Letters to the Editor
explanation-a surplus of females-( 1) applies to
the entire cultural region (where in the first period
of slavery there was a surplus of males); and (2)
interprets the national and subunit differences
within that region. This I have tried to do in my
analysis of illegitimacy in the New World generally.
The scattered data I have on sex ratios in various
Caribbean countries, some dating back to the early
1800’s, suggest that either there was no surplus, or
that it was too modest to create so major a cultural
change as he ascribes to it. I n any event, it is ap-
parent that he has not taken this necessary step in
demonstrating that a cultural change was caused by
a demographic fact. On the other hand, if he is really
concerned with only the distribution of female-
headed households, he can be satisfied with a crude
demographic datum (the men are absent.)
As to Otterbein’s strictures on my own attempt
to explain the variations in New World illegitimacy,
I find that he has read these articles (1960, 1961) so
carelessly as to preclude any serious answer on my
part, His simplistic and oddly specific interpreta-
tion (operationally: migratory wage labor is asso-
ciated with a lower percentage of consensual unions
and a higher percentage of legal marriages) is an
obvious deduction from my own broader hypotheses,
and I welcome the additional support.
Otterbein has so garbled my own detailed hy-
potheses about rural-urban illegitimacy differen-
tials, it hardly seems possible to clarify for the
reader what the prime issues are in his attack. Most
simply put, however, my effort was not to predict
merely that illegitimacy rates are higher or lower in
urban areas, but to state a set of phases in these
differentials since thc Conquest period. Second,
sending illegitimate children back to rural areas
would not affect illegitimacy rates, which are cal-
culated (usually) on the basis of residence a t birth,
not a t the time censuses are taken. Third, I spe-
cifially explained (1961:921-922) why the Carih-
bean region is dijerenl from the Ibero-American re-
gion, though Otterbein was not careful enough in his
reading even to note this difference (1966:493).
Each of these assertions (Otterbein’s and mine)
requires some sensitivity to the cultural and social
structures of these regions. Cross-tabulations of
simple numbers, without an examination of the
cultural realities they represent, may sometimes
yield high correlations, but these correlations will
then have only an arithmetical meaning: their
sociological and anthropological meaning will be
trivial.
WILLIAMJ. GOODE
Coliimbia Universily
REFERENCES CITED
GOODE,WILLIAMJ.
1960 Illegitimacy in the Caribbean social structure. Ameri-
can Sociological Review 2521-30.
1961 Illegitimacy, anomie, and cultural penetration. A m d -
can Sociological Review 26:910-925.
227
1966 Note on problems in theory and method: the New
World. American Anthrowlogist 68:486-492.
OTTERBEIN,Kemr F.
1965 Caribbean family organization: a comparative analy-
sis. American Anthropologist 61 :66-79.
1966 Otterbein’s reply to Goode. American Anthropologist
68 :493-497.
VICMY, GRACEQ.
1967 Otterkin. Goode, and the Caribbean family. American
Anthropologist 69 :224-226.
AND THE LAW
ON BOHANNAN
Sir:
This is a short comment on Paul Bohannan’s ar-
ticle “The Differing Realms of the Law,” which ap-
peared in a recent issue of the AUERICANANTHRO-
POLOGIST (67, no. 6, pt. 2:33-42). It is the main
purpose of the author to distinguish legal norms from
customs. He contends that the basic criterion in the
definition of legal rights is the double institutionali-
zation of norms and customs. What he means by
“double institutionalization” can be best stated in
his own words: “It would be better to say that legal
rights have their material origins (either overtly or
covertly) in the customs of nonlegal institutions
but must be o v d y r c s W for the speci6c purpose
of enabling the legal institutions to perform their
task.” Thus, two features, essential to the definition
of legal rights, for Bohannan are: (1) all legal rights
must be rooted in customs, either of the nonlegal
institutions or of the legal institutions themselves,
and (2) these customs must be overtly restated for
specific jural purposes.
To take the second point first, I find his emphasis
on overt restatement misplaced. Owing to the ab-
sence of codification, customs and norms may not,
in all societies, be reorganized and overtly restated
for jural purposes, but this does not mean that the
notion of the jurisdiction of courts is not present.
I n Bohannan’s own study of the Tiv (Bohannan,
Justice and Judgmmrt among the Tiv, London, 1957),
he states that there is no overt restatement of
norms for jural purposes. That is, the jir (courts)
of the Tiv can settle disputes concerning any of the
customs of the folk institutions. Yet we find that
there are cases in which judges are ready to give
judgment on certain issues, while on some other
issues they may use moral persuasion but cannot
enforce what they deem to be correct. A particularly
instructive case in this context is Marriage Jir
31, where the mbatreu (judge) refused to order that
one of the children be given to the mother’s mother.
