the
external, external contract Birwa (Botswana), studied by N. Mahoney,55 close kin or
neighbours are simultaneously bound by ties of ‘positive integra
complex private-public individualist dominance tion’ with regard to a number of goods, and retain services and
of contract contractual obligations for specific transactions. Mahoney
believes that contractual obligations can exist irrespective of the
232 Legal Anthropology L aw in Traditional Societies 233
social distance which separates the parties, whether they are 134 Contractual obligations and the communal model
strangers or close kin. However, they are organized in a different As we have seen,57 the communal social model attempts to bal
way. In the first case (contractual obligations between strangers), ance the needs of the group and the individual, whereas the indi
the aim is limited to binding two people for a specified period in a vidualist model gives more emphasis to the latter. It follows that
particular transaction. In the second case (contractual obligations in traditional societies, the concepts of obligations, individual
between close kin), creating a bond through contractual obligations freedom and contract are more restricted than in our modem
enables the parties to isolate a particularly sensitive and conflict- societies.
prone area of their activities. In recourse to contract parties are The concept of obligation58 is contained within the two main
taking preventive action, providing a better long-term guarantee principles of traditional law we have already described5*: the func
for their mutual obligations. tional ascription of status, and the reciprocity of rights and duties.
In other words, through contractual obligations, parties choose In other words, obligation is based less on personal responsibility
to bring law into those domains of social life which they consider than on the individual as a representative of the group or groups
as particularly important for the maintenance of social harmony to which that individual belongs. Similarly, obligations which
and economic reproduction.56 In our opinion contract, whilst it might threaten the continuity of the group are excluded: thus the
may be universal, remains more frequent between individuals prohibition against extra-lineal transmission of land prevents a
who have minimal contact with each other - strangers - and when stranger from acquiring lineage land.60 We may also note that
the object of the transaction has a particular status which varies contracts binding parties to things are more common than con
with the importance it is accorded by the parties. However, in our tracts binding parties to each other by their will alone (consensual
view there remains one very important variable: the implementa contracts). This is because the former, in their real or physical
tion of the contract depends on the relationships of those aspects, are more appropriate than the latter to the group’s con
involved. In reality contract is neither experienced nor perceived trol over individuals.
in the same way, depending on the social or affective proximity We will adopt Le Roy’s definition of the contract in sub-
existing between the parties. When these relationships are rela Saharan Africa as ‘a convention organized through the remittance
tively distant, the purely contractual side of the obligation domi of an object, followed by an exchange of words’. Thus the three
nates: this would be the case, for example, in buying a car from a fundamental relationships we have already described reappear61:
large dealer. In contrast, the closer the parties are in a shared person-to-person (the representatives of groups are committed
community of life, the more the contractual aspect of the obliga through their words); person-to-thing (a thing is remitted); per-
tion is concealed, although still present. It sees the light of day son-to-God (the two preceding relationships may be validated by
only when the obligation is under pressure or is breached. This is an oath, an appropriation ritual, or a sacrifice whose purpose is
the case with marriage contracts: a couple view their married life less to lay down the law than to protect it by giving it a place in
in legal terms only when this arrangement is threatened or is col the invisible world).
lapsing. Thus it would appear that communal obligations and However, if contract pertains to things, it treats things differ
contractual obligations are different in nature, though they may ently depending on the value accorded to them by the respective
coexist and penetrate each other. Contractual obligations are groups the parties belong to. Some things cannot be subjected to
important in individualist societies] they may also be found in a contractual agreement which would involve their permanent sur
communal context, as many examples from sub-Saharan Africa render: these are kinship possessions, exclusively identified with
confirm. the family group (land, altars, rimai artefacts). Other things may
be subject to contract only in certain circumstances and with the
agreement of the group concerned: these are communal posses
sions (pasture in the case of pastoralists, livestock in the case of
234 Legal Anthropology Law in Traditional Societies 235
farmers). Some things are subject only to the will of their owners, activities); stock-rearing contracts (in some farming societies, the
but do not circulate freely because of their personalized nature: owner of livestock may entrust part of his flock or herd to a neigh
these are personal possessions (jewellery, clothing, tools). Finally, bour who will rear them for commercial gain); various contracts
some items are the preferred objects of contractual obligations, hiring out services (hiring a midwife for a delivery); sale contracts,
since they are subject only to the will of the contracting parties necessary to the operation of fairs and markets.
and circulate readily: currency (money, or money equivalents Classification according to function has the advantage of being
such as set quantities of salt or honey, rolls of cotton fabric, etc.). rather more precise. We may distinguish between family contracts
The process by which things become subject to contract thus (marriage, wet-nurse, delivery); social contracts (education, ritual);
depends on the social role of these possessions. Similarly, not all contracts related to production (loans, exchange); farming contracts
individuals possess the required status to automatically enter into (co-operative labour) or pastoral contracts (stock-raising); contracts
contractual obligations: the principle of representation62 means of exchange of possessions or property in a residential context
that only the representatives of groups can perform this function. (mutual exchange) or in a market (sale, pledging); contracts for
Each society determines the level in the structure of social organi commercial expeditions (caravans); religious contracts (for the
zation at which a representative can operate: the restricted or employment of magicians or sorcerers); political contracts (con
extended family, the lineage, etc. The larger the reference group, cerning the provision of prestige goods of chiefs). Other forms of
the fewer the representatives; the more developed the group, the classification may also be envisaged. The nature of the wealth
older those responsible will be. Whatever the criteria of selection, which features in contracts may be taken into account; thus we
law resides in the individual: he is not mandated by the group and may distinguish between real contracts (concerning physical or
can protect his own personal interests. However, his freedom is material possessions); real and formalist contracts; real, oral and
not unlimited, because he is also the representative of his group. formalist contracts. Contracts may be classed according to the
Ideally he should satisfy both his personal interests and the inter resulting obligations: they may be symbolic or onerous. The
ests of his group. These interests are of a complementary nature formulation of these last-mentioned two typologies centres on
and do not exist in opposition to each other. the process which closes a contractual agreement; to which
Communal organization thus involves reciprocity between the process we will now turn.
interests of the individual, which should be restrained, and those
We turn to our second point: procedures used in drawing up a con
of the group, which should be guaranteed. These imperatives do
tractual agreement. Two phases can be distinguished in the con
not seem to affect the variation encountered in contracts, as their
tractual agreement: formation and ratification.
classification demonstrates.
136 Formation o f the contractual agreement: the thing and the word
135 Classification o f contracts
The formation of the contractual agreement can centre on the
Contracts may be classified according to their object (T. D. Elias)
thing itself [la chose, the ‘thing’ or ‘matter’ is not confined to
or their function (E. Le Roy).
In the former category, the main types are: marriage contracts moveable possessions: TN], on the word, or on a combination of
(several contracts are sometimes necessary to conclude a mar the two. As regards a thing, its surrender may be involved (in con
riage, binding the husband-to-be and wife-to-be, their family tracts for the exchange of possessions, protection, marriage, farm
groups and finally the whole community); contracts relating to ing and rimai contracts); it may involve the completion of transfer,
co-operative labour (whether between kin or not they establish an granting possession of the thing, or access to the thing (access to
agreement, temporary or permanent, pooling labour resources allotted land can be concretized by handing over a sod of earth,
and equipment for certain farming, building, or maintenance sometimes mixed with the blood of a sacrificed animal); it may
involve the commencement of work on a thing (co-operation,
11
236 Legal Anthropology Law in Traditional Societies 237
commercial expedition and training contracts). Because of the Contracts concerning personal possessions are real, oral and non-
realist nature of contracts in sub-Saharan African societies, the formal; they involve the two relationships, person-to-thing and
exchange of words is secondary to activities concerning the thing person-to-person. Control over destination is not necessary: if
itself. The exchange of words is generally associated with the pres formal procedures do nevertheless exist, they are accessory and
ence of witnesses and formal procedures. The language used may are not essential to the ratification of the contract. On the other
be legalistic or vernacular, religious or secular, and may or may hand, the way personal possessions are used is always controlled;
not have recourse to precise formulas. an exchange of words occurs on the surrender of the thing or
when work begins on the thing.
Contracts involving currency are real, non-formal, and need not
137 Ratification o f contractual agreements: form al and non-formal be oral; the person-to-thing relationship is sufficient to ratify
contracts them. The non-formal aspects are accounted for, as in the preceding
In oral systems of law, the ratification of a contract can take place category, by control over destination. The absence of emphasis on
on the level of each of the three fundamental relationships: person
an oral dimension does not necessarily mean no words are spoken
to-thing (surrender of the thing), person-to-person (exchange of
(though the practice of ‘silent commerce’ does not rule this out),
words in front of witnesses), person-to-God (various sacrifices
but that there is no requirement to pronounce the quantity and
invoking invisible powers as witnesses). However, each of these
quality of the thing, its means of payment, etc. This flexibility
relationships plays a different part in the ratification of the con stems from the fact that currency constitutes only accessory
tract. The person-to-thing relationship may be used to ratify a
wealth, and is little regulated. The ratification of the contract lies
contract which is non-formal and is based on possession of the
in the possession of the thing. In conclusion, we may observe that
thing. Person-to-person and person-to-God relationships cannot,
whilst the classification of things correlates with a classification of
on their own, be used in ratification, unless they are associated
contracts, the common denominator of all contracts (in sub-
with the person-to-person relationship and possession of the Saharan Africa) is their real dimension. However, contractual
thing: the contract is thus formal, because it consists of several
obligations may also involve providing services.
types of relationship in association. The classification of these
combinations, as we will see, depends on the classification of the We will first examine the nature of the services provided under con
thing subject to contract: the more the nature of the thing tractual obligations and then consider their legal character.
involves the participation of the groups to which parties to the
agreement belong, the greater the number of relationships which
feature in the ratification of the contract, and the more formal it 138 Socially determined services, symbolic and onerous
will be, and vice versa. Such is the organizing principle of the In line with communal thinking, the social outcome of the service
summa divisio63 of sub-Saharan African societies. receives more emphasis than the economic value. This has two
Contracts concerning communal possessions are real, oral and consequences. The nature of the service depends on the social
formal; they involve three relationships: person-to-thing, person- proximity of the parties involved. Socioeconomic change, in
to-person, and person-to-God. The importance the group attach negating the communal model, can modify the nature of contrac
es to these possessions requires that their destination and use be tual services; and the elasticity of social needs can also intervene.
clearly defined in the contract. If these possessions are to be We will expand on these three variables.
attributed to another group, the links which tied them to their Social proximity means the degree of proximity or distance
group of origin must be cleanly severed, hence the recourse to which unites or separates individuals or groups in a range of
formalism, consisting in the intoning of ritual formulas (a feature social situations (family, religion, politics, etc.). As a general rule,
of early Roman law) or ceremonial procedures in the handing the greater the social distance, the greater the tendency for con
over of the thing in question. tracts to stipulate onerous and anonymous services; the closer the
238 Legal Anthropology Law in Traditional Societies 239
proximity, the more personalized and symbolic the services will enforceable clauses, these will specify when recourse may be made
be. In other words, the closer the degree of communal organiza to them, or will determine penalties; if there are no enforceable
tion, the closer the social, as opposed to the economic, dimen clauses we are confronted once again with the role of sanctions in
sion; and vice versa. traditional societies. The question of enforceable clauses intro
Socioeconomic change can increase social distance and contribute duces a question of a more general nature.
to the primacy of onerous services over symbolic services: this is a
particularly sensitive area in the process of acculturation ushered Various sanctions may be applied in the event of failure to comply
in by European colonization. Thus dotal marriage has tended to with contractual obligations; these can be guaranteed by securi
be transformed into marriage through bride-purchase, where the ties. Before examining these sanctions, however, we must define
sum involved is of more importance than the alliance between the the significance of the concept of legal responsibility in traditional law.
respective family groups of the couple.
The elasticity of social needs is the third variable and can be con
140 Legal responsibility in traditional law
sidered in conjunction with the preceding two, since it can influ
In the legal systems of our modem states, legal responsibility is
ence social proximity and can vary with historical circumstances.
divided into two categories. Civil responsibility concerns the
The general rule is that the more elastic a social need becomes,
reparation of damages caused to others, through an objective
the closer the social distance and the more symbolic contractual
appraisal of the extent of the damage. Penal responsibility con
services will be. This is the case where social needs, in different
cerns the sanction occasioned by an injury, where that injury is
domains, can be satisfied without the appearance of marked social
directed not against an individual but against the whole of soci
inequality, thanks to the abundance of social collateral capable of
satisfying these needs. This applies to marriage alliances, where ety; the intentions of the perpetrator of the injury are taken into
certain practices (such as the infanticide of girls, or polygamy) do account. The two forms of responsibility can in some cases
merge. Civil responsibility can be further divided into contractu
not threaten the relative equilibrium of the sexes; or land transac
al responsibility, resulting from the failure to execute an obliga
tions where land is abundant and productive (in contrast, the eco
tion stipulated in a contract, and criminal or quasi-criminal
nomic value of these transactions will achieve primacy where
responsibility, which concerns the intentional actions (criminal)
there is a growing shortage of land, because of a rapid rise in pop
or unintentional actions (quasi-criminal) of an individual (a civil
ulation, for example). Generally speaking, the more economic
wrong [délit] of a tortious nature is not synonymous with a crimi
value is emphasized to the detriment of social value, the more
nal infringement [infraction]). Much ink has flowed in deciding
onerous provisions and services will dominate symbolic provisions
and services. whether these categories are applicable in traditional law. E. Le
Roy states that misleading evolutionary premises have been
applied to the problem. Clearly, traditional law does not distin
139 The legal character of contractual obligations guish, as does modern law, between natural, civil, penal, con
The general characteristics have been well rehearsed and consist of tractual, criminal or quasi-criminal responsibility. However, it
the nature of things subject to contract, the identity of the con would be wrong to deduce that this stems from the incapacity of
tracting parties and their status, the procedures in contract forma traditional legal thought. If responsibilities are not subdivided,
tion. Specific legal characteristics are a function of the nature of this is because of the communal character of these societies, and
the provision of service (it can consist in performing an action or not because of an inability to make fine legal distinctions. In our
refraining from performing an action; labout duties or payment in legal systems, these distinctions are for the most part based on
kind); rates of payment and collateral, which are particularly rele the necessity of separating the fields of action of the individual
vant in onerous contracts; the timing of the execution of the con and society, the latter represented by the state. No such distinc
tract; the enforcement of its execution: if the contract contains tion exists in the communal social model, where there is to all
240 Legal Anthropology Law in Traditional Societies 241
intents and purposes only one kind of obligation: communal in a land rental contract are not honoured, the right to farm the
obligation. Depending on the situation, the group may be direct land lapses and returns to the original holder; the medicine man
ly implicated and the individual indirectly, or vice versa. who does not achieve the desired effect for his clients must
However, in all cases the interests of the groups and the individ reimburse them). Finally, compensation for injury suffered and
uals who represent them are closely identified: the interests of payment of damages is used particularly in contracts concerning
the groups are always at stake, in varying degrees, which makes it livestock-herding; also brokerage contracts in the case of fraudulent
difficult in traditional law to find the distinction made by mod description of goods, and caravan contracts where the caravan
em law between civil and criminal responsibility. Any failure to leader has disregarded the instructions of those who have com
fulfil an obligation constitutes, in varying degrees, a social injury, missioned him.
requiring legal sanction. This sanction can take a number of Between the voluntary or compulsory fulfilment of contractual
forms. obligations by the contracting parties, there exists a middle way:
the use of guarantees.
141 Classification o f legal sanctions
In traditional societies, unlike modem individualist societies, 142 Security
sanctions for the failure to execute contracts have a social rather A security is a guarantee given to a creditor by a debtor; it may
than an economic character. The social character of the sanction involve a third party, a secondary debtor to the main debtor who
is all the more accentuated in that the group considers itself con will guarantee the payment (personal security), or the designation
cerned by the injury. This is expressed mainly in corporal or of one or more possessions which may be used to repay the debt
moral punishment. On the other hand, when personal interests (material security).
are involved, punishment will tend to consist of material restitu We have established that contractual obligations are most often
tion. related to the ties binding individuals belonging to different
Corporal punishment is diverse in character (from public beating groups.64 This is also the case with securities, as Verdier’s classifi
and mutilation to enslavement or death) and is used in two areas. cation demonstrates. He makes a clear distinction between mutu
It occurs most frequently in contracts with a political dimension, al aid between members of the same community (through kinship
where failure to fulfil obligations threatens the dignity of the chief, and/or residence), and legalistic forms of co-operation or
and through him the social order. Corporal punishment may also integration. Mutual aid is based on kin or neighbours. Legalistic
be used in the case of absenteeism or obvious lack of goodwill in forms of co-operation stem from a guarantee specifically associat
repairing material damages. ed with the fulfilment of a contractual obligation. Furthermore,
Moral punishment takes the form of public opprobrium and is whilst the security may particularly concern the relationships
frequently encountered in the context of failure to fulfil obliga between members of different groups,65 the groups themselves are
tions in contracts concerning goods or services —this applies to not automatically involved: the nature of the debt will not always
co-operative work contracts and marriage contracts, in particular. be such as to justify their participation. A decision is taken by
The opprobrium can extend to placing the individual in quaran group representatives during the formation of the contract deter
tine, a sanction which is psychologically difficult to bear in a mining whether the group’s guarantee will be given or not. If the
small-scale society where the interaction of individuals is vital. group does not guarantee the contract, the creditor will have to
Material restitution may be applied in a number of circum obtain the required security from the debtor.
stances. First it may involve forced labour in the initial execution Securities can also be distinguished by the nature of the guar
of service contracts where time is of the essence. Second, the con antee provided, whether it is material or personal. The thesis dear
tract may be pronounced null and void (if provisions or services to classical jurists (based entirely on the study of Roman law)
242 Legal Anthropology Law in Traditional Societies 243
once again views the distinction through an evolutionist view the existence of sexual relations between the pledged dependant
point: ‘primitive societies have often had recourse to personal and the creditor extinguished the debt.
securities, ignoring the guarantee which material securities could
provide . . . material securities only appeared after personal secu
143 General conclusion: convergences and divergences between
rities. They involve, in fact, a well-developed system of law which
traditional and modern law
can distinguish between a thing and the law pertaining to things
(droit réel [as opposed to droit personnel]), and between different Our rapid overview of kinship, landholding and contractual rela
tions enables us to make an observation of some importance for
manifestations of this law.66 Here too, ethnological data tends to
our discipline. In spite of evolutionist prejudices, there is no radi
contradict such a statement: if traditional law provides personal
cal distinction, in nature, between law in modem societies and
securities, it does not exclude the use of material securities.
traditional societies. In each of the three areas we have described,
Personal securities are identifiable in a number of contexts,
we have noted the presence of similar elements in modem societies
normally associated with loans where the lender wishes to secure
and primitive societies. The married couple is present in all
against the possibility of the borrower’s insolvency. Thus the
societies; the prohibition on incest is almost universal; complex
Chagga (Tanzania) have recourse to three kinds of personal secu
systems of marriage exchange exist in modem societies, but also
rity. First, a third party undertakes to use his influence with a
in traditional societies. As regards property, we have seen that
debtor to make him fulfil his obligations; the debtor will break a
land is not always inalienable and can feature in a number of con
stick in two, one half will be given to the creditor, the other half
ventions. The study of contractual obligations demonstrates that
to the third party. Second, a third party engages himself as guar
they are neither a privilege, nor an invention, of modem societies.
antor: should the debtor take flight or die without heirs he will
Similarly traditional law is not ‘primitive’, as Lévi-Strauss has
pay the debt. Third, more generally, the third party makes himself
commented: ‘It was my intention to show [in La Pensée sauvage]
liable for payment in all cases where the debtor finds it impossible
that there is in fact no gulf separating the thought of so-called
to pay: he spits into the palm of his hands and holds them out to
the creditor who takes them in his own. primitive societies and our own . . . these forms of thought are
Whilst identifying material securities is more difficult, their ever present in our midst. We often allow them free rein. They
existence would seem difficult to deny. Dotal gifts given by the coexist with forms of thought which purport to be scientific; they
family of the husband-to-be to his future wife can be interpreted are also contemporaneous.’67
as a security guaranteeing the marriage. Furthermore, in a num Yet it would be to fly in the face of the evidence to say that
ber of cases, often concerning subsistence debts (in the case of modem and traditional law are identical: whilst the same ele
famine or want the debtor borrows the most basic requirements ments are to be found in all systems, they combine to form differ
to sustain life), or debts incurred to carry out ritual sacrifices to ent systems, through the relative importance they are accorded.
the earth and the ancestors, or to pay for a dowry, the debtor The real criterion is not diachronic, but resides in the momentum
pledges, until such time as the debt has been cleared, either him of each society. Depending on whether the model chosen is com
self, or one of his dependants, following procedures which have munal, individualist, or collectivist - and historical change plays
an actual or a material basis. Amongst the Ashanti, when a debtor its part in this choice - the corresponding body of law will present
pledged a girl dependant and found it impossible, after a certain the characteristics of traditional law or of modem law. We must
length of time, to repay his debt, the girl often married the creditor, now examine the settlement of conflict in traditional societies to
some confusion existing over the debt and the dowry the creditor see whether this justifies a similar conclusion.
would in normal circumstances have to provide; likewise marriage
could serve to camouflage the existence of a pledge; in all cases,
244 Legal Anthropology Law in Traditional Societies 245
In Roman law res mancipi and nec mancipi are not transferred du mariage et de la terre’ (unpublished, Paris, LAJP, Synthèses,
in the same way. June 1971, 20 pp.); R. Cresswell, ‘La Parenté’, in Eléments d’eth
64 See above, no. 133. nologie, ed. R. Cresswell, Vol. II (Paris, A. Colin, 1975), pp.
65 We do not, however, rule out the possibility of this taking 132-74; R. Fox, Kinship and Marriage: An Anthropological
place between members of the same group, if, following Perspective (Harmondsworth, Penguin, 1967). Finally there is C.
Mahoney (see above, .no. 133), we accept that contractual Lévi-Strauss’s great work, Les Structures élémentaires de la parenté
obligations can exist within a large group, in the same way as (Paris, Mouton, 1967), available in English as The Elementary
they exist between two smaller groups. Transstructures of Kinship, trans. J. H. Bell and I. R. Sturmer
66 H., L. and J. Mazeaud, Leçons de droit civil, Vol. 3 (Paris, (London, Eyre & Spottiswoode, 1969), technical but enthralling,
Montchrestien, 1968), p. 9. and F. Héritier’s very complex synthesis, L ’Exercice de la parenté
67 C. Lévi-Strauss, De près et de loin (Paris, O. Jacob, 1988), p. (Paris, Gallimard and Le Seuil, 1986). On information technology
154; translated into English as Conversations with C. Lévi- used in the anthropology of kinship, see Héritier, ‘L’ordinateur et
Strauss, trans. Paula Wissing (Chicago and London, Chicago l’étude du fonctionnement matrimonial d’un système Omaha’, in
University Press, 1991). Les Domaines de la parenté, op. cit., pp. 95-117.
