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Review

Reviewed Work(s): The Judicial Process among the Barotse of Northern Rhodesia by Max
Gluckman
Review by: Samuel Enoch Stumpf
Source: Harvard Law Review, Vol. 69, No. 4 (Feb., 1956), pp. 780-787
Published by: The Harvard Law Review Association
Stable URL: https://www.jstor.org/stable/1337489
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780 HARVARD LAW REVIEW [Vol. 69

campaign further helps to bring the marginal voters into one or the
other camp. Undoubtedly, the vigorous Truman campaign of I948,
which contrasted with that of Dewey, helped bring many back into the
Democratic fold.
Underlying the voting process as described by Berelson and his
colleagues are two related factors: first, there is a large area of agree-
ment between the two parties and between voters of different political
persuasions; secondly, politics is not a major concern for the majority
of the American electorate. Since the outcome of the election makes
little difference to the average voter, his interest is low and conformity
to the political climate he sees about him comes easily.
Perhaps the most provocative statements in Voting are about the im-
plications which the authors draw for our political system. Our tradi-
tional view, displayed in every civics textbook, has been that democracy
works best when each citizen is highly concerned with political affairs,
holds strong opinions, and votes according to a rational appreciation of
his own interests and those of the commonwealth. We all know how
far short of this ideal the mass of our citizens fall, a state of affairs
on which Voting provides ample documentation. Yet political democ-
racy endures, and has been, by and large, quite successful in grappling
with its problems.
The authors suggest that perhaps we have erred in insisting that
every citizen be politically active in a high degree. High interest might
produce a splintering of the electorate along many lines, destroying the
two-party system. A balance has to be drawn between cleavage and
cohesion, and the low political interest of American voters apparently
helps bring together the electorate once the heat of the campaign has died
away. Furthermore, the authors suggest, the group voting pattern lends
a stability to our government. Sharp fluctuations in the political line-up
are prevented by the resistance to change presented by such patterns of
voting. Flexibility in the political system, however, is maintained by
the marginal men who stand between the major social groupings.
Voting is the best example known to this reviewer of the power of the
new research techniques of the "behavioral sciences" and the relevance
of their findings to our understanding of society.
PETER H. Rossi *

THE JUDICIAL PROCESS AMONG THE BAROTSE OF NORTHERN RHODES


By Max Gluckman.' Glencoe, Illinois: The Free Press. I955.
Pp. xxiii, 386, and maps. $6.75.

This extraordinary book should commend itself to anyone who is


even remotely interested in the broad question, "What is law?" Not
since Sir Henry Maine's Ancient Law 2 and Early Law and Custom 3

* Assitnant Profpessr of Soniononv. University of Chicago.


1 Professor of Social Anthropology, University of Manchester.
2 MAINE, ANCIENT LAW (ist ed. i86i).
3 MAINE, EARLY LAW AND CUSTOM (ist ed. i883).

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I956] BOOK REVIEWS 78i

has the problem of primitive law been given such thorough treatment.
But unlike Maine's works, the present book deals with a solid, wide,
and rich variety of fact, not with generalizations. The author's analysis
is, moreover, far more exciting than Maine's since his acquaintance with
his data is firsthand and recent and not derived from ancient literature.
The book is based upon several years of field work in Barotseland dur-
ing which the author observed and recorded proceedings in the native
courts. To set this book in perspective, something should be said first
about the Barotse.

Actually, the cases in this book are taken from the proceedings of the
courts of the Lozi tribe, one of many which are collectively known as
the Barotse. This dominant tribe of the Barotse nation is located in a
flood-plain which runs I20 miles from north to south along the Zambezi
River, the plain being twenty-five miles across at its widest. The Lozi
tribe, which was created sometime before i6cc A.D., numbers 70,000
to 8o,ooo people, and they are the formal rulers of the Barotse Province
of Northern Rhodesia, which has a population of 260,000 to 300,000
people. The author points out that the Lozi have no particular mythol-
ogy. The people do not write. They have ironic folktales, many pene-
trating maxims, and songs praising persons and things. They seem to be
keen historians and wise philosophers. The Lozi believe that they have a
genius for law and government, and with this estimate the author
agrees. They have a constitution under which the king and his councilors
are bound by law, the premise being that the king can, but should not,
do wrong. The center of personal, social, and the simple economic life
is the village, which is under a "headman." Foreign influences include
the work of the Paris Evangelical Mission, which has since i885, accord-
ing to the author, turned the Lozi into a nation of pagan-Christians,
and the British South Africa Company, whose influence, starting about
i900, has not significantly affected Lozi thinking about law, though it
has affected the hierarchical structure of the courts.
The Lozi court is held in an imposing building whose long roof covers
a rectangular area of ground where all the participants have specially
assigned places to sit. Cases are heard by a court composed of three sets
of councilors, each set placed according to rank at a different distance
from the seat of the king, who does not usually attend. The litigants sit
before these judges along with their kinsmen and witnesses. The
plaintiff states his case without being interrupted even if he injects
irrelevant details, and the defendant replies in the same way. There are
no lawyers representing either party. After statements by both sides,
the court, that is, the various councilors present, cross-examine the
parties and their witnesses. When all the evidence has been heard, each
councilor, beginning with the lowest rank, gives his judgment. The
senior councilor formulates the final judgment, which is subject to the
ruler's approval. The hearings are conducted with elaborate etiquette.