Although it is a familial norm of the Tiv that a child
should be given to the mother’s mother for rearing
if she asks for the privilege, the mbatrev did not
enforce it. They could only exhort the husband on
moral grounds to give the child; but to quote the
author, “Chenge was anxious that the people should
carry out their obligations in such a way that it
should look as if the Jir had not entered the matter.”
It is obvious that though there is no overt restate-
228 Antericaic A nthropologist
ment of familial norms for jural purposes, there is
a clear recognition of the fact that certain familial
norms can be examined in a court of law, while
others cannot.
This case makes my point clear. It would not be
correct to conclude from the absence of overtly
restated norms (as Bohannan does) that the Tiv do
not have a corpus juris. Sometimes the restate-
ment of norms is not explicit, in the sense that, if
asked, informants may not be able to state explicitly
which of the customs of their nonlegal institutions
can be examined by the courts. Yet the notion of the
jurisdiction of courts may be implicit and may
emerge in the examination of particular cases.
Clearly, there is some mistake in emphasizing the
“overt restatement of customs for jural purposes”
as an essential criterion of legal norms.
To take up Bohannan’s first point now, the con-
tention that all legal rights have their material (in
the sense of physical) origin in customs makes the
definition of legal rights too narrow. The limitations
seem especially obvious in the case of developing
countries like India, where in some cases law a t the
national level reflects, not the consciousness of the
people, but the consciousness of the reformers.
Much of the constitutional law of India not only has
no roots in prevailing customs, but goes directly
against them. Are we then t o conclude (as we must,
if we accept his definition) that the norms of the
indigenous legal systems are legal while the norms
of the national legal system are merely customs?
The error lies, in the definition quoted above, in
making customs the sole source of law and over-
looking the ordinances of kings, statutes, etc., as
relevant in this context.
Of course, it might be argued that the situations
mentioned above are created by transitional phases.
But the important point is that this transitional
phase may never come to an end. At least, the
probability remains that as long as legal institutions
are instruments in the hands of politically organized
forces, new norms could always be made enforceable
as legal norms. Thus, at any one given point in time,
there are hound to be some legal norms that have
their material origins in customs, which are doubly
institutionalized, and others that are institutional-
ized only a t the legal level. Any definition of law will
have to cover both types of norms. In as much as
Bohannan’s definition fails to cover the latter type,
it remains incomplete, which is not to deny the
relevance of the aspects that his definition does
cover.
I t is not that Bohannan is not aware of the prob-
lem. He explicitly states that social catastrophe and
social indignation are sources of much law and
resultant changes in custom. In fact, he recognizes
the situation, as in municipal systems of law, in
which “nonlegal social institutions t.ike very long
to catch up with the law.” However, having stated
this, he fails to incorporate its implications in the
definition of legal rights. His treatment of such
[69, 19671
situations as transitional phases circumvents the
whole issue and makes it appear simpler and neater
than it actually is.
Bohannan seems to ignore that there is such a
process as social development. As societies become
more complex, law becomes increasingly separate,
with law-making books, case law, etc. I n this sitiia-
tion the innovation of legal norins is not only related
to the customs of the nonlegal institutions, but has
also to fulfill the demands of consistency within the
existing legal framework. The emphasis on doul,lc
institutionalization implies a relationship between
customs and law but fails to bring into focus the
relationship of particular legal norms within the
total legal framework. Thus, it overlooks the process
whereby the demand of legal consistency may lead
judges to interpret particular legal rights along cer-
tain revolutionary lines, sometimes going directly
against public opinion or a t least against a sizable
section of it. The interpretation of the civil rights
of the Negroes by the United States Supreme Court
is a case in point. The maintenance of the s t a h qiio
is an important function of the courts, but one
cannot ignore their covert legislative powers-
which in certain cases make them agencies of
revolution. Bohannan does mention that the courts
have innovative powers, but again he emphasizes
the stabilizing function of the courts t o a point
where the innovative function is completely ne-
glected.
VEENAMONGA
University of Dellii
REPLYTO MONCA
Sir:
Monga could have made his criticism more telling
and much more to the point had he pointed out that
there are at least three sources of law. The first is
the custom from which law is reinstitutionalizetl;
the second is the value-ideal that a political despot
(no matter what its structure or aims, or how
benevolent i t may be) utilizes in turning the law into
an instrument of innovation and reform; the third
is the conflict of law as it emerges in appeals, of one
sort or another.
The first of these is associated with the law as D
means of settling conflicts (which is what I was
talking about); the second is associated with the
law as a means of innovation (which is what he is
talking about); and the thud is associated with the
law as a means of reconciling conflict settlement and
innovation-that is, justice.
Another point should be noted: a “corpus juris”
is one thing. What people think they ought to do is
something else. I t takes legal institutions, overt
statement, and conscious organization to make
what people ought t o do into a corpus juris. Monga
notes that there is little overt statement of “rein-
stitutionaliiation” of norms among Tiv. He is
right-the cases he cited are not “law” by the defini-