For the history of the family in the West see: G. Franciosi, Clan
FURTHER READING
gentilizio e strutture monogamiche, Contributio alia storia della
famiglia romana, Vol. 1 (Naples, 1975); J. Gaudemet, Les
Communautés familiales (Paris, M. Rivière, 1963) and Le Mariage
144 Bibliography o f the fam ily en Occident (Paris, Cerf, 1987); G. Duby, The Knight, The Lady
Apart from the study of myth, kinship ties are the most complex and the Priest (London, Allen Lane, 1984); A History of Private
area in social anthropology, or, at least, the area where theory and Life, 5 vols, ed. G. Duby and P. Aries (Cambridge, MA, Harvard
abstraction are the most developed. As a result, there are few University Press, 1988), which contains several relevant chapters;
overviews of the subject. Further, readers should approach the lit J. Goody, The Development of the Family and Marriage in Europe
erature stage by stage or risk being quickly out of their depth. The (Cambridge, Cambridge University Press, 1983); Femmes et patri
clearest introduction to the subject is found in Les Domaines de la moine dans les sociétés rurales de l’Europe méditerranéenne, ed. G.
parenté, ed. M. Augé (Paris, Maspéro, 1975, 133 pp.). This work Ravis-Giordani (Paris, CNRS, 1987). G. Duby has also con
contains the basic definitions, and a good bibliography, ending, tributed La société chevaleresque (Paris, Flammarion, 1988), pp.
however, in 1972. The following works should not present major 151-65, translated into English as The Chivalrons Society, trans.
difficulties: C. Lévi-Strauss, The View from Afar, trans. J. Cynthia Postan (London, Edward Arnold, 1977), and Mâle
Neugroschel and P. Moss (Oxford, Blackwell, 1985); F. Moyen Age (Paris, Flammarion, 1988), pp. 129-46. Duby
Zonabend, ‘De la famille. Regard ethnologique sur la parenté et describes kinship structures in northern France in the tenth and
la famille’, in Histoire de la famille (two volumes which contain a eleventh centuries, showing their development, an approach
number of outstanding contributions, with very good bibliogra which is of considerable interest to the anthropologist. Before the
phies), ed. A. Burgière et al., Vol. 1 (Paris, A. Colin, 1986), pp. tenth century, royal authority was still effective. The lineage
15-75 (this work is particularly recommended); R. Verdier, memory was very short: close relations counted for more than the
‘Customary family law’, in International Encyclopedia of ancestors, the family consists mainly of collateral kin. Royal
Comparative Law, Vol. 4 (The Hague, Martinus Nijhoff, 1983), authority was subsequently usurped by the nobility. The various
pp. 98-128. The following are, in contrast, more difficult: E. Le strata of knightly society reformulated their conception of family
Roy, ‘Cours d’histoire des institutions’ (unpublished, Paris, ties: the individual considered himself as a member of a patrilin
LAJP, 1971-2), pp. 130-65; ‘Ethnologie juridique de la parenté, eal agnatic lineage of male progéniture, based on the memory of a
250 Legal Anthropology Law in Traditional Societies 251
founding ancestor. The work of Legendre, which is much more Vol. 5 (Dakar, 1982), pp. 59-70. G. A. Kouassigan, ‘La nature
theoretical and complex, combining the history of law with psy juridique des droits fonciers coutumiers’, in ibid., p. 49 e t seqr, R.
choanalysis, is of considerable importance; see P. Legendre, Verdier, ‘Civilisations paysannes et traditions juridiques’, in
L 'in estim a b le objet de la transm ission. E tu d e su r le p rin cip e S y stè m e s fo n ciers à la vü le e t a u village, ed. R. Verdier and A.
généalogique en O cc id en t (Paris, Fayard, 1985, 408 pp.) and L e Rochegude (Paris, Harmattan, 1986), pp. 5-27. There are a
D o ssier o ccid en ta l d e la pa re n té (Paris, Fayard, 1988, 230 pp.). number of more readable, but also very usefid, works: R. Verdier,
On the prehistoric family see: C. Masset, ‘Préhistoire de la ‘Essai de socio-économie juridique de la terre dans les sociétés
famille’, in H isto ire de la fa m ille (op. cit., above), Vol. 1, pp. paysannes négro-afficaines traditionelles’, C ah iers d e l ’In stitu t de
78-97, very interesting and objective. On incest, a selection S cien ce économ ique appliqu ée, 1 (1955): 139-54; ‘Les problèmes de
includes: P. Moreau, ‘Plutarque, Augustin, Lévi-Strauss: prohibi la propriété privée et collective chez les peuples primitifs’, E tu des
tion de l’inceste et mariage préférentiel dans la Rome primitive’, d e d ro it co n tem porain (Paris, Cujas, 1963), pp. 105— 10; E. Le Roy,
R e v u e belge d e ph ilologie e t d ’histoire, 56, 1 (1978): 41—54, which ‘Caractères des droits fonciers coutumiers’, E ncyclopédie ju rid iq u e
considers hitherto unidentified problems; Fox, K in sh ip a n d d e l ’A friq u e , Vol. 5 (Dakar, 1982), pp 39-47; ‘Les modes d’acqui
M a rria g e , op. cit., above; and, very recendy, M. Godelier, sition et les preuves des droits fonciers coutumiers’, in ibid., pp.
‘Inceste: l’interdit originel, propos recueillis par G. Plessis- 71-81-, L e d ro it d e la terre en A friq u e (collective work, preface by J.
Pasternak’, L e M o n d e , 26 August 1987: 11-12. On the status of N. Hazard) (Paris, Maisonneuve & Larose, 1971, 175 pp.). G. A.
women see the comparative studies of the société Jean Bodin Kouassigan, L ’H o m m e e t la Terre (Paris, Berger-Levrault, 1978);
( Recueils d e la société J . B o d in , Vol. II, L a fe m m e (Brussels, D. Biebuyck, In trodu ction — A fric a n A g r a ria n S yste m s
Editions de la Librairie encyclopédique, 1959, 347 pp.). See also (Oxford/London, IAI and Oxford University Press, 1963), pp.
E. Evans-Pritchard, L a F em m e d a n s les sociétés p rim itiv e s (Paris, 1-64; E. J. Lampe, ‘Das Grundrecht des Eigentums in ethnolo-
PUF, 1971). On inheritance see M. Alliot, ‘Le droit des succes gischer Sicht’, in P ersônlichkeit, F am ilie, E ig en tu m , ed. E. J. Lampe
sions dans les Etats africains francophones’, R e v u e ju rid iq u e e t p o li (Opladen, 1987), pp. 291-305. On the land chief, the basic text
tique, In d ép en d a n ce e t C oopération , 4 (1972): 846-85, essential is: R. Verdier, “‘Chef de Terre” et “Terre du lignage”.
reading; also useful are: R. Verdier, ‘Essai de socio-économie Contribution à l’étude des systèmes de droit foncier négro-
juridique de la terre dans les sociétés paysannes négro-afficaines afficain’, in E tu d es d e d ro it africain e t d e d ro it m algache, ed. J.
traditionelles’, C ah iers de l ’In stitu t de Science économ ique appliqu ée, Poirier (Paris, Cujas, 1965), pp. 333-59. More difficult, yet indis
1 (1959): 139-54; J. Binet, ‘Le droit successorial chez les Ewe’, in pensable, is the large corpus of work by Le Roy, one of the main
E tu des d u d ro it africain et m algache, ed. J. Poirier (Paris, Cujas, contributors to the LAJP project. This research, begining in 1969,
1965), pp. 307-15 and, more recendy, an overview on inheri has a very strict methodology, mainly concerned with using
tance in Muslim countries: H é rite r en p a y s m u su lm an , ed. M. Gast matrixes to study African landholding systems in depth. First
(Paris, CNRS, 1987, 302 pp.). Finally the société J. Bodin orga there is an overview: ‘Démarche systémique et analyse matricielle
nized a congress (Budapest, 1990): L ’A c te à C au se de M o rt. des rapports de l’homme à la terre en Afrique noire. Lecture
épistémologique d’une pratique de l’anthropologie du droit’,
B L A J P , 3 (1981): 77-94. More detailed is: ‘Théorie, applications
145 Bibliography on landholding et exploitations d’une analyse matricielle des systèmes fonciers
As with kinship, the reader should approach the literature in a
négro-africains’ (unpublished, Paris, LAJP, 1970, 115 pp.); ‘Le
step-wise manner. First see: M. Godelier, ‘Economie’, in E lém ents
Système de répartition des terres - Modèle particulier d’une
d ’ethnologie , ed. R. Cresswell, Vol. 2 (Paris, A. Colin, 1975),
analyse matricielle des rapports de l’homme à la terre en Afrique
where landholding is directly treated; M. Bachelet, ‘Les titulaires
noire’ (unpublished, Paris, LAJP, 1973, 144 pp.); ‘Histoire des
des droits fonciers coutumiers’, E n cyclopédie ju rid iq u e de l ’A friq u e,
institutions d’Afrique noire’ (unpublished, Brazzaville, 1973), pp.
252 Legal Anthropology Law in Traditional Societies 253
167-85. ‘Les Etudes sur le droit de la terre en Afrique noire’, 2 N. Mahoney, ‘Contract and neighbourly exchange among the
vols (unpublished, Paris, LAJP, 1974 and 1975), contains a num Birwa of Botswana’, J o u rn a l o f A fric a n L a w , 21, 1 (1977): 40-65.
ber of contributions from Le Roy and other members of the LAJP Some earlier works are relevant to contract, but are often dated:
team with particular reference to landholding (see, in particular, M. Mauss, The G ift, F orm s a n d F u nction s o f E xchan ge in A rch a ic
‘La Terre et le Sacré - Enquête sur la dimension religieuse “tradi- S ocieties, trans. I. Connison (London, Roudedge & Kegan Paul,
tionelle” du système normatif des rapports de l’homme à la terre 1970). M a n u e l d'ethn ograph ie (Paris, Payot, 1947), pp. 149-54;
en Afrique noire’). See also E. Le Roy, ‘Matrices et espaces - T. Olawale Elias, L a N a tu re d u d ro it coutum ier africain (Paris,
contributions à une théorie des rapports entre l’homme et la terre Présence africaine, 1961), pp. 166-82, translated into English as
en Afrique noire’, B u lletin P rodu ction p a sto ra le e t S ociété, 13 The N a tu re o f A fric a n C u sto m a ry L a w (Manchester, Manchester
(1983): 89-97; E. Le Roy and E. Le Bris, ‘La question foncière University Press, 1956). From Maine’s A n c ie n t L a w onwards a
en Afrique noire. Esquisse d’une nouvelle problématique de la number of works contain developments in thinking regarding
question foncière en Afrique noire’, J L P , 20 (1982): 155-77. contract: R. Redfield, ‘Maine’s A n c ie n t L a w in the light of primi
There are also the following monographs: F Snyder, L 'é vo lu tio n tive societies’, The W estern P o litica l Q u a rterly, 3 (1950): 576 e t
d u d ro it fo n c ie r D io la de B a sse-C a sa m a n c e (thesis, University of seq .; E. A. Hoebel, ‘Status and contract in primitive law’, in C ross-
Paris I, 1973), which follows E. Le Roy’s analysis; A. N. Allott, cu ltu ra l U nderstan din g: E pistem ology in A n th ropology, ed. F. S. C.
‘Family property in West Africa: its juristic basis, control and Northom and H. H. Livingston (New York, Harper & Row,
enjoyment’, in F a m ily L a w in A s ia a n d A fric a , ed. J. N. D. 1964); L. Pospisil, K a p a u k u P a p u a n s a n d th eir L a w (New Haven,
Anderson (London, 1968), pp. 121-42; D. Ahouangun Fagla, CT, Yale University Press, Yale Publications in Anthropology,
‘Contribution à une approche du droit de la terre chez les Fon au 1958, 1963). A good overview of these developments is contained
Dahomey’, E tu d es su r le d ro it de la terre, op. cit. (1975), which also in R. Motta, ‘Statut et contrat: les catégories de Maine dans la lit
uses matrixes; D. Pokomy, ‘Le système foncier Haya’, ibid.; J. térature d’anthropologie juridique’ (unpublished, 1987, 25 pp.),
Bureau, ‘Note sur les droits fonciers éthiopiens’, E th n o g ra p h ie, 1 forthcoming (1988) in D ro its e t C ultures periodical.
(1982): 7-17; J.-P. Raison, ‘De la prééminance de l’usage du sol There are also monographs: J. Richardson, ‘Law and status
à l’emergence d’une question foncière’, dans S ystèm es fon ciers à la among the Kiowa Indians’, M on ograph s o f the A m eric a n
ville e t a u villa g e , ed. R. Verdier and A. Rochegude (Paris, E th n o lo g ica l S o cie ty, Vol. 1 (Augustin, New York, 1940); I. M.
Harmattan, 1986), pp. 27-51; N. Rouland, ‘Pour une lecture Lewis, ‘Clanship and contract in northern Somaliland’, A fric a , 29
anthropologique et interculturelle des systèmes fonciers’, D ro its, 1 (1959): 274-93; P. J. Bohannan and G. Dalton (eds),
(1985): 73-90, where Inuit and African attitudes to land are ‘Introduction’, in M a r k e ts in A fric a (Northwestern University
compared. Press, 1962); Y. P. Ghai, ‘Customary contracts and transactions
in Kenya’, in M. Gluckman (ed.), Ideas a n d Procedures in A fric a n
C u sto m a ry L a w (Oxford, Oxford University Press, 1969): I.
1 4 6 B ib lio g r a p h y o n c o n tr a c tu a l o b lig a tio n s
Contractual obligation still constitutes a litde-known area in legal Shapera, ‘Contract in Tswana law’, ibid.; E. Le Roy, ‘Le système
anthropology. One can only look forward to developments in this contractuel du droit traditionnel W olof, L a w in R u ra l A fric a , 22
area, one which is of particular interest to jurists. At present Le (1973): 45-56; Le Roy in A n th ropologie ju rid iq u e e t historique des
Roy is the main authority, unfortunately as yet unpublished, co n tra ts, op cit., also examines contractual obligations in tradi
though his work may be consulted at the LAJP: E. Le Roy, tional Tswana and Hausa law.
‘Anthropologie historique et juridique des contrats en Afrique The literature on guarantees is very sparse. There are two main
noire, en Grèce et à Rome’, D o c u m e n t pédagogiqu e no. 4 (unpub texts: A. Dorsinfang-Smets, ‘Les sûretés personelles dans les
lished, LAJP, Paris-Brazzaville, 1972-3, 90 pp.). There is also: sociétés dites archaïques’, R ecueils de la société J . B o d in p o u r l'h is
toire co m p a ra tiv e des in stitu tion s, 28, L es sûretés personelles , 1st part
254 Legal Anthropology
Table II.3.1 Societies valuing peace or violence makes, regarding violence? At present we can advance two such
factors.
Degree of political Number of societies Number of societies The first factor is family structure. K. F. and C. S. Otterbein
centralization valuing peace valuing violence have demonstrated a clear correlation between the frequency of
vengeance and societies where residence is male-orientated,
high 7 11 whether it be patrilocal, avunculocal, or virilocal. The correlation
low 13 20 is accentuated if we include polygyny. Conversely, the likelihood
of vengeance will be diminished in a monogamous society or a
Total 51 societies society practising uxorilocal, matrilocal, or neo-local residence.
T able II.3.2 Societies and vengeance
A further hypothesis currently enjoying favour is that since war
Existence of Absence of
is supposed to reinforce the internal cohesion of a society, the
vengeance vengeance
most warlike societies should also display a low level of vengeance
internally, amongst their constituent groups. Here again a study patrilocal and polygynous societies 11 4
of the same sample of societies reveals only a slight correlation polygynous or patrilocal societies 6 10
between these characteristics: the correlation applies only in the neither polygynous nor patrilocal 5 14
case of a warrior society which displays a high degree of central
. 9
ization in internal political organization. Societies displaying weak Total 50 societies
political authority show a high propensity for both vengeance and
war. Most human societies are organized on the principle of male
There are also convincing arguments linking ecological factors domination and warlike activities are usually a male province.
with violence. Thus Rappaport argues that if population When males of the same generation are brought together through
increases, whilst available territory remains static, this usually residence, communities bound by fraternal mutual interest are
generates conflicts ending in the violent dispossession of one clearly more coherent and quick to react through collective
group by the other. First, we need to explain why violence should revenge when one of their members is threatened. When brothers
be the preferred means of settling disputes of this kind; second, marry, they remain close and share the same living community.
there are many acephelous societies in which, as it happens, This residence-based unity is even stronger if these men are the
disputes concerning land-use are peacefully settled. offspring of polygynous marriages. In fact, in polygynous soci
These various theories are hardly satisfactory. Other theories eties, the marriage of sons is generally later than in monogamous
with wider explanatory potential exist. societies: half-brothers are thus educated together for longer,
We agree with S. Roberts’s view8 that levels of violence depend which may increase cohesion.10 We should add that cross-cultural
on the cultural values of a society: when these values accentuate comparisons demonstrate that if patrilocal residence is associated
individualism, competition and aggressivity, there is considerable with internal conflict, matrilocal residence is associated with
personal violence (as American society demonstrates). external conflict.
Furthermore, if there are high levels of personal violence within The second factor is determined by socioeconomic organiza
groups, this will also apply to the relations between the subgroups tion. Generally speaking, nomadic or semi-nomadic hunter-gath
of a society (as a number of societies in New Guinea demon erers favour the peaceful settlement of disputes, in contrast to
strate). However, these are no more than observations. Are there sedentary farming societies.
factors militating for or against the cultural choice a society Nomadic hunter-gatherers in fact display several traits encour
260 Legal Anthropology The Settlement o f Disputes 261
aging the peaceful settlement of disputes. First, disputes can arise behaviour of the culprit to the point of caricature. The Inuit have
only from family problems or access to perishable resources, singing contests to settle some disputes: the winner is not neces
whereas in sedentary farming societies there is a stronger identifi sarily the one who is in the right, but is the protagonist who can
cation of individuals or groups with territory and a tendency make his adversary lose face. These singing contests took place
towards the individual ownership of land, providing more oppor mainly in Arctic zones where the natural environment is more rig
tunities for conflict and favouring the development of aggressive orous and groups were smaller," underlining the importance of
tendencies. Furthermore a nomadic existence allows parties ecological factors in the choice of methods of settling disputes. In
involved in disputes to solve the problem by putting distance contrast, sedentary agricultural societies are more likely to use
between themselves rather than by confrontation. Ethnographic sanctions directed against the individual’s person or possessions.
observation shows that dispersion is the preferred solution if the We must be wary, here again, of oversimplifying the contrast
environment is not too hostile (a Bedouin proverb says: ‘To bring between nomadic and sedentary societies: violence also exists
our hearts closer, our tents should be further apart’). Avoidance is amongst nomads (murder is frequently encountered amongst the
practised by the Hazda of Tanzania, whilst the Kung bushmen of Bedouin and the Inuit), whilst agriculturalists do not by any
the Kalahari desert are primarily interested in avoiding the frag means resolve all conflict through the use of force. However, the
mentation of the group and favour the rapid settlement of dis propensity for violence is greater with the latter type of society
putes to prevent numbers declining to a critical threshold. Either than with the former.
way, peaceful settlement is the norm: if the environment permits The use of violence varies in another way: the size of vengeance
it there is dispersion; if not, the dispute is still settled peacefully to groups.
avoid the fragmentation of the group. Disputes tend to be settled
by the parties themselves, without the intervention of a third 148 The size o f vengeance groups
party. In contrast, intervention, displaying varying degrees of In some cases - admittedly very rare - vengeance does not exist.
coercion, is much more frequent amongst sedentary farming soci This has to do with the nature of groups rather than individuals.
eties; ostracism and dispersion are more rarely encountered, since Sometimes groups are not competent in this area and then the
they involve more serious consequences than in hunter-gatherer ‘vengeance-seeking group’ does not exist (there is a family group
societies. but it cannot avenge one of its members). Thus the Gamo
Hunter-gatherer societies depend to a greater extent on com (Ethiopia) are a ‘society without vengeance’; in situations which
munal organization: finding game, agreeing on the timing of might have involved vengeance, sanctions are applied by the
migration and itineraries, these all stem from collective decisions, whole community.
whereas agricultural labour, whilst it may also have a collective However, in most cases vengeance groups are encountered and
component, is less dependent on this factor. This imperative their composition is also coterminous with the confines within
explains why hunter-gatherer societies mainly engage in collective which vengeance operates. There is a rule which applies to all soci
hunting and food-sharing, effectively limiting conflict: sharing a eties in which vengeance is encountered, whatever their propensity
resource makes more sense than appropriating it. The vital for violence: vengeance can be practised only between groups, and
importance of integration within the group also explains why not within the same group.12 The risks of the splintering of the
sociopsychological sanctions based on shame or ridicule are group are too great. Thus the Massa (Cameroon-Chad) authorize
numerous and very efficient - blame, reprimand, mockery, tem only stick fights, only light injuries are sustained and this is unlike
porary exclusion. (The thief may also be given the name of a ly to unleash vengeance within the clan. The assegai may be used
stolen object, as amongst the Inuit, or people may refrain from between clans, vengeance resulting from the flow of blood. There
using the relevant kinship terms in address, resembling our own are further, specific limitations. Some of these relate to the behav
‘disowning’.) Amongst the Mbuti mime is used, exaggerating the iour of the parties in dispute. The group may decide that one of its
262 Legal Anthropology The Settlement o f Disputes 263
members is overly bellicose and disown him, irrespective of groups eschews this peaceful means of settlement, it need only
whether he is the offender or the offended party. Amongst the offer more than it has received, which is considered humiliating,
Inuit, the habitual offender or the perpetrator of serious offences and vengeance will ensue.
(such as witchcraft) is considered to be a menace, and his group We may also differentiate between non-judicable and judicable
and the whole community will decide to rid themselves of him. procedures. The spoken word has primacy in both, but each pos
Either he is ostracized (qivituk, a word designating abandonment, sesses different structures. We will examine each of these modes
synonymous with suicide . . .) or his community designates those in turn.
who will execute him, generally close kin of the offender - a judi
cious move guarding against subsequent vengeance.13 The size of
149 N o n - ju d ic a b l e p r o c e d u r e s
the group involved in vengeance varies from society to society. In
Non-judicable procedures involve debate between two or more
some cases the reference group is always the same, whether it be
parties, where the conflict is settled without a judge. They may be
an entire clan, a subclan, a lineage, or a lineage segment. In other
subdivided into two categories.
cases, the dimensions will vary as a function of the social distance
The first category describes situations in which the parties
between offender and offended: amongst the Bedouin, when the
resolve the conflict themselves: bilateral negotiation. This is often
murderer belongs to an enemy or foreign tribe, the whole of the
victim’s group is concerned; in the case of a tributary or ally, only encountered in very well-integrated communities, where interac
the blood relatives of the parties are involved. tion between individuals is highly developed. In varying degrees,
negotiation exists in all societies, either in the society as a whole
or at the level of one or more subgroups.
II SETTLING DISPUTES The second category describes situations where the interven
Any dispute, if it is to be resolved, passes through two stages14: tion of a third party in the debate is necessary if the dispute is to
first the protagonists select a settlement procedure and present be settled. This kind of intervention is most common in larger
evidence in support of their case; then a ruling is made, or a sanc societies or where the parties have little contact with each other,
tion applied. We must now enumerate the various procedures and or are already at too advanced a stage of conflict for bilateral
forms of evidence, and examine the way disputes are settled. negotiation to produce results. The intervention of a third party
may take several forms depending on whether this will play a
A: Typologies of procedures for the settling of disputes leading role or not. The minimal form is mediation: the mediator
There are a number of possible typologies, some which may cut does not impose a solution, he helps the parties to find one. With
across each other. The simplest classification consists in distin arbitration, by contrast, it is the arbitrator who arrives at a solu
guishing between those situations where there is recourse to vio tion, which he will propose to the parties involved, attempting to
lence controlled by rules (vindicatory system), those where convince them of its soundness, since the parties cannot be oblig
violence is absent, and those where violence is ritualized. The ed to follow these recommendations.
singing contests of the Inuit (east coast of Greenland) and those
of the Tiv (north-east Nigeria) belong to this third category, as do 150 J u d ic a b le p ro c e d u r e s
boxing contests or thumping sessions (tagba boz of New Guinea) In judicable procedures a third party intervenes as a judge in liti
and the buritila’ulo of the Trobriand islanders. In the latter cases, gation: his decision —the judgment - binds the parties; all the
two groups are involved in a dispute and reach the point where more forcefully in traditional societies, since appeal is rarely per
vengeance will ensue. Directed by a leader, one of the groups mitted. The existence of norms is a fundamental question. It
offers some food to the other; this act is reciprocated. If the two would be an error to associate their presence with judicable pro
gifts balance each other, the conflict is settled; if one of the cedures, and their absence with non-judicable procedures: law is
264 Legal Anthropology The Settlement o f Disputes 265
not confined to judgement; negotiation, mediation and arbitra 151 Elementary societies
tion are also legal entities. The real difference revolves around the In elementary societies, authority is entirely concentrated in kin
way these norms are used by parties in dispute: they are more ship structure. The Nuer (Sudan) are a case in point; they possess
likely to be imposed on parties in judicable procedures than in no legislative or legal authority. When two people from different
non-judicable procedures, where they may be applied, ignored, or social groups are in dispute, the settlement procedure will depend
modified. largely on their respective positions within kinship structures and
Judicable procedures prevail particularly in modem societies, age-classes, and the social distance separating their reference
but they are also encountered in traditional societies where differ groups. There are a number of alternatives: either the parties
accept the fixed tariffs agreed for injuries of this kind, tariffs
entiated political power is met with.
which are wholly reliant on bilateral negotiation, since no external
Differentiated political authority thus makes its presence felt, in
authority can impose such payments; or the aggrieved party, sup
justice, through judicable procedures. ported by kin, seizes the livestock of the other party. The latter
may remain passive, but if there is resistance, vengeance will
In investigating sociopolitical structures and dispute settlement
ensue. When the dispute concerns two people who are close kin
procedures, we may once again discern the operation of the
and live in the same village, mediation is more common.17
familiar principle of accumulation, already encountered in other
areas.,s The sociopolitical structure of a society determines the
mode of dispute settlement chosen, or the preference given to 152 Semi-elementary societies
some modes above others. On the basis of this principle, E. Le In semi-elementary societies, there is still no central authority, but
Roy has produced a classification which can be summarized in the duality of sources of law (myth and custom) is complemented
Table II.3.3.16 by a superior level in the mode of settlement of conflict: arbitra
tion is added to bilateral negotiation and mediation. The
Table II.3.3 The Le Roy classification Karivondo (Tanzania) furnish an example. Arbitration is prac
tised in conflict between clans, between subclans and between
members of subclans, when bilateral negotiations have failed.