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782 HARVARD LAW REVIEW [Vol. 69

II.

Unlike Malinowski's Crime and Custom in Savage Society,4 the


present volume provides the materials on which the conclusions are
based and not just the conclusions alone. The author reports sixty-five
cases selected from those at whose proceedings he was present between
the years I940 and I947. This volume contains notes taken, during the
deliberations of these cases, by the author himself; he has the unique
advantage of understanding the Lozi language very well, though not
perfectly. The Lozi people are very litigious. About eighty per cent of
their cases involve problems of marriage and sex: typical cases cited
are those of the Adulterer's Stockings, Barren Widow, Cross-Cousin
Adultery, Doubtful Paternity, Eloping Wife, Improperly Married Wife,
Overpaid Prostitute, and Schoolboy-Adulterer. Other types of cases
are suggested by these titles: Abused Beggar, Biassed Father, Exorbi-
tant Fishmonger, Freedom of Residence, Perjuring Oath-Taker, Thieving
Kinsman, Unfounded Claim, Unused Land, Watchtower Pacifists, and
Wife's Granary. The kind of case that arises among the Lozi is deter-
mined to a great extent by the nature of their primitive economy. The
goods the Lozi deal in are the simple necessities such as food and cloth-
ing, and by and large most transactions are face to face. Most impor-
tant of all is the fact that each person is implicated in a multitude of
relations between himself and his kin, the tribe, and the realm of things.
An act which contravenes a law, therefore, has many implications and
affects many people and their possessions.
Besides reporting these sixty-five cases, the author provides a full
analysis of the Barotse conception of law, dealing particularly with the
problems of the source of law and the nature of the Barotse judicial
process. But before turning to his analysis, it will be helpful to give the
full report of one case to illustrate some typical aspects of Barotse law
such as a) the sermon-like tone of the judgments of the councilors,
b) the use of phrases which indicate that any "reasonable" person
knows right from wrong, c) the conviction that the ultimate source of
law is God, and that there is a natural justice in the nature of things,
and d) the attempt to deduce guilt logically from a related act.

CASE 37: THE CASE OF THE MAN WHO HELPED HIS


MOTHERS-IN-LAW CROSS A FORD

before the Barotse Province Appeal Court, June, I947, appeal by


husband against judgment of Libonda (Kalabo District Kuta)

In this case the wife sued for divorce mainly on the grounds that her
husband committed adultery with her mother's brother's wife, who ranks
as her mother. She also brought forward proof that before this her
husband had neglected her and taken goods from her, and to redress this
had paid a pot to her father. Later, when her father was ill, the husband
had not come to visit him, nor had the husband come to mourn on her
father's death. I give some representative judgments:

4 MALINOWSKI, CRIME AND CUSTOM IN SAVAGE SOCIETY (i926).

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I956] BOOK REVIEWS 783

SILISONGO (representative of Makoma tribe-right-hand mat): 'The


pot shows that you were in the wrong the first time, and later you were
wrong in not going to your wife to mourn the death of your parent-in-
law. Then I would increase your fault with sleeping in the Mawiko
village with your small mother-in-law, and crossing a ford with your
small and your great mothers-in-law. You have entered the huts of two
mothers-in-law. As for the girl, you just fight her. You drove her out,
so you brought a pot to her father. Above all, no-one marries a girl
and then her mother' . . . 'You, girl, when you look at this man he is
your father. You may be returned to him by your lords: for me you
are free.'
LIASHIMBA (temporary representative of Nalolo -right): 'The taboos
between parents-in-law and children-in-law are not made by government,
but come from the beginnings of our people. I believe there was adultery
with your wife's mother's brother's wife on the journey. How can an
innocent man go on a journey with the wife of an absent man, and carry
her dress and cross a ford together with her? No-one crosses a ford
with a woman. If you see a woman crossing, you turn back and hide
till she has gone [Since a woman may strip or draw her skirt above her
knees to cross. In this case the women stripped and their nephew-in-law
carried one's dress]. This is an old law made by our government. You
know this, that one must not meet a woman crossing water, and that if
you do you can be fined. You know these laws. Long ago you drove out
your wife, and when you returned to the village you came to your
liaison with your mother-in-law. You did not go to your wife's father's
illness -how did you love him? You knew you were wrong and it is
shown by the payment of the pot. No-one just pays -it shows you
had a fault. On top of that, then you went into the hut of her mother.
I do not know you, X, I do not hate you. I am a child here, a pupil
with my teachers, and like you will learn from them; but I see that she
is not your wife, she is the child of her father.'
IMENDA (chief of the Mbowe tribe - right): 'You were a year at
Kalabo without going to your wife. You took the goods of your hut to
Kalabo. Your wife's father was ill and you did not go there, or to
mourn: you freed your wife, and this was shown by your taking your
pot there, and you knew it. But the bad thing is your crossing the water
with the two women. You said you did it to protect them from the
crocodiles. Why then did you not turn back to guard the other woman
when she crossed on her return? You cared for the one and you slept
with her. The law of incest is old, and in the past you would have been
killed for this. You know that one does not see the wife of another .man
naked, or even her thighs. I am astonished that you are not ashamed.
How can the two maternal uncles of your wife who live in one village
receive you in the village? I cannot marry you there where they are-
you will kill one another. Let her marry another who will get on with
her. I agree with the others, but I do not know what will happen at the
finish, because our law (mulao) does not go straight like cattle to water,
but here and there to the finisher.'
The other judges all followed these judgments, and I therefore quote
without context, some of the statements in judgments, in their order,
as they illuminate the themes we are considering. 'Your giving the pot
shows that you had done wrong to her and her parents, and you were
buying her again; but before you could take her home there came this

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784 HARVARD LAW REVIEW [Vol. 69

new quarrel' . . . 'I support your wife; she is a good girl, a true
woman. If our children were the same, we would have children. She
sees the incest, and asks, "Is it my husband who goes to my mother?" '
. . . 'You slept with your wife's maternal uncle's wife, or you would have
appealed [he had been fined in a separate case for this adultery]. The
law does not agree that one enters the hut of another man, or ask his
wife for snuff, outside of him' . . . 'The law of nakedness is inherent,
it comes from childhood; small boys and girls hide their genitals. And
as IMENDA, my lord, says, the law of hiding from women crossing water
is from King Lewanika [d. i9i6]. Also, as IMENDA says, you were not
protecting her from crocodiles or you would have worried about the
other woman. If it were I, I would fine you for three things: (i) cross-
ing the water with naked women, against the law of Lewanika; (2) not
being afraid of the nakedness of your mother-in-law which is sleeping
with your mother-in-law; and (3) sleeping with another man's wife'
. . . 'I do not enter into the affair of the pot or the other affairs. Your
wife is freed by your crossing the water with her mother. To sleep with
your mother-in-law and to commit shame by seeing her naked are the
same thing. You cannot call your mother-in-law to see you undress, or
sleep. I see your wife is truthful when she says she cannot return to
you. I might have returned your wife on the other affairs because you
paid a pot, but I am stopped by the crossing of water with your mother-
in-law. I do not separate these. Your wife is freed, unless you are given
her by the NGAMBELA (Ri)' . . . 'Man, I speak by the law. I would
have called as witnesses the people of the village where you and she
slept, but in the other kuta you admitted your wrongdoing-crossing
the water with a woman who ought not to be seen familiarly. You
cannot even do that with a sister-in-law [with whom there is a joking
relationship]. It shows you look on her as a wife. And even if it is an
ordinary woman you should fear to cross. But bukwenyani (relationship
of parent-in-law and child-in-law) is a thing brought by God. You are
mad. Your wife asks for a divorce and I free her' . . . 'You, my
kinsman, I cannot be a renegade. You call your mother-in-law sister-
in-law. You know one must avoid one's wife's maternal uncle's wife in
the village. To cross water with a woman, an ordinary woman, is bad.
You did with your mother-in-law, she was naked and you carried her
dress. This is like sleeping with her. This is a terrible thing by our law:
to have intercourse with a dog, to have intercourse with a cow, to have
intercourse with a tabooed person like your mother-in-law here. So the
girl can come out of your hut.'
* . . . (PP. I48-50)

III.