Social structure Sources of law Mode of conflict
When successfully concluded, arbitration is followed by the pay
settlement ing of compensation in kind. In the case of damages, the injured
party’s clan negotiates with the clan of the person liable for dam
elementary myth vengeance; bilateral ages. In the event of failure to reach agreement, and in the
societies negotiation; mediation absence of any central authority, those elders in each clan who
have no direct interest in the conflict intervene as arbitrators and
semi-elementary myth; custom vengeance; bilateral attempt to find a solution acceptable to all parties. The solution
societies negotiation; mediation; cannot be imposed on the parties.
arbitration Mediation is practised in disputes between members of the
same extended family, a more restricted living community than
semi-complex myth; custom; laws vengeance; bilateral the clan or subclan, in which the payment of compensation could
societies negotiation; mediation; create profound rifts. The head of the family carries out various
arbitration; judgement sacrifices and rituals to wash the culprit clean. The habitual
offender is ostracized.
266 Legal Anthropology The Settlement o f Disputes 267
sacred nature: the facts adducedj the pledges made by the oath- age (children can give testimony; but it is accorded limited cre
swearer, these are all derived from the invisible powers which will dence; the child reaches adulthood through physiological changes
ensure that truth will out and the false witness and his guarantors or initiation ceremonies, which may or may not be concurrent);
be punished. Connotations of the sacred are a dominant charac gender (generally speaking, the testimony of a woman is consid
teristic of legal oaths in traditional societies, but these societies do ered inferior to that of a man); social standing and legal capacity
not hold a monopoly of them. In our own societies, not so long (the word of griots, smiths, captives, or freed slaves has less force
ago, the witnesses in a criminal case swore before God and an than that of free men). Testimony concerns facts and events, but
object symbolizing God (a crucifix). In antique Roman law, the it is not strictly speaking material proof, since it is often rein
sa cra m en tu m in rent2' - the most important acts of the ‘Law of the forced by an oath.
XII Tables’ - employs the same idea: the procedure does not A confession is a statement of guilt, either of the facts or behav
directly concern the matter around which the litigation turns, but iour imputed to the offender, or of those for which a culprit is
is centred on resolving two contradictory oaths (each sworn by being sought. Here again the invisible world is often invoked,
one party). The restitution of a thing to its rightful owner rests since confessions are often the result of ordeals or divinatory pro
only on the results of an investigation, in which one of the two cedures. In fact confessions are even less ‘the queen of proofs’ in
parties has perjured himself, calling down the wrath of God on to traditional societies than in our own, in so far as an innocent
the community, a wrath which can be avoided only by the sen party may plead guilty if he believes invisible forces will select
tencing of the guilty party. Once again the role of the invisible him, or if he thinks he may have committed the acts of which he
world is primordial. Material evidence follows a different logic, stands accused, without being conscious of the fact (whilst sleep
more closely resembling our own. ing or possessed).
Instrumental proof consists of the restitution of an object, but
155 M aterial evidence this bears no more than the appearance of material proof. To
begin with, the object is less a concrete reality than an extension
Material evidence includes that in fla g ra n te delicto and that of
of the giver. Second, the object is less important than the relation
investigations. Evidence in fla g ra n te delicto often results in the vic
ship between the donor and the recipient it symbolizes. The
tim taking the law into his own hands. However, if the conflict is
dowries of traditional societies reflect this thinking: the dowry
settled through a procedure involving a third party and the testi
mony of a witness, the testimony will be accepted only if the wit authenticates the marriage, not only serving as compensation
ness has declared himself to the guilty party at the time the wrong given to the bride’s family, but symbolizing the alliance between
was done. the respective partners’ family groups.
If fla g ra n te delicto does not apply and the testimony and ques Finally, written proof sometimes plays a sacred role. Most tra
tioning do not establish the truth, there will be an investigation, in ditional societies use only oral evidence. However, writing has
which material evidence will be sought. gradually appeared with Muslim and European colonizers.
Africans have often ascribed magical qualities to writing where
encountered. Many talismans are koranic inscriptions, kept in a
156 Combined form s o f evidence leather pouch worn around the neck. (It would be imprudent to
Combined forms of evidence are based on material proof, but describe this behaviour as infantile or ‘primitive’; we have only to
also incorporate symbolic or sacred elements and include testi reflect on the importance of the written word in our relations with
monies, confessions, instrumental proof and written evidence. bureaucracy.)
The credence given to the evidence of witnesses is directly related Whatever the evidence or proof brought to bear, it is geared to
to their social position: the higher this is, the more the testimony establishing what will be considered as truth. This must be sanc
is deemed to constitute proof. There are several relevant criteria: tioned by a ruling, one of the ways of ending a dispute.
270 Legal Anthropology The Settlement o f Disputes 271
C: T h e conclusion of disputes together in the communal house may decide that for a set period
By the conclusion of disputes we mean all behaviour and deci no one will talk to the trouble-maker. At Ammassalik (east coast
sions likely to achieve this objective, on a permanent or temporary of Greenland), someone who refuses to share the kill in a hunt is
basis. Broadly speaking there are two ways in which disputes may called ‘the greedy one’, which soon becomes an intolerable strain;
be brought to a close, depending on the freedom of action of the lesser offences are sanctioned by satirical songs. In some Inuit
parties involved. societies (Caribou; Iglulik; western Greenland Inuit) public con
The parties may settle the dispute themselves; this can be fessions are often resorted to: prompted by the shaman and the
achieved in a number of ways. Confrontation may be sidestepped community gathered before him, the guilty party progressively
through avoidance followed by reconciliation, or through bilateral admits to his faults, and recognizes the taboos he has trans
negotiation. On the other hand the parties may opt for, or accept, gressed.25
vengeance. Ostracism is a much more severe sanction, but may be graded
A third party may intervene and take control; the litigation and take a number of forms. Entire groups may disperse, or par
process is then met with a sanction, whose form and nature may ticular individuals be sometimes only temporarily excluded; the
vary widely. parties concerned may continue to live in the same community,
We have already considered bilateral negotiation22 and but take no part in any co-operative venture; they may be exclud
vengeance will be studied below.25 We will now deal with sanc ed from some group activities, and continue to participate in oth
tions which may follow litigation, and the avoidance of conflict. ers. Finally, permanent ostracism may be tantamount to physical,
as well as social, death; in some environments an individual aban
doned by his group cannot survive (Inuit).
157 Sanctions and conflict
There are three categories of sanction: purification, compensa
tion, punishment. 158 Avoidance and reconciliation
Purification in conjunction with sacrifice is normally associated Vengeance, negotiation or the intervention of a third party are all
with the settlement of conflict involving two individuals from the procedures which involve some degree of confrontation between
same group. It may also be used in conjunction with the imposi the parties.
tion of other sanctions. However, other means may be used: avoidance and reconcilia
Reparation and compensation, which may take a number of tion. Rather than entering into conflict and then becoming
forms,24 should be made to the beneficiaries, under threat of an involved in a dispute, the parties choose to terminate their rela
injunction which would accentuate the gravity of the offence. tionship; if, subsequently, their common interests suffer too much
Punishments or sentences are graded according to the gravity from such a break, and if there is no other alternative open to
of the offence: they may be psychological, corporal (mutilations), them, they may renew their relationship through ritualized recon
corporal with restriction placed on freedom of movement, restric ciliation. An inquiry carried out amongst very different popula
tions of freedom of movement, and, in extreme cases, permanent tions (the horticulturist Jalé of New Guinea; Christianized
ostracism or capital punishment. Traditional societies make con farmers of Fiji, in the South Pacific; Muslim women from Jeddah
siderable use of psychological sanctions and ostracism, which we in Saudi Arabia) has revealed in all three areas the practice of
must now briefly discuss. avoidance and reconciliation, which is thus encountered in a wide
Psychological sanctions tend to make the culprit ashamed of his variety of settings.26
actions, through blame or ridicule. The culprit may be subjected In the three cases, the relationships between the parties are too
to public haranguing' (New Guinea) or indirect pressure. important in their own right, and for the community as a whole,
Amongst the Inuit Nunamiut (Alaska) the community gathered to be terminated. The group thus puts pressure on the parties to
272 Legal Anthropology The Settlement o f Disputes 273
achieve reconciliation. The reconciliation ritual takes various far from characterizing thç first human societies or ‘primitive soci
forms. However, in each case, the ritual symbolizes the impor eties’ (the two are deemed synonymous), this condition of perpet
tance of renewing the relationship: Arab women from Jeddah, ual violence is, rather, a fiction invented subsequent to the birth
whose interaction consists of visits and the exchange of gifts, are of the state, to legitimate the monopoly of justice and the use of
reconciled in a meeting where presents are exchanged; amongst force which it deems essential. Sonne’s study of the Greenland
the Jalé, when a dispute is amongst agnates within the patrilin- Inuit29 would tend to confirm this view. Sonne makes a clear dis
eage, there is an exchange of pigs accompanied by food, as is the tinction between the vengeance practised before colonization and
normal practice between kin; the Fijians, a very inegalitarian soci Christianization, and its portrayal by missionaries and representa
ety, organize an i soro ceremony, in the course of which the tives of the Danish state. In its traditional form, vengeance could
offender demonstrates extreme humility towards the person he take place only between individuals from different groups, and
has offended. With his head lowered, and silent, he remains seat usually ended with the first death in revenge. Ethnographic evi
ed in a corner of the victim’s house, whilst an intermediary offers dence reveals that it was not often resorted to and that these soci
on his behalf a whale’s tooth as a request for forgiveness. The eties severely limited the use of violence. Nevertheless, vengeance
acceptance of this present symbolizes reconciliation. However, conflicted too much with the ideology of missionaries and repre
not all conflicts end in such a peaceful manner. sentatives of the Danish state for it to escape condemnation.
These authorities inculcated in the Inuit an idea of vengeance
Ill VINDICATORY SYSTEMS AND PENAL SYSTEMS
very different from historical reality, one which bears a resem
Historically, most writers have condemned vengeance. In the sev blance to Girard’s theory: before colonization, the Inuit were held
enteenth century, Grotius distinguished between nature and nat to live in perpetual fear of acts of vengeance passing from genera
ural law; that is, jurisprudence founded on natural laws dictated tion to generation, and even involving members of the same fami
by reason. To nature he consigned animals, the non-reasonable ly. Somewhat naturally, the Inuit expressed pleasure that they
aspects of man and vengeance, ‘that natural principle which man were no longer savages when confronted with this misrepresenta
tion of their history.
has in common with animals, from which anger is bom’. The
state, in ending vengeance, expresses the victory of reason over This example is symptomatic of a more generalized misrepre
animal instincts. In the same period, Spinoza wrote that sentation. Recent work in legal anthropology, notably that
vengeance was a very blunt instrument with which to setde dis inspired by Verdier, exposes the erroneous assumptions of evolu
putes: by placing matters in the hands of the state, disputes could tionary theories. To begin with, vengeance is not a savage
be settled with much less expense, the most reasonable way to instinct; its operation is, on the contrary, subject to very elaborate
proceed. Both these cases represent an evolutionist approach, mechanisms: the vindicatory system. Secondly, punishment is not
condemning vengeance and enhancing the role of the state. Jurists the end-product of a continuum whose terminus a quo begins with
also subscribe to this view.27 The philosopher R. Girard has vengeance: punishment and vengeance coexist in all societies, tra
ditional or modem.
recently adopted the same standpoint. Girard writes that in primi
We will now develop these two points.
tive societies, bloody vengeance represents the unleashing of vio
lence, which can be transmitted from generation to generation
and progressively invades ways of life.28 It is only with the appear a : t h e v in d ic a t o r y s y s t e m
ance of truly legal institutions, dependent on the state and acting Ethnographic evidence allows us to attribute a number of general
as third parties for the litigants, that, through sacrifice, a proce characteristics to the vindicatory system, observable in many soci
dure which diverts and extinguishes vengeance, violence is finally eties. The intensity with which vengeance is practised, however,
contained. In fact we may wonder, as does R. Verdier, whether, will vary from society to society. Furthermore, since it is based on
274 Legal Anthropology The Settlement o f Disputes 275
exchange, vengeance must ultimately be brought to a close, usu from this equivalence. On the one hand, the injury is viewed
ally taking the form of the reconciliation of antagonistic groups. objectively: the responsibility of the perpetrator of the damage,
motive, premeditation, extenuating circumstances, all these are
less important than the imperative of restitution for the offence.
159 Verdier’s theory o f exchange On the other hand, however, the social status of the protagonists
Exchange is central to much anthropological analysis. is taken into account, based on a number of criteria including the
Verdier applies the same analytical framework to vengeance30: social distance which separates the offender and the victim, and
far from being synonymous with anarchic aggressivity, it consti the age, sex and rank of the victim. Furthermore, vengeance is
tutes aimed less at destroying life than ensuring it is respected:
a bilateral exchange relationship, resulting from the reversion vengeance is considered imperative, it is a response to an action
of the offence and a permutation of the roles of offender and which has threatened the very existence of the victim’s group.
victim. Since the offence provokes a counter-offence, the initial Vengeance is as essential to the reproduction of the group as is
situation is inverted, the victim becomes offender and vice marriage-exchange. The beliefs which it underpins demonstrate
versa. . . . In the same way as incest prohibitions are based on a this: blood and honour are often associated (in Calabria and
law of exogamy which governs marriage-exchange, so Constantine, honour is said to reside in blood). Blood expresses
vengeance is based on a system of exchange which governs the the continuity of generations, honour confers identity on a group
vindicatory system; vengeance is no longer, therefore, an in distinguishing it from other groups. The link between life and
instinct suppressed or controlled by law, but becomes a norm vengeance even carries over into the invisible world: in many soci
sanctified by society.31 eties, the soul of the unavenged dead is condemned to wander; it
cannot achieve the status of ancestor, which prevents it playing a
As we have seen,32 vengeance is not practised within the same propitiatory role for the living (amongst the Bedouin, transformed
group: offender and victim have recourse to it only if they belong into an owl, it perpetually demands to drink the blood of the
to separate social units. Verdier believes that vengeance is both an offender).
ethic and a code. C o d e s a n d ritu als o f vengeance'. Verdier believes that vengeance
The ethics o f ven g ea n ce : the operation of the vindicatory system
lies between identity and hostility; it is inappropriate when the
rests on a number of values shared by the participatory groups. social distance is too small,33 but when the distance is too great,
These can be summed up in two notions: the offence places the war is the outcome. The tie created by vengeance is bom of
vindicatory groups in each other’s debt: the debt for an offence is adverse circumstances. In the temporary absence of peace,
measured by a human life. vengeance should not provoke total war, given that its purpose is
An offence directed against an individual extends to the rest of to preserve groups and not to destroy them: it follows a code,
the group, placing it in a relationship of exchange with the offend expressed by prescriptions and rites. On the one hand, not all
er and his group: the latter have contracted a debt to the victim offences necessarily call down vengeance. On the other hand, the
and his group; a corollary of this debt is the obligation of timing and extent of vengeance can be limited, allowing the
vengeance weighing on the victim and his group. offender to escape and terminate the vengeance process (amongst
Exchange is thus established through debt. The vocabulary of the Moundang of Chad a murder victim’s clan has only two days
vengeance confirms this. Amongst the Beti, those offended to kill the murderer or one of his brothers; once this period has
should ‘return the injury’ (v u d a n ), the offenders should ‘compen expired, divination is resorted to, identifying who should atone
sate’ them (k u n ). The Kabyle use the word ertal for murder, for the crime; two days later, conciliation and compensation are
meaning ‘lending a body’: homicide creates a blood-debt, which
used and bring vengeance to a close). Whilst vengeance is never a
vengeance repays in returning a corpse. Two consequences flow
free agent, its dimensions vary from society to society.
276 Legal Anthropology The Settlement o f Disputes 277
160 The propensity for vengeance: examples resentative cannot kill close agnatic kin guilty of the murder of
Some societies do not use vengeance. However, ethnographic evi another agnate (a pre-Islamic poem says: ‘My own kin will kill my
dence reveals that vengeance is very often encountered, and usu brother ’Omayna; if I let my arrow fly, it is me it will strike’).
ally subjected to some form of control. Vengeance may Third, the intensity of the vengeance will be tempered depending
sometimes be taken to excess. We will explore three possibilities - on the degree of proximity of the murderer’s kin.34
absence of vengeance, controlled vengeance, excessive vengeance Excessive vengeance', for the Abkhaze (Caucasus), ‘blood does
- and illustrate them with a few examples. not age’: vengeance is transmitted from generation to generation.
Absence of vengeance', the Gamo (Ethiopia) consider vengeance This is an extremely violent society, to the point where vengeance
too great a threat for society to run the risk of giving it its head. If becomes a vendetta, and the vindicatory system degenerates into
two individuals are involved in a dispute, they will appear, in interminable conflicts.35 Even minor offences can lead to murder,
turn, before referees and district assemblies, who may ostracize and a chain of homicides follows in reprisal. Compensation is
the offender. In the case of a murder involving two lineages, their rare, and is considered to be an undignified end to a conflict; the
members should avoid each other until the murderer, who may Abkhaze say: ‘We will not bargain with the blood of our brothers.’
now be executed by any person, takes flight (this is reminiscent of Other societies give equal prominence to violence. The tombs
the homo sacer of ancient Roman law). He may return at some of the Moussey (Cameroon) take the form of a tumulus sur
future date, if his victim’s kin agree - Gamo assemblies attempt to rounded with tree-trunks representing the number of men and
achieve reconciliations of this kind. An animal is sacrificed and animals killed by the deceased; a man who dies without having
then dismembered. The murderer and the victim’s next of kin performed such exploits is given the same type of tomb as a
pass through a hole made in the skin of the animal, symbolizing woman or a child. Amongst the Ossetians (Caucasus), murder
the new ordering of their lives. may be a prerequisite of marriage. A father-in-law always asks his
Controlled vengeance: this is the most ffequendy encountered prospective son-in-law the ritual question: ‘Whom have you killed
form. Thus amongst the Jordanian Bedouin, vengeance occurs to deserve the hand of my daughter?’
only in the case of rape and serious and intentional bodily harm. This last set of examples demonstrates that vengeance is not
Even in cases such as this, the parties can always ask for a Qâdi (a without its attendant risks: if too much importance is attached to
referee). However, in cases where this may not be requested or it, excesses may ensue which will threaten the whole society. Yet,
may not produce a result, compensation may be resorted to, normally, it produces a peaceful settlement.
either in the short or long term. Quite often, in addition to paying
a blood-price, the offender’s group will present a young girl, 161 The consequences o f vengeance
closely related to the murderer, to the victim’s group. She will The notion of exchange, on which vengeance is based, may break
marry the son, the brother, or the father of the deceased, to pro down. In such cases vengeance has a perverse effect, leading to an
duce a male child and hence make good the loss. She may only unleashing of violence which threatens rather than maintains the
consider herself free when this child has reached the age where he groups involved. This may be caused by a number of different
may carry arms. In cases where vengeance cannot be avoided by factors. There may be a disagreement between the parties about
arbitration or compensation, it occurs, but follows precise rules. the acts of vengeance exchanged: these acts may appear excessive
First there must be parity between the person to be avenged and to those on whom they are visited, prompting an even stronger
the person on whom vengeance will be wrought: the blood of a reaction; the original offender may not accept that the violence he
free man cannot be avenged by killing the slave who has assassi has suffered is a consequence of his actions. In other cases, very
nated him, but only by killing his master. Second, the closer the frequent in Mediterranean societies (Corsica), competition is
kinship between the two adversaries, the less important the part stronger than exchange and leads to the exacerbation of a sense of
played by collective responsibility, and vice versa: the blood rep
278 Legal Anthropology The Settlement o f Disputes 279
honour: vengeance becomes a vendetta, transmitted from genera Compensation is often used to bring vengeance to a conclu
tion to generation, until even the protagonists forget the original sion. It is, according to Verdier’s definition, a ‘procedure proper
cause of the dispute. This is difficult to distinguish from a state of to vindicatory exchange whereby a counter-gift equivalent to the
war. Other factors may throw the system out of equilibrium. The offence takes the place of the counter-offence’. Jurists labouring
first concerns the parity which, ideally, exists between the vindica beneath evolutionist preconceptions often describe compensation
tory groups. Exchange is based on the premise that a community as a ‘stage’ between private vengeance and state punishment,
of interest exists. When one group is much bigger than the other, developments associated with private property and money or
vengeance quickly involves the suppression of one group: reci money equivalents. In fact, as we will see,36 vengeance does not
procity breaks down, often accentuating the division of society precede punishment; the two coexist. Furthermore, comparing
into dominant and dominated. The second factor concerns accul compensation with the purchase of a life tends to discredit this
turation. When a social structure is weakened, either through the practice. A life is not bought: goods are given, symbolizing life, in
pace of change or through territorial modifications imposed by exchange for another life. As Verdier has rightly observed, this is a
state authority, the unleashing of violence may follow, accelerat similar mechanism to the dowry: here again, the dowry does not
ing social decomposition (as in the case of the Kaingang Indians represent the cost of a wife. The similarity between the price of
of Brazil, and the Ik of Central Africa recently studied by blood and the dowry of a wife can be clearly demonstrated: the
Turnbull). same term may be used both for compensation and for a dowry,
These various examples, however, are pathological cases of the the same goods may feature in both (amongst the Maenge, the
vindicatory system and are atypical as regards its normal func term kuru is used to describe both a ‘head’, the life which must be
tioning. In principle, vengeance should not engender excesses of avenged, and the collection of precious goods handed over to the
violence, still less lead to its indefinite perpetuation. Several fiancée’s family before marriage). Compensation may consist of
methods may be used to bring violence to an end. the gift of a woman. Finally, compensation entails not merely the
The redress of a wrongful injury consists, for the offender’s end of hostilities, but the beginning of an alliance. This alliance is
group, of restitution for this injury to the victim’s group. The accompanied by rituals which are centred on sacrifices. The latter
offender may carry this out himself. Amongst the Ossetians have a symbolic value.37 Compensation, concretized by a gift of
(Caucasus), the murderer may be taken as an adopted child into life, expresses the desire for life to triumph over death in bringing
the family of the person he has killed. He may also visit the tomb an end to vengeance. Animal sacrifice, offered by the debtor
of the deceased and offer himself to his victim: he is then forgiven group involved in compensation, is a symbolic translation of the
by the victim’s son who symbolically restores him to life. idea that life springs from death. Thus amongst the Moundang,
Amongst the Tchouktche (Siberia), the murderer’s family may the murderer’s family, prior to compensation, brings the ‘ox of
deliver the murderer to the victim’s family: he will be treated as a the wound’ to the riverside. The ox is sacrificed and the lineage
slave and become the husband of the widow and the father of her chiefs plunge their hands into its blood as a gesture of reconcilia
children. tion. Excepting those cases where the vindicatory system breaks
Vengeance can also be brought to an end through the interven down, vengeance bears little resemblance to the unleashing of
tion of mediators: often these are women (amongst the Maengue mayhem by which it is often characterized. Neither is it, as we
of New Guinea the fight following a homicide should cease if a will see, an ‘archaic’ precursor of punishment.
universally respected woman intervenes and tips water over a
blazing torch, whilst intoning sacred formulas of reconciliation).
In monarchies the king may intervene (amongst the Nyamwezi, B: Punishment and vengeance: a synchronic approach
vindicatory groups may ask the king to end the conflict; our own Systems involving vengeance and punishment differ in several
medieval asseurement was similar). respects, but they do not appear in chronological succession.
280 Legal Anthropology The Settlement o f Disputes 281
162 T h e d is t in c tiv e tr a its o f v e n g e a n c e a n d p u n is h m e n t latter demonstrates the integration of vindicatory groups. Despite
Since the eighteenth century the retributive nature of punishment their differences, both these systems may nevertheless coexist in
has been called into question. The notion that the punishment the same society.
inflicted on the guilty party must be commensurate with the
injury suffered by the victim has come to be viewed as increasing 163 C o e x is te n c e o f v e n g e a n c e a n d p u n is h m e n t
ly absurd (the abolition of the death penalty is an a-posteriori It would be difficult to deny that the history of modem societies
consequence of this evolution in thought). Henceforth punish traces the progress of state-directed punishment to the detriment
ment had to consider not only the injury suffered by the victim, of vengeance. However, historical and ethnographic evidence
but also the relationship between the criminal and the crime, the clearly demonstrate that there is no necessary chronological link
extent of the criminal’s responsibility and the attendant reaction between vengeance, compensation and punishment. In the demo
of society. The victim thus surrendered to society, as represented cratic Athenian city, murder, depending on the circumstances in
by the agents of the state, whether it was a monarchy (absolutism which it was committed, might involve the process of vengeance,
prohibited duelling) or a democracy. In the French system of payment of compensation, or public prosecution. In Rome, until
criminal justice, the plaintiff and the state join ranks against the the end of the second century BC, crim en designated only threats to
criminal, but the state enjoys a dominant role. The magistrates the sovereignty of the city. Adultery, rape, incest and murder were
representing the plaintiff are said to be du p a rq u e t (from the floor) no more than private offences met with sanctions in which punish
because, theoretically, they should be on the same level as plain ment and vengeance were combined: the aggrieved party had
tiff and plaintiff’s counsel. However, in reality, the procureur [pub recourse to a tribunal which, in the most serious cases, pro
lic prosecutor, district attorney] dominates them and sits on the nounced an a d d ictio through which the guilty party was handed
dais with the judges (the accused is of course also in a higher over to the petitioner. Throughout the republic, the appeal to tri
position than plaintiff and plaintiffs counsel, but in this case only bunals and vengeance could operate concurrently: the parties were
to be better seen by the public). Development of the notion of assignees of their groups, who attempted to avenge each other
punishment proves we are concerned less with retribution than through legal proceedings. Only under the empire, with the con
with reparation; after the extent of the criminal’s responsibility solidation and centralization of the state, did the system of crimi
has been established, the representatives of the state cut the crim nal justice achieve dominance: Seneca, in common with the
inal off from society, either by elimination (the death penalty is nineteenth- and twentieth-century evolutionists, reduced vengeance
applied) or through incarceration, for a shorter or longer period,
to quasi-savage status. He placed it between civic humanity and
or in threatening a deprivation of liberty (suspended sentence). In animal nature, suitable only for barbarians, women and young
all these cases, the idea of punishment differs from vengeance, children.38 Under very different skies we may observe a similar
which is based on exchange and reciprocity. This thinking, reveal coexistence between different systems. Thus amongst the Prairie
ing a low level of integration between the group and its individual Indians (North America), some murders lead to vengeance, others
members, is not confined to modern societies. Ethnographic evi to compensation. Tribal leaders consider that some crimes involve
dence reveals that traditional societies may also consider that an society as a whole (mainly rebellion).
individual has transgressed an important norm and is behaving in We may thus both state that a penal system exists in tradidonal
a dangerous manner (this is particularly the case with reoffend societies and that punishment is not necessarily to be idendfied
ers). The preferred solution is not the application of physical with the existence of the state, and also that vengeance may be
strength (vengeance), but isolation or elimination (penal system),
encountered in modem states where a penal system is the prevalent
whether the sanction emanates from humankind or the gods. form of justice.
Punishment and vengeance can thus in essence be differentiat The existence of punishment is considered necessary in so far
ed; the former separates the individual from society, whereas the as an individual or a group may commit acts which are not only
282 Legal Anthropology The Settlement o f Disputes 283
considered to cause injury to other individuals or groups, but We find ourselves repeating, in the settling of disputes, the
which, through their gravity or repeated occurrence, threaten statement made relating to other important areas of law. The dif
society as a whole. Myth often refers to transgressions of this ference between traditional societies and modem societies does
kind: a hero attempts to reverse the order of the creator and is not lie in the constituent elements of these systems: vengeance
brought down to subhuman level. In the visible world, order is re and punishment can coexist. Vengeance is not the sole province
established by purification sacrifices, the reintegration of the cul of traditional societies, neither do modem societies have a
prit, or his expulsion. Modem penal systems employ analogous monopoly over punishment. However, in their more developed
procedures. The penal process employs a judicial dramaturgy forms, societies emphasize one model more than the other.
reminiscent of both sacrifice and purification; the aim of punish Traditional societies, fully conscious and committed as they are
ment is to chastise offenders, cut them off from society, and even to their sociological pluralism, settle disputes by articulating rela
tually readmit them. Likewise the disappearance of vengeance is tionships between groups, through vengeance. By way of contrast,
not necessarily the corollary of centralization and specialization of modern societies negate the group and isolate the individual,
political power, whether it takes the form of chiefdom, kingdom, directly confronting him or her with the state: they settle disputes
or empire. For the Moundang, the institution of divine monarchy through punishment, both a measure of the ties and a diminishing
did not abolish clan justice. In the early days of the Roman of the ties binding the individual to a wider society, where the
republic, the creation of the civitas and its own system of justice state is the sole arbiter.
did not occasion the demise of the internal justice of the gentes
and the vengeance associated with it.
But what are we to make of the concentration of power as NOTES
revealed in the modern state? Whilst it would appear that the 1 See above, nos 25-7, 49-50, 56-7.
modem state does not completely abolish vengeance, the process 2 For a definition of the concepts of dispute, see ‘Conflit’,
of consolidation does lead to the weakening of vengeance, and, in Dictionnaire encyclopédique de théorie et de sociologie du droit, ed.
like manner, the waning of the state resuscitates vengeance (the A. J. Arnaud (Paris, LGDJ, 1988), p. 57.
declining power of the Carolingian royal house was one of the 3 See D. Szabo, ‘Agression, violence et systèmes socio-culturels:
causes of the spread of private wars in the feudal era). Vengeance essai de typologie’, Revue de sciences criminelles (1976): 383 et
no longer pits groups against each other, as in the classic vindica seq.
tory system, but individuals: in other words, vengeance no longer 4 See F. Boulan, ‘Violence et société’, RRJ, 3 (1981): 342-52.
appears as a process which is an integral part of social structure. It 5 See S. Roberts, Order and Dispute. An Introduction to Legal
can achieve expression both outside and within law. Outside: self- Anthropology (Harmondsworth, Penguin, 1979), p. 54.
defence, save in specific cases where this is considered legitimate, 6 See K. F. Otterbein and C. S. Otterbein, ‘An eye for an eye, a
is in principle prohibited; in practice juries are found to be very tooth for a tooth: a cross-cultural study of feuding’, American
indulgent on this matter. Inside: as M. Delmas-Marty has com Anthropologist, 67 (1965): 1470-82. See also K. F. Otterbein,
mented,39 the influence of vengeance is apparent in the handling ‘Internal war: a cross-cultural study’, American Anthropologist,
of assault and battery in the French penal code. Punishment for 70-2 (1968): 277-89.
this offence in fact varies considerably (from one month in prison 7 See Otterbein and Otterbein, ‘Eye for an eye’, op. cit., p.
to ten years’ hard labour), and these variations can be accounted 1476.
for less in the crime committed (to what extent has the offender 8 See Roberts, Order and Dispute, op. cit., p. 157.
premeditated and sought the consequences of the act?) than the 9 After Otterbein and Otterbein, ‘Eye for an eye’, op. cit., p.
result (the nature and gravity of the injuries inflicted): here we 1475.
may discern an objective appraisal of the injury, one of the char 10 As Roberts has noted (Order and Dispute, op. cit., p. 159), this
acteristics of vengeance.40 theory leaves unanswered questions. These societies with male
284 Legal Anthropology The Settlement o f Disputes 285
residence also contain a high degree of violence between indi 21 See the developments described by J. Gaudemet, In stitu tion s
viduals from the same group, whereas, in as much as the d e l ’A n tiq u ité (Paris, Sirey, 1967), pp. 407—12.
propensity for intergroup vengeance can be accounted for by 22 See above, no. 149.
the high degree of internal solidarity of each of these groups, 23 See below, nos 159-61.
one would anticipate that individual groups would setde their 24 See above, no. 141.
internal conflicts peacefully. . . . We may add that cross-cultur 25 On psychological sanctions amongst the Inuit, cf. Rouland,
al comparisons indicate that if patrilocal residence is associated ‘Les modes juridiques’, op. cit., pp. 37-47.
with internal conflict, matrilocal residence is associated with 26 See K. F. Koch, S. Altorfd, A. Amo and L. Hickson, ‘Ritual
external conflict. Further, E. A. Hoebel (‘Vengeance’, D C , reconciliation and the obviation of grievances: a comparative
15-16 (1988): 160-70) disagrees with the way the Otterbeins study in the ethnography of law’, E th n ology, 16, 3 (1977):
handled their data and casts doubts on their conclusions. 269-83.
11 See N. Rouland, ‘Les modes juridiques de solutions des con 27 The following two descriptions, similar in content, if not in
flits chez les Inuit’, E tu d es In u it , 3 (1979): 96-101. chronology, may be usefully compared. The first, by A.
12 See R. Verdier, ‘Le système vindicatoire: esquisse théorique’, Esmein, a renowned legal historian, was written in 1892; the
in L a V engeance, ed. R. Verdier, 4 vols (Paris, Cujas, 1980-4), second in 1979 by two civilians, A. Weill and F. Terré.
Vol. 1, pp. 20-2. In our own societies, does the horror of civil
war, often considered as worse than war against a foreign Penal law (in the later Roman Empire) . . . was deficient in a
country, not stem from the same idea? number of respects. First, amidst a very advanced civilization,
13 See Rouland, ‘Les modes juridiques’, op. cit., pp. 70-5. it had conserved, amongst other features, primitive ideas con
14 The settlement of disputes is not always synonymous with cerning the control of human behaviour. It is a well-known fact
their conclusion, despite ideas to the contrary: the dispute that in human societies the repression of crime is, in the first
may continue or change form even after a decision has been instance, left to private vengeance, but that in most cases
taken which was intended to end it (see above, no. 50). reprisals are avoided, by means of financial compensation.
15 See above, nos 99, 126, 133. Subsequendy, through custom or law, compensation becomes
16 See E. Le Roy, ‘Introduction aux institutions politiques obligatory. The victim of the crime has only one resort, that of
africaines’ (unpublished), document pédagogique no. 2 (Paris, demanding payment, and obtains, to this effect, recourse to a
LAJP, 1975-6), pp. 148-67. court of law. (A. Esmein, C ours élém entaire d ’H istoire d u d ro it
17 For a description of this mediation process, see E. E. Evans- fra n ç a is , 2nd edn (Paris, Sirey, 1912), p. 36)
Pritchard, ‘The Nuer of southern Sudan’, in A fric a n P o litica l
S yste m s, ed. M. Fortes and E. E. Evans-Pritchard (London, One of the main purposes of the state is the maintenance of
1940). order in society: the state should intervene in disputes between
18 H. Lévy-Bruhl, ‘La preuve judiciaire chez les “primitifs”’, in individuals, hence the existence of public justice. This state
R ecueils de la société J . B o d in p o u r l ’histoire c o m p a ra tiv e des in sti function was not immediately recognized. Amongst primitive
tu tio n s, 18, ‘La Preuve’, Part 3 (Brussels, Editions de la civilizations, the injured party exercised a right of vengeance,
Librairie encyclopédique, 1963), p. 5. abetted by the clan. Private justice followed on from vengeance,
19 See J. Poirier, ‘La preuve judiciaire dans les droits coutumiers the parties agreeing to submit the dispute to a referee. . . . The
de l’Afrique noire’, in ibid., pp. 37-57. replacement of the private referee by state tribunals involved the
20 See E. Rau, ‘Le juge et le sorcier’, E tu d es africaines (1957): reinforcement of state power. (A. Weill and F. Terré, D ro it civil:
304-19; (1958): 181-206; which cites a number of decisions In trodu ction générale (Paris, Dalloz, 1979), pp. 205-6)
concerning sorcery.
286 Legal Anthropology The Settlement o f Disputes 287
Amongst the many general works on the settlement of disputes Interesting examples of vengeance may be found in the collec
in a variety of societies (modem and traditional), see: L a w a n d tion L a Vengeance, op. cit., above; G. Charachidze, T ypes de
W arfare: S tu d ie s in th e A n th ro p o lo g y o f C on flict , ed. P. Bohannan
v e n d e tta a u C a u ca u se, Vol. 2 (Paris, Cujas, 1980), pp. 83-105,
(Austin, TX and London, University of Texas Press, 1967, 441 furnishes three examples of societies in the same geographical
pp.); M. Gluckman, Politics, L a w a n d R itu a l in T rib a l S o cie ty area, but very different in the importance they attach to
(Oxford, Blackwell, 1971, 339 pp.); The D isp u tin g Process: L a w in vengeance; see also: J. Chelhod, E quilibre e t p a rité dan s la
T en Societies, ed. L. Nadder and H. F. Todd Jr (New York,
ven g ea n ce d u sa n g ch ez les B édou in s de J o rd a n ie, Vol. I (Paris,
Columbia University Press, 1978, 372 pp.).
Cujas, 1980), pp. 124—43; J. Bureau, U ne société sans vengeance: le
We will now turn to problems more closely related to this chap
ca s des G a m o d ’E th io p ie, Vol. 1 (Paris, Cujas, 1980), pp. 213-14;
ter. On warfare: M. R. Davie’s now outdated work, The E v o lu tio n
N. Rouland, ‘Les modes juridiques de solutions des conflits chez
o f W a r: a S tu d y erf its R ole in P rim itiv e S ocieties (New Haven, CT,
les Inuit’, E tu des In u it, 3 (1979): 1-171; P. F. Moreau, ‘La
1929), linked warfare with scarce resources. P. Clastres, on the
other hand, concentrates on political factors in Recherches vengeance dans le droit naturel et dans le droit de la nature’, in
L a V engeance, op. cit., Vol. 4, pp. 153-7, shows how vengeance
d ’A n th ro p o lo g ie p o litiq u e (Paris, Le Seuil, 1980), pp. 171-207,
209-48; A. Adler, ‘La Guerre et l’état primitif, in L ’E sp rit des lois has been consistently presented negatively in our own era (see B.
sa u va g es, ed. M. Abensour (Paris, Le Seuil, 1987), pp. 95-114.
Sonne’s article, ‘The ideology and practice of blood feuds in East
There is also an overview, already dated: A. Dorsinfang-Smet, and West Greenland’, E tu des In u it, 6, 2 (1982): 21-50). Seneca is
‘La sauvegarde de la paix dans le monde dit archaïque’, R ecueils also dismissive of vengeance: cf. Y. Thomas, ‘Se venger au
de la société J . B o d in p o u r l ’histoire co m p a ra tiv e des in stitu tion s, Vol. Forum. Solidarité familiale et procès criminel à Rome’, in L a
14, L a P a ix (Brussels, 1962), pp. 99-121. On warfare in Africa, V engeance, op. cit., Vol. 3, pp. 65-100. Yet vengeance can degen
there is G uerres de lign age et guerres d ’états en A friq u e, ed. V. Bazin erate: G. Courtois, ‘La Vengeance, du désir aux institutions’, in
and E. Terray (Paris, Editions des Archives contemporaines, L a V engeance, op. cit., Vol 4, pp. 74— 5, attempts to account for
1982). this. Courtois also cites a number of examples where violence and
The vital question of identifying the factors which influence the punishment coexist. M. Delmas-Marty, L es C h em ins de la répres
use of violence through cross-cultural comparison, has been treat sion (Paris, PUF, 1980), pp. 74— 5, and M. Cusson, P ourquoi p u n ir
ed by: T. Van Velzen and W. Van Wetering, ‘Residence, power (Paris, Dalloz, 1987), pp. 40-1, 66, discuss the criteria which
groups and intra-societal aggression: an enquiry into the condi allow punishment and violence to be compared. On the peaceful
tions leading to peacefulness in non-stratified societies’, In t. A rch . settlement of disputes and reconciliation, there is: P. H. Gulliver,
E th n o g ., 49 (1960): 169-220; K. F. Otterbein and C. S. ‘Negotiations as a mode of dispute settlement: towards a general
Otterbein, ‘An eye for an eye, a tooth for a tooth: a cross-cultural model’, L a w a n d S o cie ty R e v ie w , 1 (1973): 667—91; K. F. Koch,
study of feuding’, A A , 67 (1965): 1470-82; K. F. Otterbein, S. Altorki, A. Arno and L. Hickson, ‘Ritual reconciliation and the
‘Internal war: a cross-cultural study’, A A , 70 (1968): 277-89; W. obviation of grievances: a comparative study in the ethnography
T. Divale, F. Chamberis and D. Gangloff, ‘War, peace and mari of law’, E th n ology, 16, 3 (1977): 269-83. The Société Jean Bodin
tal residence in pre-industrial societies’, J o u rn a l o f C on flict devoted its 1987 congress to ‘Punishment’.
R esolu tio n , 33, 4 (1977): 388-99. For an overview there is: D. On evidence from traditional societies see: H. Lévy-Bruhl, ‘La
Szabo, ‘Agression, violence et société: essai de typologie’, R e v u e preuve chez les “primitifs”’, R ecueils de la société J . B o d in p o u r
d e Sciences crim inelles (1976): 383; F. Boulan, ‘Violence et l ’h istoire co m p a ra tiv e des in stitutions, Vol. 18, L a p re u v e (Brussels,
société’, R R J , 3 (1981): 342-52. The periodical E tu d es rurales has 1963), pp. 5-13, is rather dated. More relevant is J. Poirier, ‘La
also devoted a special issue, 95-6 (1984), to violence, examining preuve judiciaire dans les droits coutumiers de l’Afrique noire’, in
Western and non-Westem societies. ibid., pp. 37-57. See also: A. Dorsinfang-Smet, ‘Réflexions sur
290 Legal Anthropology
1
296 Legal Anthropology Legal Acculturation 297
absolutes are associated with nature: laws are not self-justifying, law in the West from the twelfth century onwards; the introduc
but must conform with the natural order of things. The Western tion of the French Civil Code in many European legislative bod
experience followed two avenues in attempting to discover this ies); here acculturation is achieved through assimilation. Where
ordering of the world. First, reason: the writers who from the the legal absolute resides in an ideological stance, acculturation
middle ages onwards participated in the rebirth of Roman law, takes place in the context of societies which modify their legal sys
celebrated its harmonization with both reason and nature (the tems in accordance with an exterior model (this has been the case
jurist Ferrière wrote in the late seventeenth century that ‘Roman with the independent Third World states that have adopted con
laws were enacted through natural reason and were based on the servative or socialist systems); here acculturation is achieved
principles of equity . . . this is a ray of the divine light which God i through reinterpretation.
communicates to man’. Second, tradition: royal judges in Degrees of political structure: degrees of legal acculturation and
England, from the thirteenth century onwards, referred to prece changes in political structure develop in parallel. When a society
dent, bringing the common law into being. However, in the mod moves from traditional myth to the myth of law, it also undergoes
ern era (the nineteenth and twentieth centuries) it became more a change towards more concentrated forms of political power (for
and more difficult to reconcile the diversity of legal systems with example, traditional societies swept up by the great religious
natural order. Thus legal absolutes underwent a further shift: leg empires). When a society adopts a legal system deemed to corre
islation was no longer used to achieve natural or rational order, spond with natural order and reason, it also often shifts towards a
but rather a particular form of order defined as an objective by state-based power structure (this was the case for traditional soci
that society, as made explicit in ideologies, programmes and pro eties in the colonial period, where the rationality of state law
jects. As Alliot has stated, these various legal absolutes are also existed in contrast with the archaic nature of custom). When a
myths in their own right. However, the values which they embody society propounds an ideology through its legal system, the state
are profoundly different from those of traditional societies. Yet, dominates this process with varying degrees of success (thus
when we come to examine the various processes of legal accultur i
Third World leaders who, on gaining independence, looked to the
ation in the context of legal absolutes, it becomes clear that, in state to determine their future).
some cases, traditional societies have been able to shift from their Cases of legal acculturation: six cases can be identified with the
particular system of myth to legal myth. three degrees of legal acculturation discussed here. First, the three
cases of a traditional society adopting one of the three degrees,
followed by the two cases of a society moving from a first to a sec
167 Forms o f legal acculturation
ond degree (the use of Greek law in ancient Egypt), or from the
Alliot’s theory identifies three degrees of legal acculturation with
first to the third (Islamic states adopting modem legal systems).
the three legal absolutes, each defined through a principle and
Finally, the case of a society passing from the second to the third
linked with a change in political structure. Six cases of accultura
degree (socialist transformation of the legal systems of Eastern
tion can be discussed in relation to these three degrees.
European countries, after the Second World War).
Degrees of legal acculturation: where laws themselves become
Acculturation thus includes a very wide range of cases, and
absolutes, acculturation takes place in the context of societies
extends beyond the transfer of law between traditional and mod
passing from myth to law; for example, when a foreign law is
ern societies, which is our main concern. The very fact that, as we
adopted, divine in character and beyond question (extension of
have seen, this transfer can take place, may appear paradoxical: if
Islamic law), acculturation is achieved through submission. Where
the legal values of traditional and modem societies are so differ
the legal absolute resides in nature, acculturation takes place in
ent, how can such a transfer occur at all? Only at a considerable
the context of societies where law is modified in favour of laws
price, as we shall see.
which seems more natural or reasonable (the spread of Roman
1
298 Legal Anthropology Legal Acculturation 299
168 The price o f transfers o f law in traditional societies ry BC of a ius gentium, which was not so much the borrowing of
Generally speaking, legal transfers are only satisfactory - that is to legal institutions of other cities but the use, by magistrates, of a
say, they do not disturb the society that acquires new law —if the number of common principles (equity, good faith) they believed
society is committed to a deep-seated change requiring the adop they had found in these legal systems, which were in fact the prin
tion of a new legal system, and the legal system in question comes ciples of stoicism. Similarly medieval jurists, whilst proclaiming
from a society whose principal characteristics are similar to those the superiority of Roman law, modified it in many ways to adapt
of the society to which it is transferred (as in the case of the bor it to the needs of the period. Though we do not yet have suffi
rowings of legislation between Greek city-states), or if the legal cient hindsight to understand current developments in sub-
system is considered to be independent from the society in which Saharan Africa, it may be the case that resistance to European
it resides and can be adopted by any other society (for example, and state law is expressed not only in outright rejection, but also
the use of Islamic law in many Muslim countries, or European in distortion: some countries use European legal instruments to
systems of law in many Third World states). Colonization may protect what are essentially communal institutions such as the
indeed have caused a profound upheaval of traditional societies, dowry, as well as systems of landholding which are also commu
but the remaining two conditions have never been fulfilled. In fact nal in nature.
Alliot believes that either the transfer of law is illusory, or a very Thus the transfers of law from modem to traditional societies
high cost is paid for it, namely a weakening of the structure of the are unlikely to be fully accomplished without serious repercus
host society or the distortion of the law transferred. We will sions. When they take place willy-nilly, imposed by colonialism
examine both these scenarios. and taken up by newly independent states, it is at the price of an
In some cases the transfer of law may well prove impossible, or acculturation in which the state may ultimately be the loser. We
can be only partially accomplished. This has been the commonest will tackle these problems in more detail in the next two sections.
scenario in sub-Saharan Africa and is exemplified in the attempt
France made to extend its legal system to Africa in the nineteenth
II COLONIAL LAW IN SUB-SAHARAN AFRICA
century. The resistance offered by the indigenous population
We define ‘legal colonialism’ as phenomena of legal acculturation
forced the courts into maintaining the people’s traditional person
caused by European colonial expansion. We will concentrate on
al status, and this was ultimately officially recognized by the law.
its impact in French-speaking sub-Saharan Africa.5 The process
This led to a dualism: traditional law continued to prevail as
began with colonization, but has progressed beyond this stage: on
regards family and property, especially in rural areas; modem law
gaining independence, the majority of African states favoured and
controlled state institutions, administration and economic devel
indeed reinforced the statist model. Despite the important role of
opment. On the granting of independence the offensive against
European colonialism, Africa has known colonization from other
traditional laws proceeded apace, the legal system often abrogat
quarters: Islam also spread through a strategy of domination and
ing customs in the name of development. However, in practice, as
Africa still bears the traces of its influence. Further, the colonial
we shall see,4 local communities continued to resist state law.
model is only one of a number of forms which legal acculturation
Sometimes the host society does not have this capacity for resis
can take. Acculturation in its specifically legal manifestations may
tance. In this case, indigenous law gradually disappears in the face
be described as ‘the body of phenomena arising from contact
of imported law: this is no longer acculturation, but legal décul
between groups of individuals from different cultures and the
turation. In our view this has been the unhappy lot of Inuit soci
eties since the end of the Second World War. changes wrought in the original cultural traits of one or both
groups’.6
Appearances can also be deceptive: sometimes the transfer is
The cases we will examine represent only limited and localized
accomplished at the price of the distortion of the system of law
examples of legal acculturation. The importance assigned to them
transferred. Thus was the adoption in Rome in the second centu
300 Legal Anthropology Legal Acculturation 301
is justifiedj however, given the amount of research of a legal char and an oral tradition. Further, Muslim legal thinking takes more
acter centred on these societies. account of facts and acts than Romano-Germanic thinking.
In the colonial era, the introduction of European law ushered Finally, Islamic norms and native African law share common fea
in a period of coexistence between modem and traditional legal tures. This explains why formulations of customary law influ
systems. Yet the main attributes of acculturation can also be dis enced by Islam have in some instances produced an equilibrium
cerned at this time. Acculturation developed apace following between the two normative systems.8
independence, the leaders of the nascent states generally being Islam in Africa, as in other parts of the world, is currently
dismissive, in the name of development, of traditional systems of enjoying a new lease of life. This can only accentuate the opposi
law: three subsections will be devoted to the study of these prob tion between two approaches to law, a sensitive area since inde
lems. pendence. Those who follow the Western model wish to see both
Muslim and local legal traditions replaced by state-based Western
law. The view of militant sympathizers of Islam is that it is time to
A: T he coexistence of different legal systems in the colonial era
end the distortion of Islamic law in its accommodation to tradi
The diversity of legal systems in sub-Saharan Africa generally pre
tional law: the purity and integrity of Islamic law should be re
cedes the colonial period. First, each society has its own myth and
established, replacing both traditional law influenced by Islam,
customs; second, Islamic law quickly adapted itself to local cus
and Western law. If this latter current achieves dominance,
tom in a number of countries. European law attached itself to this
Islamic law will become the law of the state; if the former holds
body of law only in the nineteenth century. However, as we will
sway, it will become ‘folk-law’, a kind of semi-official law. In
see, legal acculturation brought about by Islam bears little resem
either eventuality it will mark the end of a successful period of
blance to the legal acculturation which followed European colo
legal acculturation which has stood the test of time over many
nization.
centuries. The same cannot unfortunately be said for the
European colonial experience.