Professor Gluckman's analysis of the Barotse judicial process brings


to light several characteristic features of this system of law. In the first
place, the judges are confronted with a set of "facts" which they must
assess in terms of the "law." But what is the law? The cases reported
indicate that there is no single source to which the court can turn in
finding the law. Even where there are formal statutes, the search for
the true ground of the law continues. What is clear is that legislation is
not the sole nor the paramount source of law among the Barotse. Their

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1956] BOOK REVIEWS 785

law is drawn from custom, legislation, precedent, equity, the laws of


nature and nations, public policy, and morals.
To consider the source of law in such broad terms leads the Barotse
to define the nature of law in an equally broad way, the law for them
being "the things which ought to be done." This means that the law
embodies not only those rules for which there is a specific sanction but
also those for which there ought to be a sanction. This is a concept of
law which incorporates the combined moral, religious, and legal impera-
tives addressed to man.
But law is more than just these rules; it is also a way of applying
them, a judicial process. Thus the law requires interpretation and a
logical application to the facts at hand. Since both logic and interpreta-
tion require certain premises, Barotse law can also be said to rest upon
presumptions informing the minds of the judges, as, for example, "hus-
bands should take good care of their wives," or "a man must behave
reasonably." The Barotse are aware of the uncertainty of their legal
standards, yet have a sense of the certainty of the legal order itself
because of the procedure of judicial interpretation and application of
these standards to the case at hand. They believe that the uncertainty
of their general standards results in a desirable flexibility. As Professor
Gluckman says, "'Reasonable' and 'customary', like other legal con-
cepts, are highly flexible, and they become permeated with changing
social presumptions, values, and conditions of life, and can absorb a
variety of actual situations. Their flexibility has enabled Lozi judges to
adjust rules of law to cope with Christianity, schools, work for money
in Loziland and at distant towns . . . ." (p. 36i)
The judicial process, finally, is concerned with achieving not only
stability, order, and legal predictability, but certain desirable social and
moral ends. This is why the judges reach into the realms of justice,
truth, and morality in rendering their decisions. They are aware that
behind all law lies the "government" because it establishes the authority
of the court and the court has to say "this is the law." (p. 295) But the
significant point is that authority or power alone are not considered the
essence of law, because in the minds of the Barotse the law is associated
with justice, truth, and "right." Hence the "end" which the court seeks
to achieve is "right" conduct. Sometimes the court applies the law
strictly, and the outcome is in favor of one who has acted wrongly.
But, says Professor Gluckman, "the judges are reluctant to take the
view that theirs is only a court of law and not a court of justice or
morals, and they may try to state and apply legal rules, without ap-
parently altering the law, so that justice is achieved." (p. I77)
What then is law? It is at least two things: a corpus juris whose
sources are many, and a process which is guided by the ideals in the
corpus juris. It is, as Professor Gluckman summarizes his findings, "a
set of rules accepted by all normal members of the society as defining
right and reasonable ways in which persons ought to behave in relation
to each other and to things, including ways of obtaining protection
for one's rights." (p. 229)

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786 HARVARD LAW REVIEW [Vol. 69

IV.

The conclusions of this empirically grounded study will, I believe,


have an important bearing upon discussions in jurisprudence and legal
philosophy. For one thing, it will be difficult, in light of this evidence,
to sustain the older notion that primitive law is something different in
kind from law in a developed society. No one reading this book can
escape the feeling that the administration of justice in this African tribe
is fundamentally the same as in the United States or Great Britain. In
these countries, because many cases now are controlled by specific
statute, one receives the impression that law functions in a value-free
vacuum. To a great extent this is true, but chiefly because the complex
economies of western countries have created abstract relationships which
it might seem the law can handle mechanically. Yet, our courts still
search for the law, and are guided in its application by conceptions of
"purpose" with which judicial thought is freighted.
Moreover, the evidence of this study supports the view that neither
Austin nor Kelsen has captured the essential element of law in their
definitions of law as "command." Their theories are fruitful in that they
focus attention on the uniqueness of the legal phenomenon, but this
does not justify saying, as Kelsen has said, that the science of law has
nothing to do with justice or morality.5 John Chipman Gray argued, in
a similar vein, that the great gain in jurisprudence in the last century
has been to find that law has nothing to do with religion or morality or
with that which "ought to be," but simply with that which "is."6 He re-
flected the notion of Maine, who argued that "the severance of law from
morality, and of religion from law, [belongs] . . . very distinctly to the
later stages of mental progress." 7 What Professor Gluckman argues,
and I believe rightly, is that though it is possible to distinguish between
the legal order, a moral system, and a set of religious beliefs, it does not
follow from any kind of logic that the legal order does not contain
elements of moral and religious beliefs.8 At the source of law as well as
in the judicial process, the values of a society move into the legal order,
and any truly empirical study must acknowledge this value element as
an intrinsic part of the law. Mr. Justice Holmes, though he considered
his function on the bench of the Supreme Court to be to enforce what-
ever laws the people saw fit to pass, nevertheless did admit "without
hesitation that judges do and must legislate, but they can do so only