169 Legal acculturation and Islam
The influence of Islam in sub-Saharan Africa began in the sev
170 Legal acculturation and European colonialism: a general
enth century and today a number of states have Muslim majori
problem
ties (Mauritania, Niger, Senegal, Guinea, Mali, etc.). Other states
Bradford W. Morse, a Canadian author, recently suggested a gen
have a minority Muslim population (Gabon, Zaire, the Popular
eral model describing the various permutations involving tradi
Republic of the Congo, etc.). The final category is that of states
tional law and the legal system of the colonizing country.9
where Muslims and those of other beliefs are evenly balanced
S ep a ra tio n may be quasi-total: contact taking place only through
(Cameroon, Chad). Muslim law can thus either enjoy predomi
emigration or conflicting laws (this was the attitude of a few
nance, hold minority status, or exist in conjunction with tradi
British colonies in the eighteenth century concerning some of the
tional law. However, we must note that, in most cases, transfers
Indian nations with which they had made treaties). C o-operation
of Islamic law have taken place at the cost of the accommodation
may exist. A number of criteria (territorial, or ratione personae or
of this law to local legal systems: Islamicized customary law has
m a te ria e ) determine the competence of the various jurisdictions.
been the result.7 There are a number of reasons for this. To begin
Thus both the courts and colonial law could be the appropriate
with, the Malekite school —which has the most influence in West
authority for both colonial and indigenous populations in colo
Africa — is, of all the Islamic traditions, the one which has
nized areas, handling all matters, whereas traditional law could be
remained closest to traditional pre-Islamic law, as practised
applied only in those areas inhabited exclusively by indigenous
amongst the Bedouin of central Arabia: these peoples, in com
populations, also handling all matters. Incorporation reveals tradi
mon with African societies, possessed a communal social system
302 Legal Anthropology Legal Acculturation 303
tional law subjected to a greater degree: traditional law is incorpo niai state has been successfully resisted in some countries, the rea
rated into the legal system of the colonial power in all those areas son does not lie in the flexibility of these various arrangements
where there are no blatant contradictions (family law normally which, we must repeat, were all geared to achieving the domi
escapes incorporation); such integration can result in a corruption nance of state law, but rather in the will of the indigenous com
of traditional law because, in certain cases (British colonies in munities to preserve their law and way of life. As we will discover,
Asia and Africa), the colonial authorities determine the judicial it is mainly in Africa that such resistance has met with the greatest
system in which traditional law is to be applied. A rather more success.
brutal alternative is the rejection of traditional law, judged as too
‘primitive’ by the colonial authorities or those which succeed
171 Legal acculturation and European colonization: the case o f
them: thus the Australian courts rejected Aboriginal law and
sub-Saharan Africa
many post-independence African states refused to recognize tra
In sub-Saharan Africa, nearly all the colonial states have respect
ditional law as a legal entity.
ed the customs and practices of colonized peoples, whilst never
Co-operation and incorporation are clearly the most subtle
theless imposing European law in a number of areas. This
approaches. They are sometimes employed in conjunction with a
attitude is based on the co-operation model.10 However, as we
number of refinements whose role is to disguise the reality of legal
have stressed, this co-operation is, in practice, detrimental to tra
déculturation, carried out at the expense of traditional law.
ditional law. Various procedures were employed, all intended to
Traditional law may be recognized by treaty, by legislation, or by
shift the border between traditional law and modern law, towards
precedent, and becomes part of the state system (as in the case of
the latter. Local legal systems were considered contrary to civi
the James Bay Convention applied to the Inuit and Cree Indians
lized values or an impediment to colonial rule. Legislators and
in Arctic Quebec). The control and policing of jurisdictions will
judges acted in unison in the allocation of legal ‘territories’
often be left in the hands of indigenous populations or half-castes
inspired by these principles."
(as in the case of Indian and half-caste magistrates in North
Legislators assigned areas of competence to modem law. Some
America). The creation of an independent system of justice is
advantages were lost thereby: land was registered, a process which
subtler, side-tracking the issue more comprehensively: national or
appeared the better to guarantee its status, but which, in practice,
regional governments authorize the creation of ‘native courts’ (see
amounted to a partial or total suppression of traditional property
some tribal courts in the USA) which in fact operate in the same
law. The criteria used were, notably, ratione personae and ratione
way as common law courts. In some cases the exercise is carried a
m a te ria e . In the case of ratione personae , modem law is applied to
step further in granting tribal authorities full freedom in deciding
certain people, either comprehensively or in instances where they
how litigation be handled (as on some Indian reservations in the
have availed themselves of legislation in a particular area of law.
USA). We would be mistaken in thinking that such autonomy
These procedures should not be confused with the broader char
results in the systematic application of traditional law. In any
acteristics of law: Africans, and not only Europeans, found them
case, these ethnic minorities are influenced by the life-styles of the
selves bound by modem law. It is also apparent that these
global society (it must be acknowledged that, in the Arctic in par
distinctions are to the advantage of modem law: whereas the par
ticular, no compulsion is required in the adoption of Western
ties concerned can opt for modem law for a particular legal pur
ideas, so frequent is the tendency to imitate the colonizer). In
pose, permanently changing their personal status, the procedure
North America many tribal courts imitate the Western legal
in reverse, towards traditional law, is prohibited. In the case of
model.
ra tio n e m a teria e , modem law supersedes traditional law in particu
In whatever guises these various policies are applied, the end-
lar areas. Moral principles may be involved, institutionalized in
result is usually to the detriment of the traditional legal model. If,
the form of colonial public order: thus mutilation and corporal
however, the dominance of the colonizing power or the post-colo-
304 Legal Anthropology Legal Acculturation 305
punishment were prohibited as a sanction for criminal behaviour. sufficient outcome. These phenomena were encountered in all
In fact, colonial public order was concerned more with picking colonies, but with varying intensity. British colonies, influenced
out elements of traditional law which corresponded to the imper by the common law tradition, limited the influence of state courts
atives of colonial development, than with the application of moral and allowed traditional justice to junction. The reverse was true
principles. Generally speaking, family law has hardly been affect in French-speaking Africa: the rulings of traditional jurisdictions
ed by modem law. Yet it presents characteristics (levirate, soro- were recognized only where they could be incorporated into arbi
rate, polygamy, ghost marriage, ease of divorce, etc.) which might tration procedures. Traditional law cases were settled by state
have been considered, at the time, contrary to public morality. courts. Furthermore, we must note that these traditional jurisdic
These practices were allowed to continue. One would like to tions were legal forms which had already undergone accultura
believe that this was out of respect for the local population. In tion. These were not, in effect, modes of dispute settlement
fact, such disclaiming of competence was largely inspired by a existing prior to colonial rule, but state-organized jurisdictions
fear of interfering with these customs and provoking open civil covering those populations subject to traditional law. State law,
disobedience to no particular purpose. Modern law may also clearly influenced by the European legal experience, thus flour
apply ratione materiae in areas where traditional law is considered ished during and after colonization through a number of develop
insufficient or inadequate (administrative law, labour law, com ments which we will now examine.
mercial law, bonds and stock, etc.). In any case, European colo
nial legislation treated modern law as common law, to which B: T he implantation of European law
recourse was always made in cases where traditional law remained As we have just seen, European law underwent a partial transfor
silent. We should also note that in all these cases modern law, in mation under foreign skies: the inauguration of a colonial system
its form encountered in the colonies, was not necessarily the same of public order does not lead to the comprehensive transfer of law
as that applied in the home country. Yet it was no less imported as applied in the home country. Traditional law has but little
law for all this. influence on colonial law. On the contrary, the way custom is
The rulings of judges were similarly inspired. Throughout most reinterpreted is evidence of the progressive corruption of tradi
of the African continent a two-track legal system was applied: so- tional law, subject to the input of exogenous legal principles.
called ‘traditional’ justice and state justice, a dualism which
appeared to guarantee a respect for traditional law. Yet this dual
ism was so fashioned as to become one of the main avenues for 172 T h e r e in te r p r e ta tio n o f c u sto m s
acculturation. Whilst the traditional courts applied only tradition The reinterpretation of customs is less spectacular than legislative
al law, state courts pronounced decisions on the basis of both reforms, but has a more deep-seated effect: the customs appear to
modem law and traditional law (where one of the parties had survive unchanged, since reinterpretation is in the first instance
modem status and the other traditional, or when two parties both concerned with giving new legal meanings to former traditions.
enjoying traditional status chose to exercise their right to plead Soon, however, given that the explanatory principles have under
before a state court). State judges were often influenced by their gone a shift in meaning, the content of the customs is also altered,
Western legal training and distorted traditional law, subjecting it and responds to new values, emanating from other cultures.
to the influence of modern law and incorporating such features as Reinterpretation is in any case tantamount to a subde adjustment
a respect for written forms, an emphasis on the individual, pre to the contrasting conceptual frameworks of modem law and tra
scription, the right to terminate joint possession, etc. Modem law ditional law. Differing modes of thought can in fact occupy the
had a further advantage: judges, whether traditional or state, same mental (and legal) territory. Either they confront each
could ensure it prevailed over traditional law if the latter ran other, in which case conflict ensues. Or, just as frequently, they
counter to colonial public order, or did not offer a reasonable or coexist. Such coexistence may be achieved through reinterpreta
306 Legal Anthropology Legal Acculturation 307
tion, but ultimately leads to the disappearance of traditional val ary law, since it was modified to facilitate its ‘modernization’ in
ues. Coexistence may also take the form of a division of areas of written form. Subsequently, learned writers compared customs in
competence: different norms are applied in private and public life their written forms and attempted to detect similarities in the
(we know that in Japan the material world has been largely process of formulating customary common law.
Westernized, yet family relations have remained traditional). The parallels between these developments and those which
The common thread in the above is that the accommodation of were initiated in the French colonies from the beginning of the
traditional law to new law takes place in a relatively spontaneous twentieth century onwards are striking. This is exemplified in the
manner. In other cases, legal acculturation flows from more for Roume doctrine, which served as a basic for official policies. In
mal and deep-seated processes: the transcription, classification 1905 Roume, a governor, requested that judges compile informa
and codification of customs. tion to produce a collection of customs. The judges should take
advantage of the opportunity to ‘give them [the customs] a clarity
in which they are all too often deficient’, making a synthesis of the
173 The classification o f customs different practices with which they were confronted. Roume also
Transcription and classification of customs is a practice with a stated:
long ancestry, frequently associated with the appearance of a new
power structure. When power is centralized, it tends to bring in a Our firm intention of respecting customs cannot diminish our
legal system which aspires to impose uniformity on society; it also duty to reconcile them with progress, regulating and improving
becomes public and increasingly abstract. These characteristics them. By seeking the assistance of the native courts, it should
are obtained through a transition to written forms (as in the case be possible to obtain a rational classification and an elabora
of the classification of Romano-barbarian laws, following the col tion of customs and practices, compatible with the social con
lapse of the Western Roman Empire, carried out in barbarian dition of the people. These customs and practices should not
kingdoms which had already undergone acculturation as a result attempt to conform with our own metropolitan legal doctrines,
of contact with Greek and Roman values). France went through a with which they may well clash, but with the fundamental prin
similar process at the end of the middle ages. The king ordered ciples of natural law, the fount of all law-giving.
the classification of customs on the pretext that it had become R. Delavignette, another governor, denounced the Roume doc
increasingly difficult to establish their content, given the conflict trine in 1931, in his critique of the classification of Ivory Coast
ing interpretations of the parties involved in litigation. This pre customs:
text provided an opportunity for royal judges to incorporate the
concept of reason, as developed by canon law: the task of judges What remains of the meaning of an African custom where pun
was to demarcate custom and use it as a basis for the elaboration ishment has been Europeanized? . . . Custom has lost its spiri
of rules and their subsequent reasonable application.12 J. tual quality. In abolishing ordeals in furnishing proof, in
Vanderlinden does not believe that customary law was in decline curtailing oaths on fetishes or on the Koran, in failing to take
when classification led to its absorption by royal law.13The people into account the supernatural aspect of judges, in stripping
were well informed about their customs, which was, progressively, chiefs of their legal power and in calling men before the courts
less often the case with judges, schooled as they were in Roman as assessors who are no longer the elect, the representatives of
law and drawn from other areas. In fact custom became one of the old Africa, have we not emptied custom of all content? . . .
the weapons of the people against a judge imposed from else When we say we judge according to custom, what we mean is
where by a central power. Henceforth it was imperative that the that we are judging the custom itself, using the Code Napoleon
monarchy bring custom under its control. This was the purpose as a yardstick. . . . If you open custom to the influence of the
of official classification, often resulting in a corruption of custom Code, if you classify it according to categories, you are playing
308 Legal Anthropology Legal Acculturation 309
an active part in the social death of the natives. You will arrive respect for traditional law. The result is that all the richness and
at nice abstractions in which the tributories of your justice will complexity of the legal history of the continent is today reflected
be depersonalized. You will be providing an incentive to root- in the wide range of African legal systems. Two subsections will
lessness.14 be devoted to the study of these problems, dealing in m m with
codification and with a new hierarchy of sources of law.
Admirable lucidity! These arguments do not, unfortunately,
account for the lack of interest in the Roume doctrine at its incep Codification has been resorted to in a number of cases: it corre
tion: priority was given to the economic development which sponds with a phase in social and political development, of which
accompanied the ‘profitable’ use of land, itself a result of ‘mod history furnishes us with several examples. In Africa, codification
em ’ methods. In 1931, at the very time when Delavignette was has been inspired by a number of related motives and has taken
condemning Roume’s ideas, Brévié’s doctrine was reinforcing on altogether different proportions.
them: an official classification of custom was required, which
would take the form of an approved Afrique Occidentale
Française (AOF) collection. In fact the Brévié doctrine ended in 174 The spirit o f codes
1937 with the publication of customs whose influence fell far Pierre Bourdieu, the sociologist, sees the emphasis on form as a
short of expectations: the highly ethnocentric nature of the ques characteristic of law codes (the vis formae of the Roman law).17
tionnaires used and the poor grounding in ethnology of those Codification is a symbolic ordering process associated with large
conducting the inquiry contributed to this failure. Further state bureaucracies. The prestige of a code extends beyond its
attempts, conducted with greater scientific rigour, took place content and prescriptions, hinging on the very notion of codifica
between 1940 and 1960 in Afrique Equatoriale Française (AEF) tion. The idea of a code enshrines a number of beliefs: codified
in territories under French mandate and in the Belgian Congo. law is clear, easily communicable, ordered, rational. These beliefs
However, they were unofficial and, besides, this was now the era do not always accord with reality: are law codes, even today, easy
of independence: the new African leaders, emphasizing national to consult, for either Europeans or Africans? In fact all these fea
unity and economic development, believed that they would be tures are a smokescreen: the authority of a code ultimately resides
better served by law codes on the European model than tradition in the political power of the state which has created it. This
al systems of law, even where customs were classified.15 Any supremacy is amplified in its formal aspects.18 A comparative
change in policy was in appearances only; the thrust was the study of legal codes and the prescriptions of monotheist religions
same. The classification of customs and codified law both tended would no doubt highlight common elements in these two forms of
to weaken the influence of traditional law. However, after nearly a discourse.
century of application of this policy it has not, as yet, met with Is codification an expression of state supremacy? The work of
success, despite the avalanche of law codes which has descended the legal historian J. Gaudemet would certainly incline us towards
on the continent.16 this view18: the study of a wide range of codifying initiatives
throughout the world up to the present day reveals that they are
linked to the appearance of a new social order, the development
C: U ncertainty and reversals in the post-colonial period: of a uniform system of law, usually state-based, and an increase in
from law codes to a search for roots the power of the state. The state attempts to extend its authority
The tendency to codify law grew apace from the granting of inde over legislation, treating the various peoples or social classes
pendence onwards; several factors conspired to produce such under its control as a single entity. Codification is in consequence
enthusiasm. Yet new states did not all systematically turn to codi essentially a political phenomenon, and does not indicate an
fied law in planning their future; some opted for policies which advance for the human condition, contrary to the beliefs of its
favoured more appropriate legal systems, founded on greater
310 Legal Anthropology Legal Acculturation 311
advocates: whether codification is more ‘rational’ than the prac in codification: some matters are referred to traditional branches
tices which it replaced remains to be proven. In fact codes are of law (town planning makes use of administrative, civil, criminal
examples of new modes of thought and new parameters rather and fiscal law; the changes in the economy and the appearance of
than the advance of rationality. A few examples from history will the law of business have weakened the influence of the
suffice to demonstrate that codification does not rhyme with civi Commercial Code). Sub-Saharan Africa has also shifted from ini
lization. tial enthusiasm to a more prudent attitude concerning codifica
In ancient China, considerable reticence was expressed con tion.
cerning codification.20 The School of Laws, which favoured
authoritarian state-based law, met with success only when the
175 Codification and independence in Africa
feudal states which made up China began their movement On gaining independence, the emergent African states devoted
towards centralization (third century Be), and law acquired uni their energies to two problems: economic development and
formity. Fa, the primacy of law and codification, replaced li, a national unity. They often resorted to codification in achieving
body of rules and conventions whose application differed accord
these two goals.
ing to context: family, clan, or public life. The li dominated the fa Advocates of ‘development law’ believed that traditional law
until 1912 and the birth of the Chinese Republic. However, the was poorly adapted to economic development on the Western
new regime, much influenced by the West, embarked on a codifi
model. It was attacked as being imbued with magic and religion,
cation of civil law which the people shunned. When the commu and ignoring the basic concepts of the market economy.
nists took power the traditional distinction between li and fa was Important elements, such as contractual obligations, were absent.
reinterpreted: the li was replaced by Mao’s thoughts and the deci
In family relations the extended family, dowries, polygamy, all
sions of the Chinese Communist Party, and subscribed to by all
were viewed as institutions militating against economies of scale
committed communists; the new fa, a collection of rigorous pre and social mobility. Landholding law was a particular butt of crit
scriptions of penal law, was to be applied to counter-revolutionar
icism24: it was taken to task as being responsible for an under
ies and foreigners. There was no codification during the Maoist
utilization of land. African legislators thus initiated reforms in
period. The Chinese law codes have emerged only in recent years,
agriculture and landholding,25 aiming to shake as much land as
in the reaction following Mao’s death.
possible free from private ownership and replace it with state con
Elsewhere, some Islamic countries have attempted codification,
trol. These reforms frequently met with the hostility of the peas
but these codes have generally remained consistent with the tradi
ants, who were strongly attached to traditional landholding.
tional rules of the fiqh, the main tenets of Islam. Despite the Foreign experts often attacked such rearguard attitudes. This was
minor nature of such modifications, these law codes are now the case with R. David, the comparativist, who was asked to pro
denounced by Islamic fundamentalists.
duce a feasibility study for a civil code for the Ethiopian Empire.
It is the West that has expressed the greatest confidence in cod
David believed that traditional law should be abandoned and
ifications and compilations, from Justinian21 through to the replaced by modem law, to build ‘a new system . . . based on the
French Code of 1804, one of whose authors, Portalis, was to demands of the economy rather than on sociological observations:
write, in an emphatic manner: ‘the very existence of a standard
the code should be seen as a political instrument determining
civil code is a movement which demonstrates and guarantees the
paths of development, rather than a folksy collection of customs
permanent restoration of internal order to the state. Our enemies
often standing in the way of development. . . . This custom [tradi
should quake . . . at witnessing thirty million French citizens,
tional law] is not worthy of respect; it is responsible for the pre
once divided by so many prejudices and varying customs, solemn
sent retarded state of African society; it is responsible for
ly bearing the same sacrifices and bound by the same laws.’22
under-development of all kinds.’26 In fact, as E. Le Roy has cor-
Today authors such as P. Decheix23 discern a crisis of confidence
312 Legal Anthropology
Legal Acculturation 313
rectly stated,27 codification is often responsible for legal under
development, since it sometimes reinforces inequality and on changes in norms and behaviour within it.
other occasions excludes from its purview all those who have no These observations explain the fact that law codes have not, in
education or are not French-speaking, thwarting the objectives of general, assisted the cause of national unity, since they have not
development and national integration. The effects of this policy led to a unification of law. R. Degni-Ségui, a jurist from the Ivory
were so apparent that between 1970 and 1980 a new approach Coast, argues that the constitutions and legal organization of
appeared, sociological positivism: henceforth the opinion of the most emergent states strove for both codification and the unifor
population must be sought out, particularly concerning their mity of national law.31 Codification either relied on foreign law,
attachment to traditional law. Traditional law was not only deni highlighting the de facto discontinuity between traditional law and
grated at independence but also misunderstood: attempts at clas modern law; or officially recognized this discontinuity, resorting
sification were carried out in the wrong conditions.28 Ethnologists to colonial legislation in handling conflicting internal laws.
had no legal experience and jurists had no ethnological experi However, traditional law has, in many instances, been the rallying
ence. It was thus hardly surprising that the new leaders and their point for defiance.
European advisers sometimes committed the error of judging tra
ditional law according to the old ethnocentric prejudices of the 176 Defiance and traditional law
ex-colonizer. Amongst these errors there was a basic misappre The new African states very quickly committed themselves to
hension: confusing the content of traditional law with its concep m a in ta in in g the law of the outgoing colonial power.32 They feared
tual framework. There is some truth in the assertion that a legal vacuum and either had a poor knowledge of traditional law
traditional law, in certain areas, is not geared to the demands of or found it did not suit their needs. However, this was only a
development. However, this does not mean that traditional law is holding operation; the new states would have to deal with the
incapable of producing new legal norms: a hallmark of customary problem of traditional law sooner or later, either in combining it
law has always been its flexibility and the ease with which it can with modem law or in excluding it from the official legal process.
be adapted. If all these landholding reforms and codifications A number of different legal policies were adopted.
have produced only unsatisfactory results, this is because their Some states which were better disposed towards traditional
prescriptions were perceived by people as law imposed from the law, or feared that its abolition might create disorder, did not pro
exterior. Even had traditional law had to be modified, this would duce codified law and recognized those traditional systems which
have been preferable to authoritarian alteration or suppression. It had survived colonial rule. This form of law occupied an inferior
is not surprising that events took the course they did, bearing in position in the legal hierarchy and was submitted to judge-made
mind that codifications were not only legal reforms, they also rulings when it conflicted with state law. In other instances so-
served socioeconomic interests. We have seen that codification called ‘authentic’ policies were implemented, relying on tradition
generally goes hand in hand with increasing state control and al law: custom was not necessarily rigorously adhered to, but
social change.29 State-based law in newly independent states, both innovations in law strove to maintain its spirit.33 However, in the
in its development and its application, was controlled by the new majority of cases traditional law was abolished, whether by pro-
elites and strongly influenced by interest groups who played an Western states (where it was considered inappropriate to the mar
active role in the ‘modernizing’ sectors of Third World coun ket economy), or by socialist states (where it was identified with
tries.30 The majority of the population, living mainly in the rural an archaic stage in production, perpetuating inegalitarian social
areas, were strangers to both the thinking and the content of structures).
state-based law, influenced as this was by European models. Codification was often used against traditional law. This is
Somewhat naturally they tried to avoid contact with this law and revealed in the measures contained within codified law: the
continued to use traditional law, all the while implementing emphasis given to the married couple, the insistence on profitable
314 Legal Anthropology Legal Acculturation 315
land use and the ensuing conflict between modern and traditional status all conspire to modify its performance.
law.34 However, in many cases, codification fell short of its pro Customary law appears only under colonial rule. The classifica
claimed intentions. First, there were few states which, unlike tion of customs, as we have seen,35 results in a corruption of tradi
Algeria or Ethiopia, achieved a global codification of civil or com tional law. Its appearance coincides, on an economic level, with
mercial law: in most cases, as with the codified statutes of the what has been described as the absorption phase: commercial
French absolute monarchy, African codification was limited to a markets, hitherto peripheral to local populations, now develop,
number of provisions in specific areas of law with no attempt without, however, immediately disturbing local social interaction.
made to cover whole branches, preserving the influence of tradi Currency and individualism appear, coupled with the organiza
tional law in matters where codification was absent. Second, tra tion of the lower instances of justice, controlled by the local com
ditional law put up resistance of an intensity unexpected by missioner. He is the sole competent authority in criminal matters
legislators: either de facto (the majority of the population avoided and makes judgements using Western categories of admissible
modem law and continued to live by its customs, particularly as evidence. New forms of litigation appear, either unforeseen by
far as family law and the settlement of disputes was concerned); earlier forms of social regulation, or involving peoples with differ
or de jure (legislators, given popular opposition, eventually rein ent customs as a result of population movements. These innova
troduced traditional law into legislation and codes, creating a tions mean that it becomes necessary to modify traditional law;
legal dualism which conflicted with original intentions). this is achieved through classification.
The different strata of African law are evidence of this eventful Local and popular law both appear in a third phase of econom
legal history. ic development, termed dissolution, which begins prior to inde
pendence and continues to the present day. Economies become
African law: it is not our purpose to establish a hierarchy of totally dependent on world markets; monetarization and individu
sources of law, but to indicate the extent to which the various sys alism develop even further. Society is submitted to a process of
tems of law, official and non-official, currently locatable in Africa, ‘déstructuration’ which brings social organization into line with
are used as tools in the hands of groups with divergent interests. new forms of economic organization. Traditionally dominant
These groups can be divided into two: dominating groups and groups either maintain their position or give way to new elites.
dominated groups. Local law represents one of the legal forms of such a transition.
As in the case of customary law it is an avatar of traditional law,
177 Law and the dominated: from traditional law to popular law but occurs in a more intense phase of acculturation. Le Roy has
Law is used by most populations to counter dominance, and even described it as ‘a legal system which appears with the increased
exploitation. Four categories emerge: two have stood the test of importance of the state and its administrative apparatus, whose
time (traditional law and custom), two are new (local law and development and authority are, to all intents and purposes, deter
popular law). mined by the state, whereas its day-to-day operation is left in the
Traditional law was practised by indigenous populations before hands of local authorities, in a policy of decentralization’. The
colonization (Islamic law is included in this category). As a result originality of local law lies in the fact that it is initiated and regulat
of colonial rule, its role is progressively contested and diminished. ed by the state as a means of social control, but, unlike those
In an initial, neutralizing phase, the colonial power does no more methods used to achieve the same results through the corruption
than collect taxes, organize conscripted labour and impose pay of traditional law, it is based on the interpretation of external legal
ments in kind, without directly intervening in local affairs. instruments according to the spirit of indigenous legal thinking.
Traditional law continues to exist, but movements in population, Local law can be ambiguous in nature: it appears both as the law
taxes, forced labour, religious conversion and changes in personal of the dominated, since they play a direct part in adapting it to
their needs, and also as the law of the dominators, whose grip is
316 Legal Anthropology Legal Acculturation 317
maintained or tightened. Both Benin and Senegal have experi Civilian and neo-state law are associated in the main with dom
enced these aspects of local law. Generally speaking, authority was ination, but can be used against a dominating power, since they
vested in a public legal entity, incorporated into the hierarchy of can be appropriated by local law and popular law. Generally
state institutions and awarded specialized areas of competence. speaking, in our societies and in Third World countries alike,
Thus in Senegal, in 1972, the rural areas became such an entity, each tier of law is used by social actors in a different way, the ulti
financially independent and headed by a council establishing rights mate choice depending on which tier offers the most benefits at
and usage, controlled a posteriori by a tutelar authority. Litigation the least cost, and the actors’ own perception of it. A peasant
concerning land is usually handled in a very flexible manner with farmer, whether from the Ivory Coast or Picardy, will make use of
the frequent use of conciliation, reprimand and witnesses and rul rights which state-based law confers on him, whilst attempting to
ings which closely resemble the idea of traditional justice. Yet a evade this law in other areas. This behaviour is only one of the
new rural bourgeoisie has also emerged from these rural councils, many forms resistance to legal acculturation can take.
well integrated into the capitalist economic system.36
Popular law consists of an amorphous body of law, whose con
179 Conclusion: the contribution o f legal anthropology to the law
tent is still little understood, due to its unofficial nature. Although
o f the future
more difficult to observe, this law, rather than state law, is the law
Legal anthropology, attached as it may be to the traditions of the
most commonly applied (such law also exists in Western soci
societies it describes, is nevertheless not backward-looking or
eties).37 Popular law thus enjoys an existence separate from the
uninterested in the idea of change. The numerous examples of
legal system of the state, both in cities and in rural areas. This
the resistance offered by traditional law, which we have dis
essentially innovative form of law, whilst different from state law,
cussed in this chapter, do not all lend themselves to a positive
can also be contrasted with traditional law.
interpretation. They certainly express a fondness for the past, an
attitude which, depending on one’s outlook, could be described
178 Law and domination: state-based law as a virtue or a fault; they also constitute a mass refusal of the
The law of domination employs state law, which can be divided modernity which the state claims to offer. It would be a refresh
into two categories: civilian law and neo-state law. ing change if the two alternatives proposed ceased to be carica
Civilian law, or law inspired by the civilian tradition, finds its tures: either the return to a past which no longer exists, or a
inspiration in the Civil Code. It consists either of the incorpora future based on a European blueprint and decided elsewhere.
tion of the former colonial power’s legislation, or of its modifica Thirty years ago these appeared to be the only alternatives.38 We
tion in a number of areas. now know that this need not be the case. Not only do popula
Neo-state law is believed by Le Roy to be a literal interpretation tions still use their traditional law, but popular practices have
of the founding principle of European legal theory: unitarism, the produced new unofficial law. In our view state-based law is not
elimination of diversity to achieve unity imposed on an institu the natural and long-standing enemy, even if its pre-colonial and
tion, a concept, or a person. Thus the head of state is also the post-colonial intervention appears to have deserved the criticism
head of the executive, the party is a single party, federalism is we have levelled at it. It can be used to build the law of the
rarely considered as an option and law is codified and uniform. future and legal anthropology can offer useful counsel. What
The main result of this neo-state concept of law, adopted as kind of counsel?
much by states based on the capitalist economic model (Ivory First, it can confirm that there is scope for a different law of
Coast and Gabon) as by those of a socialist persuasion (Burkino- development, one which will consider African attitudes and which
Faso), is the dominant position of the state over unions, parties, will, in consequence, be more efficient than the development
education, land use, etc. plans which have to date been based on the Western model. This
318 Legal Anthropology Legal Acculturation 319
involves a more general shift in thinking towards ‘authentic’ legal duced43: the addition of transitional measures to new law; forward
policies, which do not involve a return to the pre-colonial past, planning which includes progressive and controlled development
but adapt old solutions to fit new situations. There are already of legislation, accompanied by an educational programme in
many examples of this kind of initiative.39 New family law from schools (extended to include the civil service, unions, or similar
Zaire provides an example40: names need not be patronymic and organizations); allowing the population to opt for a particular
should be taken from the Zairian cultural heritage; the father is legal status and choose one of a number of jurisdictions; consider
the head of the family and his spouse needs his assistance in any able powers can be granted by legislators to judges and the civil
legal act; there is a fixed ceiling to dowry payments, but the service in the interpretation of law and its adaptation to the needs
dowry remains a feature of marriage; in the case of violation of and desires of the people. This policy is not without its pitfalls:
conjugal duties, the guilty party may have to perform traditional abuses may arise, which could strip law of all authority. However,
rites of atonement; the cohesion of the family is reinforced in a case-law should contribute to this search for equilibrium between
number of ways, the household consisting of the couple, the chil state law and community law. Should Western jurists be troubled
dren in their charge and all those who are dependent for food on by such a notion? They should recall that Portalis, the main
the couple, providing they live in their home; furthermore kin and authority of the Civil Code, was perhaps one of the principal the
those related by marriage are bound by civil obligations (whereas orists of ‘law as model’ when he stated that:
the old Civil Code only stipulated moral or natural obligation).
Some property reforms (Tanzania, Madagascar) attempt to the course of justice would be impeded were the judge not able
involve traditional communities in new production methods. to pronounce when, the law has spoken. Few matters can be
Legal anthropology also instructs us that traditional societies decided by a precise text; it is through general principles,
were in essence pluralist, which should help future legislators to through doctrine, through the science of law that most litiga
limit the monopolistic tendencies of the state: the state should tion has been settled. . . . The purpose of statutes is to take in,
leave a measure of autonomy to both new and traditional com in large sweeps, the general maxims of law, to delineate princi
munities, and recognize that several different administrative sys ples which will be fertile in their consequences and to avoid
tems can coexist (in some cases the poor organization of state entering into the details which may arise in each matter.44
services has produced, as a happy consequence, an unexpected Finally, our criticisms should be directed at those responsible for
development of local communities). The same reliance on plural the colonial and post-colonial state. Legal anthropology has not
ism is also to be encouraged in the field of legal organization.41 succumbed to an addiction to the past, demanding the abolition
Finally, we have seen that one of the main characteristics of tra of the state. However, it does demand that the state and its law be
ditional law has been the flexible, non-mandatory use of norms: it returned to society since, as traditional societies teach us, power
is concerned more with ‘law as model’ than ‘law as sanction’. must serve society and not vice versa.
Such a reversal of the role of law tends to shock some jurists, who
speak of ‘phantom law’.42 We would rather employ the term ‘pro
gressive law’. This new legislative policy (adopted in both NOTES
Ethiopia and the Ivory Coast) is founded on the notion that new 1 See in particular: M. Alliot, ‘L’acculturation juridique’, in
law, officially blessed by legislators and its subjects, cannot imme Ethnologie générale, ed. J. Poirier (Paris, Gallimard, 1968), pp.
diately be applied in its entirety: it represents a model of how 1180-1236; ‘Uber die Arten des ‘‘Rechts-Transfers’”, in
society should develop, rather than a mandatory statement; modi Enstehung und Wandel rechdicher Traditionen (Freiburg/
fication may arise in the course of practical application. Munich, K. Alber, 1980), pp. 161-231. See also J. Gaudemet,
Appearances to the contrary, this is not a fictitious legal dream ‘Les transferts de droit’, L ’Année sociologique, 27 (1976):
world. Methods do exist whereby law of this kind can be intro 29-59.
Legal Acculturation 321
320 Legal Anthropology
13 See J. Vanderlinden, ‘La coutume dans le droit français des
2 It is not only non-state societies which act in this way. In pays de coutume au XVI, XVII et XVHI siècles’, in Recueils de
ancient China law was considered good only for barbarians. la société J. Bodin pour l’histoire comparative des institutions, La
Confucius said: ‘If the people are led by laws, and uniformity coutume (forthcoming [1988]).
is achieved is through punishment, people will try to avoid 14 R. Delavignette, Les vrais chefs de l’Empire (Paris, Gallimard,
punishment, without any feeling of shame. If the people are 1931), p. 151 et seq.
led by the path of virtue, and uniformity is obtained through 15 For a more detailed account of the various attempts at codify
ritual, people will have a sense of shame, and will become ing the customs of sub-Saharan Africa, see E. Le Roy and M.
more worthy.’ Wane, ‘La formation des droits “non étatiques’”, in
3 See above, no. 29. Encyclopédie juridique de l’Afrique, the volume entided L ’Etat et
4 See above, no. 177. le Droit (Dakar, Nouvelles Editions africaines, 1982), pp.
5 A description of the way in which French public and private 366-70.
law penetrated sub-Saharan Africa to the advantage of colo 16 Some jurist-anthropologists have, notwithstanding, been mis
nial rule, and was adopted by African legislators on indepen taken. In 1958 Jean Poirier argued in favour of the classifica
dence, is to be found in J. Hilaire, ‘Nos ancêtres les Gaulois’, tion of customs, attributing the failure of this policy to
Annales africaines (1964): 7-77. See also, for an approach to perfectly avoidable technical factors (see J. Poirier, ‘Le prob
this phenomenon, illustrated by the spread of Roman law, the lème de la rédaction des droits coutumiers d’Afrique noire’, in
development of royal law and the reception of European Law
Etudes de droit contemporain (Paris, Cujas, 1963), pp. 111—23.
in the Arctic and sub-Saharan Africa today, N. Rouland, ‘Les Poirier also states that ‘the real purpose of classification only
colonisations juridiques’, in Journal of Legal Pluralism, forth emerges in the context of the wider task of codification, for
coming (1988). which classification only prepares the ground’. This fits
6 This definition of acculturation was given by Redfield, Linton
Poirier’s belief that traditional law cannot meet the needs of
and Herkovits in 1936; see R. Bastide, Anthropologie appliquée modernization and development: ‘The legal instrument [tradi
(Paris, Payot, 1971), pp. 44-5. tional law] which existed in a particular context is now outdat
7 In precise usage o f‘customary law’; see above, no. 177. ed and cannot fulfil new needs.’ Yet, today, confronted with
8 See J.-C. Froelich’s table, ‘Droit Musulman et droits coutu the failure of codification and the law of development, a num
miers’, in Etudes de droit africain et de droit malgache (Paris, ber of African countries have chosen to seek inspiration in tra
Cujas, 1965), pp. 387-9. ditional law, still practised by most people.
9 See Bradford W. Morse, ‘Indigenous law and state legal sys 17 See P. Bourdieu, ‘Habitus, code et codification’, Actes de la
tems: conflict and compatibility’, in Indigenous Law and the recherche en sciences sociales, 64 (1986): 40-4.
State, ed. Bradford W. Morse and Gordon R. Woodman 18 ‘To emphasize form is to give an action or discourse an
(Dordrecht, Foris Publications, 1988), pp. 101-20.
appearance which is recognized as conventional, legitimate
10 See above, no. 170. and approved, that is to say, a form which can be publicly pro
11 There is a very clear account of these issues in M. Alliot, duced. It is a policy or practice, which, presented otherwise,
‘Institutions privées africaines et malgaches’, Part I (unpub would be unacceptable.’
lished, Paris, LAJP, 1970-1), pp. 72-9; X. Blanc-Jouvan, ‘La 19 See J. Gaudemet, ‘La codification, ses formes et ses fins’,
resistance du droit africain à la modernisation’, Revue séné Indépendance et Coopération, 3—4 (1986): 238-60.
galaise de droit, 21 (1977): 21-44. 20 This is demonstrated in the following letter of reprimand,
12 See P. Ourliac, ‘Coutume et mémoire: les coutumes françaises addressed in 536 bc to a minister by his superior, for giving
au XHIe siècle’, Jeux de mémoire (Montreal, 1985), pp. the order to melt down cauldrons to produce the metal neces-
111 - 22 .
322 Legal Anthropology Legal Acculturation 323
sary for the codification and publication of a penal code: 24 These critiques have recently reappeared with a more
‘When the people become aware that there are codes, they favourable gloss in M. Bachelet, ‘Réformes agro-foncières et
lose all respect and awe for their superiors. People acquire a développement’, in Systèmes fonciers à la ville et au village, ed.
taste for litigation and follow the letter of the law, hoping, by R. Verdier and A. Rochegude (Paris, Harmattan, 1986), pp.
some good fortune, that they will win their argument. They 125-55.
will become ungovernable. . . . Once people realize the advan 25 We should not confuse agrarian reform [réformes agraires],
tage of pleading cases, they will abandon ritual and follow where social justice is achieved through the redistribution of
your text. They will plead on points as nice as the point of a land taken from large estates (as in contemporary South
needle or a knife. The multiplication of cases will be uncon America), with agro-landholding reforms [réformes agro-fon
trollable and extortion will know no bounds. . . . I have heard cières], whose goal is development through the reorganization
it said that “when a State is on the point of disappearing, reg of the legal processes through which land is appropriated and
ulations multiply”. Is this where your conduct is leading us?’ used (see sub-Saharan Africa where land is rarely seized).
21 Justinian (AD 527-65), the Emperor of Byzantium, had decid 26 R. David, ‘La refonte du Code civil dans les Etats africains’,
ed to restore the prestige of the empire in all domains. With Annales africaines, 1 (1962): 161.
the help of a legal commission, he made several compilations 27 See E. Le Roy, ‘L’expérience juridique autochtone de
of ancient Roman law and gave it a new authority. The style l’Afrique noire contemporaine et le transfert des connais
of certain passages in the preface of the Digest is reminiscent of sances juridiques occidentales’, in Domination ou Partage?
the language of codes: ‘But the entire ancient law, in a state of (Paris, Unesco, Ed. Actuel, 1980), p. 114.
confusion for some fourteen hundred years and now by us 28 See above, no. 173.
made clear may be, so to speak, enclosed within a wall and 29 See above, no. 174.
have nothing left outside it. . . . By this means, in all parts of 30 See M. Fuchs, ‘Recht und Entwicklungslànder’, Zeitschrift fur
our aforesaid Code there is to be no place allowed to antino vergleichende Rechtswissenschaft, 4 (1981): 370.
my . . . but there must be full agreement, full consistency, and 31 See R. Degni-Ségui, ‘Codification et uniformisation du droit’,
no one is to raise any dispute on the question’ (Constitutio Deo Encyclopédie juridique de l’Afrique, Vol. 1 (Dakar, Nouvelles
Auctone, §1, 5, 8. ‘No man of those who either at this day are Editions africaines, 1982), p. 458.
learned in law or hereafter shall venture to append any com 32 On codification in the post-colonial era and the contrasting
mentary to these laws. . . . Any further interpretations, or attitudes of legislators towards traditional law, see ibid.; G.
rather perversions, of these rules of law we will not allow them Conac, ‘La vie du droit en Afrique’, in Dynamiques et finalités
to exhibit. . . if any should venture to do such things, they will des droits africains (Paris, Economica, 1980), v-xxxx.
themselves be liable to be prosecuted for forgery, but their 33 See below, no. 179.
books will altogether be set at nought. But if, as before said, 34 See R. Verdier, ‘L’acculturation dans le domaine parental et
anything should appear doubtful, this must be by the judges foncier en Afrique de l’Ouest francophone’, L ’Année soci
referred to the Imperial Majesty, and the truth be pronounced ologique, 27 (1986): 403-21.
on the Augustal authority, to which alone it belongs to make 35 See above, no. 173.
and interpret laws’ (Constitutio Tanta, §21), The Digest of 36 For a more detailed account of local law, complete with exam
Justinian, trans. C. H. Munro. ples, see Le Roy and Wane, op. cit. (n. 15), pp. 384-6; E. Le
22 Portalis, in Discours, rapports et travaux inédits sur le Code civil Roy, ‘L’émergence d’un droit foncier local au Sénégal’, in
(Paris, 1844), p. 302. Dynamiques et finalités des droits africains, ed. G. Conac (Paris,
23 See P. Decheix, ‘Le Congrès de Louisiane’, Indépendance et Economica, 1980), pp. 109-40; ‘Le droit et ses pratiques’,
Coopération, 3—4 (1986): 211. special issue of Politique Africaine, 40 (1990).
324 Legal Anthropology I Legal Acculturation 325
37 See above, nos. 31-42 for the importance of theories of legal 39 See M. Alliot, ‘Les résistances traditionelles au droit moderne
pluralism. E. Le Roy suggests, in ‘La domestication du dans les Etats d’Afrique francophones et à Madagascar’, in
Léviathan ou l’envers du droit’, paper at the Franco-British Etudes de droit africain (Paris, Cujas, 1965), pp. 235-56.
conference ‘Les Afriques francophones depuis l’indépendance’ 40 See Kalongo-Mbikayi, ‘L’expérience zaïroise de codification
(Oxford, 29-30 April 1988), that a form of popular law may dans le projet du code de la famille’, Revue juridique et poli
be operating when sections of the population take the repre tique, Indépendance et Coopération, 3-4 (1986): 474-90.
sentatives of state power at their word: if the head of state says 41 See the concrete proposals suggested by E. Le Roy,
that all families have a right to decent housing, without pro ‘L’évolution de la justice traditionelle dans l’Afrique franco
viding any practical means, some groups will seize this oppor phone’, Revue canadienne des études africaines, 1 (1975): 75-97.
tunity to build unapproved structures. 42 See A. Allot, ‘Développement et évolution du droit privé en
38 Thus, in 1956, Jean Poirier announced the disappearance of Afrique anglophone’, Dossiers de l’Institut des sciences-juridiques
the extended family and of polygamy, the desacrilization of du développement (Université de Paris V, s. d.), p. 26.
custom, and the primacy of codification, ruling out any re- 43 See Conac, ‘La vie du droit en Afrique’, op. cit., above, pp.
emergence of customary law ‘L’avenir du droit coutumier xxix-xxx.
négro-africain’, in L'Avenir du droit coutumier en Afrique 44 Robespierre is not usually considered an authority by jurists.
(Leiden, 1956), p. 168; and see above, n. 16). Thirty years However, unlike Portalis, whom they prefer, Robespierre
later we can concur with the Ivory Coast jurist R. Degni- shared their notion of law. He declared: ‘In a state which has a
Ségui: constitution and a legislative body, case-law [jurisprudence] is
Can it be possible that a people, however ‘primitive’, altogether the law.’
abandon its values, even those it holds most dear, to adopt
those of a supposedly superior power? The answer would FURTHER READING
appear to be no. Western law cannot triumph in all cases, and
in all areas, completely eliminating traditional law in all its last
redoubts. This law will necessarily influence so-called modem 180 Legal acculturation bibliography
legislation and will have some currency. The new African law This subject-area is very well represented in the literature, owing
will emerge from this synthesis, the symbiosis of modern law to a number of factors. First, the diffusion of Western models
and traditional law. This will be the victory of traditional law. throughout the world has been an important phenomenon in the
The exact proportions of customary law contained in modem last few decades, to such an extent that there are hardly any areas
law are immaterial. What matters is that, despite the deter left that have not been subjected to this influence. Second,
mined efforts of African legislators to the contrary, this law will Western jurists have often acted as experts in drawing up constitu
succeed in imposing itself, in gaining recognition. The indeli tions, legislation and law codes. Third, the study of acculturated
ble traces of resistance which the new legislation bears will not systems is easier for classic jurists to undertake than the study of
be a partial victory for traditional law but a victory - pure and traditional systems, where anthropological knowledge is required
simple. (although the unfamiliarity of a number of Western ‘experts’ with
this area has contributed to the failure of some of the economic
(R. Degni-Ségui, ‘Codification et uniformisation du droit’, in and legal development plans in which they have been involved).
Encyclopédie juridique de l’Afrique, Vol. 1 (Dakar, Les Nouvelles The student thus has an abundant supply of literature at his or her
Editions africaines, 1982), p. 474) disposal; we will attempt to cover all the main areas.
As a first approach, there are the principal authorities on the
general theory of the transfer of law. See in particular M. Alliot,
326 Legal Anthropology Legal Acculturation 327
‘Uber die Arten des “Rechts-Transfers” ’, in Entstehung und Rouland, ‘Les colonisations juridiques: de l’Artique à l’Afrique
Wandel rechdicher Traditionen (Freiberg and Munich, K. Alber, noire’, Journal of Legal Pluralism (1991).
1980), pp. 161-231, which stresses the illusory character of most The theme of legal acculturation in the colonial period should
of these transfers. More historical, but also relevant, is J. first be studied as a general overview, without overlooking linguis
Gaudemet, ‘Les transferts de droit’, L ’Année sociologique, 27 tic factors in the resistance of traditional law. Some authors sug
(1976): 29-59. A rather more traditional approach, not entirely gest a general picture of interaction between indigenous and
devoid of legal ethnocentricism, is that of A. C. Papachristos, La modern law: Bradford W. Morse, ‘Indigenous law and state legal
Réception des droits privés étrangers comme phénomène de sociologie systems: conflict and compatibility’, in Indigenous Law and the
juridique (Paris, LGDJ, 1975, 151 pp.). As regards legal accultur State, ed. Bradford W. Morse and Gordon R. Woodman
ation, specifically, the basic text, highly relevant today, is M. (Dordrecht, Foris Publications, 1988), pp. 101-20; F. von
Alliot, ‘L’acculturation juridique’, in Ethnologie générale, ed. J. Benda-Beckmann, ‘Some comments on the problems of compar
Poirier (Paris, Gallimard, 1968), pp. 1180-1236. Also by the ing the relationship between traditional and state systems of
same author (and covering Africa in particular): ‘Les résistances administration of justice in Africa and Indonesia’, JLP, 19
traditionelles au droit moderne dans les Etats d’Afrique franco (1981): 165-75. For a study of acculturation in Africa, in addi
phone et à Madagascar’, in Etudes de droit africain (Paris, Cujas, tion to the work of G. Conac and J. Vanderlinden cited above, see
1965), pp. 235-56; and ‘L’Etat et la société en Afrique noire, the following: E. Le Roy and M. Wane, ‘Les techniques tradi
greffes et rejets’, Revue française d’Histoire d’Outre-Mer, 68 (1981): tionelles de création des droits’, in Encyclopédie juridique de
95-9. Also useful: J. Hilaire, ‘Nos ancêtres les Gaulois’, Annales l’Afrique, l’Etat et le Droit (Dakar, Nouvelles Editions africaines,
africaines (1964): 7-77. The author convincingly demonstrates 1981), pp. 353-91, where Islamic law is covered; A. P. Robert,
how African states have, in essence, taken up the legal system of ‘Attitude du législateur français en face du droit coutumier
the outgoing colonial power, and stresses the resistance of the d’Afrique noire’, in L ’Avenir du droit coutumier en Afrique (Leiden,
population to this law. Hilaire also underlines the parallels 1956), pp. 170-89; P. L. Agondjo-Okawe, ‘Les domaines d’appli
between our own legal history and that of sub-Saharan Africa. cation des droits traditionnels’, in Encyclopédie juridique de
On the current situation in Africa there are two main works. l’Afrique, Vol. 1, op. cit., pp. 405-21; E. Le Roy, ‘Les chefferies
First, Dynamiques et finalités des droits africains, ed. G. Conac traditionnelles et le problème de leur intégration’, in Les
(Paris, Economica, 1980, 509 pp.); see in particular in this work Institutions administratives des Etats francophones d’Afrique noire, ed.