5 See KELSEN, GENERAL THEORY OF LAW AND STATE 5 (I945).


6 GRAY, THi NATURE AND SOURCES OF THE LAW 94 (2d ed. I92I); see Brecht,
The Myth of Is and Ought, 54 HARV. L. REV. 8ii (I94I).
7 MAINE, ANCIENT LAW i6 (ist ed. i86i).
8 It may be that Justice Frankfurter has not fully understood the thesis of
Professor Gluckman's book when he says that "I find reason for my comfort in
the fascinating account by Professor Max Gluckman of Manchester University of
the extent to which law permeates the lives of the Barotse tribes of Northern
Rhodesia, law in the sense in which this conference is discussing it and not some-
thing religious in nature." Frankfurter, John Marshall and the Judicial Function,
69 HARV. L. REV. 217, 236 (1955) (address delivered at the Conference on "Govern-
ment Under Law" held in September, 1955, under the auspices of the Harvard
Law School).

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i956] BOOK REVIEWS 787

interstitially; they are confined from molar to molecular motions."9


And Mr. Justice Cardozo was quite frank in pointing out that judges
seek not only the justice as it is presently conceived but the justice
which ought to be.10
We do not need to consider at the moment the vexing problems raised
by this thesis, especially in a society such as ours where cultural plural-
ism provides many religions and moral systems. It is sufficient to
realize that western law, just as Barotse law, contains moral and religious
convictions. No scientific theory of law is therefore adequate which
does not account for this moral element. Some may question the desir-
ability of injecting moral or religious convictions into the judicial
process, but the empirical fact is that it has been and is being done.
Mr. Justice Bradley, for example, made it quite clear in the polygamy
cases involving the Mormons that this is a Christian nation and on that
account polygamy is forbidden." This bears out Professor Gluckman's
thesis that in advanced societies, just as in primitive ones, the law is
drawn from, and is animated by, moral and religious convictions, and
that for this reason "the Lozi judicial process corresponds with, more
than it differs from, the judicial process in Western society." (p. 357)

SAMUEL ENOCH STUMPF *

FRAMEWORK FOR ATOMIC INDUSTRY. A Commentary on the Atomic


Energy Act of 1954. By Herbert S. Marks' and George F. Trow-
bridge.2 Washington: BNA Incorporated. 1955. Pp. viii, i i9, and
appendices. $12.50.

Probably never in the history of our own or any other legal system
have lawmakers essayed to devise a comprehensive system of legal con-
trols for an industry as far in advance of that industry's development as
the United States Congress has attempted for our congeries of atomic
industries. For once the lawyers have been ahead of the scientists and
the engineers. Whether their achievement, the Atomic Energy Act of
I954,3 will prove to have been at the cost of sound planning, experience
alone can demonstrate. In the interim, the resulting array of unknowns
and uncertainties has created problems for the officials who must ad-
minister the act, for the industrial firms subject to it, and for the authors
of works like the one under review.
Fortunately, the authors of this commentary are well equipped to
speculate concerning the problems of interpretation and application to

I Southern Pac. Co. v. Jensen, 244 U.S. 205, 22I (I9I7) (dissenting opinion).
10 CARDOZO, THE GROWTH OF THE LAW 87 (I924).
1" Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United
States, I36 U.S. I, 48-50 (i890).
* Chairman of the Department of Philosophy and Lecturer in Jurisprudence in
the Law School. Vanderbilt University.
' Member of the New York, Tennessee, and District of Columbia Bars.
2 Member of the New York and District of Columbia Bars.
3 68 STAT. 9I9 (I954), 42 U.S.C. ?? 20II-28i (SuPP. II, 1955).

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