G. Conac, ‘La vie du droit en Afrique’, pp. v-xxxx; E. Le Roy, G. Conac (Paris, Economica, 1979), pp. 105-32; M. Allott, ‘La
‘L’emergence d’un droit foncier local au Sénégal’, pp. 109-40; Place des coutumes juridiques africaines dans les systèmes
M. Bayona ba Meya Muna Kimwimba, ‘Le recours à l’authentic juridiques africains modernes’, in Etudes de droit africain et mal
ité dans la réforme du droit au Zaire’, pp. 229-58; R. Verdier, gache, ed. J. Poirier (Paris, Cujas, 1965), pp. 257-66; X. Blanc-
‘Coutume et loi dans le droit parental et foncier’, pp. 307-13; M. Jouvan, ‘La résistance du droit africain à la modernisation’, Revue
Alliot, ‘Un nouveau droit est-il en train de naître en Afrique?’, pp. sénégalaise de droit, 21 (1977): 21—44.
467-95. More concise, but particularly useful for students, is J. Some of the main processes of acculturation dealt with in this
Vanderlinden, Les systèmes juridiques africains (Paris, PUF, ‘Que chapter form the basis of individual studies. On reinterpretation
sais-je’ series, no. 210, 1983, 128 pp.). Very clear and also rec see: M. Alliot, ‘Coutume et mythe’, L ’Année sociologique
ommended for students is the work of the great, untimely (1953-4): 359-83; F. Snyder, ‘Customary law and the economy’,
deceased African jurist, G. A. Kouassigan, Quelle est ma loi? Journal of African Law, 28, 1-2 (1984): 34-43. On the classifica
Tradition et modernisme dans le droit privé de la famille en Afrique tion of customs see: J. Poirier, ‘Le problème de la rédactions des
noir francophone (Paris, Pedone, 1974). For an overview of legal droits coutumiers d’Afrique noire’, Etudes de droit contemporain
acculturation based on cross-cultural comparisons see N. (Paris, Cujas, 1963), pp. 111-23; also by J. Poirier, ‘Pour un pro-
328 Legal Anthropology Legal Acculturation 329
gramme d’urgence en ethnologie juridique’, Nomos, 1 (1974): I civil dans les Etats africains’, ibid.: 160-70; G. Pambon-
269-80; A. Gouron, ‘Le concours d’un droit écrit et d’un droit I Tchivounda, Essai sur l’Etat africain postcolonial (Paris, LGDJ,
coutumier et l’expérience médiévale française’, Annales africaines i 1982, 165 pp.), pp. 62-4 is concerned with the ‘search for roots’
(1962): 197-205; and in particular ‘La Coutume’, congress of the i in the name of development. In response a number of authors
Société J. Bodin pour l’histoire comparative des institutions stress the inadequate knowledge of traditional law on which these
(Brussels, 1-5 October 1984), forthcoming (1988) in the Recueils ideas are based and the impasse in which Western-based develop
de la société J. Bodin, where we may note, in particular: J. ment finds itself in Africa: see E. Le Roy, ‘Droit et développe
Vanderlinden, ‘La coutume dans le droit français des pays de ment en Afrique noire francophone après dix années
coutumes aux XVIe, XVIIe et XVIIIe siècles’ (very useful for d’indépendance politique’, Revue sénégalaise de droit, 9 (1971):
comparisons between the classification of customs in France and . 52-72; also by E. Le Roy, ‘L’expérience juridique autochtone de
Africa, and completed by P. Ourliac, Coutume et mémoire: les cou j l’Afrique noire contemporaine et le transfert des connaissances
tumes françaises au XHIe siècle, Jeux de mémoire (Montreal, 1985), j juridiques occidentales’, in Domination ou partage? (Paris, Unesco,
pp. 111-22); E. Le Roy, ‘Une tentative de domestication de la ! Ed. Actuel, 1980), pp. 95-126; M. Fuchs, ‘Recht und
coutume sous l’influence des droits romanistes durant le période i Entwicklungslander’, Zeitschrift fur vergleichende Rechtswissenschaft,
coloniale en Afrique noire’; N. Rouland, ‘La coutume et la pensée | 4 (1981): 355-72; M. Alliot, ‘Y a-t-il une crise du développe-
juridique sauvage: l’apport des sociétés Inuit’. Codification is an j ment?’, Cahiers du Gemdev, 1 (1984): 37-43.
important component of acculturation, and has been extensively j Whatever one’s own view in this debate, the resistance of tradi-
studied. Amongst recent works, the most complete is ‘Actes du I tional law is an incontestable fact. For a general approach to this
XVIIIe Congrès de l’IDEF’ (Louisiana, 3-9 November 1985), ' theme see: J. Poirier, ‘L’analyse des espèces juridiques et l’étude
published in Revue juridique et politique, Indépendance et i des droits coutumiers africains’, in Ideas and Procedures in
Coopération, 3-4 (1986), in which see in particular: J. Gaudemet, j Customary Law (London, Oxford University Press, 1969), pp.
‘La codification, ses formes et ses fins’ (pp. 238-60); see also the 97—109; E. Le Roy, ‘African traditional law and modernity’,
summary by P. Decheix, ‘Le Congrès de Louisiane’ (pp. Revue Monchanin, 12, 4, 65 (1979): 35-43; also by E. Le Roy,
207-12). R. Degni-Ségui’s work is essential reading: i ‘La vie du droit en Afrique’, Penant, 761 (1978): 315-23.
‘Codification et uniformisation du droit’, Encyclopédie juridique de
l’Afrique, op. cit., Vol. 1, pp. 453-77.
A summary of the effect of these measures on official African i)
law is contained in: P. F. Gonidec, Les Droits africains (Paris,
LGDJ, 1968); R. Verdier, ‘L’acculturation juridique dans le
domaine parental et foncier en Afrique de l’Ouest francophone’,
I
Année sociologique, 27 (1966): 403—21; J. Costa-Lascoux, ‘De l’ac
culturation à la transculturation: L’exemple des droits pénaux
africains’, Année sociologique, 27 (1966): 424-48. The classic argu
ments advanced against traditional law are developed in a number
of works, some very recent, some by eminent authorities in com
parative law, whose views are none the less deeply ethnocentric:
see J. Chabas, ‘Transformation du droit local et évolution
économique’, Annales africaines (1962): 151-9; J. Stoufflet, ‘De
l’élaboration d’une législation de droit privé dans un pays en voie
de développement’, ibid.: 250-5; R. David, ‘La refonte du Code
X
Conclusion 331
consists not in the abandonment of one solution in favour of Both traditional and modern societies associate law with justice
another in a chronological continuum, but in a reversible prefer and good.2 This is only half the story. Law is in fact associated
ence for a particular form of sociolegal organization. This does more with evil than with good. As J. Carbonnier has written, law
not entail the disappearance of other forms of organization which is not evil, but it would not exist but for evil - as the myths of the
will, probably only temporarily, fade into the background, or find golden age, past and future, stress.3 Law is the brand-mark of our
refuge in those areas of social life which official law has chosen to imperfection. However, it is not the never-ending penance of
leave in the shadows, and where they can survive. Furthermore, Sisyphean labour. Bom of evil, law can avert misfortune. As we
legal anthropology, in denouncing evolutionism, has pinpointed have seen, it is through its rules that exchanges are organized -
what may be one of the major weaknesses of Western thought, matrimonial, vindicatory, etc. - between human groups, prevent
one which traditional societies have known how to avoid: that of ing the casting adrift of groups and the collapse of humanity. In
uniformity. Uniformity is not a proscribed concept, it may even conclusion: if evil is a perpetual and unknowable disaster, law, for
be necessary to seek coherence beyond the impression of chaos its part, is a necessary evil which bathes in the reflection of good.
which variations in cultural and legal options may awaken in us. The existence of death-, there is, alas, one thing worse than evil,
But to believe in unity need not imply an emphasis on uniformity, death, of which Rostand has said: ‘The crime of death is not in
the experience of Western law notwithstanding. African thinking, killing us, but in making our anguish eternal.’ Commonplace and
with its reluctance to consider opposites as mutually exclusive, soothing expressions notwithstanding, death gives no meaning to
teaches us that the acceptance of pluralism provides the necessary life; on the contrary, it removes it. If death is as it appears to be, if
protection through which an equilibrium between order and dis God does not exist, then, as M. Eliade, the great historian of reli
order can be maintained. This would appear to be one of the gion, said, ‘All is ashes.’
lessons of theories of legal pluralism: their vision of life in society Claude Lévi-Strauss’s despairing vision, no doubt the result of
provides a more satisfactory model than models derived solely his own experiences, would then prevail:
from state-based law.
Is this image [the setting of the sun] not true of humanity itself
There is no rigid and predetermined purpose in history; we and, beyond humanity, of all the manifestations of life: birds,
must give that up for lost. Each society contains the necessary
butterflies, shellfish and other animals, as well as plants and
intellectual resources to choose its own historical destiny. There is
their flowers? Evolution develops and diversifies their forms,
no legislator as demiurge, who can lead us along a preordained
but always in view of their ultimate disappearance, so that, in
path: we are freer, but also more alone.
the end, nothing will remain of nature, life or man, or of his
The existence of evil', in the biblical alpha and omega, Genesis
subtle and refined creations, such as languages, social institu
describes God’s discouragement in the face of man’s proclivity for tions and customs, aesthetic masterpieces and myths, once
evil, and the apocalypse reveals the end of evil and suffering as their firework display is over. My analysis, by proving the rigor
not of this world. We can only confirm, at the risk of being called
ous patterning of the myths and thus conferring on them the
pessimistic, that evil dominates the history of humankind. Good
status of objects, has thereby brought out the mythic character
exists as well, and no doubt more frequently than we would like
of those objective realities: the universe, nature and man
to believe, since it often remains silent. However, in the present
which, over thousands, millions or billions of years, will, when
state of our historical knowledge, if we had to take bets, it would
all is said and done, have simply demonstrated the resources of
be on evil: the Auschwitz of good has yet to appear. The issue is
their combinatory systems, in the matter of some great mythol
not yet settled. We may still believe that in the billions of years of
ogy, before collapsing in upon themselves and vanishing,
cosmic evolution before us, humankind may change sufficiently
through the self-evidence of their own decay.
or another, improved species may emerge. However, we can only
argue on the basis of our experience to date.
334 Legal Anthropology Conclusion 335
The fundamental opposition, the source of the myriad oth existence of an invisible world and an afterlife (the case for most
ers with which the myths abound and which have been tabulat other peoples). Traditional societies, as we have seen, use law to
ed in these four volumes, is precisely the one stated by Hamlet, give the dead a number of opportunities to intervene in the world
although in the form of a still over-optimistic choice between of the living, and use lineages to counteract mortality.
two alternatives. Man is not free to choose whether to be or Law thus exists beyond the reduced state it assumes in our
not to be. A mental effort, consubstantial with his history and textbooks, namely a number of strong principles in the garb of
which will cease only with his disappearance from the stage of reason, or, in more vulgar form, the remedies at the disposal of
the universe, compels him to accept the two self-evident and litigants. Legal anthropology demonstrates that, born of our
contradictory truths which, through their clash, set his thought imperfection and finitude, law can also be one of the instruments
in motion, and, to neutralize their opposition, generate an societies shape to transcend such limits.
unlimited series of other binary distinctions which, while never
resolving the primary contradiction, echo and perpetuate it on
NOTES
an ever smaller scale: one is the reality of being, which man
1 See C. Lévi-Strauss, Race et Histoire (Paris, Denoël-Gonthier,
senses at the deepest level as being alone capable of giving a
1961), pp. 41-50.
reason and a meaning to his daily activities, his moral and
2 See above, no. 64.
emotional life, his political options, his involvement in the
3 See J. Carbonnier, Essais sur les lois (Répertoire du notariat
social and the natural worlds, his practical endeavours and his
Defrénois, 1979), p. 296.
scientific achievements; the other is the reality of non-being,
4 C. Lévi-Strauss, The Naked Man, trans. J. Weightman and D.
awareness of which inseparably accompanies the sense of
Weightman (London, Cape, 1981), pp. 694-5.
being, since man has to live and struggle, think, believe and
above all, preserve his courage, although he can never at any
moment lose sight of the opposite certainty that he was not
present on earth in former times, that he will not always be in
the future and that, with his inevitable disappearance from the
surface of a planet which is itself doomed to die, his labours,
his sorrows, his joys, his hopes and his works will be as if they
never had existed, since no consciousness will survive to pre
serve even the memory of these ephemeral phenomena, only a
few features of which, soon to be erased from the impassive
face of the earth, will remain as already cancelled evidence that
they once were, and were as nothing.4
There can be no certainty in these matters: if an invisible world
exists beyond the reflection of our own anguish, it must be so infi
nitely different from our worldly perceptions of it that it is largely
inaccessible to us. However, the risk that Lévi-Strauss’s descrip
tion is correct is serious in its consequences. Most societies have
attempted to sidestep it. Only exceptional beings could hope to
have the courage recommended by Lévi-Strauss to face it. Either
death is concealed (this is what we do), or there is a belief in the
Allot, A.N., 82,83,231,325 Bachelet, M., 323
Amahuaca Indians, 25 Bachofen, J.J., 21-3,25,33
America see Canada; Central Baerend, E., 100
America; North America; Balandier, G., 15,48,178
Index South America; USA Bambara, the, 213,214
Amerindians, 82,151 Bantu, the, 141,193
Ammassalik, 271 Baoule, the, 214
Amselec, P., 14—15 Barotse, the, 145
Abel, R.L., 72,83,85,97 property and ownership, ancestors, 121,154,160-3,168,188, Barret-Kriegel, B., 42,43,76
Abensour, M., 16,288 216-17,219,222 198-9,216 Basa, the, 155
Aberle, D.F., 200,245 received and indigenous law, 62 communal model, 172 Bastide, R., 320
Abkhaze, the, 277 research into diversity, 151 Andaman, the, 181,212 Bauman, R.A., 75
Aborigines, Australian, 36,331 sources of law, 157-61 anthropomorphic accounts, 140-1 Bazin, & Terray, E., 288
absenteeism, 240 traditional societies, 191,193, anthropology, legal, definition of, 104 Beattie, J., 7
absolute monarchy, 43,48-9,76-7 198,212-14 appeals, 165 Bedouin, the, 260-1,275-6,300,331
applied legal anthropology, 32-3 behaviour, 110-11,117-18,120-1,
absolutes, legal, 295-6 vengeance, 278 164,303-4,329
Arab societies, 209
abstraction, 27-8, 38, 165,170, see also sub-Saharan Africa models, 145
Arabia, 300
174,306 Afrique Equatoriale Française observation of, 142-3
Arapesh, the, 202
acculturation, legal, 83,90, 100-1, (AEF), 308 arbitration, 165-9,230,257,265-6, pathological, 37
151,278,291-319 Agboyibor, Y., 254 276 research developments, 64
historical framework, 146 age, 61,143,166,211,268-9 archives, 140 Bekombo, M., 290
Adamson-Hoebel, E., 12,34-6,47, Age, Male Moyen, 249 Arctic peoples, 90 Belgian Congo, 87
72, 84,229 aggression, 256,260 Arianism, 76 Belgium, 87,96
Adat Law School, 47,48,86-7 Agondjo-Okawe, P.-L., 177-8 Aristotle, 20,44,115-16 beliefs, 104, 111, 118,121
Adler, A., 288 agriculture, 22,106-7,212 Arnaud, A.-J., 7,12,14,74,84,98 direction of history, 331
adoption, 61,195-6 see also farming Ashanti, the, 193,212,214,222, elementary social structures, 165
adultery, 212,281 aid, 82,241 242-3 individuals and communal
Africa, 28,96-7, 109 AIDS, 293 Assam, 212 model, 174
abstraction, 165 Alaska, 270 Assier-Andrieu, L., 178 juridicization theory, 129-30
Belgian school, 87 Alinski (American writer), 256 assimilation, 88,297 methodology, 144
codification, 309,311-14 allegations, truth of, 266 Athens, 105, 281 relationships and control, 162
communal model and the allegory, 140-1 Atias, C., 14,98,115 sources of African law, 157
individual, 174 Alliot, A. & Woodman, G.R., 82 Auge, M., 248 vengeance and punishment, 124,
control and relationships, 161-2 Alliot, M., 3,7, 14,89-94, 113, Australia, 36,96,107,206-7,209,331 275
customs, 70,308 116-17,127-31,149,177,319 Austria, 96 Bell, J.G. et al, 244
dominating and dominated communal model, 172-3,179 authoritarian law, 125-6 Bellagio, 81
groups, 314-17 filiation systems, 188 Auzias, J.-M., 7 Bellay, J.-G., 56,72,74,123
evolutionism, 67-8 further reading, 287, 325,326, avoidance, 271-2 Benin, 315
French legal anthropology, 327,329 Azande, the, 202 Bergson, 27
89-90,93-5 inheritance, 250 Aztecs, the, 39 Bernhoeft, F., 28
legal pluralism, 43,74,77-9, legal acculturation, 292-3,296 Beti, the, 274
332 legal pluralism, 43,77-8 Baade, H.W., 85 Bible, 143,181
prehistoric societies, 106 methods of regulation, 143 Babylon, 291 Biebuyck, D., 87,251
338 Legal Anthropology Index 339
bilateral negotiation, 266,270,274 Carbonnier, J,, 5,116,118,120-1, legal sanctions, 240-1 Comte, Auguste, 111-12
bilineality, 60-1, 192,196,201 246,293 securities, 241 Conac, G., 325-6
Binet, J., 250 existence of evil, 333 Clastres, P., 16,35, 109, 110,293 conciliation, 165, 168-9,230,257
Birwa, the, 231,253 legal pluralism, 58-9,75 co-operation, 235-6,240, 301-2 concubinage, 293
Blakenburg, E., Klausa, E. & multiple options, 46 codification, 48-9,75,88, 101-2, Condillac, 27
Rottleethner, H., 85 Caribou, the, 271 111, 309-10 conferrals, 166
blood and honour, 275-7 Carneiro, R.-L., 24,34,67 research developments, 64 confessions, 269
Boas, Franz, 24,31,70 case-method, 37,71-2 see also Civil Code confiscation of goods, 162
Bodin, J., 294 caste, 155,166 coercion, 110 conflict, 48,71-2,167-8
Bohannan, P.J., 71, 86, 117, 122-3, Catholicism, 76 cognatic filiation, 196 see also disputes
144-5, 288 Caucasus, 277 Cohn, G., 28 confrontation, 270,271
English-speaking tradition, 84 celibacy, 211 collective ownership, 218-19 Confucian thought, 39,200
necessity and reality of conflict, Celts, the, 222 colonialism, 32,50-1,75-6,82-3 Congo, 300
37-8 Central America, 96 evolutionist theory, 67-8 conlialism, 299-308
& Dalton, G., 253 Cerulli, 33 French legal anthropology, 88, Connison, I., 69
Boissevan, J., 86 Chabas, J., 328 90-1 consent, mutual, 46
Bolke, 48 Chad, 261,275 introduction of state law, 179-80 Constantine, 275
Bonfante, P., 29,89 Chagga, the, 54,242 legal acculturation, 299,302,308 Constantinesco, J.L., 144
Bonjean, C., 245 chaos, 153 normative analysis, 38 continuity, 77,165
Bonte, P., 198 Charbonier, G., 177 settlement of disputes, 269,272 contracts, 124,151,166,228-44
Bossuet, 76 Chevalier, J., 14,64 status model, 229 control, 110,155-6,161-3,295
Botswana, 86,96,231,253 Chiba, M., 11,60,74-5 traditional law, 314 corporal punishment, 168,240,270,
Bourdieu, P., 64,321 chiefdoms, 90,128-9,226-7 unity and myth, 44 303-4
boxing contests, 262 children, status of, 213-14 Colucci, 32-3 corpse, interrogation of, 267
Braun, P., 6 China, 39,62,200,209,310 Comae, 9,325,326 Corsica, 277-8
Brazil, 96, 278 Christianity, 45,76,127,174,272 Comanche Indians, 39 Cosa Nostra, the, 53
Brillon, Y., 287 see also religion Comaroff, J.-L., 41,72 Costa, J., 22,66
brokerage contracts, 241 city-states, 105-8 Commercial Code, 311 Costa-Lascoux, J., 328
Burdeau, G., 15 civic morality and religion, 128 commercial contracts, 50 costs, legal, 119-20
burgess (bourgeois) law, 45 Civil Code, 42,45,112-13,220-2, commercial expedition, 235-6 Council of Nicaea, 76
Burgiere, A. et al, 11,175,244,248 317-19 commercial law, 45 Courtois, G., 93
burial goods, 106-7 language and impartiality, 64 Commission on Folk-Law and courts, 168,301-2
Burkino-Faso, 316 legal acculturation, 296-7 Legal Pluralism, 87,96 creation, 153-5,157
Burma, 207-8 legal pluralism, 58 common law, 38,44,82 Cree Indians, 302
Burman, S. & Harrell-Bond, B., 85 civil responsibility, 239 common law marriages, 293 Cresswell, R., 7,11,200,245
Burnett Tyler, E., 68 civil wrongs, 239 communal life, 69,169 & Godelier, M., 149
Buulan, F., 256 civilian law, 38,70-1,316-17 model, 154,171-7,233-4 criminal behaviour, 239,280,303-4
clans, 47,189-96,190,196,218,265 possessions, 236 crimes of passion, 120
Calabria, 275 Clark, L., 67 communication, 139-40,159,170 criminals, legal system of coterie, 53
Cameroon, 115,173,261,277 classical antiquity see Greece; Rome communication, 159, see also Crow, the, 187,201
Canada, 61,82,83,96,97 classification, 28,159,315 language; spoken word Cuisenier, J. & Segalen, M., 7
canon law, 45,55 contracts, 234-7 comparative principles, basic, 145-7 currency, 237,315
capital punishment, 270 customs, 306-8 compensation, 162,241,265,270, curses, 161
caravan contracts, 241 dispute settlement, 264 276, 279 customs, 44,88,94,110-11,159-61
340 Legal Anthropology Index 341
customary law, 55,79,126,165, discourse, 104,129-30 dual stratification, 165 ethnology, 88-9,104
169,314-15 dispersion, 260 Duala, the, 173 Europe, 62,67-8,70,97,107,111-12
dominance, 314 disputes, 72-3,107-8, 111, 151, Duby, G., 249 number and origin of
French official transcription, 76 160-1,255-83 & Aries, P., 249 researchers, 96
institutionalization, 123 characteristics of law, 164-6 Duchat, M., 7 prehistory, 107
reasons for obedience, 120 customs and institutions, 123 Duguit (French writer), 98 see also Belgium; Eastern
reinterpretation, 305-6 mediation, 112 Dumézil, G., 112 Europe; Germany; Greece;
social structure, 166-7,169,264,266 non-contentious settlement, 113 Dupre, M.-C., 290 Ireland; Italy; Netherlands;
Cuzco, 110 processes and processings, 85 Durkheim, 30,68-70,228,229 UK
spoken word, 140 dynamic anthropology, 48 euthanasia, 292
D’Aguanno, G., 29 status and contract, 124 Evans-Pritchard, E., 8,250
damages, 239,265 Verdier’s work, 93 East, 28,61,78-9,96,171 evidence, 165,266,268-9
Darwinian theory, 25,67 distribution of produce, 225-6 see also China; Far East; India; evil, 116,332-3
dations, 230-1 district assemblies, 276 Indonesia; Japan; Malawi; evolutionism, 24-36,67-8,88,125,
David, R., 76,323,328 district attorneys, 280 Malaysia; Melanesia; Middle 332
Davie, M.R., 288 Divale, T. et al, 288 East; Tibet excessive vengeance, 277
Davis, F.J., 122 divination, 267,269 ecclesiastic jurisdiction, 56 exchange, 109,123-5,235
Davy, G., 69 divine right, theory of, 76 economic factors, 109,128,166,180, vengeance, 277-8
defacto appropriation, 222-3 divinities, 154,172,188,216 315 of wives, 206-9
dejure appropriation, 222-3 see also God contractual obligations, 232,237 exclusion, temporary, 260
de Zuluete, F., 44 divinity, 60-1,69,140,154 cultural differences, 33—4 exogamy, 61
de-pluralization, 52-3 see also God; gods; religion kinship ties, 200-1,205-6 exotic elements, 110,113-14
death, 154, 198,213,216,271 divisions, legal, 154 education, 120-1,156 extended families, 108,266
control over, 155-6 divorce, 46, 213, 304 Egypt, 62,78,96,295,297
existence of, 333 Dogon, the, 155, 157-8, 162-3 Falk Moore, S., 51,54-7,74-5,80,
Ehrlich (sociologist), 48,50,57,74,
death penalty, abolition of, 280 attitudes to land, 216-17 149
86
Debbasch, R., 76,77, 80 communication, 139-40
elasticity, 238 Fallers, 40
Decheix, P., 323, 328 settlement of disputes, 266
Elias, T.D., 234 families, 61,108,120,165-6,169,
decisions, 72-3, 163, 173-4 social structure, 167
defiance, 313-14 Domat, 196,244 employment, 113-14 235
Engels, Friedrich, 25,66-7 collective ownership, 218
Degni-Segui, R, 313, 323-4, 328 dominating groups, 314—17
English-speaking countries and extended, 108,206
Delavignette, R., 307-8, 321 donations, 166
délit, 239 traditions, 61,82-8,97, 100 history of Western, 249-50
Dorsinfang-Smets, A., 253-4
Delmas-Marty, M., 282 double aveu, 46 epics, 140 immigrant, 58
democracy, 43,229, 280 double institutionalization, 123 epistemology, 3,99 interband relationships, 53
Denmark, 61,96 dowries, 154-5, 162,211,213,242, Epstein, A., 231, 287 prehistory, 250
depersonalization, 170 279 equity, 60-1 seasonal groups, 69
development law, 311 Driver & Massey, 200-1 Eskimo, the, 5,186-7 see also clans; kinship
Diamond, A.S., 12,28 droit de l’etat, 42-4 see also Innuit, the Fang, the, 164
dictatorship, 43 droit des gens, 62 ethics of vengeance, 274 Far East, 96
Diocletian, 44 Droit et Cultures Centre, 90,94-5 Ethiopia, 96,276, 318 farming, 235,241, 259-60,271
Diop, Cheik Anta, 67 droitpersonnel, 242 ethnic minorities, 56, 82-3 Fauconnet, P., 69
diplomatic immunity, 50 droit reel, 217,242 ethnocentricism, 63, 88,91, 137, 145 Feifer, G., 71
discontinuity, 77 droit vulgaire, 44—5, 82 ethnography, 104 Ferguson, Adam, 27
342 Legal Anthropology In dex 343
feudalism, 27,45,108-9,165,282 gender, 189-96,209-11,269 Adat Law School, 86-7 hunter-gatherers, 106-7,225,256,
ancient China, 310 see also women Guatemala, 48 259-60
land, 220 “gentes”, 27 Guiart, J., 90,148-9 hunting, 54,212
Fiji, 271,272 Geny (French writer), 98 guilt, 168 Huvelin, P., 69,228
filiation, 146,188-201,205 Germany, 28,70,82,96,100 Guinea, 300
films, 9-10 Nazi, 32,209 Gulliver, P.M., 74-5,84 ideal order, 153-5,161-3
finance, obtaining, 139 Gemet, L., 69 Gurvitch, G., 48-50,69,74-5,86 Iglulik, the, 271
Finland, 96 Ghai, Y.P., 253 Gusii, the, 213 Ik, the, 278
Firth, R., 71 Ghana, 96, 193,212,222 immigrants, 58, 155-6
Fitzpatrick, P., 83,100 ghost marriages, 213,304 half-castes, 302 inflagrante delicto, 268
folk law, 62,88 gifts, 230-1,242 Hammurabi, 291-2 inalienable ownership, 219
formal contracts, 236-7 Gilissen, J., 56,74 Hamnet, I., 83-4 Incas, the, 110
Fox, J., 69 Gilssen,J., 10 hard labour, 282 incest, 202-6,215,281,293
Fox, R., 203,245 Girard, R., 272 Haudricourt, A., 200 incorporation, 301-2
France, 4-5,110,121,208,220-2, Gluckman, M., 12,38-40,47,83-6, Hauriou (French writer), 98 India, 61,78,96, 193, 201,209-10
249 113,149,231,287 Hawaii, 196-7,201 indigenous view, 86
codification, 42,45,48-9,58, universality of legal criteria, Hazda, the, 260 individuals, 49-50,124,169,174,
297,310 144-5 Hebrew law, 158 315
legal anthropology, 33,82, goals, 163 Hebrew god, 127 control, 155-6
88-93,96,98-101 God, 127,169,172,174 ownership, 218
Hicks, S.C., 75
legal pluralism, 42-5,48-9,58 person-to-God relationships, hierarchies, 51,143,172,184 Indonesia, 47,48,82,86,96,151,
marriage contracts, 231 162-5
Hilaire, J., 320,326 193
punishment and vengeance, 280, sanctity of power, 120
282 Hilse Dwyer, D., 72 infanticide, 238
swearing of oaths, 268
sub-Saharan Africa, 91 Hindu law, 61,62 “informal justice”, 85
Godelier, M., 7-9,83, 149,205,
transcription and classification history, 64,66,93,104-8 Ingber, L., 50
245-7,250,301
of customs, 70,76-7,306 comparative framework, 146 inheritance, 113-4,196-9
gods, 154, 172,188,216
Franciosi, G., 249 Gonidex, P.F., 328 direction of, 331-2 initiation ceremonies, 269
fraudulent description, 241 Goodenough, W.H., 75 role of change, 101 injunctions, 168
Frazer, Sir James, 33,36 goods, 162,231-2,279 unilinear evolutionist theory, injury, 239,241,265, 273, 275
French Revolution, 77 goodwill, lack of, 240 33-4,63 return of, 274
friendly societies, 46 Goody, J., 170,249 Hobbes, Thomas, 172,228 institutionalization, 123
Froelich, J.-C., 320 Gouron, A., 328 Hoebel, E. Adamson see Adamson- institutions, analysis of, 141-3
Fuchs, M., 323 Graebner, Fritz, 31 Hoebel, E. instrumental proof, 269
functionalism, 24,36-7,46-7, 147 Granet, M., 69 Hogbin, 71 insurance, 113-4
Furnivall (economist), 47 grave goods, 107 Hogon Dogon, the, 158 intentional actions, 239
Gabon, 115, 167-8,300,316 Great Britain, 83,96, 100 Holland see Netherlands internal conflict, 255
Gaius, 44 Greece, 69-70, 105-6, 117, 172,281 Holleman, J.F., 72 international jurisdictions, 169
Galtung (American writer), 256 legal acculturation, 291-2,295, Hong Kong, 96 International Union of
Gamo, the, 276 297, 306 Honigmann, J.J., 7,11,67 Anthropological and
Garo, the, 212 Greenland, 61,262,271,272 honour, 275-7 Ethnological Sciences
Gast, M., 250 Griaule, M., 9,88-9 horticulture, 34,271 (IUAES), 62
Gatti-Montain, J., 98 Griffiths, J., 51,53,55-9,72,74,80, Hulotaert (missionary), 110 interstate law, 169
Gaudemet, J., 249,319,321,326 100 Hungary, 96 Inuit Nunamiut, the, 270
344 Legal Anthropology Index 345
Inuit, the, 31,34-5,117,160,179 Kalahari desert, 86,260 contractual agreements, 236 Levy-Bruhl, H., 8,27,50, 69, 88-91,
legal acculturation, 298,302 Kalongo-Mbikayi, 325 impartiality, 64 101, 266
legal pluralism, 53,61 Kapauka, the, 53,229 vocabulary of vengeance, 274 lignees, 189-96
political authority, 109 “Kariera”, 206-7 Western vocabulary, 145 Lille, city of, 119
settlement of disputes, 260-2, Karivondo, the, 265 see also English-speaking lineages, 146, 189-96,219,227,
270-2 Kenya, 85,167 countries 249-52
invisible world, 154,233,236, Khasi, the, 212 Lapierre, J.W., 16, 35,110 Lingat, 90
267-8,268-9 Kikuyu, the, 167,210 Lautmann, R. et al, 13 Little, 48
Iran, 62 kinship, 45-6,140, 146-7, 151 law, livestock, 198,233-4,241
Ireland, 222 blood representatives, 277-8 definitions of, 103-4,119 Llewellyn, 47
Iroquis, the, 187 person to God relationship, 162 field of, 114-31 Ind, the, 233
Islam, 62,78-9,90,127 settlement of disputes, 266, Law of the XII tables, 39 local law, 315-16
immigrants, 58 277-8 Le Roy, E., 3,14-15,72,83-4,90-2, Locke, John, 228
legal acculturation, 300-1, 310, social structures, 165-6,169 99,101, 115, 175-9 Louis, XIV, 43
314 traditional societies, 181-216, classification of social structure, Lowie, Robert, 24
sources of law, 158 231-4,243 264 Lowiili, the, 214
women, 271 see also clans; families complexity of relationships, 163 Lucien, 27,69
written proof, 269 Kiowa Indians, 253 legal acculturation, 311,315-16,
Israel, 96 Koesnoe, M., 88 323-4, 328, 329 MacCallum, S., 71
Italy, 32, 82,95,96 Kohler, J., 28,100 legal regulation, 143 McLennan, J.F., 21,22-3
IMS, 105 Koran, 158,269 macro comparisons, 144—5
traditional societies, 218,223-6,
ius gentium, 298-9 Kourouma, A., 9 230-1,233-4,239 Madagascar, 191,318
Ivory Coast, 307-8,316-17 Koussaigan, G.A., 251
& Le Bris, E., 252 Maengue, the, 278
Kung, the, 260 magic, 269
& Wane, M., 178,323
Jackson, B.S., 92 Kuper, L., 74,81 Lebeuf, J.-P., 148 Mahoney, N., 231-2,253
Jacobson, G, 6 & Smith, M.G., 74,81
Jale, the, 271,272 legal absolutes, 295-6 Maille, M., 58, 59
James Bay Convention, 302 Laboratoire d’anthropoligie legal pluralism see pluralism Mailu, the, 70
Japan, 61-2, 78-9, 96 “legal rigour”, 64 Maine, Sir Henry James Summer,
juridique de Paris (LAJP),
Jeddah, 271-2 90-4,100-1,122,127-31, Legendre, P., 120,250 21,25,33-4,124, 228-9,253
Jordan, 276 223-6 legends, 140 Malauri, J., 9
judgement, 48, 111, 168,266 Labouret (French colonial governor), legislators, 105 Malawi, 96
God’s, 267 89 Leiden, 87 Malaysia, 96
judges, 105, 168,257,304 Labrador, 117 Lenclud, G., 113 male domination, 259
judicable procedures, 263-4 Laburthe-Tolra, P., 9 Lenin, Vladimir, 6 Malekite, the, 300
justice, 114-17,121,167-9, 315 Lafond,M., 11,90 l’etat de droit (rule of law), 42-4 Malengreau, G., 87
natural, 19-20 Lambert, J.-N., 14 “levels of law” (Pospisil), 53-4 Mali, 79,167,300
Lampe, E.J., 12-13,246 Lévi-Strauss, C., 6,15,28,91-3, Malinowski, B., 24,36,40,47,70-2,
justification, 140 land, 220, 223-7, 233,235,243,260, 101-2, 140, 146, 176-7, 244, 120,123
Justinian, 310,322 311 249 Malta, 86
rental contracts, 241 metaphysics, 331, 333-5 Mao, Chairman, 210
Kabyle, the, 274 language, 86,119,138-40,159,165, traditional societies, 193-4, marriage, 36,45,61,128,145,147
Kachin, the, 207-8 236 202-3,205,215 ancient Rome, 50
Kaingang Indians, 278 communal model, 172 levirate, 213,246 common law, 293
346 Legal Anthropology In dex 347
legal acculturation, 293,304 Minangkabau, the, 103 Nadder, L. & Todd Jr, H.F., 72 oaths, 113,233,267-8
person to things relationship, minors, 48,113 Nader, L., 74,84,85, 97 imprecatory, 161
162 missionaries, 272 & Yngvesson, B., 10-11,74,85 obedience to law, 119-21
settlement of disputes, 269,277 Mitteis (Romanist), 45 Nader, L. et al, 10 obligations, 125,228-34,240,243
stratification of law, 165-6 mockery, 260 Napoleon Bonaparte, 42,45,67, 88, contractual, 238-9
traditional societies, 198, 201-16, Mommsen (Romanist), 22 113, 307 Oedipus complex, 202
231,235, 238,240,242-3 monarchy, 43-5,76, 110,174, Naroll (non-evolutionist), 34 official/non-official law, 60-2
see also divorce; dowries 249-50,282,306 native courts, 302 Olawale Elias, T., 176-7,253
Marxism, 20,66-8, 83,138, 147 absolute, 43,48-9,76-7 natural justice, 19-20 Omaha, the, 187
Maspero, H., 290 law amendment, 55 Nayar, the, 193,209 oral systems, 94, 140-1, 163,169-77,
Maspetiol, R., 14 marriage, 204 Nazis, the, 32 188
Massa, the, 261 royal jurisdictions, 56 Ndembu, the, 257 contractual agreements, 236-7
Masset, C., 250 royal lineage, 141 Near East, 96 discourse, 130
material evidence, 268 theory of divine right, 76 Negri, A., 28,66,70,95 evidence, 269
material goods, 180 Mondarini Morelli, G., 12 neighbours, 241 settlement of disputes, 267
material restitution, 241 Montesquieu, Charles de Secondât, neo-evolutionism, 34-6,67 see also spoken word
material securities, 242 19-20,66-7 neo-state law, 316-17 ordeals, 267,269
matrilineal systems, 22, 158, 192, Montils les Tours, 76 neolithic period, 107,108 Oriental societies see East
195 Moore, W.E. & Sterling, J., 149 Nepal, 210 Ossetians, the, 277
matrix method, 92 moral punishment, 168,240-1 Netherlands, 74,82,86-8,96-7,100 ostracism, 270
Maunier (professor of law), 89 morality, 27,70, 127-8, 157, 303-4 Neugroschel, J. & Moss, P., 248 Otterbein, C.S. & K.F., 257,259
Mauritania, 300 Morgan, L.H., 21,23,25,67, 183 New Guinea, 53,229,258,262, Otto, J.M., 100
Mauss, M., 30,47,68-9, 88, 148, Morin, E., 99 270-1,278 Ourliac, P., 328
228,253 Morse, Bradford, W., 301,320 New Zealand, 96 & Gazzaniga, J.-L., 75
Mazeaud, H.L. &J., 246,248 & Woodman, G.R., 74,327 Niger, 96, 198,300 Ovid, 6
Mazeauds, the, 218 Moses, 22 Nigeria, 196,262 ownership, 154,218-19,234,260
Mazzarella, 33 Motta, R., 6,66,69,93,95,253 Nijmegen, 87
Mbuti, the, 257, 260-1 Moundang, the, 275, 279,282 Nkomi, the, 115, 167-8,266 pacts, 166
Mead, Margaret, 202 Moussey, the, 277 nomadic societies, 259-61 Pambon-Tchivounda, G., 329
mediation, 48, 112,168, 265 murder, 54,261, 274, 276-8,281 non-formal contracts, 236-7 Panikkar, R., 147,149
medieval law, and pluralism, 57 Murdock, G.P., 244 non-judicable procedures, 263 parental authority, 145
Meiji period, 78 Murdock, GP, 184 non-moveable property, 220 parenteles, 188-90,196
Meillassoux, 83 Muslim sea Islam non-nation states, 48 parking offences, 120
Melanesia, 28-33, 36,90, 193,204 mutilation, 270,303-4 normative analysis, 37-40,71-2 pastoralism, 34,233-5
Ménager, L.-R., 59,66-7, 105 mutual aid, 241 North America, 31, 100,107, 151, pathological behaviour, 37
Mercier, P., 7 mutual consent (double aveu), 46 257,281 patrician law, 79-80
Mesopotamia, 295 mutual exchange, 235 see also Canada; USA patrilineal system, 193-4,196
metaphor, 159 myth, 94,120, 140,155-61, 165-67, Northorn, F.S.C. & Livingston, Pauwels, J., 87
methodology, 28-33, 63, 92, 136-48 169 H.H., 253 penal systems, 70-1,255,272-83,
Mexico, 48 attitudes to land, 216-17 Nuer, the, 210,213,214 280,282
Mialle,M., 14,58,67, 118 communal model, 172 Nunamiut, the, 53 responsibility, 239
Middle East, 62,96,271 kinship ties, 181 Nyakyusa, 212 people, control of, 155-6
Midi, France, 61 legal acculturation, 295-6 Nyamwezi, the, 278 perceptions, 121
mime, 260-1 settlement of disputes, 264,266,282 Nyuaro, the, 212 personal possessions, 234,237
348 Legal Anthropology Index 349
personal security, 241 Pospisil, L., 53-5,60,66,72-5,84, vengeance, 279 reversals, 308-19
personality, loss of, 154-5 113,253 purification, 270 Rhodesia, 145
personification, 141 criticism of Maine’s theory, 229 Purum, the, 209 Richard, G., 69
Peru, 25 and J. Griffiths, 55,57 Richardson, J., 253
Peul, the, 79,213 universal principles of law, 125-7 quasi-criminal actions, 239 ridicule, 160
phenomena, legal, 141-2 possessions, 220-1,235-6 Quebec, 302 rights, 61,266
Philippines, 96 Possoz, E., 87 rituals, 94,179,233,236-7,294-5
philosophy, legal, 99 Post, H.E., 29,32-3,100 Radcliffe-Brown, A.R., 38,47-8, contracts, 235
phratry, 196 Poumarede, J., 14 122,196,287 marriage rites, 212
Picardy, 317 Pound, Roscoe, 38 Raison, J.-P., 252 vengeance, 275
Pigmy, the, 212 power, sanctity of, 120 rape, 276,281 Roberts, S., 11,41,72,100,258,287
pigs, exchange of, 272 practices, 129,130 Rappaport, 258 Robespierre, Maximilien, 325
Plato, 20,76 Prairie Indians, 281 Rasmussen, K., 160,175 Rolin, H., 87
pluralism, legal, 42,46-60,73-9,86, pre-law, 69 ratification, contract, 236-7 Roman law, 42,70,75,82,174,176,
113, 125, 173-4 prehistory, 106-8,250 Ravis-Giordani, G., 249 236-7
Plutarch, 202 prejudices, 255 realism, 153-5, 164-5 decisions, 73
Poirier, J., 7-10,79,89-91,145,149, prison, 282 rebellions, 281 diversity and unitary myth, 44-5
250,266 prisoners of war, 154-5 recidivism, 53 Droit et Culture Centre, 93
legal acculturation, 321,324, privileges, 228 reciprocity, 70 evolutionist theory, 25,29,38
326-8 processual analysis, 27-8,36-8, recitation, 140 French legal anthropology, 89
Pokomy, D., 252 71-2 reconciliation, 270,271-2,276 legal acculturation, 291-2,296,
Poland, 96 produce, distribution of, 225-6 Redfield, Robert, 47,229,253,320 306
political, degrees of structure, 297 promiscuity, 22 referees, 276 normative analysis, 39
political factors, 140,162-3, 168, proof, instrumental, 269 reinterpretation, 297 securities, 242
172-3,205-6 property, 88, 151, 162, 166,180,196, relationships, 161-5,169,271-2 settlement of disputes, 268
authority, 166,231,257, 266 216-27,243 contract ratification, 236 Romanian law, 95
centralisation, 77 pre-colonial framework, 218-21 criminals and crime, 280 Rome, 44,79-80,108,147,202,293,
contracts, 235 restrictive characteristics of friends and families, 293 298-9
divisions, 154 rights, 219 interband, 53 Rostand, 333
pacts, 166 Protagoras, 19 married partners, 211-12 Rouch, J., 9-10
power, 166,266,282,310 protection, 235,293 received and indiginous law, 61-2 Rouland, N., 9,11,71-6,84,93,246,
unity, 77 provenance of law, 61 securities, 241-2 320,328
political science, 35 proverbs, 140,179 religion, 44,70, 127-8, 153-5, Roume doctrine, 307
Poly, J.-P., 93 proxy mothers, 293 158-9,172 Rousseau, Jean Jacques, 228
polyandry, 210 psychological sanctions, 80 ecclesiastic jurisdiction, 56 Roy, G, 153
polygamy, 195-6,209-10,238,259, psychological tendencies, 120 religious contracts, 235 royal judges, 306
304 public disapprobation, 168 rules, 157 royalty see monarchy
Polynesia, 213 public prosecutors, 280 Remotti, F., 12 rule of law (l’etat de droit), 42
Popper, Karl, 64 Puerto Rico, 96 Remy, R., 98 rules, 127-8,157
popular law, 315,316 punishment, 124,168,272,279-83 reparation, 270 sacrifices, 233, 235,242,270,276
population density, 105 avoidance of, 121 research, 96, 136,137-9 animal, 235-6,279
Portalis, 310,322,325 classification of legal sanctions, residence, 46,147, 160,162 human, 106
Portugal, 82,96 240-1 responsibilities, 228,239-40 Sahlins, M.D., 109,231,293
350 Legal Anthropology Index 351
St. Thomas, 20 settlement of disputes, 167-8, Strijbosch, A.K., 88 third party intervention, 257
satirical songs, 271 256,264 Strijbosch, F., 12,74, 86-8, 100 threefold stratification, 166
Saudi Arabia, 271 socio-economic change, 238 Strijbosch, J.M., 88 thumping sessions, 262
Savigny, F.K. von, 67 traditional societies, 108-11,230, structuralism, 63,63-6, 84,92 Thurnwald, R., 12, 32,95
Schapera, L, 71-2,84 237-8 sub-Saharan Africa, 5, 82, 151, 157, Tibet, 210
Schmidt, 31 socialization, 140-1 179,267 time, 27, 139,155-6, 162,294-5
Schnur, Roman, 76 socio-psychological sanctions, 260 communal model, 172,175 Tiv, the, 156,261
Schoepf, G., 6 sociology, legal, 49-50 legal acculturation, 292, Toda, the, 210
School of Laws, 310 Sohier, A., 87 298-308,311 Togo, 86
Schott, R., 13,95 Somalia, 32 traditional societies, 181,191, Tonga, the, 212
seasonal influence, 69 Sonrha Empire, 79 223-6,227,229, 232 totalitarianism, 52
secularization of law, 129 sorcerers, 267 submission, 296 Touareg Kel Gress, the, 198
securities, 241-3 South Africa, 47-8 Sudan, 187,210,212 Touareg, the, 22,201,212
Segalen, V., 9 South America, 96 Sumatra, 73 Toucouleur, the, 173
segmentation, 196 South Pacific, 271 Sumerian law, 171 traditional law, 79, 153-80,314
Seidman, R.B., 119-20 South-East Asian societies, 193 summer law, 69 traditional societies, 71,128-9,
seigneurial jurisdiction, 56 Soviet law, 171 supernatural forces, 121 181-254
semi-autonomous social fields, 54-5 space, control over, 155-6,162 Swazi, the, 212-13 training contracts, 236
semi-complex societies, 266 Spain, 82 Switzerland, 96 transcendent evidence, 267-8
semi-elementary societies, 265 specialization, 105, 107, 165 symbols, 22 transfer of law, 292-9
Seneca, 281 Spencer, H., 34,68 Szabu, D., 256 Treaty of Versailles, 32
Senegal, 83,96, 115,167-8,174, 300, Spinoza, 272 tribal courts, 88,302
315-16 spoken word, 139-40 taboos, 6,271 tribunals, 168-9
seniority in family law, 61 states, 15-16,80,105-11,179,309 Taft (American writer), 256 Trimbom, 31
sentences, 270 and criminal coterie, 53 tales, 140 Trobriand Is, 36,70,193,262
Serere, the, 198 existence of law, 80 talismans, 269 Tswana, the, 213
services, 231-2 law, 42-4,48,55-6,64,169,179, Tanzania, 54,96,242,260,265,318 Turnbull, 278
socially determined, 237-8 316-17 Tarde, 120 Twana, the, 212
shame, 260 sovereignty of, 77 Tchouktche, the, 204 Tylor, E. Burnett, 34,68
Shoshone, the, 193 status, 124,141,227-9,295,303 teaching, 97 typologies, general, 122
Shreiner, A., 100 children, 213-14 Ter Haar, B., 88
Siberia, 204 hierarchy, 155-6 terminology, in kinship, 182-7 UK, 83,96,100
singing contests, 261 of individuals, 295 Terray, E., 83 uncertainty, 308-19
Sierra Leone, 48 single adults, 210-11 Terre, F., 118 undifferentiated filiation, 196,201
slaves, 155-6 testimony, 269 territorial organization, 166 uniformity, 77,332
Snyder, F.G., 72,83-4,97,100 things and property, 154,221-2 testimony, 269 unilineal theory, 26-8,33-6,193, 201
social anthropology, 23-4 women, 212 Thailand, 62 unintentional actions, 239
social contracts, 235 Steward, J.H., 34 theories, unity, 76-7,113
social sciences, 82,85 stories, 140-1,179 cross-cultural, 121-31 universal concepts, 125-7,145
social structures, 69,139-44,154-6, Stoufflet, J., 328 evolutionist, 24—32 USA, 42,68,82-3,85,96-7,193
161,165-9 stratification of law, 163,165-7 functionalism, 24,36-7,46-7,147 tribal courts, 302
legal acculturation, 315 St. Luke, 76 thieves, 260
prehistory, 106 St. Thomas, 76 things, 145, 154, 161-2, 164-5,236 values, 111, 129-30, 144,157,162,
semi-autonomous fields, 51,54-6 Strijbosch, A., 86 formation of contract, 235 274
352 Legal Anthropology